Season 2 | Ep01:
The International Criminal Court: A Path to Israeli Accountability
The International Criminal Court (ICC) was founded in 2002, and declared itself to be in a global fight to end impunity as the world’s first permanent international criminal court. As of now, there are 123 countries that are States Parties to the Rome Statute of the ICC. There are three ways the ICC can exercise jurisdiction over individuals: by State party referral, as in the case of Palestine, but also when the UN Security Council refers a situation to the Court of any State member of the UN, including non-State parties of the ICC. This was done in the case of Darfur, Sudan and Libya. Interestingly, the US voted for referral in the case of Libya, and abstained in the case of Darfur, Sudan. The Court can also exercise jurisdiction through the Prosecutor’s own initiative, or what is called proprio motu, with the authorization of the Judges of the Pre-Trial Chamber. Examples of this include Kenya, Côte D'ivoire, Georgia, Burundi, and Afghanistan.
The ICC can only investigate and prosecute individuals, not States. While Israel is not a State party to the Rome Statute of the International Criminal Court, its nationals can be subject to the Court’s jurisdiction. The fact that Israel is not a party to the Rome Statute is irrelevant, because its nationals can be subject to the Court’s jurisdiction for crimes committed in Palestine.
Here’s a brief history of Palestine’s relationship with the court. In January 2009, Palestine declared its acceptance of the ICC”s jurisdiction without being a State Party. The matter was eventually closed in April 2012 as the first ICC Prosecutor, Luis Moreno Ocampo, announced uncertainties regarding Palestinian statehood under public international law. Subsequently, however, on April 3, 2012, Palestine’s status was upgraded from “observer entity” to “non-member observer State” via United Nations General Assembly resolution. Moreover, since the beginning of 2014, Palestine acceded to three dozen multilateral treaties, and the important practical consequence of such accessions, including that of the Rome Statute, is that it’s allowed to act like a State within those treaties. As such, on January 1st, 2015, Palestine accepted the jurisdiction of the ICC over alleged crimes committed in the Occupied PalestinianPalestinian territory since June 13, 2014. The next day, Palestine acceded to the Rome Statute, eventually leading to the Rome Statute entering into force for Palestine on April 1st, 2015.
After Palestine acceded to the Rome Statute, the ICC Prosecutor, on January 16th 2015, announced the opening of a preliminary examination into the Situation in the State of Palestine in order to determine whether the Rome Statute criteria for opening an investigation are met. On May 22nd, 2018, Palestine referred to the Prosecutor the Situation since June 13, 2014, with no end date. On December 20th, 2019, after the Prosecutor’s nearly 5 year preliminary examination, it was determined that the statutory criteria under the Rome Statute for the opening of an investigation had been met.
On January 22nd, 2020, the Prosecutor requested that the Pre-Trial Chamber I determine the territorial scope of the Court’s jurisdiction. While the Prosecutor was not required to seek authorization from the Pre-Trial Chamber to proceed with an investigation, she felt it was prudent to seek confirmation, not authorization, of her position as to territorial jurisdiction. This allowed the Prosecutor to ensure an effective investigation and judicial certainly, as well as promote judicial economy.
On February 5th, 2021, the International Criminal Court (ICC) decided that the Court’s territorial jurisdiction extends to the Occupied Palestinian Territories, namely Gaza, and the West Bank, including East Jerusalem. This means that the ICC prosecutor can begin investigating Israel for war crimes and crimes against humanity. By ruling on the territorial scope of its jurisdiction, the Court did not determine the boundaries of the State of Palestine under international law, but only that Palestine is a State party for the purpose of defining the Court’s territorial jurisdiction in the investigatory process.
But what about the Oslo Accords? Didn’t Israel and Palestine sign agreements to leave the issue of borders to be determined at a later date. Shouldn’t that be the guiding framework? Not surprisingly, the ICC said no, and concluded that the Oslo Accords are not pertinent to the resolution of the issue of the Court’s territorial jurisdiction.
Since its founding in 2002, the target of the ICC’s investigations was primarily in Africa. Out of the 51 individuals listed as defendants in ICC cases, 48 of them are from Africa. This apparent bias earned the Court’s first Prosecutor plenty of criticism. We’ve witnessed a slightly positive change of course under the direction of the Court’s subsequent Prosecutor, Fatou Bensouda, where preliminary examinations stretched beyond Africa to South America and the Philippines.
The United States shamefully protects Israel from accountability and objects to holding itself accountable. The U.S. State Department made clear its position that the US and Israel should not be subject to the Court’s jurisdiction as they are not State parties and that Palestine is not a sovereign State. These positions were clearly rejected by the Court.
When the ICC opened in 2002, Congress passed a bipartisan bill called the American Service Members Protection Act that limits the U.S.’s ability to cooperate with the Court. This bill authorizes the use of military force to liberate any American or citizen of a U.S. allied country (e.g. Israel) being held by the Court. This provision was rightly dubbed the “Hague invasion clause.”
Following the ICC Prosecutor’s decision to commence a preliminary examination in Palestine, some States politicized the proceedings and attempted to financially cripple the Court, mainly from the United States. Former President Trump’s US national security adviser John Bolton threatened to ban ICC judges and prosecutors from entry into the US, sanction their funds, and declared “we will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.” The US attack on the ICC was launched in September 2018 and included banning the ICC and its personnel, such as judges and prosecutors, effectively targeting the credibility of the Court and the independence of its Prosecutor. But it didn’t end there.
By June 2020, the Trump administration revoked the visa of the ICC Prosecutor and other staff members of her office. President Trump took it to the extreme when, under the pretext of a national emergency, he issued an Executive Order authorizing asset freezes and imposing bans on ICC officials, employees, agents, as well immediate family members. The order also declared that the ICC “must respect the decisions of the United States,” as opposed to the other way around. While President Biden revoked Trump’s Executive Order, he essentially accepted the status quo ante by declaring that the US “continued to object to the International Criminal Court’s assertions of jurisdiction” over non-State parties such as the US and its allies, which includes who? You guessed it, Israel.
These attacks on the Court did not stop the international community from its pursuit for Israeli accountability. The UN Human Rights Council (HRC) established a Commission of Inquiry in May 2021 to investigate the underlying root causes of Israel’s systematic racial discrimination and repression against the Palestinian people in all of historic Palestine. This is the first permanent UN investigative body with a comprehensive mandate covering all of Palestine and all Palestinians. It’s also vital to investigating Israeli crimes and more importantly to ensure legal accountability. However, since its establishment, it has been under coordinated attacks by Israel, and a US-led coalition of States alleging that its mandate is “biased” and “disproportionate[ly] focus[ed] on Israel.”
Nearly a year later, Congress decided to join the climate of selective outrage by showcasing the blatant hypocrisy of some of its members. In early March 2022, a Senate resolution sponsored by Senator Lindsey Graham of South Carolina and co-sponsored by both parties praised the ICC, describing it as “an international tribunal that seeks to uphold the rule of law, especially in areas where no rule of law exists.” Where was Senator Graham when Trump authorized sanctions on the Court two years earlier? Oh that’s right, that was after the ICC’s appeals chamber authorized its Prosecutor to investigate the possibility of war crimes and crimes against humanity by US forces in Afghanistan and at various CIA black sites in nations that were party to the ICC. Even President Biden himself labeled Putin a “war criminal” and called for a “war crimes trial.” The selective outrage is glaring.
A quick comparison will illustrate the selective human rights focus and double standard of the West. From March to April 2022, 43 States, including EU member states, Australia, Canada, Iceland, New Zealand, Norway, Switzerland and the United Kingdom, requested that the ICC investigate alleged war crimes and crimes against humanity in Ukraine.
The ICC’s newest Prosecutor Karim Khan immediately accepted the request, as he should have. However, pursuing justice and accountability in Ukraine while explicitly opposing or silently rejecting the same in Palestine is to render Israel immune from prosecution and contribute to the dehumanization of the Palestinian people. In the context of Afghanistan, Karim Khan decided in September 2021 to “deprioritize” the investigation into American forces, and focus instead on Afghanistan’s new rulers and the rival Islamic State in Khorasan Province. The ICC already gave a pass to the United Kingdom over crimes committed in Iraq, even though “it is without dispute there is evidence war crimes were committed.” So it’s obvious where and who the exceptions to accountability are.
In the context of Palestine, crimes are ongoing. Remember, the ICC has jurisdiction for crimes already committed, and ongoing crimes. The Office of the Prosecutor continues to receive evidence of crimes as the investigation unfolds. For example, The International Federation for Human Rights (FIDH) and its member organization in Israel, the Public Committee Against Torture in Israel (PCAT), presented a joint communication to the Office of the Prosecutor denouncing alleged crimes committed by Israeli Security Agency (ISA) against Palestinian detainees, and to include within the scope of the investigation the crimes of torture, inhuman treatment, unlawful deportation and violations of the right to fair trial committed by ISA. In fact, Amnesty International called on the United Nations Security Council to refer the entire situation to the ICC to include all of historic Palestine, from the Jordan river to the Mediterranean Sea.
What crimes is the Prosecution targeting? The ICC has jurisdiction over the crime of genocide and aggression, crimes against humanity, and war crimes. With respect to Palestine, the Prosecutor will be focus on willful killings, torture, inhuman treatment or serious injury to body or health, deprivation of the right to a fair trial, among other crimes. However, it should not end there. The Prosecutor's investigation must expand to include other crimes, such as the crime against humanity of apartheid.
It’s important to note that the Pre-Trial Chamber determined that the territorial parameters of the Court’s jurisdiction is for the sole purpose of establishing individual criminal responsibility. So, in a sense, the Court put the question of territorial jurisdiction to rest. However, the Court left open the possibility that “further questions of jurisdiction . . . may arise” during the phase of issuing
warrants or arrests or summons to appear.
The decision to investigate Israeli crimes is a great first step, but that’s all it is, a step. Accountability will only come if we pressure the international community to demand justice. We must be at the forefront of the Palestinian struggle for justice and liberation.