The summer of 2014 has come to a close with a very grim international outlook: the Israeli-Palestine situation appears to have simmered down, but there is no clear promise of a sustainable solution; it is possible that crimes against humanity have been committed in Eastern Europe, and probable that similar behavior will continue; Putin has announced a cease-fire plan to end months of violence in Ukraine, but many believe that aggression is still looming; and The Islamic State of Iraq and Syria (ISIS) seems to be growing into a bigger, more ruthless threat by the moment. In these situations where the leaders are exceptionally powerful, the events are appalling and dangerous, and the dimensions are vast: Is the ICC still viable? Is the Court even relevant? The answer to those questions we give here is: yes. The court is both viable and relevant, even in situations of such enormity.
Over the past month or so, the Palestinian Authority (PA) has made multiple threats to either ratify the Rome Statute, or make a new ad hoc declaration to enable ICC jurisdiction. Either action would enable the ICC to open an investigation into whether any war crimes or crimes against humanity have occurred in the most recent Israeli-Palestinian conflict. The hesitation to ratify or make a declaration initially seemed to be because this would enable the ICC to conduct an investigation into Palestinian activities as well: ICC jurisdiction extends to a whole situation, not just to one side or the other. However that concern was met when Hamas recently signed a pledge to back any Palestinian bid to join the International Criminal Court. Now that it has official support from each of its factions, the PA can request the jurisdiction of the Court. However, the PA seems to be more in favor of using the potential to join the Court as a bargaining chip in peace negotiations, rather than as a way to prosecute Israeli officials. This seems to leave the impression that not only is there a real possibility for the Court to be entirely disregarded if the PA decides not to seek jurisdiction, but also that the decision to involve the ICC is entirely out of the Court’s hands. However, these assumptions overlook another way for the Court to feasibly approach the Israel-Palestine situation than a PA request for jurisdiction.
Recently, an Israeli civil rights group, the Shurat Hasin Israel Law Center, filed information in the International Criminal Court to support a prosecution of Hamas leader Khaled Mashaal. This alleges that Hamas executed 20 Gaza civilians on July 28 for engaging in anti-Hamas protests, and executed at least 18 civilians on August 22 for collaboration with Israel. The complaints further state that Mashaal was fully aware of the executions, and even supported them. Furthermore, these actions fall under the jurisdiction of the Court because Mashaal is a citizen of Jordan, an ICC State Party. The Court is able to exercise jurisdiction over all acts committed by the citizen of a State Party, thus Khaled Mashaal is subject to prosecution. Assuming that all other ICC preconditions are met, the court could take up this case.
In the case of ISIS, it is carrying out deadly attacks whose brutality and ruthlessness have shocked the world. Its actions have killed thousands of people; enslaved about 300 Yazidi women and abducted hundreds, if not thousands, of men and women; and internally displaced of hundreds of thousands of Iraqis who have been fleeing to Iraq’s Kurdish region. ISIS militants seize control of towns and villages, herd groups of boys and men into trucks, and shoot them in cold blood. These massacres and abductions provide strong evidence that ISIS is ethnically cleansing religious minorities in northern Iraq on a historic scale. Apart from being both outrageous and despicable, these actions may constitute either crimes against humanity or genocide, or both. Systematic attacks directed against any civilian population because of their ethnic or political background, religion or belief may constitute a crime against humanity, and certain acts, if committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, may constitute genocide.
Iraq is not currently a State Party to the International Criminal Court. If it were to take the advice of many and ratify the Rome Statute or make an ad hoc declaration enabling ICC jurisdiction, the ICC Prosecutor would be able to open an investigation into the situation, and help stop the sectarian violence and ethnic cleansing in Iraq that has carried on for months. This action by Iraq may have a further benefit by deterring certain groups that have provided support for ISIS.
Moreover, in the event that Iraq does not ratify the Statute, or make a declaration to enable jurisdiction, there are other ways that the Court could act. On August 19, 2014, ISIS released a video of US journalist, James Foley, kneeing next to a man dressed in black. The video showed the beheading of Mr. Foley, and threatened the life of another American if President Obama did not end military operations. The man dressed in black, speaking on behalf of ISIS, appeared to speak with a British accent, and British intelligence officials believe they have identified the man. Furthermore, British intelligence estimates that about 500 Britons have joined ISIS, and they are said to be among many other Europeans believed to be part of the militant group. The fact that many European countries, including Britain, are State Parties to the ICC means that, citizens of those countries are subject to prosecution by the ICC, irrelevant of where their acts are committed. If citizens of State Parties who can be identified acted in a ways that qualify as crimes against humanity or genocide through their participation in ISIS, the Court would have a clear means of action.
Elsewhere in this dark time internationally, Ukraine and Russia are another primary concern for the ICC. Ukraine has been overcome by domestic unrest and external pressure from Russia since President Viktor Yanukovych refused to sign an association agreement with the European Union in November, 2013. Those tensions have continued and strengthened: Flight MH17 was shot down, heavy sanctions have been imposed on Russia, and pro-Russian separatists have caused internal turmoil in Ukraine. Recently, Russian troops have invaded Ukraine, and, following a week of combat, the two countries agreed to a temporary and shaky ceasefire. However, Russia has been unpredictable, and many leaders worldwide are skeptical of Putin’s reliability in sustaining the cease-fire. Meanwhile, in reaction to these events, coupled with the trouble in the Middle East, NATO has formed a rapid reaction force of several thousand troops.
These events in Ukraine do not currently fall under the jurisdiction of the International Criminal Court. However, the restrictions that prevent the Court from acting in this scenario are not only typical of a Court of this nature, but are also beneficial for the Court in other ways. They demonstrate that the Court respects the boundaries of its jurisdiction. Like any other court, the Court has a specific mandate and rules of jurisdiction: there is evidently the potential for trying individuals, but only for certain individuals, of certain nationalities, committing certain acts. These restrictions, though admittedly frustrating in certain situations, are essential in that they enable the Court to function objectively and equitably. They prevent politicization and counter fears of the Court becoming a loose cannon.
In conclusion, The International Criminal Court is without a doubt a force that is both relevant and viable during this time of turmoil. Where the Court can act, there are practical means of action, and where the Court cannot act, its respect for its limitations in place strengthen its credibility as responsible and disciplined.
Written by Jessica Levy