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
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