ICC Probe into Israeli-Palestinian Situation

As time drags on, Palestinian leaders and citizens become ever more eager to secure a formal investigation by the International Criminal Court (ICC) in The Hague into alleged Israeli crimes against Palestinians. Thus, in May of this year the Palestinian Authority (PA) formally referred its situation to the Court, hoping that this would speed up the ICC prosecutor’s decision on an investigation. Before the referral, Palestine had become a member state of the Court. This status gives the Court jurisdiction to possibly try Israeli government and military officials for crimes they have committed on the territory of Palestine even though Israel is not a member of the ICC. 

The referral by the PA accuses Israel of committing crimes under the jurisdiction of the Court, such as: genocide, crimes against humanity, war crimes and the ‘displacement and replacement’ of one population for another. The latter crime appears to be Palestine’s strongest case, given that the settlements are a well-documented Israeli government policy. Settlements have been specifically denounced by the international community, specifically through UN Security Council resolutions such as the most recent one, Resolution 2334, adopted in 2016. Yet, to this day, more than 600,000 Israelis have settled in the West Bank and East Jerusalem, with more on the way and no signs that this policy will be abated. Aside from the Israeli settlement policy, the Palestinian referral details Israeli crimes regarding thousands of Palestinians killed over the past three attacks on Gaza and most recently in protests through Israel’s excessive use of force. However, the prosecutor’s mandate is to investigate crimes committed on both sides of a situation. Thus, the Office of the Prosecutor (OTP) will simultaneously and equally look into alleged crimes committed against Israelis by Palestinians. For their part, Israel accuses (although not yet formally) the Gazan militant group Hamas as well as Palestinian leaders of vigorously conducting attacks that continuously endanger Israeli civilians. 

However, Palestinians have waited more than a few months hoping that the OTP will decide to open a formal investigation. The Court’s chief prosecutor, Fatou Bensouda, first opened a preliminary examination into the Israeli-Palestine situation back in January 2015, when Palestine became an official State Party to the ICC, thus enhancing the Court’s jurisdiction. Since then, Palestinian government representatives have presented the OTP with a slew of documents suggesting Israeli officials are liable for systematic criminal policies that include apartheid and the mass killings of unarmed protesters in Gaza. The Prosecutor has had more difficulty in obtaining trial-worthy evidence of Palestinian crimes.

Meanwhile, in what may be an indication that the Court senses that a decision of the Prosecutor is nearing, the Court’s Pre Trial Chamber has ordered the Registry to establish and implement a “system for public information and outreach activities for the benefit of the victims and affected communities in the situation in Palestine.” This order unfortunately conveys the erroneous message—one that Israel will use to further its argument that the Court is biased against it—that victims are solely Palestinian. Therefore, it would behoove the Court to clarify this statement to include victims in Israel as well. However as tensions rise between both sides, and this case becomes even more politically contested, the Prosecutor’s decision on an investigation has becomes ever more difficult.

Christel M. Mena 

Kofi Annan, the US and the International Criminal Court

Kofi Annan, former Secretary General of the United Nations, died on Saturday. The many  who mourn him worldwide will  remember this soft spoken,quietly determined and subtly skillful man with his great intelligence and enormous resolve. Most will also remember  his importance to values, issues or causes of their own.

I also mourn in general and also remember him for his large and central role in the making, over American opposition, of a free, fair and independent International Criminal Court (ICC,Court) -  a court as strong as any international organization can be. We who advocate for the Court in the United States must contend with this opposition. We would not have it otherwise. The Court he did so much to bring into being is the Court we want.

Annan's speeches from the beginning of the negotiations for the Rome Statute, and of encouragement and inspiration as they continued, were consistently clear and pointed. They were boldly stated in the awareness that the vision in them of an independent ICC would arouse the opposition, often intense, of some of the permanent members of the UN Security Council. He drew this vision from his own and the United Nations' experience with war crimes.

Annan's representative in the negotiations was his Under Secretary for Legal Affairs, Hans Corell. The story goes that as the end date for the negotiations approached, Annan was on an official visit to Argentina. He had told Corell to let him know at once if the Statute was agreed so that he could rush to Rome for the closing ceremonies.Corell took a call from Annan in the meeting room just as intense and noisy rejoicing at the adoption of the Statute exploded: "Have we a Statute?" Corell simply held up his phone so that Annan could hear the outburst. The Secretary General headed for the airport.

Several players in the negotiations worked hard, skillfully and effectively to achieve an ICC free of any requirement that its member states should consent to the Court's jurisdiction over crimes on their territories or by their nationals.(The United States forced its delegation to vigorously press for this requirement). The players included a very large civil society group organized by the international NGO Coalition for the International Criminal Court,the Like-Minded Group of countries and individual nations. Although Annan's clearly and regularly stated position encouraged and reassured them, his most important contribution was to the role and stance of the UN team responsible for supporting and guiding the negotiations throughout their four years.

The team generally carried out the fundamental UN responsibility  of being impartially open, responsive and helpful to all United Nations member states engaged in the negotiations. However, senior UN officials felt free to provide strategic advice and help to the officers of negotiating bodies in both New York and Rome to assist them to move toward the vision of the Court they shared with the Secretary General.

Thus, among the many memories of Annan that will persist is his central part in making the Court's jurisdiction over its original core crimes independent of the consent of its members. The legitimacy and authenticity this gives the Court will, with time and despite the opposition it has aroused, , sustain our advocacy for it in the United States.