On November 24, the editorial board of the Washington Post announced that A a piece In it the Pre-Trial Chamber of the International Criminal Court (ICC) gave its views on the recently issued arrest warrants for the Israeli authorities.
Reading it as a legal scholar, I found it full of misinformation and misrepresentation of facts. It is unclear whether the editorial is an attempt to mislead readers or reflects the Board’s significant lack of knowledge and research capabilities on ICC-related matters, or both.
In any case, the article deserves a response stating the facts and pointing out the misrepresentation.
Did the ICC ignore other serious circumstances?
Initially, the article points out that the ICC has failed to address international crimes in Syria, Myanmar and Sudan. This is clearly unrealistic.
The default basis for the ICC to exercise jurisdiction is on the territory of the Commission on International Crimes or the nationals of a state party to the ICC or a non-state party that has accepted the Court’s jurisdiction. The three states mentioned neither joined the ICC nor accepted its jurisdiction.
The court exercises jurisdiction in Sudan based on a United Nations Security Council resolution that referred the case to the court in 2005 — its right under the Rome Statute, the treaty that established the ICC. Since then, the ICC has been actively involved with the situation in Sudan, issuing seven arrest warrants and pursuing six cases.
The Post is concerned about the conduct of the paramilitary Rapid Support Forces but nowhere in its editorial does it mention that one of the leaders of its component militia, the Janjaweed, Ali Muhammad Ali Abd-al-Rahman, is already in ICC custody and on trial. This leaves the assertion that the office of ICC Prosecutor Karim Khan is still investigating the ongoing crimes.
In Myanmar, the Prosecutor’s Office opened preliminary examinations in 2018. Just over a year later, the Pre-Trial Chamber authorized the opening of an investigation. On November 27, the Prosecutor’s Office applied For an arrest warrant against the head of Myanmar’s military government, Min Aung Hlaing.
To do this, both Khan’s office and the Pre-Trial Chamber adopted unorthodox, precedent-setting interpretations of the limits of the legal text in order to overcome a jurisdictional challenge in the absence of a UN Security Council reference.
Although both ICC organs have held the crimes of “deportation” and “debilitation” to nationals of a non-state party and in the territory of a non-state party (Myanmar), the “conduct” that constitutes the crimes is coercion of the victims. Within the State Party (Bangladesh) territory; Consequently, the ICC must have jurisdiction because the crimes were “”partially”” committed in the State Party’s territory.
Despite the lack of grounds to exercise jurisdiction in Syria, former prosecutor Fatou Bensouda worked really hard to solve these crimes. Her office came up with a creative approach to examine acts committed by nationals of States Parties but ended up with a very narrow scope of perpetrators and crimes.
There is no ICC “failure” to address crimes committed in Syria; Instead, the Security Council failed to refer the Syria case to the ICC, as it did in Libya and Sudan. It is appropriate to criticize the Security Council system, including the United States’ decades-long tenure Abuse of its veto powerFor example, to protect Israel.
Should the Israeli system be prosecuted?
The post critically reproduces an Israeli and US talking point: Israel is a “democratic state committed to human rights” capable of investigating its own security forces. It argues that the ICC “should not be lumped into the category where dictators and autocrats kill with impunity the elected leaders of a democratic nation with an independent and independent judiciary”.
This argument misrepresents the law of the ICC and obscures the objective facts.
While Israel and its institutions may be considered “democratic” and “independent,” international law requires more than that. The principle of complementarity means that the ICC complements rather than replaces national jurisdictions. Thus, the ICC Prosecutor can only intervene when the State having jurisdiction is “passive” in the investigation of the crimes.
Either way complementarity means that elected officials and the independent judiciary of a democratic state enjoy immunity from ICC prosecution. Instead, it means that Israel needs to show that it has active investigations. Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Galant said the fact of Israel’s inaction regarding war crimes and crimes against humanity meant that the complementarity assessment had already been exhausted and the court could proceed.
And even if it is active, Israel needs to demonstrate the willingness and ability to honestly prosecute the perpetrator and the conduct. The ICC’s statute allows the ICC to intervene “if investigative activities undertaken by domestic authorities are not clear, concrete and progressive,” as concluded in the case of Ivory Coast first lady Simone Gbagbo on charges of crimes against humanity. .
Procedures designated to protect criminals or crimes in question warrant ICC intervention. For example, Israel requires the same person to be investigated for substantially the same conduct.
For decades, Israel has failed to hold its officers and members of its armed forces accountable for crimes, the Post has concealed. These failures have been repeatedly documented by the UN and human rights organizations.
A 2014 UN Commission of Inquiry, for example, “addresses procedural, structural and substantive deficiencies that continue to compromise Israel’s ability to adequately fulfill its duty to investigate”. Palestinian and Israeli NGOs have repeatedly criticized Israel’s tendency to whitewash its own crimes, and Amnesty International has deemed “an ICC investigation (to be) the only way” to uphold international law.
These reports are by no means unknown or recent. Human Rights Watch, for example, documented Israel’s failure to prosecute war crimes even before the 2014 war. Gaza isThe The Second IntifadaThe The First Intifada and the Israeli invasion of Lebanon in 1982, after which the Israeli government created the Kahan Commission Cover up The then Defense Minister Ariel Sharon was responsible for the Sabra and Shatila massacres.
Post’s omission of these facts does not appear to be mere negligence.
Do Arrest Warrants Support Charges Against ICC?
The editorial says the arrest warrants “undermine the credibility of the ICC and lend credence to allegations of hypocrisy and selective prosecution”. It maliciously misrepresents facts to deliberately deceive the reader.
Indeed there are long-standing, well-substantiated and almost undisputed accusations but not biased against countries like Israel. During the first 20 years of its operation, the court sought to prosecute only people from the African continent. Consequently, it is “Africa is a problem” and channeling the “assertion of neocolonial hegemony”.
The ICC’s indifference to atrocities by Western armies has been constantly mentioned, especially in relation to Palestine, Iraq and Afghanistan. As Valentina Azarova and Triastino Mariniello And I As previously argued in two articles, the Court’s action on crimes committed against Palestinians can help resolve its problems with effectiveness and legitimacy.
As a legal scholar, I have seen no hard-edged accusation against the Court that it is biased against the “elected leaders” of “democratic states” as the Post suggests. US attacks on the ICC – starting with the 2002 Hague Aggression Act, which threatens US aggression against any state that pursues an ICC arrest warrant for US citizens – are crude manifestations of US hegemony and unpolished thuggery.
Israel itself has been involved in similar activities as investigated by +972 MagazineThe Local call and the Guardian It was revealed in May. According to these publications, Israel waged a nine-year, state-coordinated campaign of espionage and intimidation against the ICC to protect its citizens from prosecution.
Finally, even in its decision to proceed with the prosecution of the Palestine file, the ICC is doing the bare minimum of what it should be. And it is not its “bias” – as the Washington Post argues – that compels it to act, but rather Israeli behavior – its scale, level of brutality and the unprecedented availability of conclusive evidence.
The views expressed in this article are the author’s own and do not reflect the editorial position of Al Jazeera.
