Tag Archives: ICC

Palestinian Recourse to the International Criminal Court: The Time has Come

21 Jul

[Prefatory Note: “Palestine’s Dilemma: To Go or Not to Go to the International Criminal Court” was published on July 13, 2014 on the website of Middle East Eye, a site I strong recommend to all those with an interest in Middle East issues; this post represents a somewhat revised text, but within the framework of the original; the political plausibility of invoking the Inteernational Criminal Court to investigate allegations of criminality directed at Israel increases with each passing day.)

 

 

 

Ever since this latest Israeli major military operation against Gaza started on July 8, there have been frequent suggestions that Israel is guilty of war crimes, and that Palestine should do its best to activate the International Criminal Court (ICC) on its behalf. The evidence overwhelmingly supports basic Palestinian allegations—Israel is guilty either of aggression in violation of the UN Charter or is in flagrant violation of its obligations as the Occupying Power under the Geneva Convention to protect the civilian population of an Occupied People; Israel seems guilty of using excessive and disproportionate force against a defenseless society in the Gaza Strip; and Israel, among an array of other offenses, seems guilty of committing Crimes Against Humanity in the form of imposing an apartheid regime in the West Bank and through the transfer of population to an occupied territory as it has proceeded with its massive settlement project.

 

Considering this background of apparent Israeli criminality it would seem a no brainer for the Palestinian Authority to seek the help of the ICC in waging its struggle to win over world public opinion to their side. After all, the Palestinians are without military or diplomatic capabilities to oppose Israel, and it is on law, global solidarity, and their own creative and brave resistance that the Palestinian people must rest their hopes for eventually realizing their rights, particularly the right of self-determination and the right of return. Palestinian demonstrators in the West Bank are demanding that their leaders in the Palestinian Authority adhere to the Rome Statute, and become members of the ICC without further delay. It has become part of the message of Palestinian street politics that the Palestinians are being criminally victimized, and that the Palestinian Authority if it wants to retain the slightest shred of respect as representatives of the Palestinian people must join in this understanding of the Palestinian plight and stop ‘playing nice’ with Israeli authorities.

 

Such reasoning from a Palestinian perspective is reinforced by the May 8th letter sent by 17 respected human rights NGOs to President Mahmoud Abbas urging Palestine to become a member of the ICC, and act to end Israel’s impunity. This was not a grandstanding gesture dreamed up on the irresponsible political margins of liberal Western society. Among the signatories were such human rights stalwarts as Human Rights Watch, Amnesty International, Al Haq, and the International Commission of Jurists, entities known for their temporizing prudence in relation to the powers that be.

 

Adding further credence to the idea that the ICC option should be explored was the intense opposition by Israel and United States, ominously threatening the PA with dire consequences if it tried to join the ICC, much less to seek justice through its activating its investigative procedures. The American ambassador to the UN, Samantha Power, herself long ago prominent as a human rights advocate, revealed Washington’s nervous hand when she confessed that the ICC “is something that really poses a profound threat to Israel.” I am not sure that Power would like to live with the idea that because Israel is so vulnerable to mounting a legal challenge that its impunity must be upheld whatever the embarrassment to Washington of doing so. France and Germany have been more circumspect, saying absurdly that recourse to the ICC by Palestine should be avoided because it would disrupt ‘the final status negotiations,’ as if this pseudo-diplomacy was ever of any of value, a chimera if there ever was one, in the elusive quest for a just peace.

 

In a better world, the PA would not hesitate to invoke the authority of the ICC, but in the world as it is, the decision is not so simple. To begin with, is the question of access, which is limited to states. Back in 2009, the PA tried to adhere to the Rome Statute, which is the treaty governing the ICC, and was rebuffed by the prosecutor who turned the issue over to the Security Council, claiming a lack of authority to determine whether the PA represented a ‘state.’ Subsequently, on November 29, 2012 the UN General Assembly overwhelmingly recognized Palestine as ‘a nonmember observer state.’ Luis Moreno–Ocampo who had acted in 2009 for the ICC, and now speaking as the former prosecutor, asserted that in his opinion Palestine would now in view of the General Assembly action qualify as a state enjoying the option of becoming an ICC member. Normally, ICC jurisdiction is limited to crimes committed after the state becomes a member, but there is a provision that enables a declaration to be made accepting jurisdiction for crimes committed at any date in its territory so long as it is after the ICC itself was established in 2002.

 

Is this enough? Israel has never become a party to the Rome Statute setting up the ICC, and would certainly refuse to cooperate with a prosecutor who sought to investigate war crimes charges with the possible intention of prosecution. In this regard, recourse to ICC might appear to be futile as even if arrest warrants were to be issued by the court, as was done in relation to Qaddafi and his son in 2011, there would be no prospect that the accused Israeli political and military figures would be handed over, and without the presence of such defendants in the court at The Hague, a criminal trial cannot go forward. This illustrates a basic problem with the enforcement of international criminal law. It has been effective only against the losers in wars fought against the interests of the West and, to some extent, against those whose crimes are in countries located in sub-Saharan Africa. This biased form of international criminal law implementation has been the pattern since the first major effort was made after World War II at Nuremberg and Tokyo. Surviving German and Japanese leaders were prosecuted for their crimes while exempting the winners, despite Allied responsibility for the systematic bombing of civilian populations by way of strategic bombing and the American responsibility for dropping atomic bombs on the heavily populated cities of Hiroshima and Nagasaki.

 

Unfortunately, up to this time the ICC has not been able to get rid of this legacy of ‘victors’ justice,’ which has harmed its credibility and reputation. All ICC cases so far have involved accused from sub-Saharan African countries. The refusal of the ICC to investigate allegations of war crimes of the aggressors in relation the Iraq War of 2003 is a dramatic confirmation that leading states, especially the United States, possess a geopolitical veto over what the ICC can do. The ICC failure to investigate the crimes of Bush and Blair, as well as their entourage of complicit top officials, vividly shows the operations of double standards. Perhaps, the climate of opinion has evolved to the point where there would be an impulse to investigate the charges against Israel even if procedural obstacles preventing the case from being carried to completion. Any serious attempt to investigate the criminal accountability of Israeli political and military leaders would add legitimacy to the Palestinian struggle, and might have a positive spillover effect on the global solidarity movement and the intensifying BDS campaign.

 

Yet there are other roadblocks. First of all, the PA would definitely have to be prepared to deal with the wrath of Israel, undoubtedly supported by the United States and more blandly by several European countries. The push back could go in either of two directions: Israel formally annexing most or all of the West Bank, which it seems determined to do in any event, or more likely in the short run, withholding the transfer of funds needed by the PA to support its governmental operations. The U.S. Congress would be certain to follow the lead of Tel Aviv even if the Obama presidency might be more inclined to limit its opposition to a diplomatic slap on the PA wrist as it did recently in reacting to the June formation of the interim unity government, an important step toward reconciling Fatah and Hamas, and overcoming the fragmentation that has hampered Palestinian representation in international venues in recent years.

 

A second potential obstacle concerns the jurisdictional authority of the ICC, which extends to all war crimes committed on the territory of a treaty member, which means that leaders of Hamas would also likely be investigated and indicted for their reliance on indiscriminate rockets aimed in the direction of Israeli civilian targets.There is even speculation that given the politics of the ICC such that crimes alleged against Hamas might be exclusively pursued.

 

If we assume that these obstacles have been considered, and Palestine still wants to go ahead with efforts to activate the investigation of war crimes in Gaza, but also in the rest of occupied Palestine, what then? And assume further, that the ICC reacts responsibly, and gives the bulk of its attention to the allegations directed against Israel, the political actor that controls most aspects of the relationship. There are several major crimes against humanity enumerated in Articles 5-9 of the Rome Statute for which there exists abundant evidence as to make indictment and conviction of Israeli leaders all but inevitable if Palestine uses its privilege to activate an investigation and somehow is able to produce the defendants to face trial: reliance on excessive force, imposing an apartheid regime, collective punishment, population transfers in relations to settlements, maintenance of the separation wall in Palestine.

 

The underlying criminality of the recent aggression associated with Protective Edge (Israel’s name for its 2014 attack on Gaza) cannot be investigated at this point by the ICC, and this seriously limits its authority. It was only in 2010 that an amendment was adopted by the required 2/3 majority of the 122 treaty members on an agreed definition of aggression, but it will not become operative until 2017. In this respect, there is a big hole in the coverage of war crimes currently under the authority of the ICC.

 

Despite all these problems, recourse to the ICC remains a valuable trump card in the thin PA deck, and playing it might begin to change the balance of forces bearing on the conflict that has for decades now denied the Palestinian people their basic rights under international law. If this should happen, it would also be a great challenge to and opportunity for the ICC finally to override the geopolitical veto that has so far kept criminal accountability within the tight circle of ‘victors’ justice’ and hence only accorded the peoples of the world a very power-laden and biased experience of justice.

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Prosecuting Syrians for War Crimes Now

5 Jun

 

 

            A major undertaking of the victorious powers in World War II was to impose individual criminal accountability upon political and military leaders for alleged crimes committed during wartime before a tribunal convened by the victors that gave those accused a fair opportunity to present a defense. This application of this idea of accountability to German and Japanese surviving leaders at trials held in Nuremberg and Tokyo was hailed at the time as a major step in the direction of a ‘just peace.’ International law was treated as binding upon sovereign states and those that represented the government, conceived to be a major step in the direction of a global rule of law. The final decisions of these tribunals also produced a narrative as to why World War II was a necessary and just war. Such an outcome was both a vindication of the victory on the battlefield and a punitive repudiation of those who fought and lost. Significantly, this criminal process was formally initiated only after the combat phase of the war had ended and Germany and Japan had surrendered.

 

            There were skeptics in 1945 that whispered ‘victors’ justice,’ and insisted that this ‘Nuremberg experience’ was a partisan exercise in truth-telling. Above the courtroom hung an invisible sign reading ‘only losers need enter here.’ The Nuremberg goddess of ‘war justice’ wore no blindfold, assessed with one eye the crimes of the losers and averted her other eye so as not to see the crimes of the winners. In the actual trials those whose criminality was being assessed were not accused of any crimes that resembled the practices of the winners, and were not allowed by the tribunal bring up in their defense any of their alleged crimes.

 

            Many wanted to overlook this flaw, and move on to create a justice system that would indeed operate on the basis of the nature of the act as criminal or not, and not make criminality depend on the identity of the actor. But moving toward the ideal of equality before the law has not been easy. It requires elevating international criminal law above the precepts of geopolitics. Yet the impulse to do so in form has surfaced strongly in the aftermath of the Cold War, but we have yet to see any corresponding substantive transformation that must occur if equals are to be treated equally in international criminal law.

 

            Against such a background, the attempts to hold individuals, whether acting on behalf of governments or insurgencies, individually accountable for war crimes is treated as a core element of global justice. Since the International Criminal Court (ICC) was established in 2002, an institutional mechanism exists on a global level by which to apply international criminal law in an objective and authoritative manner. Further there exists convincing proof that horrifying atrocities have been committed in the course of the Syrian civil war, principally by the government and armed forces of Syria, and to a far lesser extent by various factions among the fragmented opposing rebel forces. In these circumstances, it would certainly seem appropriate to charge both Syrian government officials, including military commanders, and members of the insurgent opposition, with such crimes.

 

            France presented a resolution to the UN Security Council on 22 May calling upon the ICC to investigate allegations of war crimes in Syria, and to proceed with prosecutions to the extent possible. The resolution was supported by a 13-2 vote, yet it failed to pass because the two dissenting votes were cast by Russia and China, countries enjoying a right of veto. As might be expected, there have been angry explanations of the result given by both sides. According to the Russian delegate, the French initiative was nothing more than ‘a publicity stunt’ that would hamper, or even preclude, the difficult search for a diplomatic end to the strife. The Western reaction, significantly endorsed by the UN Secretary General’s office, declared that such a use of the veto was ‘irresponsible,’ even ‘disgraceful.’ It amounted to a de facto grant of impunity to the worst perpetrators of state crime active on the planet at this time.

 

            I believe that both of these contrasting reactions are understandable, and can be given a qualified endorsement despite seeming to contradict one another. The Russian reaction reflects a view that the main motivations for such a resolution is to weaken the legitimacy of the Damascus regime in the midst of an unresolved struggle for control of the country, and in this sense is better interpreted geopolitically as an irresponsible propaganda move rather than as a genuine attempt to promote criminal justice. As well, it has been Moscow’s insistence all along that the only way to end the violence in Syria is by way of diplomatic compromise. Thus, any attempt to indict Syrian leaders as war criminals while the fighting persists weakens the already dim prospects of resolving the conflict by diplomacy. It gives Assad and other Syrian leaders, the circle of those that likely would have been indicted, strong incentives to rely on combat rather than take their chances with diplomacy.

 

            The French approach, strongly supported by the Western powers, especially the United States, focuses on the clear evidence of criminality attributable to the Damascus regime. Such behavior deserves to be formally criminalized, and the fact that the Assad regime remains in power enhances the urgency of doing so. There is no need to look beyond these facts, and taking such action may increase the pressure on the Syrian government to seek accommodation.

 

            Further along these lines, the argument that recourse to the ICC will end diplomatic efforts to end the violence is specious. Conventional diplomacy has been given many chances, and has failed. They claim that diplomacy has been repeatedly tried and failed, including reliance at the highest levels on the good offices of the UN and Arab League through the determined efforts by Special Envoys, first, Kofi Annan and the Lakhdar Brahimi. To act as if diplomacy might succeed in the future is mainly a diversionary tactic to discourage taking immediate steps that might bring the war to an end in ways that are helpful to the aspirations of the majority of Syrians. The supporters of the French resolution argue that activating the ICC will produce public indignation, swing support to the insurgent side, and produce a more politically and morally desirable end game to the conflict by discrediting the Damascus regime and empowering the opposition within Syria, the region, and the world. There are many uncertainties exposed by this debate. It is difficult to reach a clear conclusion as to which side is more persuasive, but there are a series of considerations that should be taken into account, and add weight to those who voice skepticism about the French initiative.

 

            Motivation. There are reasons to think that this effort at this time is mainly an expression of frustration and desperation, and as such a misuse of the ICC by Western powers. True, the crimes of the insurgent rebels as well as those of the Syrian government were included in the proposed resolution, but the motivation was to delegitimize the Damascus government. Yet the rationale for initiating a criminal investigation directed at the leadership of all participants in the midst of a civil war for the control of the country seems like a misdirected move that is made in the face of the failure of earlier Western efforts to intervene sufficiently on the insurgent side .to produce regime change

            Timing. To use the ICC in the midst of an ongoing civil war in Syria is to take sides, and thus interfere with an ongoing internal struggle for control of the state and society. Mentioned above, even the Allied Powers in World War II waited until the guns fell silent before initiating any criminal process. As such, acting in the present setting interferes with the right of self-determination enjoyed by the people of Syria. Yet since there has been already considerable interference through funding and material support, the preconditions for self-determination do not exist, making an end to the violence that has been so devastating for the population of the country a primary goal. This makes it seem that the most important question to ask is whether criminal indictments while the war rages is likely to hasten or delay an ending of the conflict. And since neither side has shown the ability to prevail, the Russians seem right in their insistence that despite disappointments with earlier efforts, diplomacy continues to be the only path forward, although it is admittedly narrow.

           

            Justice. Is justice served when the authority of the ICC is invoked as a political instrument to influence the outcome of a civil war? There are reasons to worry about the discrediting impact of double standards. Why was there never any initiative to pursue leaders of the United States and the United Kingdom during the course of the Iraq War, which also included many incidents that seemed to qualify as crimes against humanity? This question takes on greater weight when added to earlier criticisms of the profile of the ICC, which has pursued a variety of sub-Saharan African leaders, but few others. It is also relevant to recall that the Serbian leader, Slobodan Milosevic, was indicted in the midst of the Kosovo War in 1999 undertaken without UN authorization by NATO, again seemingly motivated by the urge to strengthen public support for the justness of a legally controversial military effort to end Serbian administration of Kosovo. Again in the NATO led military operation against the Libyan regime, the ICC issued arrest warrants for the Qaddafi leadership while NATO planes were bombing Tripoli. In effect, the allegation being made by critics of such war crimes prosecutions is that the whole undertaking has been politicized in ways that lead to a selective application of the law that seems inconsistent with claims of justice. In effect, the criticism of Nuremberg still applies—only losers and the weak are accountable. For the others, impunity.

 

            Feasibility. The unlikelihood of obtaining personal jurisdiction in relation to the principal perpetrators of war crimes in Syria, especially Bashar al-Assad and major political officials and military commanders, makes the claimed rationale for seeking indictments at this stage also suspect. Proceeding now seems to have as its main justification a means to add moral weight to the position of pro-insurgency governments that something more should be done to stop the criminality of the Assad-led government. Reinforcing this reasoning is a consensus that since military intervention is not feasible and diplomacy has failed, the only option left is to charge Syrian leaders with crimes against humanity. The ICC provides a venue to mobilize pressure for giving additional help to the rebels, and at the same time depriving the Damascus government of whatever is left of its legitimacy. The fact that the French resolution calls also for an investigation of possible crimes against humanity committed by the opposition, while not being frivolous, is nevertheless certain to receive far less attention in the event tha the UNSC had given the ICC a green light.

 

            There is a serious question as to whether it is appropriate to use the ICC to gather evidence and prepare an indictment in circumstances where prospects of prosecution are remote and an ongoing struggle for control of the Syrian state remains unresolved. Such limitations also would seem to reinforce concerns about the timing of this initiative. It makes recourse to ICC not only ineffectual as a means to pursue criminal justice, but damaging to the credibility of this fledgling international institution that was created, it should be remembered, to overcome the vagaries of geopolitics, not to serve as their instrument for engaging in maneuvers.

 

            Concluding Comment. There are two intertwined concerns: First, whether seeking criminal indictments of Syrians accused of crimes against humanity is on balance helpful or harmful in relation to the search for peace that has so far proved fruitless. This issue should be considered in relation to prospects for resolving the devastating conflict in Syria that has already lasted for more than three years.

 

            And secondly, whether such recourse to the ICC would strengthen or weaken this judicial institution, and its need to overcome the strong impression of operating on the basis of double standards in relation to criminal accountability. So far all efforts to use the ICC in response to crimes alleged against Western countries have been rebuffed, and Western leaders have enjoyed impunity and have minimized their own participation in the activities of the ICC except when it serves their interests in going after adversaries. A tiny opening is the recent indication that the ICC is formally investigating criminal charges relating to the abuse of Iraqi detainees by United Kingdom occupying forces in the years after 2003. Perhaps, the times are changing, after all!

 

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