Last week in an historic decision the Chief prosecutor of the International Criminal Court (ICC) Mrs. Fatou Bensouda announced that there is sufficient evidence to investigate Israel for war crimes committed against the Palestinians. The announcement followed the completion of preliminary investigations by the Hague-based court regarding war crimes carried out by both Palestinians and Israelis in Gaza, the West Bank, and East Jerusalem since June, 2014.

Focuses Of The ICC Investigation

Among the areas Bensouda will be investigating are atrocities surrounding the Palestinian protests dubbed the “Great March of Return” which have been staged daily on the Gaza Israel border since 2018, and Israel’s illegal occupation of East Jerusalem and the West Bank. Focus will be placed on the Israeli Defense Forces’s (IDF) indiscriminate killings of Palestinian civilians during the protests and in other contexts. On the Palestinian side, Bensouda will be focusing on Palestinian militant and extremist groups’ rocket attacks against Israel, wilful killing of civilians and use of human shields and torture.

Israeli PM Netanyahu On ICC Case: Part Of A ‘Political War Against Israel’

Israel’s reaction reaction to ICC’s announcement was swift and intense, casting the investigation as a step backwards in the peace process and a cynical persecution of Israel. Prime Minister Benjamin Netanyahu described the decision to pursue the case as a “black day for truth and justice” and a “baseless and scandalous decision”.

“As we are moving forward to new places of hope and peace with our Arab neighbors the international Criminal Court in the Hague is going backwards. On Friday it finally became a weapon in the political war against Israel.”

In Netanyahu’s view, the ICC has become a parody of the reasons for its creation. “The ICC was established after the horrors of World War II , in particular the terrible horrors done to our people, and is meant to deal with problems that states bring up against war criminals such as genocide or mass deportation,” Netanyahu said.

Potential Outcomes Of The ICC Investigation

Although nation states cannot be charged by the ICC, the investigation could lead to possible charges being brought against senior Israeli and Palestinian officials. If the case moves to the trial stage, then arrest warrants would potentially be issued against high ranking Israelis and Palestinians. On the Israeli side this could include Prime Minister Netanyahu, former Defense Minister Avigdor Liberman, Moshe Ya’alon, and The Chief of Israel Defense forces at the time of the atrocities in question, Lieutenant General Benny Gantz who is currently leading a bid to oust Netanyahu as Israel’s Prime Minister.

But what are the chances of Bensouda succeeding in prosecuting Israel? First of all, The ICC is governed by the Rome Statue which was ratified by 123 nations except Israel and United states. It is for this reason that Israel maintains that the ICC has no jurisdiction over it since it is not a party to the treaty under which the ICC operates.

Palestine on the other hand⁠—although not a sovereign state⁠—signed the Rome Statute in 2015. This move came three years after the UN General Assembly granted it the status of an observer state, and gave it the rights to sign treaties just like other members of the UN. Although the ICC began preliminary investigations in 2015, it was not until 2018 that the Palestinian Authority formally asked it to investigate war crimes and illegal settlement into its territory.

“The Palestinian referral seeks an investigation into Israeli crimes in the West Bank, Gaza strip and East Jerusalem since 1967,” said Palestinian Foreign Minister Riyad al-Maliki in May 2018 after making the referral to the ICC.

At that time Israel’s foreign ministry responded by stating that, “The purported Palestinian referral is legally invalid and the ICC lacks jurisdiction over the Israeli-Palestinian issue, since Israel is not a member of the Court and because the Palestinian Authority is not a state.”

Israel’s Position: Palestine Does Not Exist

Israel reiterated its stand last week, emphasizing that there is no state of Palestine, and the Palestinian Authority is not sovereign in the territory in question. It argued that signing the treaty did not grant Palestine statehood status before the ICC.

However despite Israel’s argument, the ICC maintains that it has limited and contextual jurisdiction over the nationals of countries such as Israel that are not signatories to the Rome Statute. “This includes when a citizen of non member country commits war crimes against humanity, and genocide on the territory of an ICC member state.”

This means that even though Israel is not under ICC jurisdiction, its citizens could face prosecution for war crimes committed in Palestine which is a signatory to the Rome statute. But again, despite Palestine being a member of the ICC it is not considered a state by Israel and various members of the international community, an issue that poses another legal challenge.

Likely Response By Israel: Full Non-Compliance With The ICC

Despite any weight to a legal argument giving the ICC some authority, Israel could still decide not to cooperate with the court altogether and refuse to hand over any of its citizens to the ICC. Lending credence to this option was a statement made by Netanyahu in 2015 when the ICC began preliminary investigations. In an address to his cabinet Netanyahu vowed to oppose the ICC and said “we will not allow Israeli soldiers and officers to be dragged to the International Criminal Court in The Hague.” That statement alone limits the chances of an Israeli being taken to the Hague for prosecution.

The Limits Of ICC Enforcement Power

The ICC doesn’t have agency or power to enforce warrants of arrest. Instead it relies on member states to carry out arrests. For example when an ICC-convicted individual travels to another country that is a signatory to the Rome Statute, that country is required to make an arrest and hand the suspect to the ICC. This is highly unlikely to happen in third-party countries in this case, however, because many countries are very wary jeopardizing their diplomatic relations with Israel.

When the ICC previously issued a warrant of arrest against the Sudanese leader Omar-El Bashir, no African country made an attempt to arrest him and hand him to the ICC despite numerous pleas by the prosecutor. Instead, Bashir continued to travel in Africa enjoying the protection of fellow heads of state.

On top of that, International justice processes are strongly influenced by security and economic interests that go far beyond the obligations laid out in the Rome Statute. Owing to the United States’ strong interests in Israel, it could use its powers over the UN or its own influence to frustrate the prosecution. Netanyahu seems to be sure of this judging by the remarks he made last week saying that the US was already fighting ICC distortions, lack of justice and lies against Israel.

Donald Trump’s One-Sided Position On The Israel-Palestine Conflict

Unlike former US presidents who tried to give a hearing to both sides on the Israeli-Palestinian conflict, Trump has shown how far he is willing to go to support and protect Israel. This was highlighted in words spoken by former US national Security advisor John Bolton. In a warning to the ICC in 2018 after it threatened to investigate possible war crimes committed by the US in Afghanistan. “If the court come after us , Israel, or other US allies we will not sit quietly,” Bolton said, adding that “we will not allow the ICC or any other organization to constrain Israel’s right to self-defense. We will consider taking steps in the UN security Council to constrain the court’s sweeping powers, including to ensure that the ICC does not exercise jurisdiction over Americans and the nationals of our allies that have not ratified the Rome statute.”

Specifically, Bolton vowed that the United States would retaliate by banning ICC judges and prosecutors from entering the US and imposing sanctions on any funds they had in the US and prosecuting them through the American court system.

Six months later US Secretary of State Mike Pompeo also issued a similar warning,saying “If you are responsible for the proposed ICC investigation of US personnel in connection with the situation in Afghanistan, you should not assume that you will still have or get a visa or that you will be permitted to enter the United States.” In just a matter of weeks the US government showed how serious they were, revoking the ICC chief prosecutor’s visa.

The threats by the US seemed to have worked out as planned, because one week after the revocation of the prosecutor’s visa , the ICC abandoned the Afghanistan war crimes investigations . There’s no doubt that the US could employ similar tactics to put pressure on the ICC with regards to Israel.

The ICC Is A Lame Duck Court

Apart from that the ICC itself is a lame duck court that has had very little success in carrying out prosecutions. In fact since its establishment it has only managed to convict two people.
Most of its cases such as that of Kenya’s President Uhuru Kenyatta have crumbled in disarray. This means that even if the ICC manages to put Israeli individuals suspected of committing atrocities in the Palestinian territory on trial, there are very slim chances that it would achieve a conviction or the ability to enforce a conviction.

L'articolo Does The ICC Stand Any Chance With Israel? proviene da InsideOver.

Justice, critics say, is the latest casualty in America’s Afghan war. It wasn’t lost on the streets of Kabul or the scorched sands of Helmand Province however – but in the courtrooms of the Hague. The International Criminal Court (ICC) last week decided to forgo investigation into alleged war crimes in the Afghanistan, despite acknowledging their likely existence. Such action, the judges argued, would not serve the interests of justice – but for some it simply underlined the court’s systemic impotence in the face of opposition.

“Extremely limited” were the prospects of a successful prosecution the three ICC pre-trial chamber judges said, delivering their unanimous decision. Certain inescapable factors accounted for this: the current instability of Afghanistan now half-controlled by a resurgent Taliban, questions over the evidence gathered since the preliminary examination opened in 2006, the court’s need to prioritise resources for cases with a better chance of success, and – crucially – the scarcity of cooperation from relevant parties.

On the last point, the ICC will feel especially vindicated. The most relevant of parties, the United States, has never recognized the court’s authority. Only days earlier Washington revoked the visa of Fatou Bensouda, the chief prosecutor – in line with a policy to shield US citizens “from unjust prosecution by this illegitimate court,” as put by National Security Adviser John Bolton. His boss, Donald Trump, could barely contain his glee at the ICC’s ruling, hailing it a “major international victory”.

And in a rare showing of unity, Democrats tacitly welcomed the decision – disdain for the Hague-based court is truly bipartisan in Washington. In Israel too there was jubilation, with the recently re-elected Benjamin Netanyahu branding the scrapped investigation “absurd”. The US-ally is facing an ICC probe of its own, focusing on alleged crimes committed in Gaza and other Palestinian territories.

But in Afghanistan, where the judiciary has struggled to prosecute those linked to alleged human rights violations, there was dismay. Now in its eighteenth year, America’s longest ever war has wrought misery upon a generation of Afghans. Knowing the limitations of domestic courts, victims’ families had placed faith in the ICC to deliver justice, submitting around a thousand complaints to the preliminary inquiry. Rather than serving the interests of justice, the court’s dismissal “contributes to a culture of impunity,” said the Afghanistan Independent Human Rights Commission (AIHRC).

This anger has been echoed globally by groups aghast at the ICC’s decision. For the court to conclude that it had “a reasonable basis” to believe war crimes had occurred but reject further investigation amounted to a “craven capitulation,” said Biraj Patnaik of Amnesty International. The group charged the court with “a shocking abandonment of the victims”, pointing to the US’s “bullying and threats” in explaining the step down.

And while the ICC identified a lack of cooperation from all sides – the Afghan authorities and Taliban included – it is indeed the US’s obstinance that has provoked the angriest backlash. Allegations against American operatives and their behaviour in the war are well documented. In their preliminary investigation, prosecutors claim to have found evidence of “torture, cruel treatment, outrages upon personal dignity, and rape” in regard to individuals under US military detention.

These, among a litany of other allegations, were not the actions of isolated individuals, they said, but seem to have been been part of an officially sanctioned system “approved at senior levels of the US government”. The CIA’s infamous “black sites” – secret prisons used for interrogations – were also detailed in the reports. Torture allegations were levelled at the Afghan security forces too, and thousands of civilian deaths were attributed to militant groups.

That these charges will not be further investigated sends a worrying message: “The powerful won’t be held to account,” says Katherine Gallagher, a senior attorney who filed victim representations to the ICC’s preliminary inquiry. Guénaël Mettraux, a leading international lawyer who has worked in the Hague, told Il Giornale that “the decision can only result in no justice at all,” adding that, if the court’s ruling isn’t overturned, it suggests “the ICC will only investigate where there is no resistance to its efforts, which is the exact opposite of what it was created for”.

Such doubts over the ICC’s primary function are growing. The Philippines and Burundi unilaterally withdrew from the court recently – both had been facing probes into possible human rights abuses. And in another dent to the body’s authority, Sundanese generals have said they won’t extradite former president Omar Hassan al-Bashir on genocide charges, choosing to imprison him themselves.

A further slip in credibility could follow the ICC’s Afghan ruling, critics say. “A real concern right now is that states which may be under ICC scrutiny will look at this decision and its content and say: ‘what we need to do to thwart accountability is make it so that the ICC thinks that investigations will be too hard to conduct; then we’re off the hook’,” says Mark Kersten of the Wayamo Foundation, an international justice group.

It was conceived as a court of last resort – the final hope for victims who could seek justice nowhere else. But for tens-of-thousands of Afghans, it seems the ICC will offer no recourse to their suffering. The prosecurial team is considering its options, but an appeal is far from guaranteed. And with an opponent like the United States, it’s easy to see why. But critics say that opposing the seemingly unopposable should be the in court’s very DNA. Regrettably, the fragile concept of international justice looks to be growing ever frailer.

L'articolo Afghan War Crimes Will Remain a Secret proviene da InsideOver.