By: Dr. Abdul Rahman ‘Ali.
In 1998 in Rome, Italy, it was agreed to establish the International Criminal Court (ICC) under an international treaty that entered into force on 1/7/2002. The purpose of the establishment of this court is to prosecute the perpetrators of international crimes and prevent them from going unpunished. This treaty is only binding to the countries that ratified it in principle.
The ICC is completely independent of any state or international organization. No outside party can pressure or influence the ICC because it is based on an international treaty subject to precise and clear rules.
The Office of the Prosecutor at the ICC is the authorized entity to investigate and issue arrest warrants against people accused of genocide, crimes against humanity, or war crimes stipulated in the Rome Statute. No external party, except for the United Nations (UN) Security Council under Chapter VII of the UN Charter, or any other internal party can influence the investigation carried out by the Prosecutor’s Office.
ICC judges can reject the Prosecutor’s request to issue arrest warrants if the conditions specified in the Statute are not met. So far, ICC judges have not rejected any investigations or arrest warrants requested by the Prosecutor.
People observing the work of the Prosecutor’s Office will note that the Prosecutor’s policy is to prosecute persons who bear the greatest criminal responsibility, and who happen to be politically or militarily prominent figures. For example, the ICC issued international arrest warrants against heads of state, ministers of interior, and defense ministers, and against military officials in regular armies or insurgent groups.
This policy has to do with the fact that it is not possible to technically investigate each crime committed due to the limited human and financial resources. For this reason, the Prosecutor chooses crimes that serve as an example and a sample of what happened, and prosecutes the high profile political officials such as heads of state or ministers, and leaves small cases to national justice systems.
States can appeal to the ICC judges regarding the admissibility of cases and claim that they are investigating and prosecuting the crimes in question, but this is subject to accurate and detailed conditions. The state challenging the admissibility of a case before the ICC judges must demonstrate to the judges that they are investigating and prosecuting the same crimes and people who have been indicted by the Prosecutor.
The state must also convince the ICC judges that it is carrying out investigations and prosecutions in a serious manner and not trying to protect people from criminal responsibility. For instance, all investigations Israel carried out in the past and is carrying out now are not serious and are only meant to protect Israelis from criminal responsibilities arising from violations of international humanitarian law.
As explained earlier, the Prosecutor’s Office policy is to prosecute persons such as heads of state, ministers, or army commanders, not soldiers. Until now, we have not seen Israel investigating any such persons for their responsibility for crimes committed in Palestine.
The ICC has jurisdiction only with respect to crimes committed after 1/7/2002, the date the Rome Statute entered into force. Every crime committed before that date is not within the jurisdiction of the ICC, and the Prosecutor’s Office cannot investigate them.
The Prosecutor’s Office cannot investigate crimes within the jurisdiction of the ICC unless they take place in the territory of a state party to the Rome Statute, or the state in question accepts the jurisdiction of the Prosecutor’s Office in investigating these crimes; or if the person charged or under investigation belongs to a state party to the Rome Statute; or if the UN Security Council under Chapter VII of the UN Charter, requests the Prosecutor’s Office to investigate crimes taking place in the territory of any state, whether a party or non-party to the Rome Statute.
Here, it must be noted that even though the ICC statute did stipulate under article 16 that “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.” It would be hard to imagine that the United Kingdom or France, which are part of the ICC, would be able to accept any draft resolution preventing or stopping the ICC to do its work.
As for the state itself, only a state recognized by the UN can sign up to the Rome Statute or accept the jurisdiction of the ICC Prosecutor in order to exceptionally investigate.
On 29/11/2012, the UN General Assembly upgraded the status of Palestine to a non-member observer state. Subsequently, the ICC Prosecutor declared on 14/9/2014 that Palestine could join the Rome Statute, and ask the Prosecutor’s Office to investigate any crimes committed on occupied Palestinian territories.
This means that the problem of whether or not Palestine has the right to sign up for the Rome Statute has ended. No side can challenge Palestine’s right as a state to join the Rome Statute. The Assembly of States Parties to the Rome Treaty cannot question, challenge, or reject a request from Palestine to join, because the UN General Assembly is the only body mandated to this, and it has recognized Palestine as a state.
This recognition has opened the door for the first time in modern history to the possibility of suing Israeli political and military leaders before the ICC. All political and financial pressure put on Palestine today to block it from joining the ICC by the United States and some European countries is but proof that heading to that court would definitely lead to international arrest warrants against Israeli political and military leaders. This is something these powers do not want, including Israel, which to this day still receives financial compensation for the victims of Nazism.
The countries putting political and financial pressure on Palestine to dissuade it from joining the ICC know for sure that they would not be able to put any pressure on the court after Palestine signs up to join.
The Available Options :
Based on the above, the options available to the State of Palestine to resort to the ICC can be summed up as follows:
1. Joining the ICC and depositing the approval or acceptance document with the UN Secretary-General. This would mean that the Prosecutor’s Office would have the right to investigate any crime committed in the occupied Palestinian territories two months after Palestine’s formal accession to the Rome Statute. This also means that all the crimes committed by Israel against the Palestinian people, prior to the date of the accession of Palestine but after 1/7/2002, cannot be investigated or prosecuted by the prosecutor.
2. Resorting to Article 12, paragraph (3) of the Rome Statute as a non-party state, and lodging the declaration with the ICC Registrar in the Hague, in which Palestine announces its consent to grant the Prosecutor’s Office the jurisdiction to investigate any crimes that occurred in the occupied Palestinian territory, starting from 1/7/2002. Here, Palestine has the right to specify the period of time.
For example, Palestine can request an investigation into crimes committed between 1/7/2002 and 1/7/2003, or crimes committed between 1/1/2006 and 1/1/2009 etc. or in all the crimes that have occurred since 1/7/2002 to this day. It should be noted here that the use of this article would give the Prosecutor the right to investigate all crimes committed in the occupied Palestinian territory, even if the resistance factions commit them.
3. Joining the ICC and depositing the approval or acceptance document with the UN Secretary-General. Palestine would then lodge the declaration with the ICC Registrar in accordance with Article 12, paragraph (3), granting the Prosecutor’s Office jurisdiction to investigate crimes committed in Palestine since 1/7/2002 or any timeframe it specifies.
This option grants the Prosecutor’s Office the authority to investigate all past crimes starting from 1/7/2002 and up to the date of accession, and also the power to investigate any crime committed after the date Palestine joins the statute.
If Palestine opts for this option, it will enable the Prosecutor’s Office to investigate all the crimes committed by the occupying power since 1/7/2002, which will be a strong deterrent to the occupying power not to violate the provisions of the Rome Statute and to avoid committing any of the offenses stipulated therein.
If Palestine chose this option, the Prosecutor will also have the right to investigate any possible crimes that may have been committed by the Palestinian factions in the course of their resistance against the Israeli occupation.
For the sake of all Palestinians who fell since 1/7/2002, and to bring justice to their families, and prosecute every Israeli political or military leader involved in and responsible for crimes against the Palestinian people, I call on Palestine to join the ICC immediately, which was founded solely for the purpose of doing justice to the victims of war and aggression. At the same time, I call on Palestine to resort to the ICC Registrar to lodge the declaration accepting to grant the Prosecutor the authority to investigate all crimes committed in the occupied Palestinian territories since 1/7/2002.
Palestine’s concerns over this option, with the possibility of the Prosecutor launching investigations into crimes that may have been committed by people affiliated to resistance factions, must not be an excuse or a reason to avoid this option.
The Palestinian resistance must adhere to international law and use it to its advantage, because international law protects the resistance and gives it the right to engage in armed struggle against military occupation. However, the resistance must at the same time respect international humanitarian law as much as possible, especially by not targeting civilians or civilian facilities.
The Palestinian resistance in the recent war against the Israeli aggression proved to the world that it can resist the occupier militarily, and by all means possible, and at the same time, it elevated resistance and triumphed morally against one of the mightiest armies by respecting as much possible the rules of international humanitarian law.
When we talk about the Rome Statute establishing the ICC, law and its supremacy will win over politics.
This is the summary of the Arabic conference paper by Dr. Abdul Rahman ‘Ali entitled “Palestine and the International Criminal Court: The Available Options”.
Al-Zaytouna Centre for Studies and Consultations, 15/12/2014
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