Achilles’ Heel: Why The ICC Doesn’t Work Very Well.

Following the Palestinian Authority (PA) formally joining the International Criminal Court (ICC) in April this year, the PA will make its first submission to the Court this week, detailing allegations of war crimes committed by Israel during last year’s Gaza war, ‘Operation Protective Edge’. The PA’s signing of the Rome Statute, which established the ICC, is the latest in a long line of unilateral moves by the current Palestinian leadership which seek to establish statehood by ‘acquiring all the international legal trappings of a stateThe chief prosecutor, Fatou Bensouda, has already opened a preliminary probe into possible war crimes committed in the Occupied Palestinian Territories during last year’s war by both Israel and Hamas. Earlier this week, the UN released its report on the conflict, finding that both sides may be guilty of war crimes – a theme which resonates with the plethora of other reports from organisations such as Amnesty International and Human Rights Watch. 

The left of centre Israeli newspaper Haaretz argues that the report suggests that all other measures to end the cycle of conflict have failed, and that the ICC remains the ‘only thing that can actually deter the two sides from yet another round of fighting’. But whilst the preliminary probe appears to have rattled some in the Knesset, what might the Palestinian leadership hope to gain from pursuing legal action through the International Criminal Court? Will it achieve ‘justice’?

Israel’s relationship with the court has been a rocky one from the start, voting against the adoption of the Rome Statute. Once it passed regardless however, Israel did sign the treaty and join the the court. This didn’t last long – both Israel and the United States both ‘unsigned’ the statute in 2002, effectively relinquishing their legal obligations to the court. The ICC itself has also come under fire since its inception. It has earned itself the nickname of the ‘African Criminal Court’; the court has received allegations of crimes in at least 139 countries, but only nine of these have become official investigations, all of which are within African states. All of those who have been indicted by the court’s pre-trial chambers are African. This has caused friction with the African Union (AU) whose member states, at a 2013 extraordinary summit, decided to no longer cooperate with the ICC and to fight its global influence, bolstering instead the unified African Court. The impact of this decision was seen clearly this week, as authorities in South Africa failed to arrest Omar al-Bashir, president of Sudan, who is wanted by the ICC on five counts of crimes against humanity, three counts of genocide, and two counts of war crimes. Bashir’s continued freedom highlights a key problem that the ICC faces; an inability to enforce its arrest warrants. The ICC depends upon its signatories to enforce these but, as in the case of Bashir, may not do so for any number of reasons.

In the context of the Palestinian bid for justice at the ICC, this issue will likely also prove problematic. Whilst there has been international outcry at the South African government’s decision not to arrest Bashir (with the Economist describing it as ‘disgraceful’), a similar situation has occurred recently involving Israel and the United Kingdom. In 2005 retired Israeli general Doron Almog was tipped off by the Israeli embassy that an arrest warrant had been issued with his name on it, brought by the Palestinian Centre for Human Rights (PCHR). In order to avoid arrest, Almog remained on the plane he had just landed in Heathrow on until it returned to Tel Aviv. But, in 2011 the universal jurisdiction law under which he would have been arrested was amended for fear that it was ‘preventing high-ranking Israelis from visiting the UK‘. Whereas before private parties and individuals could present evidence of war crimes to a magistrate in order to obtain a warrant for arrest, the amendment in the law shifted this responsibility to the Director of Public Prosecutions. Tzipi Livni, a prominent Israeli politician who has held positions such as Minister of Foreign Affairs, Leader of the Opposition, and Minister of Justice, cancelled a visit to the UK in 2009 due to a pending arrest warrant in her name. But, following the amendment of the law in 2011, Livni returned in order to ‘test’ the law. Yet, this wasn’t necessarily, as the Foreign and Commonwealth Office (FCO) applied ‘Special Mission’ status to Livni’s visit, effectively granting her diplomatic immunity. The Director of Public Prosecutions received a large amount of evidence pertaining to Livni’s alleged role in war crimes, yet was ‘blocked’ by the FCO’s actions. Raji Sourani of the PCHR, and Daniel Machover of the law firm Hickman & Rose (who acted on behalf of the PCHR), question the logic of applying ‘Special Mission’ status to the visit: ‘If the evidence was insufficient to justify an arrest, it is difficult to see what prompted the intervention of the Foreign and Commonwealth Office’. 

If the preliminary probe in to Operation Protective Edge were to progress to the point of becoming an official investigation by the ICC, and were to indict Israeli and Palestinian leaders, where might it progress from there? Judging by the granting of ‘Special Mission’ status by the FCO, it seems unlikely that the UK would comply with any requests from the Hague to extradite senior Israelis to the court. This is amplified when it is considered that the amendment of the universal jurisdiction law, and the granting of effective immunity, was enacted in response to legal proceedings by a domestic law firm (which Prime Minister David Cameron has described broadly as ideologically motivated court cases and legal stunts‘). Given the present government’s aversion to supranational jurisdiction (demonstrated by their desire to revoke the 1998 Human Rights Act), preferring the notion of national sovereignty instead, it seems likely that they would be even less inclined to act upon the requests of an international body.