The International Criminal Court (ICC) is the only permanent international body that upholds the concept of individual accountability before international law—one of the cardinal principles of democratic world federalism. The ICC is unique in its ability to try individuals who are accused of committing war crimes and crimes against humanity. “The ICC distinguishes itself from its predecessors, the ‘ad hoc’ criminal tribunals such as Nuremberg and Yugoslavia, by claiming jurisdiction over sitting heads of state and ongoing conflicts,” writes international law professor Eugene Kontorivich in a recent Washington Post column. “Until now, international justice was always a kind of victor’s justice, because it depended on the defeat of the accused. The conceit behind the ICC was that international law had grown strong and respected enough that it could take on the current leaders of actual countries without fighting them first.”
Several successful prosecutions in the last decade demonstrate that the ICC’s specialized powers can sometimes be effective, including one case that led to the conviction in 2012 of defeated ex-Congolese warlord Thomas Lubanga Dyilo. The Dyilo case was, of course, a form of “victor’s justice” as referred to above by Professor Kontorivich.
Will the ICC be able to hold to account the perpetrators on both sides of the ghastly crimes in this summer’s Gaza war—its most important prospective case? A Gaza prosecution would highlight both the greatest challenge and greatest weakness of the ICC, for those who would stand accused are sitting leaders now holding office. While many jurists and statesmen believe that laying a Gaza case before the ICC is a sound idea, the obstacles in its way are illustrative of the grave predicament of today’s international world order.
In theory, at least, prosecuting the criminals on both sides of the Gaza war should be relatively easy to accomplish. The dispute could be brought to the court in three ways:
- A U.N. Security Council referral
- A referral by states that are parties to the Rome Statute (which created the ICC)
- Filings by or on behalf of non-member states that accept the court’s jurisdiction concerning a particular dispute on an ad hoc basis.
A Security Council referral would surely end in a U.S. veto, but the Palestinian Authority actually has the legal power to pursue the latter two options. (And in theory, Israel would have these options available as well if it were a member party to the Rome Statute.) In early August the ICC’s chief prosecutor—former Gambian Attorney General Fatou Bensouda—made this clear to officials of the Palestinian Authority (PA). The ICC’s jurisdiction is based on the territory where a crime is committed; so if Israel committed a crime in a state that is a member party, the ICC can prosecute the Israeli leaders who ordered this crime.
An ICC Investigation of Gaza: Far-reaching Consequences
An ICC investigation into the Gaza conflict could have a far-reaching and possibly a revolutionary impact. Commentators have made clear that it would not just examine alleged war crimes by leaders in the Israeli military, Hamas and other Islamist militants, but it would also address the issue of illegal Israeli settlements in the Palestinian territories. Much, very much, would be at stake in such a prosecution. In fact, according to a recent interview with Michael Ratner, president emeritus of the New York-based Center for Constitutional Rights, “Along with Israeli officials, the aiders and abettors of this ongoing criminal conduct should be in the dock as well,” Ratner said. This, he said, would especially include officials of the U.S. and other countries who, knowing that Israel is committing war crimes and crimes against humanity, continue to give it the means for doing so.
The PA’s own justice minister and general prosecutor have formally petitioned the ICC to investigate Israel for its actions during the Gaza offensive. But in order for such a probe to be launched, the court needs formal approval from the head of state and the minister of foreign affairs of the Palestinian Authority. But so far, none of these top officials in the Palestinian Authority have approved the petition, despite the profound devastation they have experienced so recently. The initiative is stalled; most observers believe it is likely to remain so. We will provide more coverage of this situation in forthcoming issues of this newsletter as we delve into the reasons for this delay.
A similar impasse has occurred in the ICC’s recent effort to prosecute Kenya’s President Kenyatta. He and a deputy stand accused of committing war crimes and crimes against humanity in the 2008 post-election violence in that country. At least 1,200 people died in the violence and 300,000 were displaced. But the ICC case has recently been dropped because of a lack of cooperation from Kenyatta’s government.
The Kenyatta case is notable in that it is the Court’s first against a sitting head of state, as opposed to deposed or defeated leaders. As pointed out, any case regarding the Gaza war could also involve the prosecution of sitting heads of state in Israel and likely in Palestine, not to mention the U.S.
“Kenya did what undefeated countries can do: It cleverly slow-walked its cooperation with the international community,” writes Kontorivich. “Kenya has full control over the ‘crime scene’ and all the witnesses. All the prosecutor has control over is a staff in The Hague.” Sad to say, this is essentially the same dilemma the ICC would face in a Gaza war crimes prosecution.
The ICC is a progressive force in our world and deserves our respect and support. Its presence does have a deterrent effect on violators. But it is crippled by the weaknesses in its own charter, which come nowhere near the power and jurisdiction that a true world court would have under a democratic federal world government. While in principle it can hold individuals responsible under international law, criminalized governments can easily undermine its power and authority. The ultimate and unfortunate result will be impunity and ongoing perpetrations.
NOTE: The Democratic World Federalists are committed to expressing a wide range of views on the vision of creating a peaceful, just, and sustainable world through a democratic World Federation. The views expressed in these articles represent that commitment and not necessarily our official position.