The International Criminal Court (ICC) was founded in 1998 and was established through the Rome Statute with the purpose of prosecuting egregious international crimes, such as war crimes, crimes against humanity and genocide, when national jurisdictions are unable or unwilling to do so. It contributes directly to the fight against impunity and the strengthening of the rule of law. It represents a court of last resort for many, yet the process is often arduous and laced with inherent obstacles and challenges (Human Rights Watch, 2021). Since the UN General Assembly’s de facto recognition of Palestinian statehood in 2012, the ICC has subsequently ruled it could exercise criminal jurisdiction over the Palestinian territories. However, the process will not be an easy one.
In December 2019 the ICC’s Chief Prosecutor, Fatou Bensouda, opened a formal investigation into alleged war crimes committed by Israeli personnel or members of Hamas and other Palestinian armed groups in the West Bank, East Jerusalem and Gaza Strip since 2014. Specifically, it includes the 2014 Israel-Gaza war, the 2018 violence across the Israel-Gaza border during Palestinian protests, and the construction of Israeli settlements in the West Bank. Whilst the decision is welcomed by Palestinians and human rights organisations, it is condemned by Israel and other influential states including the US, UK, Australia, and Germany (Middle East Monitor, 2021; Holmes, 2021).
In a letter to the Conservative Friends of Israel (CFI), a pro-Israel lobby group in the UK, UK Prime Minister Boris Johnson suggested the investigation constituted a “partial and prejudicial attack” (Holmes, 2021). The US Secretary of state Antony Blinken also stated that the probe constituted “actions that seek to target Israel unfairly” (Sterling et al, 2021; para 19), despite confirmation from Bensouda that all statutory criteria under the Rome Statute for the formal opening of an investigation had been met. Former Israeli Prime minister, Benjamin Netanyahu, went further and dismissed the opening of an investigation as “absurd”, “the height of hypocrisy” and “undiluted antisemitism”, a claim often made by the Israeli government in an attempt to discount and delegitimise criticism (Allen, 2021; para 3).
US-ICC relations
US policy surrounding the ICC has been varied. In 2018, under the Trump administration, national security adviser John Bolton threatened to impose sanctions against ICC judges and prosecutors if this probe and investigations into war crimes allegedly committed in Afghanistan by Americans went ahead (Synovitz, 2018). Following two years of intensifying threats, in 2020 Trump imposed sanctions on two ICC officials including Bensouda in the form of, inter alia, the freezing of US assets and the revoking of US visas (Toosi, 2021).
The Biden administration, however, did state in January that it will “thoroughly review” these sanctions (The Guardian, 2021; para 21) and has pledged to prioritise human rights in his approach to foreign affairs. Indeed, sanctions and visa restrictions on ICC officials have recently been lifted but Biden has firmly maintained its opposition against ICC investigations into US and Israeli actions (Toosi, 2021).
Thus, Biden finds himself in a dilemma by supporting conflicting narratives; not wanting to ostracise progressive members of his own democratic party and overlook human rights commitments, but equally wanting to preserve relations with its strategic ally in the Middle East and maintain a narrative which upholds and reinforces Israeli sovereignty. For now, he has seemingly chosen a middle ground but is naturally struggling to enforce both narratives sincerely or consistently, as a strained exchange at a recent press briefing between the US State Department spokesman Ned Price and Associated Press journalist Matt Lee revealed. A video clip of the interaction where Matt Lee repeatedly questioned where Palestinians can go to receive justice and accountability if not from the ICC, has amassed thousands of views online (Weiss, 2021; Arab News 2021). These questions are met with clear disconcertment and a notably evasive answer echoing the administration’s commitment to human rights and simultaneous references to a two-state solution.
Yet, as confirmed in an early press report, Biden’s refusal, like administrations before him, to view Palestine as a sovereign state allows the US to align with Israel’s position and ultimately shrug off repeated Palestinian requests for accountability and justice (Price, 2021).
Legitimate criticisms of the ICC
It must also be acknowledged however, as both a judicial entity and international organisation, there do exist some legitimate criticisms of the ICC including those surrounding the politics of the ICC as an “ambiguously positioned judicial body that relies on political buy-in” (Allen, 2021; para 1) and the ability to deliver justice to, amongst others, Palestinians. Academics have frequently highlighted the court’s inefficiencies and the significant timescale routinely required to both initiate and complete proceedings (Wilmshurst, 2019). Moreover, it has been suggested that many governments also only demonstrate a superficial support and often do not undertake or cooperate in court-ordered arrest warrants (Simons and Specia, 2019).
The Independent Expert Review (IER), established under an Assembly of States Parties (ASP) resolution and published in late 2020, also expressed the need to address, inter alia, a “culture of fear”, “bullying” and “sexual harassment” within the ICC (O’Neill, 2020; para 1) and produced 384 recommendations to strengthen the court’s ability to reach its core objectives. Additionally, former presidents of the ICC’s ASP have expressed disappointment in the quality of some of the judicial proceedings and “management deficiencies” which inhibit the Court’s full potential (Al-Hussein et al, 2019; para 7). Yet, it has been argued that this pessimism of the “ICC’s work may be countered by the fact that it is the failure of states to cooperate with the court that causes many of the problems.” (Wilmshurst, 2019; para 6). Whilst to an extent this statement holds truths, it is clear there are additional deep-rooted issues which must also be addressed.
Further Challenges
There may also be implications to the case surrounding the recent change in the Chief Prosecutor. British lawyer Karim Khan, suggested as Israel’s preferred candidate (Bob, 2021), was appointed Chief Prosecutor at the ICC last month, replacing Bensouda who had come to the end of her nine-year term. Whilst, he has demonstrable experience, it is clear he will face fierce challenges during his term, both within and outside the ICC. Moreover, it remains to be seen whether he can withstand the severe political opposition inherent in pursuing the probe. Indeed, attempts to initiate proceedings and investigate alleged Israeli crimes through universal jurisdiction[1], have also been blocked (Reuters, 2020).
Nevertheless, such formal investigations usually take years before cases are brought to court, so nothing is expected to happen quickly with this case. Additionally, whilst a significant step in the international fight for justice and against impunity, this probe does not take into account alleged atrocities that have occurred before 2014. Thus, they represent only one element in a continual fight for accountability and justice.
As highlighted by the former presidents of the ICC’s Assembly of States Parties, “States have to stand up for the ICC in its mission to be judicially independent, even or in particular in situations where that may be politically inconvenient. And states need to give the Court the resources it needs to do the job” (Al-Hussein et al, 2019; para 12).
References:
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[1] A legal norm which allows a foreign state to prosecute an individual in their national courts for a limited number of international crimes.
By The European Institute for International Law and International Relations.
