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Three Reasons Why the ICC Hasn’t Taken Action on Gaza

Posted on Aug 12, 2014

By Bill Blum

  A medic carries a Palestinian baby injured in Israeli shelling in a hospital in Rafah in the southern Gaza Strip. AP/Eyad Baba

As the war in Gaza enters its second month, quelled for the moment by another 72-hour cease-fire, the question arises: Why hasn’t the International Criminal Court initiated a formal inquiry into the carnage?

To answer the question, I spent part of last week corresponding and speaking with representatives of the court, Human Rights Watch, Amnesty International and the Coalition for the International Criminal Court, which consists of some 2,500 groups drawn from 150 countries whose mission is to strengthen international cooperation with the ICC and whose steering committee includes a who’s who of prominent human rights groups, including both Human Rights Watch and Amnesty International. I’ve also spent a good deal of time studying the Rome Statute, the name given to the ICC’s founding and governing charter.

On the basis of those efforts, I’ve concluded that there are three fundamental factors holding back the ICC. Starting with the most obvious and moving to what may be for some the most controversial or surprising, they are:

1. Neither Israel Nor the United States Wants an ICC Probe


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Officially, both nations have long argued that ICC involvement in a war crimes probe would compromise peace negotiations, and Israeli Prime Minister Benjamin Netanyahu just last week appealed to the U.S. to block any effort to bring the current Gaza conflict before the ICC.

Unofficially—and I would strongly suggest, in reality—both the U.S. and the Israeli leadership fear that an ICC proceeding would expose Israeli war crimes as well as highlight the U.S. role in aiding and abetting such crimes. A report issued Aug. 9 by the U.N. Office for the Coordination of Humanitarian Affairs lists the Palestinian death toll from Israel’s Operation Protective Edge as 1,935, including at least 1,408 civilians, of whom 452 are children and 235 are women. The report also asserts that 36,700 homes in Gaza have sustained light or serious damage, and that 225,000 residents have sought refuge in U.N. and government shelters.

Readers of Truthdig, especially those who follow the popular columns of Chris Hedges, are well familiar with the allegations against Israel and the U.S. Marjorie Cohn, a professor at the Thomas Jefferson School of Law and a former president of the National Lawyers Guild, has prepared a thorough summary republished by Truthdig detailing the potential legal charges that could be brought against the two countries before the ICC. The charge sheet includes allegations of war crimes, disproportionate use of force via the IDF’s Dahiya Doctrine, genocide, apartheid practices stemming from the Gaza blockade and the indefinite detention of Palestinian militants in Israeli custody.

In 2012, the U.S. used its clout in the U.N. Security Council to head off a vote on a resolution passed by the U.N. General Assembly urging the council to refer the last Gaza war to the ICC. If it becomes necessary, the Obama administration will surely block any similar request regarding the current fighting. Neither the U.S. nor Israel accepts ICC jurisdiction.

2. The Structure of the ICC Militates Against Swift Action

As I noted in my last column, the ICC was founded after a 1998 conference attended by 160 nations in Rome. The court sits at The Hague, Netherlands.

The Rome Statute produced by the conference took effect in July 2002, establishing the ICC as the first treaty-based international criminal court for the purpose of investigating and trying individuals—both governmental and non-state actors—accused of genocide, war crimes, crimes against humanity and crimes of aggression, as defined by the Geneva Conventions, the Rome Statute and other sources of international law. The Rome Statute authorizes the court to impose heavy jail sentences, up to life imprisonment, on those convicted. Currently, 122 nations are parties to the Rome Statute, acceding to the court’s jurisdiction.

Membership in the tribunal and cooperation with the enforcement of its judgments are voluntary as the court has no police or arrest powers of its own. Lacking compulsory jurisdiction throughout the globe, the court has acted slowly since its inception. To date, it has issued a total of 32 arrest warrants or summonses for people to appear before it. Only six of those for whom warrants have been issued have actually been apprehended, while a seventh person has voluntarily surrendered to court authorities.

Cases come before the court through three possible avenues: U.N. Security Council referrals, referrals by states that are parties to the Rome Statute, and by way of requests or complaints filed by or on behalf of non-member states that have agreed in writing to accept the court’s jurisdiction concerning a particular dispute on an ad hoc basis.

Once a referral or complaint is received, it is transmitted to the ICC’s Office of the Prosecutor, which after screening the submitted material, may initiate a preliminary examination of the purported crimes. There is no time limit governing the duration of a preliminary examination, which in addition to the review of documentary evidence may also involve the taking of sworn testimony before judges of the ICC.

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