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

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

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.If the ICC prosecutor concludes after completion of a preliminary examination that further court intervention is warranted, a formal investigation leading to a possible trial may be initiated. The court is currently conducting eight investigations, all involving African countries. In its history, it has held a total of four trials.

The court’s current chief prosecutor is Fatou Bensouda, a former attorney general of Gambia, a nation that is itself beset by a recent history of human rights abuses. Bensouda nonetheless is highly regarded in the human rights community. Among other announced goals, she has promised to toughen the ICC’s investigation of gender- and sex-based war crimes.

Bensouda met with Palestinian Foreign Minister Riad al-Malki on Aug. 5 to discuss the Gaza war. After the meeting, her office released a statement reiterating a position the court had previously announced — namely that the ICC would have no jurisdiction over allegations of Gaza war crimes unless Palestine either formally acceded to the Rome Statute by filing appropriate ratification documents with the General Assembly or it accepted the court’s authority over the present conflict by filing a new ad hoc declaration directly with the court. A 2009 Palestinian ad hoc declaration was rejected because Palestine was not yet recognized as a state. A U.N. resolution adopted Nov. 29, 2012, however, conferred non-member observer state status on Palestine.

An ICC spokesperson confirmed in an email sent to me this week that the court had nothing to add to its Aug. 5 press release, meaning that the onus of moving forward with an ICC probe remained squarely with the Palestinian side.

3. The Palestinians May Not Want an ICC Probe as They Too Have Unclean Hands

Although none of my sources would speculate as to why the Palestinians have not taken what should be an easy step to accept ICC jurisdiction, William R. Pace, the longtime convenor of the Coalition for the ICC, reminded me in a phone interview that if the court takes up the Gaza issue, it would have to examine allegations of war crimes committed not only by Israel but by Hamas and the Islamic Jihad as well.

Apart from his fear of losing American aid should he apply for ICC membership, Palestinian Authority President Mahmoud Abbas lacks the backing of both Hamas and Islamic Jihad for such an undertaking as acceptance of ICC jurisdiction would render leaders of both militant groups open to war crime prosecutions of their own for such actions as:

Launching thousands of missiles aimed at the civilian population of Israel since the outbreak of open warfare. Even if the Hamas arsenal is far less deadly and technically sophisticated than the missiles fired by Israel, the definition of war crimes under the Rome Statute applies equally to attempts to harm civilian populations as to strikes that hit their targets.

Imbedding rockets and other heavy weaponry in the civilian infrastructure of Gaza. Once an issue of some controversy, the matter is no longer in serious doubt as a result of footage released by India’s NDTV that shows militants firing a rocket from an empty lot next to the very hotel where the NDTV personnel were stationed. The IDF also says it has discovered Hamas training manuals that instruct militants in the concealment of weapons and the practice of using civilians as human shields.

Summarily executing Gazans suspected of collaborating with the enemy. As reported by Reuters, Hamas has confirmed — and bragged about — the execution of several suspected “spies” since the war began, continuing a prior practice of barbaric street-corner justice condemned by Human Rights Watch in 2013. Such executions, if real, are a clear violation of the Rome Statute, which guarantees both prisoners of war and civilians fair and regular trials. Ironically, the most recent victim of Hamas-style retribution may well be the organization’s former spokesman, Ayman Taha, who died earlier this month after being shot in the head and chest allegedly for maintaining unauthorized contacts with Egyptian intelligence services.

As both the Israelis and the Palestinians understand, an ICC war crimes probe would concern not only the physical acts of war, but the intent behind the acts. For the Israelis, this entails a risk of having the hyper-nationalistic ideology of its dominant right-wing leadership — and the dehumanization of the Palestinian people that goes along with it — exposed to the world. Under the brunt of that ideology, Israel’s once vibrant antiwar movement has been intimidated and driven to virtual silence.

For Hamas, an ICC investigation would place the group’s virulently anti-Semitic 1988 charter front and center. For all its slick advances in the mastery of modern public relations, Hamas has never repudiated the charter, which calls for the killing of Jews everywhere. Indeed, in an Aug. 6 CNN broadcast, veteran anchor Wolf Blitzer confronted the current Hamas spokesman, Osama Hamdan, with the fact that he had recently uttered one of the most pernicious ancient libels against the Jews on Lebanese television — that the Jews “used to slaughter Christians in order to mix their blood in their holy matzos.”

With such crude and vicious sentiments pervading the narratives of both sides to the conflict, an effective intervention by the ICC becomes less likely by the day even as it remains as vitally necessary as ever.