The most recent cycle of violence in Israel and Palestine has killed at least 243 people in the Gaza strip and 12 people in Israel, with over 1,200 people injured across both states. This does not include the hundreds of homes destroyed and civilians displaced, nor the damage to humanitarian infrastructure and the offices of international news agencies. However, there is little new about both the conflict and the international response to it. With the tried and tested methods of the UN once again proving too slow, it is perhaps time to back a different approach, that of the International Criminal Court (ICC).
The UN called numerous emergency sessions whilst the conflict was at its worst, but any general statement calling for a ceasefire and condemning Israeli military action was vetoed by the USA. This consistent stance by the USA has often been at the heart of why the UN cannot effectively act in the region. The Security Council criticised Israel’s disregard of international law on multiple occasions, and even through resolutions, such as Res. 267 and Res. 478. It appears, however, that these steps have achieved little more than creating an echo chamber for states that have already acknowledged the illegality of the situation in Gaza.
THE ICC PROCESS
The ICC was founded through the Rome Statute, which came into force in 2002. The Rome Statute has 123 ratifying parties, all of whom are bound by the treaty. Article 89, amongst others, requires that if an arrest warrant is issued through the Court for any person, even if that person were a Head of State, and a ratifying state has that person in their territory, then they are to comply with the arrest warrant and surrender that person to the Court. This is, theoretically, a more potent form of enforcement that directly links international action with criminal justice.
It is, unfortunately, not so clear-cut in practice. The ICC is a young international institution and often lacks legitimacy and support of its own member states. One of its earliest cases concerned the former Sudanese Head of State, Omar Al-Bashir. Despite consistent urging and numerous appeal cases before the Court, the arrest warrant was not enforced when member states such as South Africa had the opportunity to do so. Only recently, after a change of government in Sudan, has the government decided to engage with the ICC. Therefore, the ICC is not as independent from international politics as one would hope. This is especially problematic with the Israel-Palestine situation, which is one of the most heavily politicised conflicts in the world.
Another issue is that of jurisdiction. The ICC can only operate in the states that either ratify the Rome Statute, or those that willingly accept its jurisdiction in particular situations. Whilst the UNSC can refer a situation to the ICC, thereby granting the Court jurisdiction over that country provided it is a member state of the UN, this can often lead to a powerless ICC whenever the country is unwilling to cooperate with orders made by the Court. Israel has refused to ratify the Rome Statute. In fact, in explaining its refusal, it explicitly stated art. 8(2)(b)(viii) as a reason for not ratifying. This article criminalises the movement of civilian populations into occupied territory, which would encompass the hundreds of Israeli settlements in the West Bank. However, the jurisdiction issue was laid to rest when Palestine accepted the Court’s jurisdiction in 2015, and the Court decided in February 2021 that the territorial jurisdiction extends to the Israeli occupied territories, namely Gaza and the West Bank, including East Jerusalem.
LONG-TERM HOPE IN THE ICC
The ICC is still establishing its role within the modern international legal order. Under the tenure of Fatou Bensouda, its second Chief Prosecutor, the Court took on a more aggressive stance in tackling jurisdictional issues and political realities. For example, the Court’s legal reasoning in its jurisdictional decision regarding the Rohingya population between Bangladesh and Myanmar certainly showed signs of ambition, using the crossing of a border as a trigger for jurisdiction. If this energised trajectory continues, one can hope that the threat of judicial action against perpetrators of international crimes can become a reality.
There seems to be a reasonable basis to believe war crimes have been committed during the conflict over the decades in the occupied territories of Palestine, such as through art.8(2)(b)(viii), and there is a growing call from the international community for some form of accountability in the region. With Israel’s flagrant disregard for UN resolutions calling for peace becoming a habit, perhaps the only path to peace is not through the UNSC or peace-keeping missions, but rather through arrest warrants and judicial action by the ICC. With this option, there are no concerns about the USA vetoing the resolution, nor is there the worry of partisan investigations as Hamas officials also fall within the remit of the ICC. International criminal tribunals have often been the footnote to humanitarian crises, such as in Rwanda and former Yugoslavia. Justice should no longer follow a peace process, but rather be part of it.
Adil is a law graduate from the University of Liverpool and is currently completing his LLM dissertation focusing on the functions of various international courts, such as the ICC and the ICJ. He is especially interested in the role of international law in resolving modern conflict.