Pro-Palestinian supporters react in celebration after watching the International Court of Justice (ICJ) delivering its decision following a hearing of the case against Israel brought by South Africa in The Hague. ICJ ruled on January 26, 2024 that it has jurisdiction over the genocide case. The International Criminal Court and the ICJ are important instruments of accountability and contributors to global peace and security, the writer says, adding that, if they fail to operate effectively, whole nations could be obliterated without anyone being held liable. Picture: Phill Magakoe / AFP

By Reneva Fourie

Necessary systems and institutions to prosecute crimes of an international nature exist. These systems have proven their value through the Nuremberg and Tokyo tribunals, which preceded the International Criminal Court (ICC). In 2010, United Nations (UN) Secretary-General Ban Ki-moon referred to the current era as ‘A new age of accountability’ during the Kampala Review Conference of the ICC.

The ICC and the International Court of Justice (ICJ) are important instruments of accountability and contributors to global peace and security. If they fail to operate effectively, nations could be obliterated without anyone being held liable.

This appears to be the case with Palestine. The ICC, as empowered by the Rome Statute, has jurisdiction to prosecute four atrocity crimes: genocide, crimes against humanity, war crimes, and aggression.

The term ‘genocide’, ironically, originated from the Polish-Jewish lawyer Raphael Lemkin in association with the holocaust. He defined it as the ‘destruction of political and social institutions, culture, language, national feelings, religion and even economic existence’ of a race or tribe. The UN affirmed and expanded this definition in Article 2 of the Genocide Convention and Article 6 of the Rome Statute.

The second atrocity crime, ‘crimes against humanity’, is detailed in Article 7 of the Rome Statue and speaks to a widespread or systematic attack against a civilian population, including the use of armed force and any form of mistreatment and discriminatory practices.

War Crimes are detailed in Article 8 of the Rome Statute and are aligned to Article 147 of the Fourth Geneva Convention, which qualifies war crimes as constituting grave breaches of the following principles:

‘The first fundamental principle is the principle of the protection of non-combatants. … A second fundamental principle is the principle of distinction. It requires parties to an armed conflict to distinguish civilians and civilian objects from members of the armed forces … Special protection is also attached to humanitarian assistance and peacekeeping missions, and to buildings dedicated to religion, art, science, or charitable purposes, or to historic monuments. A third fundamental principle under international humanitarian law is the principle of proportionality. … The fourth fundamental principle is a prohibition of employing weapons, material, and methods of warfare that cause superfluous injury and unnecessary suffering to members of the armed forces, and to civilians who directly participate in hostilities.’

The last atrocity crime, aggression, is detailed in Article 8 bis4, which states,

‘For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.’

Given the jurisdiction of the ICC, one is prone to regard it as being derelict in its responsibility to protect the people of Palestine. Palestine and Israel are essentially one territory. Following the UN General Assembly partitioning of the territory into two states — Israel and Palestine — there was broad sentiment after the signing of the Oslo Accords – and further UN resolutions – that both states should live side by side peacefully and securely within the pre-1967 borders, with East Jerusalem serving as the capital of the State of Palestine.

However, Israel has continuously violated this agreement by undermining Palestinian leaders, enabling settler expansion beyond the pre-1967 borders, annexing Jerusalem and declaring it its capital, and through militarisation and repression.

The most recent, glaring demonstration of Israel’s violation of international criminal law has been its violent onslaught on all Palestinians in response to Hamas’s operation Al Aqsa Flood launched on October 7, 2023, which resulted in the death of 1,139 Israelis.

This retaliation has resulted in at least 492 deaths and an estimated 4,800 injuries in the occupied West Bank and a ghastly total exceeding 34,000 fatalities and 77,000 injuries in Gaza.

The State of Palestine accepted the jurisdiction of the ICC in 2014 and officially acceded to the Rome Statute in 2015. They have consistently referred international crimes committed in the occupied Palestinian territory, including East Jerusalem, to the Prosecutor under articles 13 and 14 of the Rome Statute.

Following the February 2021 Pre-Trial Chamber decision, the Prosecutor finally announced the opening of the investigation into the ‘Situation in the State of Palestine’ on March 3, 2021.

Additionally, the Prosecutor’s Office received referrals on the ‘Situation in the State of Palestine’ from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti in November 2023, as well as from the Republics of Chile and the United Mexican States in January 2024. Currently, the investigation is ongoing and still under review.

Furthermore, countries are increasingly appealing to the ICJ to intervene and put an end to the carnage in Gaza. These interventions have either failed, as with Nicaragua’s efforts to stop Germany from supplying arms to Israel, or are still under investigation, as in South Africa’s complaint of genocide – though the ICJ in January had ruled that it is plausible that the IDF’s actions in Gaza amount to genocide.

According to reports from Israeli media, the ICC may soon issue warrants of arrest against [Benjamin] Netanyahu and his accomplices. However, it is alleged that the United States has been approached to prevent the ICC from acting and that Israel has threatened retaliatory action against the Palestinian Authority, which could potentially lead to its collapse.

Even though non-state parties should not have undue influence on prosecutors, Netanyahu seems confident in the US’s ability to control the ICC. This could be attributed to the fact that the US was able to get itself excluded from the war crimes investigation in Afghanistan and has managed to evade accountability for atrocities committed in countries like Iraq and Syria.

Already, US State Department deputy spokesperson Vedant Patel has intervened, telling journalists that the ICC has no jurisdiction over Israeli officials. Patel further told reporters, ‘We work closely with the ICC on a number of key areas. We think that they do important work as it relates to Ukraine, Darfur, Sudan, …’. This confirms that the US government enjoys a close relationship with the ICC despite being a non-signatory.

Any intervention by the US would be self-serving. The US couldn’t care less about the people of Palestine or the sustainability of the Palestinian Authority. Currently it is experiencing increasing protests against its complicity in the Israeli aggression.

In a desperate public relations exercise to reshape its image, it is elevating Israel’s offer of ‘a period of sustained calm’ to make it appear as if the Palestinian negotiators are being unreasonable. Furthermore, both the US and Israel are supposedly stepping up efforts to provide humanitarian assistance to Gaza.

The US military is constructing a Joint Logistics Over-the-Shore (JLOTS) pier to ease the delivery of aid – while providing a justification for the presence of armed US soldiers in Gaza. Meanwhile Israel is allowing relatively more humanitarian aid into Gaza, and even opened up the Erez border crossing in the north, for the first time since its latest aggression. These interventions are no different to an abuser giving flowers to its victim as it continues with the abuse.

While the world speculates on whether Netanyahu will face arrest or not, the Israeli onslaught against the people of Palestine continues unabated. The carpet bombing of Rafah is imminent, regardless of the outcome of the current round of negotiations for a ceasefire.

The attack on Rafah will complete the destruction of the Gaza Strip and consolidate the blueprint for an escalation of more brutal aggression in the West Bank. Hence, we wait in desperate anticipation of a perpetually missing justice.

One could argue that Israel and the US are not signatories to the Rome Statute, and therefore, the ICC is justified in dragging investigations of crimes that are committed by a national of a non-party state. However, this is not accurate. Three trigger mechanisms in Article 13 of the Rome Statute provide for the activation of the ICC’s jurisdiction. They are referral by a state, referral by the Security Council, and proprio motu action by the ICC Prosecutor.

The UNSC has the power to extend the jurisdiction of the ICC beyond Article 12 to refer situations of international crime committed in states that are not party to the ICC. There have been instances, as in the cases of Sudan and Libya, where the UNSC evoked Article 13B of the Rome Statute to open investigations. Likewise, the Prosecutor initiated investigations against Russia despite Russia and Ukraine not being members of the ICC.

Thus, the argument that Israel is not a party to the Rome Statute does not hold water. This is especially the case, given that Palestine is a signatory and, therefore, is entitled to protection and justice. The warrant of arrest of Netanyahu and his cronies should be issued sooner than later, for every moment delayed occurs at the expense of yet another Palestinian life.

The fact that the ICC does not have enforcement powers is noted. However, the issuing of a warrant of arrest is symbolically significant. Such an act will result in a major deterioration in Israel’s international status. Netanyahu and his ilk will not be able to travel to or through any country that is a party to the Rome Statute. Furthermore, it will demonstrate that the ICC can indeed operate objectively and effectively.

The ICC must accelerate action on the issue of Palestine to maintain its credibility. Ignoring this matter would severely entrench the court’s reputation as an impartial institution. It will be perceived as a tool for powerful states to selectively use against their adversaries rather than a legitimate international tribunal responsible for prosecuting war crimes and crimes against humanity.

The ICC needs to take a proactive approach to ensure that it is fulfilling its responsibilities. A functional system to combat international crimes is critical as it offers an alternative to war in managing the abuse and exploitation from superpowers.

Dr Reneva Fourie is a policy analyst specialising in governance, development and security

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Will Netanyahu and his cronies escape accountability?