The ICC Should Live Up To Its Mandate

by

The 1998 Rome Statute, the International Criminal Court’s founding charter, states that one of the critical ICC’s tasks is that “the most serious crimes of concern to the international community as a whole must not go unpunished.” However, under pressure from the US and the European Community, the ICC has avoided opening an investigation into alleged war crimes in Gaza. By doing so, the ICC is not living up to its mandate.

Lawyers for the Palestinians -whose civilian population has been most punished by the ongoing war in Gaza- state that the ICC prosecutor, Fatou Bensouda, has the legal authority to launch an investigation based on a Palestinian request in 2009. However, Bensouda claims that she needs a new Palestinian declaration to do it.

Luis Moreno Ocampo, who was the ICC prosecutor at the time of the Palestinian declaration, supports Bensouda’s position. However, The Guardian quotes a former official from the ICC prosecutor’s office stating, “They are trying to hide behind legal jargon to disguise what is a political decision, to rule out competence and not get involved.”

Moreno Ocampo took three years to decide on the status of the 2009 Palestinian request for an investigation, following the tragic events of the Israeli offensive on Gaza, called Cast Lead. During that time, both the US and Israel intensely pressured him not to allow an investigation, warning him that the future of the ICC was at stake.

According to legal experts, Palestinians were misled in 2009 into thinking that their request for a war crimes investigation would remain open pending confirmation of statehood. However, no investigation was launched after the UN General Assembly (UNGA) voted in November 2012 to grant Palestine the status of non-member observer state.

Although Bensouda initially appeared open to review the standing Palestinian request, in 2010 she issued a statement saying that the UNGA vote made no difference to the “legal validity” of the 2009 request. She has been accused of being under pressure from the US and its European allies (mainly France and the United Kingdom -the ICC’s main contributors to the ICC budget- to prevent the investigation.

The Rome Statute established four main international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Those crimes “shall not be subject to any statute of limitations.” Furthermore, under the Rome Statute, the ICC can only investigate and prosecute the four core international crimes in situations where states are “unable” or “unwilling” to do so themselves.

The court has jurisdiction over crimes only if they are carried out in the territory of a state party or if they are committed in the territory of a state party or if they are committed by a national of a state party. However, an exception to this rule is that the ICC may also have jurisdiction over crimes if its jurisdiction is authorized by the United Nations Security Council.

It is conceivable that Israel, to a certain extent Hamas and even the US could be tried under the Rome Statute. In the case of Israel, because it carried out actions that amount to war crimes, and in the case of the United States by lending Israel financial and military support. Palestinians argue that the small number of Israeli civilians killed by Hamas couldn’t amount to a war crime.

On January 2013 Israel became the first country refusing to participate in a “universal periodic review” of the human rights records of the UN’s 193 member states conducted by the United Nations Human Rights Council (UNHRC).

Palestinian and Israeli human rights groups sharply criticized Israel for its refusal to participate stating that this conduct sets a “dangerous precedent…that could be followed by other states refusing to engage with the UN in order to avoid critical appraisals.” Although from a different context, these words could easily apply now to Israel and the US’s blocking of any investigation into the ongoing Gaza tragedy.

Dr. Cesar Chelala is an international public health consultant and the author of “Health of Adolescents and Youth in the Americas”. He is also a winner of an Overseas Press Club of America award.

Dr. Cesar Chelala is an international public health consultant.

Like What You’ve Read? Support CounterPunch
August 31, 2015
Michael Hudson
Whitewashing the IMF’s Destructive Role in Greece
Conn Hallinan
Europe’s New Barbarians
Lawrence Ware
George Bush (Still) Doesn’t Care About Black People
Joseph Natoli
Plutocracy, Gentrification and Racial Violence
Franklin Spinney
One Presidential Debate You Won’t Hear: Why It is Time to Adopt a Sensible Grand Strategy
Dave Lindorff
What’s Wrong with Police in America
Louis Proyect
Jacobin and “The War on Syria”
Lawrence Wittner
Militarism Run Amok: How Russians and Americans are Preparing Their Children for War
Binoy Kampmark
Tales of Darkness: Europe’s Refugee Woes
Ralph Nader
Lo, the Poor Enlightened Billionaire!
Peter Koenig
Greece: a New Beginning? A New Hope?
Dean Baker
America Needs an “Idiot-Proof” Retirement System
Vijay Prashad
Why the Iran Deal is Essential
Tom Clifford
The Marco Polo Bridge Incident: a History That Continues to Resonate
Peter Belmont
The Salaita Affair: a Scandal That Never Should Have Happened
Weekend Edition
August 28-30, 2015
Randy Blazak
Donald Trump is the New Face of White Supremacy
Jeffrey St. Clair
Long Time Coming, Long Time Gone
Mike Whitney
Looting Made Easy: the $2 Trillion Buyback Binge
Alan Nasser
The Myth of the Middle Class: Have Most Americans Always Been Poor?
Rob Urie
Wall Street and the Cycle of Crises
Andrew Levine
Viva Trump?
Ismael Hossein-Zadeh
Behind the Congressional Disagreements Over the Iran Nuclear Deal
Lawrence Ware – Marcus T. McCullough
I Won’t Say Amen: Three Black Christian Clichés That Must Go
Evan Jones
Zionism in Britain: a Neglected Chronicle
John Wight
Learning About the Migration Crisis From Ancient Rome
Andre Vltchek
Lebanon – What if it Fell?
Charles Pierson
How the US and the WTO Crushed India’s Subsidies for Solar Energy
Robert Fantina
Hillary Clinton, Palestine and the Long View
Ben Burgis
Gore Vidal Was Right: What Best of Enemies Leaves Out
Suzanne Gordon
How Vets May Suffer From McCain’s Latest Captivity
Robert Sandels - Nelson P. Valdés
The Cuban Adjustment Act: the Other Immigration Mess
Uri Avnery
The Molten Three: Israel’s Aborted Strike on Iran
John Stanton
Israel’s JINSA Earns Return on Investment: 190 Americans Admirals and Generals Oppose Iran Deal
Bill Yousman
The Fire This Time: Ta-Nehisi Coates’s “Between the World and Me”
Scott Parkin
Katrina Plus Ten: Climate Justice in Action
Michael Welton
The Conversable World: Finding a Compass in Post-9/11 Times
Brian Cloughley
Don’t be Black in America
Kent Paterson
In Search of the Great New Mexico Chile Pepper in a Post-NAFTA Era
Binoy Kampmark
Live Death on Air: The Killings at WDBJ
Gui Rochat
The Guise of American Democracy
Emma Scully
Vultures Over Puerto Rico: the Financial Implications of Dependency
Chuck Churchill
Is “White Skin Privilege” the Key to Understanding Racism?
Kathleen Wallace
The Id(iots) Emerge
Andrew Stewart
Zionist Hip-Hop: a Critical Look at Matisyahu
Gregg Shotwell
The Fate of the UAW: Study, Aim, Fire