FacebookTwitterGoogle+RedditEmail

The Fate of the ICC

“The Israel-Palestinian issue from the time of the court’s inception was the nightmare scenario.”

— Madeleine Morris, NPR, Jan 11, 2014

Where to, with the International Criminal Court this year? Much has been put into it, and even more written about it. But the body continues to receive submissions and requests in terms of indicting war crime suspects that seem to gather dust. When efforts have been successful, the usual charge of partiality towards Africa is suggested. The current chief prosecutor of the ICC, Fatou Bensouda, assumed her job in June 2012. Since then, she has introduced a certain stutter to the workings of the court. In some cases, these stutters have become more prolonged.

In December, Fatouda announced that she would drop charges against Kenya’s president, Uhuru Kenyatta, for his purported role in the bloody violence that followed the 2007 elections. The reason: a lack of cooperation between his government and those working for her (New York Times, Jan 10).

Bensouda’s headaches are set to become full blown migraines. There are allegations of torture against US forces in Afghanistan that are awaiting her keen attention. Legal watchers are wondering if she will take the matter to the stage of a full investigation.

Then there is the issue of Palestine, which joined the ICC last week, wishing the ICC to get itself busy in investigation alleged crimes committed on Palestinian land since June. Palestinian Authority President Mahmoud Abbas signed the Rome Statute of the ICC on December 30.

The good offices of Israel and the United States are already busy attempting to disrupt, if not halt any action that might be initiated by the PA altogether. US senators are noisily scheming and blustering against the prospect that the ICC might engage in what are termed “politically abusive” actions. (When the ICC’s actions are deemed inconvenient to the state in question, they are usually branded as “political” measures.)

In a statement signed by Senators Lindsey Graham (R-South Carolina), Robert Menendez (D-New Jersey), Chuck Schumer (D-New York) and Mark Kirk (R-Illinois), a not so well veiled threat is directed against the PA. “Existing US law makes clear that if the Palestinians initiate an ICC judicially authorised investigation, or actively support such an investigation, all economic assistance to the PA must end” (Jerusalem Post, Jan 12). The money is not negligible: $400 million in aid provided on an annual basis.

Jen Psaki of the US State Department decided to make that now customary assertion that the Palestinian entity, seeing that it does not formally exist as a state, can’t initiate any actions against a belligerent in terms of war crimes allegations. This is the language used against the minor wounded, abused and incapable of seeking redress – except through mediated channels.

“Neither the steps that the Palestinians have taken, nor the actions the UN Secretariat has taken in performing the Secretary-General’s functions as depositary for the Rome Statute, warrant the conclusion that the Palestinians have established a ‘state’ or have the legal competences necessary to fulfil the requirements of the Rome Statute.”

Such is the language of absolute circularity. To obtain a hearing, one needs to be a state, a view that is becoming increasingly anachronistic. To become a state, one needs to be recognised by powers which, in many instances, are part of the sordid activity being investigated. (Notwithstanding this, alleged war crimes taking place on Palestinian authority can still be investigated.)

Such a sentiment shows that the power of the purse is often linked to that of political purpose. If Abbas pursues the rather withered arm of international law against Israel through a formally acknowledged international body, the PA will be punished. When Israeli forces engage in the next high intensity conflict in urban areas resulting in the deaths of hundreds of civilians, US funding to the IDF, far from being stopped, is bound to be increased. Hamas will be singing songs of praise.

Abbas himself is not immune to using law as both shield and cudgel. Membership of the ICC has been viewed as one of the steps towards Palestinian independence. Praise for his leadership among Palestinians is certainly far from abundant, and rivals Hamas continues to do well in the wake of last year’s war against Israel in Gaza and the failure to pass a UN Security Council resolution seeking an end of Israeli occupation of Palestinian territories by 2017.

The Palestinians are by no means the only ones who are being frustrated. Globally, efforts are being made to fill the ICC inboxes with pleas and appeals. The Committee of the SEARCH Foundation, to take one example, has been busy attempting to bring former Australian Prime Minister John Howard before the court for his role in sending Australian troops to Iraq in 2003, arguing that it has exhausted every domestic avenue. The ICC remains silent.

That said, the body should be busier than ever. But the swords of the prosecution are, in a growing number of cases, being sheathed. Leila Nadya Sadat, special advisor on crimes against humanity and an ICC prosecutor, sees a far more crucial problem in the international legal system. Critics have misidentified the source “of the current difficulties with international justice.” It is not the ICC, which is “thriving” but “states refusing to join cause with the court against genocide, war crimes and crimes against humanity” that are damaging the cause (St. Louis Post-Dispatch, Jan 11).

Legal specialists will be looking on rather glumly at the fact that the forces that seek to evade that every issue of joining cause are countries such as Israel and the United States, the biggest critics against recent Palestinian efforts.

Shelving cases will do everything to suggest that prosecutions are illusions at the international level, with the grand exit clause for every brief: taking a leader to book for crimes of war, humanity and genocide will fail for want of ease and consensus. In the words of Duke University law professor Madeleine Morris, “If it [the ICC] acts, it will be very much criticised and if it doesn’t act it will be very much criticised” (NPR, Jan 11). That should never be an excuse, but politics remains both an advancing cause and a crippling defect in the cause of international law.

Dr. Binoy Kampmark was as Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

More articles by:

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

December 17, 2018
Susan Abulhawa
Marc Lamont Hill’s Detractors are the True Anti-Semites
Jake Palmer
Viktor Orban, Trump and the Populist Battle Over Public Space
Martha Rosenberg
Big Pharma Fights Proposal to Keep It From Looting Medicare
David Rosen
December 17th: International Day to End Violence against Sex Workers
Binoy Kampmark
The Case that Dare Not Speak Its Name: the Conviction of Cardinal Pell
Dave Lindorff
Making Trump and Other Climate Criminals Pay
Bill Martin
Seeing Yellow
Julian Vigo
The World Google Controls and Surveillance Capitalism
ANIS SHIVANI
What is Neoliberalism?
James Haught
Evangelicals Vote, “Nones” Falter
Martin Billheimer
Late Year’s Hits for the Hanging Sock
Weekend Edition
December 14, 2018
Friday - Sunday
Andrew Levine
A Tale of Two Cities
Peter Linebaugh
The Significance of The Common Wind
Bruce E. Levine
The Ketamine Chorus: NYT Trumpets New Anti-Suicide Drug
Jeffrey St. Clair
Roaming Charges: Fathers and Sons, Bushes and Bin Ladens
Kathy Deacon
Coffee, Social Stratification and the Retail Sector in a Small Maritime Village
Nick Pemberton
Praise For America’s Second Leading Intellectual
Robert Hunziker
The Yellow Vest Insurgency – What’s Next?
Patrick Cockburn
The Yemeni Dead: Six Times Higher Than Previously Reported
Nick Alexandrov
George H. W. Bush: Another Eulogy
Brian Cloughley
Principles and Morality Versus Cash and Profit? No Contest
Michael F. Duggan
Climate Change and the Limits of Reason
Victor Grossman
Sighs of Relief in Germany
Ron Jacobs
A Propagandist of Privatization
Robert Fantina
What Does Beto Have Against the Palestinians?
Richard Falk – Daniel Falcone
Sartre, Said, Chomsky and the Meaning of the Public Intellectual
Andrew Glikson
Crimes Against the Earth
Robert Fisk
The Parasitic Relationship Between Power and the American Media
Stephen Cooper
When Will Journalism Grapple With the Ethics of Interviewing Mentally Ill Arrestees?
Jill Richardson
A War on Science, Morals and Law
Ron Jacobs
A Propagandist of Privatization
Evaggelos Vallianatos
It’s Not Easy Being Greek
Nomi Prins 
The Inequality Gap on a Planet Growing More Extreme
John W. Whitehead
Know Your Rights or You Will Lose Them
David Swanson
The Abolition of War Requires New Thoughts, Words, and Actions
J.P. Linstroth
Primates Are Us
Bill Willers
The War Against Cash
Jonah Raskin
Doris Lessing: What’s There to Celebrate?
Ralph Nader
Are the New Congressional Progressives Real? Use These Yardsticks to Find Out
Binoy Kampmark
William Blum: Anti-Imperial Advocate
Medea Benjamin – Alice Slater
Green New Deal Advocates Should Address Militarism
John Feffer
Review: Season 2 of Trump Presidency
Rich Whitney
General Motors’ Factories Should Not Be Closed. They Should Be Turned Over to the Workers
Christopher Brauchli
Deported for Christmas
Kerri Kennedy
This Holiday Season, I’m Standing With Migrants
FacebookTwitterGoogle+RedditEmail