ICC ruling on jurisdiction in Palestinian Territories

The International Criminal Court said on February 5 that the court has jurisdiction over war crimes committed in the Palestinian territories, a ruling that was welcomed by Palestinians and criticized by Israel.

What is the judgment about?

According to this ruling, the ICC would have jurisdiction to investigate potential war crimes commited in Palestinian territories. A statement by the UN Human Rights Council, said: “This is a significant step forward in the quest for justice and accountability involving the unaccountable 53-year-old occupation of the West Bank, including East Jerusalem, and Gaza.”

The ruling was delivered by a pre-trial chamber of three ICC judges, provisions of which could lead to criminal investigations of Israel and Palestinian militant groups including Hamas. The report added that no probe was expected in the near future. This means that despite the ruling, there would be no immediate investigations even for those cases that had been brought to the attention of the international community.

How did this happen?

This ruling was really a result of the Palestinian Authority gaining formal membership of international criminal court in 2015. Israel is not a member of the ICC. At that time, the Palestinian Authority had not immediately started pressing complaints, in a move that observers had believed was an attempt to avoid direct conflict with the US Congress, which was authorised to freeze US aid to the Palestinian Authority if pursued its own legal cases.

This time however, the ICC judges saying that their decision was based on the fact the Palestine Authority had referred the situation to the court. But the judges said the jurisdiction does not “imply any attempt to determine Palestinian statehood, which is uncertain, or national borders.”

“The Court’s territorial jurisdiction in the Situation in Palestine… extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem,”

 

During the Trump presidency, the US had imposed sanctions on Bensouda and two other ICC officials for investigating war crimes committed by the US in the Middle East and had openly opposed and rejected the ICC’s jurisdiction. After Biden took office, the White House had said it would be reviewing these sanctions. Despite that, it still rejected the ICC’s latest ruling concerning the Palestinian Territories.

According to this new ruling, it is not only Israelis and the Israel Defence Forces who could be potentially prosecuted for war crimes, but also Palestinians and groups like Hamas, deemed terrorist organizations by the West, that have been accused of targeting Palestinian civilians, including using them as human shields.

But on February 12, British barrister Karim Khan would be replacing Bensouda as the new prosecutor for a nine-year term starting on June 16, following his election by parties to the ICC. Khan is known for heading the United Nations’ special investigative team looking into Islamic State crimes in Iraq and has also worked for major international criminal tribunals in roles in prosecution, defence and as counsel for victims.

Following his appointment, the decision to press ahead with a full investigation into whether war crimes have been commited in the Palestinian Territories might be one of the first few cases that Khan is likely to handle.

The report added that a significant part of Khan’s career was spent as a defense lawyer which could make him more likely to be in favour of defendants, in this case Israel. The report added that in the past, Khan has criticized the “ICC prosecutor’s office for relying on shaky or weaker evidence” on occasion, which may play in the favour of parties like the US that wish to close investigations into its role in committing war crimes in Afghanistan and Israel’s war crimes in Gaza.

What is India’s stance?

Israel has been pushing its “good friend” India to take a stand against the ICC ruling, but India is reluctant to do so given its own geopolitical interests. India has not responded to Netanyahu’s communication in this regard, but the report said a message was conveyed through diplomatic channels that since India is not a member of the Rome Statute, the founding treaty of the ICC, “it would not want to comment or take a position on any of the court’s decisions or rulings.”

India’s stance may be unwelcome to Israel that considers the country to be an important partner and a ‘like-minded nation”.

What is the ICC?

The International Criminal Court (ICC) is an intergovernmental organisation and international tribunal headquartered in The Hague. It investigates and tries people charged with serious and grave crimes such as genocide, crimes against humanity, war crimes and the crime of aggression. It is the first permanent international criminal court in the world.

ICC Functions

• The ICC aims to end impunity and hold those individuals responsible for heinous crimes against humanity to face justice.
• It also aims to prevent crimes from happening through the proper dispensation of justice.
• The ICC intends to complement national courts and not replace them.
• It is governed by an international statute known as the Rome Statute. The Statute entered into force in July 2002.
• The Court has about 900 staff members from about one hundred nations.
• It has two working languages namely English and French. There are 6 official languages namely, English, French, Arabic, Chinese, Spanish and Russian.
• The ICC has heard 28 cases until now.
• India is not a member of the ICC.
• Each member party has one vote and voting is resorted to only when decisions cannot be taken by consensus.

International Criminal Court – Organisational Structure

• The approval of ICC’s budget, the election of judges and prosecutors is done by the Assembly of States Parties
• There are four organs of the International Criminal Court (ICC):

• • Presidency
  • Judicial Division
  • Office of the Prosecutor
  • Registry
• There are multiple field offices which have been set up by ICC in countries where investigations are held
• Those detailed by ICC are moved to a detention centre which is safe and secure and the authority responsible for inspection in the Centre is the International Committee of the Red Cross (ICRC)
• It must also be noted that it is not a United Nations Organisation but had a cooperation agreement with the UN
• The Rome Statute, grants the ICC jurisdiction over four main crimes:
  • The crime of Genocide
  • Crimes against Humanity
  • War crimes
  • Crime of Aggression

Limitations with the International Criminal Court

There are certain conditions and limitations with the functioning of the International Criminal Court:

• ICC relies upon the different countries for the arrest and transfer of the guilty person to the detention centre as no special force or police authorities have been enforced specifically for ICC
• The selection of cases by ICC is very selective
• Regular checks are not done on the authority of the ICC prosecutor and judges
• In the past, the International Criminal Court has also been accused of being partial towards the powerful countries
• There is a scarcity of human resources and funds with ICC
• It has been accused of being a tool for western imperialism
• State cooperation is necessary for ICC to function effectively. This factor renders its efficacy low as perpetrators of crimes can take over governments and avoid facing justice through the ICC

India and ICC

• India did not sign the Rome Statute because of the following reasons:

• • National interests
  • State sovereignty
  • Problem to find impartial prosecutors
  • Difficulty in collection of evidences
  • Crime definition