The International Criminal Court: A Help or a Hindrance?

Do you fume at the International Criminal Court (ICC) when you see all those obnoxious war criminals still walking free and still thumbing their noses at the civilised world while their gruesome crime sheet just gets longer?

There should be no hiding place. But international law never reaches into some corners because the levers that control the wheels of justice, we discover, are sometimes leaned on by the criminals themselves.

The International Criminal Court was supposed to change all that. It is governed by the Rome Statute and is the first permanent, treaty-based, international criminal court established “to help end impunity for the perpetrators of the most serious crimes of concern to the international community”.

The ICC says it is independent and not part of the United Nations system… but that is not strictly true, as we’ll see.

115 states have signed up to the Rome Statute. The UK is one of them, I’m pleased to say. And so too is Afghanistan. But states like the US and Israel rank alongside Saudi and Libya beyond the perimeter.

A further 34 countries, including Russia, have signed but not ratified the statute. These states are obliged, under the law of treaties, to refrain from “acts which would defeat the object and purpose” of the Rome Statute. Three of these states—Israel, Sudan, and the United States—signed and then, presumably realising their conduct was not up to the standards expected and wishing to undermine the Statute whenever it suited them, “unsigned”.

The Court has jurisdiction over genocide, crimes against humanity, and war crimes committed by nationals of a State Party or on the territory of a State Party since 1 July 2002, the date the Rome Statute came into effect.

The Office of the Prosecutor (OTP) lists some pretty woolly objectives including:

• To maximize the Office of the Prosecutor’s contribution to the fight against impunity and the prevention of crimes.
• To enhance cooperation with States and relevant actors, in particular for the execution of arrest warrants issued by the Court.

Does any of this help Palestine? The ICC’s website reports that on 22 January 2009, the Palestinian National Authority lodged a declaration with the Registrar under Article 12(3) of the Rome Statute which allows States not party to the Statute to accept the Court’s jurisdiction. “The OTP will examine issues related to its jurisdiction: first whether the declaration accepting the exercise of jurisdiction by the Court meets statutory requirements; and second whether crimes within the Court’s jurisdiction have been committed. The Office will also consider whether there are national proceedings in relation to alleged crimes.”

In October 2009 a delegation from the PNA and the Arab League presented the Court with a report in support of the PNA’s ability to delegate its jurisdiction to the ICC. In January 2010, the OTP sent a letter summarizing its activities to the United Nations then, in May, published a “Summary of submissions on whether the declaration lodged by the Palestinian National Authority meets statutory requirements.”

After 28 months the Prosecutor has still made no determination on the issue.

After wading through Articles 6, 7, and 8 of the Rome Statute describing the numerous crimes against humanity, war crimes and genocides the ICC is supposed to deal with — the sort of horrors Palestinians have to face every day — I found that Article 12(3) of the Rome Statute refers to Article 12(2) which refers to Article 13 (a) and (c)… which is enough to make one want to lie down in a darkened room and lose the will to live.

So I was very pleased to hear from Dr David Morrison in Dublin who periodically sends me excellent briefings and carefully researched articles from his organization, Sadaka – the Ireland Palestine Alliance. One of his latest pieces looked at the hypocrisy of referring Libya to the ICC.

The US wants impunity for itself (and Israel) while prosecuting others

Libya is not a party to the International Criminal Court and is among many states that do not accept its jurisdiction. Yet three months ago the UN Security Council voted unanimously, in Resolution 1970, to refer the situation in the Libyan Arab Jamahiriya to the Prosecutor of the International Criminal Court. Five of the states that voted for this referral – China, India, Lebanon, Russia, and the US – are not parties to the ICC and don’t accept its jurisdiction. So here we see the US among those forcing Libya to accept the jurisdiction of the ICC, when it refuses to do so itself.

Dr Morrison points also to the case of Sudan in 2005 when the Security Council decided to refer the situation in Darfur to the ICC Prosecutor. Sudan isn’t a party to the ICC either. On that occasion the US and China abstained, but 3 states — Philippines, Russia, and Tanzania — which don’t accept the jurisdiction of the ICC voted for Sudan to be subjected to it.

The ICC charged the President of Sudan, Omar Hassan al-Bashir, with genocide and two other Sudanese nationals with lesser charges.

How were these referrals possible, asks Morrison? The answer lies in Article 13(b) of the Rome Statute, under which the ICC may exercise jurisdiction if “a situation in which one or more crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations [action to maintain peace]”.

So the ICC is not the independent judicial body it pretends to be. Its jurisdiction can be extended or re-directed on the say-so of the Security Council to apply to states that have refused its jurisdiction.

Of course, says Dr Morrison, that can’t happen to non-Statute members of the Security Council who only have to wield their veto to block any attempt by UN colleagues to extend the ICC’s jurisdiction to their territory.

In his view a Court with universal jurisdiction is fair. A Court whose jurisdiction you, as a state, can choose to accept or reject has some semblance of fairness. But a Court like the ICC, whose jurisdiction can be targeted, at the whim of the Security Council, on certain states that have chosen not to accept it, but not on others, is grossly unfair.

Dr Morrison’s analysis reveals how evil this manipulation can be. The primary duty for prosecuting war crimes and crimes against humanity lies with the state in which they were committed, and the ICC only acquires jurisdiction to prosecute if the state fails to do so. The Court can prosecute any individual responsible for these crimes regardless of civilian or military status or official position.

This means that, in theory, a national of a state that is not party to the Statute, for example a US national, may be tried by the ICC for crimes committed in a state that is a party to the Statute. The US is particularly opposed to this, since it has civilian and military personnel in lots of states around the world, many of which are party to the Statute. It is US policy to prevent the ICC trying any US nationals.

Because of this, Resolution 1970 [the Libya referral] includes a paragraph exempting nationals from states not party to the ICC, including US nationals, from the jurisdiction of the ICC for acts committed in Libya… The hypocrisy surrounding this is staggering…


Dr Morrison also homes in on what are termed ‘Article 89 Agreements’. Under 89(1) of the Rome Statute, states that are party to the ICC are required to “comply with requests for arrest and surrender” by the Court. These could be for the arrest and surrender of US nationals. To prevent this, the US has taken advantage of Article 98(2), which says: “The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.” The US has negotiated agreements with more than a hundred states to block surrender of US nationals to the Court.

To ensure obedience, if states are party to the ICC they cannot receive military aid from the US without signing such an agreement. The American Service-Members’ Protection Act stipulates that “no United States military assistance may be provided to the government of a country that is a party to the International Criminal Court”, although NATO members and certain non-NATO allies (including Israel of course) are exempted, as are those who signed an Article 89 agreement.

“Such are the lengths that the US is prepared to go,” says Morrison, “in order to exclude its own nationals from the jurisdiction of the ICC, while voting in the Security Council to extend the jurisdiction of the ICC for others.”

Will the Court ‘bottle out’ over Goldstone?

In another article, ‘The Goldstone Report does not need correction’, Dr Morrison wonders if the ICC will be allowed to do its job as recommended by Goldstone.

The Israeli Government and others claim that Goldstone, in his recent Washington Post article, retracted completely all the Mission’s findings that Israeli forces had deliberately targeted civilians.

But he did no such thing, says Morrison. “The Mission came to the conclusion that in 11 incidents Israeli forces deliberately targeted civilians. He made a case, based on information of uncertain reliability, that this number should be reduced to 10. The Mission recommended that these matters end up at the International Criminal Court, with individuals being indicted for war crimes and/or crimes against humanity, if the evidence warrants…

“The ICC hasn’t got jurisdiction over these matters at the moment, since neither Israel nor Palestine are parties to the ICC. How can it acquire jurisdiction?”

In theory, he says, there are two ways. First, as mentioned, the Palestinian National Authority has made its submissions and informed the ICC that “the Government of Palestine hereby recognizes the jurisdiction of the Court for the purposes of identifying, prosecuting and judging the authors and accomplices of acts committed in the territory of Palestine since 1 July 2002”.

But it all depends on whether Palestine is a state within the meaning of Article 12(3) of the Rome Statute. If the ICC were to accept jurisdiction, it would not only allow for the indictment of Israelis for offences committed during Operation Cast Lead, but also for other crimes such as settlement building.

Article 8.2(b)(viii) makes it clear that “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” is a war crime.

The second possibility is for the Security Council to refer Operation Cast Lead to the ICC, just as it did the Libyan unpleasantness and Darfur, neither of those countries involved being party to the ICC.

If, as Dr Morrison points out, the ICC did acquire jurisdiction, its investigations would encompass not only the damning material gathered by Goldstone but a whole host of evidence from other organisations such as Human Rights Watch (Rain of Fire: Israel’s Unlawful Use of White Phosphorus in Gaza; Precisely Wrong: Gaza Civilians Killed by Israeli Drone-Launched Missiles; White Flag Deaths: Killings of Palestinian Civilians during Operation Cast Lead; Turning a Blind Eye: Impunity for Laws-of-War Violations during the Gaza War; “I Lost Everything”: Israel’s Unlawful Destruction of Property during Operation Cast Lead), Amnesty International (Israel/Gaza: Operation “Cast Lead”: 22 days of death and destruction) and the Arab League Fact Finding Committee (No Safe Place).

It is nearly two-and-a-half years since the Palestinians’ declaration and the Prosecutor, despite having access to the best legal brains, still hasn’t made a decision to proceed. Why the delay? Goldstone’s Fact-Finding Mission recommended a decision “should be made by the Prosecutor as expeditiously as possible”, another reason perhaps why the poor judge incurred such displeasure in certain quarters.

So is the ICC ‘bottling out’?

In Dr Morrison’s view it is unlikely to accept jurisdiction because of the enormous political implications. “However, one cannot but hope that the matter will be pressed in the Security Council to the point where the US is forced to wield its veto to protect Israel.”

Presumably, the matter would then find its way to the General Assembly, which could urge the Security Council to take proper steps and refer the situation in the Occupied Palestinian Territory to the ICC, in accordance with article 13(b) of the Rome Statute.

And what of America’s chicanery? This week in London we’ve had to endure President Obama on a state visit lecturing us with words like: “We fight an enemy that respects no law of war, we will continue to hold ourselves to a higher standard — by living up to the values and the rule of law that we so ardently defend… We will proceed with humility… Ultimately, freedom must be won by the people themselves… But we can and must stand with those who so struggle.”

Only a few days earlier he’d said: “No vote at the United Nations will ever create an independent Palestinian state,” and he made the outrageous stipulation that if it did come into being it should be de-militarised – i.e., the Palestinians must be deprived of a basic universal right and rendered incapable of defending themselves. Not only that, they should “negotiate” with their tormentor — the brutal occupying power — and bargain for their freedom like merchants in a bazaar and be prepared to see even more of their trashed and fragmented country lost to Zionist greed.

After Obama’s address to both Houses of Parliament, which was received with rapturous applause, throngs of smitten MPs jockeyed for position to shake the fraud’s hand, a spectacle that must have turned the stomach of those with any inkling of what is actually happening.

  • My thanks to Sadaka, which supports a peaceful settlement in Israel/Palestine based on the principles of democracy and justice.
  • Stuart Littlewood’s book Radio Free Palestine, with Foreword by Jeff Halper, can now be read on the internet by visiting Read other articles by Stuart.