Is ICC Decision Beneficial for Palestine. Is International Criminal Court a Deterrent?

Is ICC Decision Beneficial for Palestine. Is International Criminal Court a Deterrent?

Q. Examine the extent to which the ICC decision to examine alleged war crimes of Israel will benefit Palestine and whether the international court is an effective deterrent currently?

A. Benefits for Palestine

.i. About the Decision

• ICC Prosecutor Fatou Bensouda took the decision to:
- Open a preliminary examination of Israel’s alleged war crimes on Gaza in June 2014
- Examine extent to which crimes were violation of human rights

• Decision follows Palestinian accession to Rome Statute earlier

• Acceptance of ICC jurisdiction since 13 June 2014 over occupied Palestinian territory (including Jerusalem)

ii. Reactions

• Impasse in Israel-Palestine relations
• Polarisation of global politics
• Hamas and Palestinian President Mahmoud Abbas welcomes this move
• Israel signed yet not ratified Roman Statute; has strongly condemned/denounced it

a. For:

1. Justice for Palestine

• War between Israel and Hamas led to death of Palestinians and Israelis
• Legal matter; faith reposed in justice system

2. Deterrent for Israel

• Israel will be restrained from committing further war crimes

3. Hope Following Collapse of Peace Talks

4. Examination of Israel-Palestine Issue On International Scale

5. Chances to Gain Palestinian Statehood in 2 Territories

• ICC Accepted Palestine as State without even clearly defined boundaries
• Big step forward for recognition of Palestinian statehood

6. Accountability for Crimes By Hamas

• Fatah is a neutral group while Hamas is more militant
• Rocket attacks on Israel acted as fuel for war too
• ICC is the final resort for lasting peace in the region

7. Identification of Militant Groups Operating From Gaza

• Many splinter groups could form if not caught, derailing Palestine-Israel peace process
• Investigation could reveal such groups

8. Confrontation Necessary

• “Path of confrontation chosen” by Palestine, says Israel
• Confrontation may be needed, Israel needs to be challenged

9. Increasing Pressure on Israel

• This new strategy aims at “internationalising” the issues, says Palestine
• Israel opposed to structured resolution
• Pressure only possible if ICC steps in

10. Check on Israeli Expansion

Palestine is also planning action against spread of Israeli settlement through ICC in:
• West Bank
• Jerusalem since 1967

12. Support from Rome Statute for Prosecution of Israel

• Strong chance Israel will be prosecuted as Rome Statute says:
Unlawful deportation/transfer/confinement of protected persons in area under military occupation a war crime.

13. Diplomatically isolating Israel

14. Halt on International Lobbying by Israel

15. Initiating Right Action Against Israel for Longstanding War

War crimes charge against Israel to be examined during:
• Recent Gaza bloodshed
• 47 year long occupation of West Bank
• Gaza occupation from 1967-2005
• Impact of violence was severe: Operation Protective Edge
• Tens of thousands of homes in Gaza destroyed/damaged
• 2100 Palestinians and 73 Israelis have been killed

b. Against

1.Undermines Chance for Peace Deal

2. Punitive Action Against Palestine

• Israel has withheld transfer of USD 127 million or 106 million euros in tax revenues as punishment for Palestinian invocation of ICC
• Government workers of PA not able to get salary on account of this

3. Rise in tensions with Israel

4. Risk of Exposing Palestinian Officials to War Crimes

• Palestinians fired rockets at Israeli civilian areas
• Hamas leaders could face charges for firing mortars, rockets and carrying out air strikes
• Many NGOs already saying Palestinians should also be investigated for example Israeli human rights group Shurat HaDin has asked ICC to investigate war crimes by leaders in Palestine

5. Israel and US See ICC Intervention as Unilateral Approach

6. PA Collaboration with Terror Group - Hamas viewed a terror group; unity deal makes PA liable for prosecution as well.

7. US Opposition - Powerful state said Palestine not sovereign state; cannot join ICC or use it

8. Funds Shortage for PA

• Washington biggest contributor to PA after EU
• Gives USD 400 million each year
• US support cut because Palestine approached ICC

9. Palestine Israel Issue Outside Jurisdiction of ICC

• This is a political matter, not judicial
• Appeal likely to be dismissed

B. Is ICC Is a Deterrent?

a. For

1. International Justice System

• International criminal justice system which adjudicates war crimes
• Spans across countries and maintains global outlook

2. Not Meant to Be a Political Body

• ICC Is a judicial body; fulfils its roles in this function
• Holds those committing war crimes responsible for their act
• Politics of peace should not obstruct justice

3. Promotes Accountability

• ICC brings action against those who have committed human rights violation in war crimes
• Fights genocide and war crimes; if not ICC then who?

4. Neutrality

• ICC investigates war crimes against both Hamas and Israel through this inquiry
• Equal treatment of both groups

5. Full Independence

• ICC does not act under any other body’s orders
• Not influenced by any nation or partial in any way

6. Chance to Restore Credibility of Court

• Following setback of charge dropping against Kenyan President Uhuru Kenyatta, ICC needs to redeem itself
• Following Kenya, other areas where ICC failed include Darfur in Sudan due to lack of UNSC backing
• Every successive case could boost credibility; ICC constantly active and on quest for justice; important for reputation building.

7. No Peace Without Justice

8. Chance to Establish ICC Identity - It is not a tool for regime change, but for promotion of accountability

9. ICC Has Extensive Coverage

• ICC does not target only Africa
• In 5 of 8 African nations where suspects indicted at behest of political leaders there
• Victims and local rights groups have also spoken up here
• Though many of African nations like DR Congo, Ivory Coast, Mali, Uganda and Central African Republic targeted by ICC, other nations covered too

10. Many States Have Taken Some Action Following ICC Directive

• Sudanese president prevented from attending summits in Malawi and Kenya; steps taken to put ICC directive into force
• DRC surrendered several suspects to ICC

11. ICC Carries Out Constant, Cumulative Investigations

12. Prosecution of Only Those Responsible for Coercion

• Prevents those with diminished responsibility from being unjustly prosecuted for example minors, victims of coercion and so on.
• Deters indirect manipulation by powerful warlords

b. Against

1. ICC Hinders Peace Process

2. Slow and Ineffective Investigation of Crimes - Just three cases completed under ICC since its formation

3. Poor Conviction Record - Just two convictions secured by ICC since inception

4. Legitimacy of Causes It Supports Questionable

• Hamas is a terrorist organisation according to many nations
• Israel fighting a war against terror, it says
• Question of whether ICC right in batting for Hamas

5. Vulnerability to Political Pressure

6. Opposition from Many Powerful States

• Non member nations such as the US, China and Russia have say in matters
• US has opposed Palestine; Israel has detractors
• Inquiry can be derailed by influence of these states

7. Selective Justice

• ICC focuses on Africa mostly
• It pursues Israel, Palestine, ignores Syria
• Charges of political favouritism

• Partial justice; ICC only goes to places where:
- It has jurisdiction
- Crime Committed by citizen of state party or territory of state party
- Referral from UNSC

• Powerful states untouched by ICC; US former leaders accused of war crimes in Iraq cannot be brought to book because US not signatory to Rome Statute

8. ICC Lacks Coercive Power

• Can issue warrants but not enforce them
• Many cases where states which are party to Rome Statute have failed to cooperate with ICC example non-arrest of Sundanese President Al-Bashir with countries obliged to arrest him refusing to do so

9. ICC Inflicts Only Light Sentences

• Justice denied on account of light sentences example Lubanga arrested and sentenced to just 14 years for recruiting and forcing child soldiers to fight

10. Lack of Impact

• Arrests fail to create desired results
• For example, thousands of child soldiers being recruited despite Lubanga's imprisonment

11. Lower Ranked Perpetrators Go Scot-Free

• ICC prosecutes only those leaders “most responsible” for war crimes
• Rank and file troops do not face legal action
• Less chance of being punished leads to easy manipulation and low deterrence
• Example: child soldiers drugged before combat by rank and file in full knowledge the latter will not be punished

Conclusion

Regarding Israel-Palestine Issue

• The Israel Palestine issue is a contentious and long standing one, with multiple wars being fought by both sides. It is only right that both sides are being jointly investigated for war crimes by the ICC.

Regarding ICC

• ICC has scope for creating a more just and peaceful world. But even if there is political pressure on it and there are problems in the dispensation of justice, the need of the hour is to strengthen the international body to withstand the opposition and deliver a just verdict which is a powerful deterrent in many ways

• ICC has the international standing to investigate matters thoroughly and find a peaceful and just solution to global wars, violence and genocide.