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Palestine’s membership, a last chance to save the ICC

The Palestinian Authority has joined the ICC at the very moment it faces a real crisis. Next June, the African Union might call its members to abandon the club of ICC member states as a result of the Court’s alleged “racism”.

The Palestinian Authority represented by its foreign minister, Riyad Al Maliki, was welcome as the 123d state party to the Treary of Rome, on the last 1er April, by the International Criminal Court’s second Vice-President, the Japanese judge Kuniko Ozaki, at The Hague headquarters. This was no doubt an important step in Palestine’s struggle for international recognition, hailed by Al Maliki who declared “today the world is a step closer to ending a long era of impunity and injustice”.

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Henceforth, explains the NGO Coalition for the ICC, which groups civil society organisations from 150 countries, the ICC’s jurisdiction will be expanded to war crimes, crimes against humanity and genocide committed on the Palestinian territory and against Palestinians. So far, about 30 cases are ready and will be handed over to the court by a group of lawyers including Georges-Henri Beauthier from Belgium. The cases concern the destruction of civilian houses and of hospital in Gaza during the summer 2014. The plaintiffs call for the prosecution of Israeli leaders in charge of the military operation in Gaza, including Prime Minister Benjamin Netanyahu, the Defence Minister, Moshe Yaloon, the Intelligence Minister, Yuval Steinitzt and the Israeli Defence Force chief of staff, Benny Gantz. The crimes which were accordingly commited in Gaza, are subject to a preliminary examination, announced the ICC last January. The president of Belgiums Human Rights League, Alexis Deswaef, considers that acts de colonization might be included in the definition of war crimes and crimes against humanity. At the same time, by joining the ICC, the Palestinian Authority accepts that crimes committed from its territory such as the launch of rockets against the Israeli territory might also face ICC prosecution.

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While Palestine undeniably needs the Court to push its case on the international scene, the same can be said ab out the ICC, whose credibility is eroded by the refusal of a large number of states including powers such as United States, Russia, China and India to be part of it, in addition to a majority of Arab and Asian states. Hence, the joy expressed by Judge Kuniko Ozaki in her welcoming speech, when she expressed hop that Palestine’s membership will encourage more Arab and Asian states to join the ICC. Palestine is indeed only the fourth member of the Arab League to sign the Rome Treaty.
Palestine’s membership is more than symbolic. It is would enhance the Court’s universal ambition in allowing it to deal with one of the oldest and deepest conflict of the modern history, provided the Court manages to widen the geographical scope of its interventitions. Indeed, thirteen years after its creation, the ICC only opened prosecutions concerning African perpetrators and so far only condemned Congolese citizens. The court received complaints about the situation on other continents but it dealt with them with a spectacular slowness. For instance, at the end of the first quarter of 2015, the prosecutor office had not yet finished the preliminary examination which has to conclude on the need to open an inquiry or not in the case of Colombia, submitted first in 2005 and in the case of Georgia, submitted in 2008. So far, the court hasn’t decided yet whether crimes which could be considered as war crimes of crimes against humanity were committed in Honduras, during the 2009 coup.

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In Iraq’s case, the Argentinian prosecutor, Luis Moreno Ocampo decided in 2006 not to open an investigation, alleging that the level of gravity of the crimes which were committed was not sufficient. It is only in January 2014, after that the European Center for Constitutional and Human Rights (ECCHR) and Public Interest Lawyers (PIL) inform the Prosecutor Office that British citizens might have been involved in war crimes such as systematic bad treatments of prisoners between 2003 and 2008, that Moreno’s successor, Fatou Bensouda, decided to reopen the case.
Today, the ICC is facing the threat of the desertion of its 34 African member states, which represent more than a quarter of all party states. Indeed, the current chairman of the African Union, Zimbabwe’s President, Robert Mugabe has announced last February that a resolution calling all African countries to leave the ICC would be discussed at the forthcoming AU summit in June. Mugabe has received the support of his Ugandan colleague, Yoweri Museveni who already called the ICC “a biased instrument of postcolonial hegemony”.

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Meanwhile, the Kenyan President, Uhuru Kenyatta, against whom the ICC dropped last year charges concerning his alleged involvement in crimes against humanity during the 2007 presidential campaign, would like an African Court of Justice and Human Rights (ACJHR) to replace the ICC which Robert Mugabe labbed as the «highly racist » ICC. Kenya has already pledged one million dollars to set up the ACJHR and has signed the Malabo Protocol setting it up in order to allow for its official start, after its ratification by 15 states. So far, ten other states have done the same.

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But African members of the ICC are not on the same line. The most strident voices against it belong to states who are not members anyway, including Sudan whose President, Omar Al Bashir, is prosecuted by the Court for crimes allegedly perpetrated in Darfur, Rwanda and Ethiopia. All these countries can call for the withdrawal of all African states. But even if the African Union summit adopts such a resolution, it will not be binding, since argues the ICC spokesman, Fadi El Abdallah, “the withdrawal or the ratification of the Rome Status are sovereign decisions” from the member states. Besides, the anti-ICC front is not rock solid. Mugabe for instance, does not want either an African Court of Justice. Meanwhile, other ICC members have adopted an opposite standpoint. The President of Botswana, Ian Khama, said last March that Botswana has no intention of withdrawing from ICC membership when addressing at a state banquet for visiting Ghana President John Mahama. “Should we have concerns about its operations, we should influence change from within the organization as opposed to leaving it,” said Khama. Eventually, African states which used the ICC as an instrument to get rid of opponents such as the Democratic Republic of Congo, are unlikely to abandon such weapon. In the end, the ICC has some chance to survive the AU resolution challenge of next June. But at any rate, it would be well inspired to diversify rather quickly its geographical targets. After all, the presence in Iraq or Syria of thousands of citizens from European or other ICC member states qualifies for prosecution according to the Rome Status.

François Misser

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