Globalization of Justice
The Rome Statute is the basis of the International Criminal Court and sets out the provisions for the functioning and purpose of the Court. The Court is a permanent and independent institution whose purpose is to address the crimes identified in the Statute – war crimes, crimes against humanity, genocide and aggression. The Court has competence for crimes committed after the 1 July 2000 and has jurisdiction for crimes committed on the territory of a state which has ratified the treaty; by the citizen of such a state; or when the Security Council refers a case to it. There are currently 89 states that have ratified the Rome Statute and so are state parties to the Court.
The dawn of the International Criminal Court constitutes one of the greatest victories of justice to date. Its ideals and aims have the possibility of affecting every person in the world and the power that comes with this must be nurtured as constructively and effectively as possible. The ICC has taken a considerable time to come to the stage that it is currently at; and these final stages are of extreme significance and so must be considered as carefully and discussed as deeply as any of the other stages so far.
Participation is key to the running of the ICC and it is undeniable that the Arab States’ attitude to ratification of the Rome Statute has been quite disappointing. While most of the Arab States have signed the Rome Statute, only Jordan has ratified it and become a State Party to the Rome Statute. This issue needs to be addressed and Arab States should provide reasons for their hesitation in ratifying the Statute. There do not seem to be any clear justifications for their refusal to do so. Unfortunately, the precedent set by the United States in withdrawing all of its support from the ICC has had some effect in legitimizing non-participation in the ICC. With regards to the Arab States, the behavior of the United States, as well as Israel, tends to minimize worldwide belief in the ICC. These two countries have actually signed the Statute, having first voted against it; but have continued to refuse to ratify their signatures. Instead of encouraging and inspiring other countries to become a party to this step towards unimpaired justice, the United States continues to attempt to undermine the work of the ICC. The motivation for this maneuvering is grounded purely in politics; one motivation that state parties to the ICC should not accept. Such an outlook cannot be encouraged and serves only to weaken the world’s perception of the United States with regards to its support of global justice.
Arab States should be encouraged to become part of the ICC
It would certainly be beneficial to the work of the ICC if more Arab States did discuss their future ratification of the Rome Statute; and form some sort of cohesive support of the ICC. However, this cannot be considered the most pressing problem facing the advance of universal justice in the Middle East. The Arab States are certainly not the most conspicuous parts of the region to have stepped away from the ICC. Of greater significance is the situation regarding Israel and the Occupied Palestinian Territories, which should be considered the issue, which has the greatest potential for having a detrimental effect on the role of the ICC throughout the region of the Middle East. Israel’s response to the ICC and its refusal to ratify is a grave reflection of Israel’s attempts to minimize the risk of it being brought in front of the ICC in the future. While the ICC does not have retroactive powers it does have competence on crimes committed after the 1st July 2002; and this could impact Israel greatly.
Israel’s reluctance to join the ICC
Israel’s main concern about the ICC is that the settlement of Israeli citizens in the Occupied Palestinian Territories would be considered a war crime, as set out by the Rome Statute. Were Israel to ratify the Statute, their settlement policy would lead to serious consequences for it and Israel is unwilling to face these. Settlements are considered illegal under international law and it would be impossible for Israel to justify them in front of the ICC. However, Israel’s settlement policy is only one breach of international law that is likely to lead Israel to be anxious about being brought before the ICC. Israel appears concerned that cases, inevitably brought against it, will lead to investigations into Israel’s affairs and actions. Such investigations would allow for the possibility that the truth of what has been happening to the Palestinians, particularly in the Occupied Territories, at the hands of the Israeli authorities, may surface in such an international forum. This forum would be much more significant than the countless others in which Israel's human rights violations have been exposed. The Hague Court would be different as it has, as an objective, enforcing remedies for victims and reprimanding those responsible. For these reasons, not only is the idea that certain information may come to light, distressing for those responsible in the Israeli administration; but the ensuing search for culpability that will naturally and rightfully be sought will be the start of a very long process of accountability. The question that the Israelis are facing is whether Israeli could withstand such honesty and, more significantly, its effects.
For all those involved in the witnessing and documentation of human rights violations, the hope in their work is that a time will come; it must come, when such culpability and accountability will be justly assigned. Perhaps it is naiveté to envisage that this day will come as soon as so many would like; but the ICC can only be considered as a step in the right direction. As the ICC starts functioning and dealing with cases, those who were unsure or unaware of its purpose will begin to understand its practical and real purpose. In such a climate, those countries who have shunned membership to such an exclusive club can only feel left out and lacking when all around them; the pursuit for global justice strengthens. The simple provision of such an outlook will mean that those not necessarily in political positions, but those who can observe the importance of the ICC, can come together and insist that those countries, who have let themselves fall behind, join up to such an institution. Pressure from the citizens of such countries will be considerable and must be allowed to flourish and be supported by all those interested in global justice.
The extent of Israel’s rejection of the ICC
What is alarming is not only the way in which Israel is avoiding the ICC, but also how it is attempting to thwart any possibilities of cases being brought against Israelis, when the court fully comes into being. Israel has not simply refused to join the ICC as a State Party; nor simply justified this position by claiming Israeli individuals would become a target for politically motivated targets. Israel has also started taking legislative measures to prevent any possibility that it be brought in front of the ICC in any way at all. Israel is furtively trying to stitch up every eventuality, which it perceives as a loophole. As well as disappointing and cowardly, this is a little known or investigated reality. This potential Israeli legislation has not yet received the necessary public attention; and so the shocking implications that may come as a result of it have not been entirely examined. On October 30th 2002, a bill was tabled at the Israeli Parliament, the Knesset, which intends to make any assistance rendered by an Israeli citizen to the ICC a criminally indictable offence. Thus it would be a crime to contribute to a court whose simple and clear intention is to achieve justice. This outrageous bill was presented by Ze’ev Boim, a Member of the Knesset, who is a senior member of the Likud party. The bill proposes that any assistance by an Israeli to The Hague Court would be punishable by up to 10 years’ imprisonment. The bill covers a large range of proscribed acts, which would be criminal; including:
‘The provision of any information such as writings, photographs, documents, opinions and reports’
‘The collection, keeping and preparation and transfer of information’ and
‘The holding of investigations and the writing down of their results’
In addition to these activities, any association engaged in any similar activities would be liable to be disbanded.
If this law is passed by the Knesset, it would have serious implications for all organizations working for the promotion and protection of human rights throughout Israel and the Occupied Territories. Most of the work already carried out by such organizations would automatically be made unlawful and the information achieved by them would be construed as unlawful, under the pretext that the result of such work might get to The Hague Court and used by it as evidence. The work of the Palestinian Centre for Human Rights sometimes involves collecting and dealing with information about events, which are in breach of human rights and humanitarian law. This information is investigated, analyzed and serves a number of functions in the Centre’s work. Many of these human rights abuses would amount to crimes that could, in time, technically be brought before the ICC. This would make the work of the Centre, as well as other like-minded organizations, illegal and even punishable. NGOs and human rights organizations could be legally closed down and forbidden to continue with their work. Such a situation would be beyond all belief and could not be condoned in any way. The fact that there are those in Israel who believe that such a law is necessary exemplifies the way in which Israel views the ICC - with fear. The proposal of such a law is in response to such fear and mirrors the American response, which has been equally suspicious of the ICC. After all, the United States appears to be significantly and unreasonably concerned at the potential effect the ICC may have on American individuals, who may be brought before the ICC.
The aims and ideals of the ICC
Surely, the intention of the ICC is not to make states fear its power to the degree that they legislate domestically to try to avoid any potential dealings with the Court. The Court serves far more important functions than this entirely simplistic approach apparently taken by certain countries. The real intention of the Court is to make potential perpetrators of certain crimes realize that impunity is no longer an acceptable option; and so the serve as a credible deterrence to the acts of such international crimes. Furthermore, another important function is to encourage states to pass their own legislation to deal with such crimes in order to emphasize that The Hague Court is a last resort only. By the principle of complementarity, national courts are encouraged to exercise their jurisdiction over international crimes; and as long as cases are carries out justly and adequately, there will be no need for the ICC to play a direct role. The ICC does not intend to victimize individuals and countries who legislate for these crimes and also ensure that there are appropriate methods of investigation; and adequate methods of redress and sufficient remedies within their own legal systems.
However, Israel has misinterpreted all of these just and honorable intentions and appears to have initiated a pre-emptive strike against the ICC. Israel, in a similar feeling to the United States, appears to feel as though it would be unfairly persecuted by an institution such as the ICC. Such a mentality is an indication of the concern that Israel seems to feel inevitable as a consequence for its successive governments’ actions. It is purely for this reason that Israel even has thoughts about such preventative national legislation. While Israel may feel that this protects them, in reality it only serves to highlight their reluctance to be a part of the movement towards ensuring global justice. In addition, it indicates the reality that this is a country, which has something to hide and is deeply concerned about facing reprisals as a result.
Hope for Palestinians
Despite all of these potential setbacks in the Middle East, Palestinians can view the ICC and its potential with great hope and a feeling that the future possibilities are limitless. Although Israel’s reticence is not particularly surprising; the way in which it faces such minimal retribution for its actions will always be a shock and a disappointment. It is a setback to justice that Palestine cannot become a State Party to the Rome Statute; as this would be a significant step in a just direction. However this, coupled with the fact that prominent figures in the Israeli administration are working hard to legislate for Israel to become even more removed from the jurisdiction of the ICC, is quite disturbing. Such legislation contradicts the spirit of the ICC completely and cannot be supported by anyone who is against impunity and injustice.
A Palestinian State as a member of the ICC
The issue of Palestine not being able to be a state party is one that will hopefully be addressed some time in the future. A two-state solution would establish an internationally recognized Palestinian state, which could itself become a party to the ICC Statute. While there could be no retroactive cases, which would mean that cases concerning the Israeli military occupation would be limited; becoming a state party could offer the Palestinians the same benefits that all individuals of state party countries have. This could mean that the Palestinians could bring cases against Israelis, even though Israel was not a State Party. Such a situation would mean that all the work of Palestinian human rights organizations could finally be used in order to provide evidence to the ICC. While it is likely that such a situation is a long way off, it cannot be set aside as an impossibility. At present, Palestinians in the Occupied Territories have no voice in the ICC; a situation, which should be rectified – particularly when faced with the numbers of human rights violations and breaches of international humanitarian law that occur on a daily basis. If Israel became a full state party to the ICC, then Palestinians in the Territories would be able to bring cases against Israelis as the Occupied Territories are internationally considered to be under the control and jurisdiction of Israel.
Fourth Geneva Convention
So much of the work of human rights organizations within the Occupied Palestinian Territories is based on the provisions of the Fourth Geneva Convention. While all international humanitarian law is considered and addressed, the significance of this Convention cannot be sidelined. It is certainly the cornerstone of the work of the Palestinian Centre for Human Rights who have always maintained that the Convention should be applied de jure to the territories. Breaches of the Convention by Israel, a state party who refuses to acknowledge its applicability in the Territories, contrary to every other state party, are documented and investigated on a daily basis. The real challenge has always been ensuring the enforcement of the Convention. While there is a duty on other High Contracting Parties to ensure that all other Parties adhere to their duties and obligations under the Convention, this has been frighteningly underused due to lack of political and practical will. The Convention sets out grave breaches, namely war crimes, in article 147, which the ICC would have jurisdiction over. In addition, article 147 obligates all High Contracting Parties to ensure that those responsible for such grave breaches are brought to justice. This has always been politically problematic and a weak enforcement procedure. Therefore, the ICC finally offers the possibility of such enforcement and would be an immense and progressive step for the implementation of the Convention within the Occupied Territories. As the ICC intends to offer a permanent court, which is not to be halted or significantly affected by political mechanisms, the Convention could finally be sought to be upheld. Naturally, this is impossible as long as Israel rejects the Court and Palestine is not a recognized State that could be a party to the Court. Nevertheless, it offers some long-needed potential for the enforcement of the foundation of so much of the work of human rights organizations working within the Occupied Territories.
The future of global justice
To conclude, it must be reiterated that those countries which do not ratify the ICC Statute are as significant to the ICC as those that do. While a campaign to encourage Arab States to ratify the ICC Statute as soon as possible would be of great import; it must be stressed that encouraging all countries to ratify is just as important. More attention needs to be given to the fact that Israel is trying its hardest to extricate itself and distance itself from the ICC as much as possible. While it may be entitled to do so practically, morally we cannot allow it. Why does Israel feel such strong opposition to the ICC, whose treaty it once signed? This opposition is so fierce now that Israel is even contemplating legislation designed, with the sole purpose; of stopping any of its citizens even giving information to the ICC. It can only be drawn from this that Israel is anxious as to what such information will lead to. Indeed it seems as though this anxiety is so great that Israel feels the need to curb the potential of every one of its citizens involvement in the ICC, whose treaty Israel has actually signed. It seems to me that the real question here is – what is Israel so frightened of? By answering this question I think that we reach the real reasons why global justice is so important. By offering an end to impunity and an alternative to the injustice that has plagued so much of the last century, the ICC must be allowed to prevail.
A further point of significance is that there needs to be some representation for citizens, such as the Palestinians, who have no ability to contribute to the ICC and its work in the present state of affairs in the Occupied Territories. While it is important and necessary for as many countries as possible to be State Parties to the ICC Statute, it is equally crucial and significant to allow people, such as the Palestinians to have some entrance into the ICC. Otherwise, the consequence is that nations, which do not fulfill the criteria of being an eligible State Party to the ICC Statute, but actually have many potential cases that could be brought before The Hague Court, are entirely forgotten. Although the ICC will continue to develop and progress, along with the support of many nations, such dilemmas should be mentioned at this stage so that they can be addressed at some point in the life of the ICC. What cannot be forgotten is that the ICC needs to be accessible to as many victims as possible so that impunity can one day be eliminated; making way for the only dominating force in the world to be global justice.
Read also the Press Release