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The weakness of international justice and the ICC

December 6, 2018 at 11:02 am

It is a proven fact that if you have good lawyers and clever publicists, you can pretty much avoid responsibility for any criminal action in today’s world. This isn’t a recent conclusion. We have seen evidence of this reality many times over the years.

The law is manipulated often, such as in cases involving those who do and do not allow their nuclear arsenals to be inspected by the international community. Iran, for example, has been attacked because it refuses to cooperate with the International Atomic Energy Agency (IAEA) in disclosing its efforts to develop nuclear weapons. Israel, meanwhile, actually has one of the largest nuclear arsenals in the world but neither allows IAEA inspectors to visit its nuclear facilities nor gets criticised for this. Why the double standards?

Iran’s former dictator, the Shah, was a signatory to the IAEA agreement. Although he was ousted in 1979, the IAEA, Israel and America assert that his agreement now applies to his successors, the Ayatollahs.

In reality, it doesn’t matter that Iran does not have any nuclear weapons or that Israel does. What matters, apparently, is the politics.

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Why isn’t Israel required to allow international inspections of its nuclear arsenal, weapons which it once threatened to use when the Arabs sought to recover their lands in the 1973 October War? Well, Israel has refused to recognise the IAEA and has refused to sign the agreement.

This issue extends far beyond the real threat of Israel’s nuclear weapons – it is believed to have more than 250 — and Iran’s unsuccessful efforts to build even one atom bomb. It actually extends to the place where disputes are supposed to be adjudicated under the rule of international law: the International Criminal Court (ICC).

The problem with the ICC is that it does not have universal jurisdiction. States must sign-up to the Rome Statute, which defines the Court’s jurisdiction, before it can consider prosecuting war crimes.

Only 123 nations have ratified the Rome Statute, most of which have been victims of war crimes committed by larger states. Four nations which did ratify it subsequently withdrew, three from Africa and the Philippines. One of the African States that withdrew but then later re-joined was Gambia. That may have been due to the fact that the ICC’s lead prosecutor, Fatou Bensouda, is from the West African state. With 195 nations in the world, this means that 72 technically remain outside the ICC’s jurisdiction.

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Two of those 72 nations that have refused to recognise the ICC are states which have engaged in many military conflicts and have been accused of committing war crimes and crimes against humanity. They are also two of the loudest in denouncing international war crimes. They also happen to help each other more than any other nations. “They” are Israel and the United States of America.

It is ironic that both Israel and the US denounce the ICC and refuse to be held to account for their actions and yet still claim to be leading bastions of democracy. What sort of democracy has no foundation in the rule of law?

When the US invaded Afghanistan in 2002 and then Iraq in 2003, its troops were accused of committing war crimes. Washington had prepared for that, though, by declaring that it would not recognise any nation that attempted to prosecute any of its citizens on war crimes charges.

And just as Israel avoids allowing IAEA inspectors to examine its weapons of mass destruction, it also refuses to sign the Rome Statute. No matter what it does, Israel is beyond the ICC’s reach.

Bensouda has already shown her reluctance to take on either the US or Israel at the ICC. When charges were presented against Israel in response to its unwarranted violence against a convoy of civilian ships carrying humanitarian aid for the 1.8 million Palestinians in the besieged Gaza Strip in 2010, Bensouda responded to political pressure from Israel and the US to forget about any prosecution.

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The Israeli forces which attacked the flotilla in international waters killed nine Turkish citizens on board the Mavi Marmara; a tenth died later of his wounds. One of those killed by the Israelis had dual Turkish-US citizenship; 19-year-old Furkan Dogan. It is standard procedure for the FBI to investigate the killing of any US citizen killed overseas; this has not happened on the occasions that the killers are Israelis, as in Dogan’s case and that of Rachel Corrie, an American peace activist crushed by an Israeli military bulldozer in 2003.

The Mavi Marmara case was ordered to be prosecuted by the ICC’s three member judges. Bensouda dragged her feet every time charges were filed by the Comoros Islands, where one of the flotilla ships was registered. Israel argued that the passengers on board reacted with “extreme violence” and, incredibly, accused many of those killed of being members of Al-Qaeda. The Israelis simply refused to submit to an ICC investigation.

When the ICC was urged to look into the killing of civilians in Afghanistan and Iraq by US troops, Washington pushed through a law that protected any US soldier from ICC prosecution.

In May this year, representatives of the State of Palestine, a signatory to the Rome Statute, filed a case against Israel in response to the killing of Palestinian civilians in Gaza as they protested along the nominal border with Israel. Since 30 March, more than 200 Palestinian men, women and children have been shot by Israeli snipers; at least 18,000 have been wounded. ICC prosecutor Bensouda has to-date refused to act on the Palestine filing.

The sad truth is that the ICC apparently prosecutes cases not on the basis of justice or the rule of law, but on the basis of political power; it only goes after those which are regarded as soft targets. That is the weakness of international justice and the International Criminal Court itself.

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The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.