International
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Palestinian Authority President Mahmoud Abbas is reportedly weighing a plan to hold Israel accountable for the latest Gaza war at the International Criminal Court (ICC). Two weeks ago, Human Rights Watch called for the establishment of an international commission of inquiry to investigate the killing of at least 1,150 protesters by Egyptian security forces at Rabaa al-Adawiya last year. And this week a U.N. human rights commission called for Syria’s regime to face justice at the ICC.
The ICC has jurisdiction in 122 countries that have signed and ratified the Rome Statute, which enables the tribunal to prosecute individuals in those nations for war crimes. But the United States and the vast majority of Middle East nations — including Syria, Israel and Egypt — have not joined the 2002 treaty, which established a global mechanism to pursue accountability for crimes against humanity.
As with any other international body, the ICC and its authority depend on the cooperation of its members. And so far, the track record of the major powers at the ICC suggests that their commitment to seeing perpetrators prosecuted has been lacking.
If citizens of nonmember states are accused of committing crimes against humanity in their home country, they may be referred for prosecution by the U.N. Security Council — but the routine political discord in that body makes such prosecution unlikely.
There have been only two such ICC referrals: Sudan in 2005 for crimes committed in Darfur and Libya in 2011 for mass killings at the end of Muammar Gaddafi’s rule. Only Darfur has resulted in a trial, with a court date set for November.
What are the prospects for ICC prosecutions in the cases of Syria, Israel and Egypt?
Because Syria is not a party to the Rome Statute, a number of documented war crimes committed by the regime and some anti-regime forces during a conflict that has killed 191,000 since 2011 may be brought to the ICC only by the Security Council, which has rarely agreed on action in the conflict because its veto-wielding members back different sides.
France and the United Kingdom support a referral, but Russia calls the idea “counterproductive.” Thus, despite widespread international support for referring Syria to the ICC — and the U.N. Human Rights commission’s backing such a move — Security Council authorization remains unlikely.
“There was such a resolution tabled in May of this year. Thirteen of the 15 countries of the Security Council voted for it,” said Balkees Jarrah, a legal expert at Human Rights Watch. “But unfortunately, Russia and China blocked that effort with their veto.”
Balkees Jarrah
Human Rights Watch, international counsel
Jarrah said of their veto that "with the death toll skyrocketing now to nearly 200,000 and atrocities still raging on all sides, Moscow and Beijing’s vote for continued impunity was a real disgrace." But, she noted “broad support for that resolution shows widespread determination to achieve justice, whether through the Security Council or other avenues.”
U.N. human rights chief Navi Pillay has proposed sending Syrian government and rebel leaders to the ICC, but she said, “you cannot compare the two. Clearly, the actions of the forces of the government — killings, cruelty, persons in detention, disappearances — far outweigh those by the opposition.”
Some Syrian opposition leaders and international human rights groups have argued that ICC prosecution of leading figures in Bashar al-Assad’s regime could help in a postconflict reconciliation process. If Syria came under ICC scrutiny, extremist groups such as the Islamic State would also be liable for prosecution for mass execution of civilians and regime soldiers captured in battle.
But that would happen, of course, only if the Security Council agreed to initiate such prosecution, a prospect that remains remote.
Israel originally signed the Rome Statute but, like the U.S., subsequently said it had no plans to ratify the treaty, leaving the ICC with no jurisdiction over any alleged crimes on Israeli soil, except in the unlikely event of referral by the Security Council.
But ICC jurisdiction could be established over occupied Palestinian territories in the near future.
Palestinian officials have entered into talks with ICC representatives to sign the Rome Statute, which would give the court the ability to prosecute any crimes committed in the Gaza Strip or the West Bank. But such prosecution would require backing by the U.N.-recognized Palestinian leadership, and right now Abbas, as the Palestinian Authority president, continues to use the threat of ICC prosecution as leverage in peace talks with Israel rather than initiate proceedings.
A bid to prosecute Israeli officials after Operation Cast Lead, which began in 2008, failed because the Palestinian territories became a state “for the purpose of acceding to the Rome Statute,” said the ICC prosecutor’s office, only in 2012, when the U.N. granted it nonmember observer state status. The ICC has not yet received any official document accepting its jurisdiction, but the Palestinian territories are eligible to apply.
With this year’s Operation Protective Edge, which, before the recently negotiated cease-fire, killed more than 2,100 Palestinians, Israel has again been accused of war crimes for its heavy bombardment of Palestinian population centers. The majority of casualties in Israel’s operation appear to have been civilians. But firing rockets into Israel, as Palestinian factions did in the course of the Gaza conflict, could also face investigation as war crimes.
Although its armed wing could face prosecution, Hamas recently pledged to support a Palestinian bid to join the ICC.
Even if Tel Aviv declined to cooperate with the ICC, prosecution could pose a problem for Israel. “If judges think a person suspected of having committed crimes will not appear voluntarily or will put obstacles in front of an investigation, they can issue an arrest warrant,” said ICC spokesman Fadi El Abdallah.
Pressure from Abbas’ diplomatic partners in the U.S. and Israel has kept him from joining the ICC. But it remains to be seen whether the breakdown in the U.S.-led peace process and backing by other Palestinian factions and the Arab League will change his calculations.
In December 2013 members of the Egyptian Cabinet ousted in the July 2013 coup that toppled President Mohamed Morsi filed a complaint with the ICC alleging that security forces used “extreme force to remove civilians who gathered to protest.”
The document presented “a prima facie case that the military, police and political members of the regime had committed crimes against humanity.” It went on to accuse Egypt’s new rulers of “murder, unlawful imprisonment, torture, persecution against an identifiable group, enforced disappearance of persons … intentionally causing great suffering” and said that evidence proved crimes were “widespread and systematic.”
Lawyers from the ousted Muslim Brotherhood–aligned Freedom and Justice Party submitted a request to impose ICC jurisdiction over Egypt, but that was rejected on the grounds that it came from a party other than the state.
Calls for international accountability in Egypt were renewed two weeks ago by a new report from Human Rights Watch (HRW). It focuses on Egyptian security forces killing well over 1,000 protesters last year in Cairo.
Describing the event as “one of the world’s largest killings of demonstrators in a single day in recent history,” HRW said over a dozen senior Egyptian leaders should be investigated for their roles in the protesters’ deaths, including Interior Minister Mohamed Ibrahim and current President Abdel Fattah el-Sisi, who was defense minister at the time.
“Many of the same officials are still in power in Egypt and have a lot to answer for,” said Kenneth Roth, HRW’s executive director.
In a statement after the killings, Egypt’s state information service said efforts to peacefully disperse the rally were “rejected by leaders of the Muslim Brotherhood.” The statement said government forces “used loudspeakers, appealed to those who were in the two sit-ins to exit, not to use women, elders and children as a human shield.”
An ICC referral by the Security Council remains unlikely, however, for the same reason as in the cases of Syria and Israel. The current government in Egypt has several allies among the veto-wielding powers on the council.
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Al Jazeera English: Human Rights Watch says killings were planned at highest levels of government and calls for senior leaders to be probed
Al Jazeera English: Cairo officials reject head of Human Rights Watch ahead of report on government’s killing of civilians
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