International Court of Justice or International Criminal Court. Who can help the Palestinians?

By Rafaëlle Maison

The International Court of Justice (ICJ), recently seized by South Africa against Israel, stood out with an order modifying the representation of the conflict in Gaza by admitting the possibility of a genocidal offensive. It is meeting again at the end of February 2024 to hear oral presentations from 52 States and three international organizations responding to the question asked in December 2022 by the United Nations General Assembly on the legality of the occupation of the Palestinian territory since 19671 This question, which involves the right of peoples to self-determination, but also the theme of government through racial segregation (apartheid), is fundamental. The opinion which will be delivered, probably in the summer of 2024, will be part of a case law relating to Palestine noted since, in 2004, another opinion on the construction of a wall in occupied Palestinian territory had already recalled the legal framework understanding of the situation of the Palestinian people. At the same time, the prosecutor of the International Criminal Court (ICC) claims to be conducting an independent investigation into crimes committed in the occupied Palestinian territories. However, this latter institution now seems terribly outdated, both in view of the delay accumulated in the work relating to Palestine and the direction of the investigations relating to Gaza.

THE PLACE OF STATES IN INTERNATIONAL LITIGATION

The principal judicial organ of the United Nations, the ICJ judges disputes between States. It is in this contentious role that she is called upon to rule on the case brought by South Africa against Israel. Made up of judges representing the diversity of United Nations member states, it can rely on well-established and respected jurisprudence, preceded by that of the Permanent Court of International Justice established within the framework of the League of Nations (SDN). This case law is characterized by a form of prudence, since recourse to the judge, in public international law, is based on the acceptance of States. Thus, the ICJ can only be seized of a dispute between States if they have accepted its jurisdiction.

Several modes of expression of this state consent are possible. States may accept the jurisdiction of the ICJ generally and in advance, by formulating the optional declaration of acceptance of the jurisdiction of Article 36§2 of its Statute. They can also accept it in advance, but in a more restricted way, by a clause appearing in a specific treaty. Finally, they can accept it from time to time so that the Court rules on a specific dispute between them. This necessary acceptance of its jurisdiction explains the cautious position of the Court with regard to the subjects of international law which are the States, whose condition is marked, in international law, by the equality and respect due to their organization internal.

Conversely, the International Criminal Court (ICC) is a recent institution, distinct from the United Nations system. The Treaty of Rome which established it in 1998 created a new international organization, independent of that of the United Nations. Although it claims to be universal, not all member states of the United Nations participate in it. Thus, it is well known that the powers that are the United States, Russia, China, India, Iran, Israel, have not ratified the Treaty of Rome. If African States have largely done so, few Arab or Asian States have committed themselves. This has numerous consequences in terms of international legitimacy, designation of the main actors of the institution, and the possibility of investigating.

However, with regard to investigations, the Treaty of Rome organizes (article 12) a regime in which a non-party State is likely to see its agents prosecuted if they are suspected of having committed crimes on the territory of a State. party, or of a State which has occasionally accepted the jurisdiction of the Court. This is what is currently happening for Israel and for Russia, the investigation having here led to the issuance of an arrest warrant against Russian President Vladimir Putin. Also, as we see in this last example, the activity of the ICC is likely to directly affect a non-party State, through the indictment of its main agents. If this system is rhetorically justified by the seriousness of international crimes, we are far from the classic principles of international justice, and the respect due to all States within the framework of the United Nations; it should only be used with the greatest discernment.

ADVISORY OPINIONS OF THE INTERNATIONAL COURT OF JUSTICE

As part of its advisory function, the ICJ emancipates itself from State consent when the legal question posed to it relates to the behavior of a State. This was the case in several opinions regularly cited during current hearings: opinion on Namibia (1971), opinion on the wall built in the occupied Palestinian territory (2004), opinion on the Chagos archipelago (2019)2. In the current consultative procedure, the court is seized of a long-term situation: the question posed by the General Assembly concerns the legality of the Israeli occupation since 1967. The oral presentations presented by the States also mention even earlier aspects: the British mandate over Palestine, the partition plan voted by the United Nations General Assembly on November 29, 1947, the Nakba. The Court is therefore led to question the long duration of the occupation, which is the only way to legally evaluate the current situation in a coherent manner. In addition, the applicable law is public international law, which includes criminal aspects, but goes far beyond them. Only the International Court of Justice can truly rule on what is at the heart of the condition of the Palestinian people: the right of peoples to self-determination. And this right has military (resistance, prohibition of repression), political (access to independence), economic (sovereignty over natural resources), demographic (right of return of refugees, prohibition of colonization) consequences, which go beyond international criminal law.

Recent statements by the ICC prosecutor

The view taken by the institution that is the International Criminal Court on the situation in Palestine remains extremely restricted. It is limited in time by the date of Palestine's accession to the International Criminal Court system (2014-2015). Constrained by this temporal jurisdiction, by the specificities of the law it applies, but also by its prosecution policy, the ICC generally only grasps reality in an ad hoc and decontextualized manner. This is quite striking in the recent statements of his prosecutor on the situation in Palestine.

Regarding current events, in the remarks made by prosecutor Karim Khan on October 29, 2023 from Cairo, the first condemnation of violence relates to the attacks of October 7 and “the hatred and cruelty” which led to them. “motivated”. Secondly, referring to the offensive on Gaza, the prosecutor asserts that Israel

has a well-trained professional army (...), has a system which aims to ensure respect for international humanitarian law (...) and must demonstrate the proper application of the principles of distinction, precaution and proportionality.

There is, in this declaration, nothing about the long blockade and then the siege of Gaza, except to mention the current obstacle to the delivery of relief and insufficient supplies.

On December 3, 2023, after a visit to the victims in Israel, then in Ramallah, the way in which the ICC prosecutor presents the situation does not seem to have changed much. Thus, regarding the attack of October 7, the prosecutor states:

The attacks perpetrated against innocent Israeli civilians (…) constitute crimes under international law which are among the most serious, those which shock the human conscience.

Regarding the offensive in Gaza, he instead emphasizes the difficulty of the fight for Israel: 

Fighting that takes place in densely populated areas, which allows armed combatants to hide among the civilian population, is by nature complex, but it nevertheless remains governed by international humanitarian law, the rules of which are known to all. the Israeli army.

We are therefore in the presence of a singularly oriented approach, where the acts of Hamas already seem qualified, where the investigation seems firstly engaged in favor of the Israeli victims, in support of a State which has, no more than the United States or Ukraine, ratified the Treaty of Rome. And this even though the State of Israel has a repressive apparatus, which it uses extensively.

In the prosecutor's speech, on the other hand, the offensive in Gaza is made "complex" by the behavior of fighting groups disrupting the action of a professional army well versed in international humanitarian law. This distressing bias is made even more visible/laughable by the recent order of the International Court of Justice, which did not hesitate to cite the genocidal declarations of the Israeli leaders of the offensive on Gaza, declarations already known at the time the prosecutor of the International Criminal Court spoke in the region.

THE LONG REFUSAL TO INVESTIGATE

The positions of the prosecutor testify to the evolution of the influences exerted within this organization. The British Karim Khan first distinguished himself by renouncing in 2021 an investigation into the activity of agents of the United States and its European allies in Afghanistan3. More recently, the United States, which is not a party to the Rome Statute, offered its assistance with regard to the investigation into Russia, and provided, at the Court, a special fund dedicated to it4 . This non-party State is therefore now present in the Rome system as a generously welcomed stowaway, which raises both political and legal questions. This de facto participation of the United States immediately follows – let us remember – its violent opposition to the ICC, which went so far as to sanction certain major actors of the organization in 2020.

But beyond this very recent context, it is well known that successive ICC prosecutors have never been inclined to investigate crimes committed in Palestine5. Seized by Palestine in 2009 during Operation “Cast Lead” on Gaza, the prosecutor refused to investigate, highlighting the uncertain status of Palestine. Then seized by the State of the Comoros in 2013 of the attack on a ship of the humanitarian flotilla for Gaza flying the Comorian flag, the Mavi Marmara, the prosecutor again refused to investigate. He asserted that the crimes committed were not of sufficient gravity to fall within the jurisdiction of the Court. This position, contested by the Comoros, was also harshly criticized by the judges of the Court in a sequence characterized by a sort of standoff with the prosecutor. Finally, Palestine, which became a State party to the Rome Statute in 2015, was able to request again in 2018 an investigation into the situation taking place on its territory. But, once again, the prosecutor did not consider it urgent to act and only opened an investigation in 2021.

Also, despite numerous investigations or reports from the United Nations and non-governmental organizations6, the ICC turned a blind eye to Palestine for more than ten years. Its prosecutors have, in this regard, a moral responsibility for the worsening of the situation, their policy of inactivity having probably increased a feeling of impunity. This oriented penal policy is today giving rise to reactions from certain States parties to the Rome Statute. These reservations appear clearly in the requests for investigations recently submitted to the ICC. First, 5 states (South Africa, Bangladesh, Bolivia, Comoros, Djibouti) officially asked the prosecutor, on November 17, 2023, for an extension of the investigation to cover, in particular, the allegations of genocide in Gaza. Two other states, Chile and Mexico, took the same step on January 18, 2024. Also, the confidence that we can have in the activity of the ICC relating to Palestine must remain very measured; this activity will certainly constitute a test for an institution which appears to be adrift.