The case of the assassination of martyr Sherine Abu Aqleh before the International Criminal Court

Written by: Dr. Abdullah Abu Eid

Introduction: The Palestinian Foreign Minister announced a few days ago that the Ministry of Foreign Affairs had submitted to the Prosecutor of the International Criminal Court in The Hague an integrated file related to the investigation conducted by the Palestinian Prosecutor in the case of the assassination of the martyr journalist Sherine Abu Aqleh, with all the evidence confirming the involvement of the occupying state and some of its officials in the murder. committing that crime.

In this article, I will try to shed light on the possibility of accepting the Public Prosecutor of the International Criminal Court to conduct an international investigation into the case directly, or by assigning a specialized international committee to do so, all in light of the legal rules related to the court and its terms of reference contained in the texts The Statute of the International Criminal Court, and the well-known positions of the Court’s Prosecutor, Karim Khan, especially since about a year has passed since he assumed his job at the Court without moving a finger in the cases brought against Israel by the State of Palestine several years ago after the pre-trial chamber decided The Pre-trial Chamber, that the court has jurisdiction to consider all serious crimes committed in the three regions of Palestine, namely: the West Bank, Gaza Strip, and East Jerusalem, since early 2021.

What can we expect from the Public Prosecutor of the Court regarding the procedures related to the case of the assassination of martyr Sherine Abu Aqleh:

We will shed light on the procedures that can be expected from the Public Prosecutor of the Court in response to the request submitted by the Palestinian Ministry of Foreign Affairs requesting the Public Prosecutor to start an investigation related to the murder of martyr Sherine Abu Aqleh.

Before starting to list what can be expected from the Public Prosecutor, we must refer to some legal provisions related to the court’s jurisdiction and how to act in such a situation, which are contained in the Court’s Statute and are beneficial to the Public Prosecutor and the Court, and these can be summarized as follows:

First: Perhaps the most important thing to start with is pointing out that Public Prosecutor Karim Khan assumed his job since the summer of last year 2021, as a public prosecutor of the Criminal Court, that is, since July 2021, but during that year he did not take any action in the cases submitted to the court. from the State of Palestine several years ago, rather ignoring it as if it did not exist, despite the fact that the former Public Prosecutor of the Court, Fatou Bensouda, had advanced quite a bit in those cases after obtaining the green light from the pre-trial circuit, as well as We referred to it above. There is no doubt that all of this can be considered an indication from which we can deduce what will be the position of Attorney General Karim Khan regarding the new request recently submitted by the Palestinian Ministry of Foreign Affairs.

Second: The preamble and first article of the Court’s statute provide for the following important legal rules:

1) The jurisdiction of the court is considered complementary to the jurisdiction of national courts.

2) The Court considers only the most serious crimes that are of international concern. (Articles 1 and 5 of the Basic Law)

3) The court only considers crimes attributed to natural persons and not to states or national, regional and international organizations. (Article 1 and Article 25 of the Statute of the Court)

4) The Court may decide that a case is inadmissible where a State is investigating or prosecuting the case, unless that State is genuinely unwilling or unable to undertake the investigation or prosecution. (paragraph 1 of Article 17)

5) The statute of the court stipulates that the trial does not take place without the presence of the accused in person before the court, and this may encourage Israel not to hand over the accused or the accused to the court, so that the trial does not take place. (Article 63 of the Basic Law).

Therefore, Israel can start a formal investigation claiming that it was late in the investigation until it is sure of the accuracy and validity of the facts and events, thus providing the public prosecutor with an argument and a reason to dismiss the case and refer the matter to Israel to start investigation work, even though the Israeli public prosecutor had officially announced Unwillingness to start an investigation, however, he had announced that he is refraining from the investigation at the present time, in implementation of a decision issued by the Israeli Supreme Court, as a way out to postpone the investigation, a position that is considered a circumvention of the provisions of the Statute of the Criminal Court, and an indication of cunning and deception.

Likewise, the public prosecutor can find other justifications, among those mentioned above, to refuse to open an investigation into the crime, for example, to consider that the killing of one citizen is not considered among the most serious crimes and the most threatening to international peace and security, according to the provisions of Articles 1 and 5 of the law. basic, mentioned above.

The public prosecutor can also claim that any case submitted to the court must include the name of the accused person, his rank, and the names of the official or officials who ordered him to commit the crime or incited him and helped him to commit it. Therefore, he can return the case to the Palestinian Authority, asking it to mention the aforementioned parties, claiming That he cannot investigate such a crime and that the State of Israel is competent to do so, bearing in mind that the State of Palestine, i.e. the state in whose territory the crime occurred, is primarily competent to conduct the investigation of this crime, but the State of Palestine can claim that its territory in which it occurred The acts constituting the crime, it is an occupied territory, and it is unable to conduct the investigation, so it requests that it be conducted by the Public Prosecutor or his representative, or the formation of an international committee to conduct it.

It should be noted here that the State of Palestine has the right to raise its inability to conduct a sound and reasonable investigation that would enable it to know the soldier who took it to know the soldier who fired the bullet that killed the martyr Sherine Abu Aqleh, because it has no control over the situation, and because Israel is an occupying country. The armed force controls the occupied territory and many elements of sovereignty in the territory, which makes the Palestinian Authority and the public prosecutor in Palestine unable to conduct an investigation with any Israeli soldier or employee, so it submits the aforementioned request to the court so that the public prosecutor takes the necessary measures for the investigation In the subject.

Conclusion:

For all the reasons mentioned above, I highly doubt that Attorney General Karim Khan will fulfill the Palestinian request. Rather, it is very likely that he will find one or more arguments to justify his refusal to answer the Palestinian request, and that he will transfer the request to Israel, asking it to conduct the investigation within a specified period ( two or three months, for example).

In addition, there is a possibility that the Palestinian Authority’s request would be rejected, claiming that the killing did not rise to its consideration as “one of the most serious crimes of international concern” as stipulated in Articles 1 and 5 of the Statute of the Court, which is the most likely possibility in my opinion, because of what is known The public prosecutor is biased in favor of some colonial countries, meaning that he is expected to act in accordance with the political pressure exerted on him by some major countries, such as the United States, or from some lobbies with international influence, and this is considered a great possibility.