The ICC and the Gaza war: legal limits, symbolic politics

Marlies Glasius
28 March 2009

The prosecutor of the International Criminal Court (ICC) appears to be taking a serious interest in allegations of war crimes committed in the Gaza war from 27 December 2008 to 19 January 2009. At the same time, the testimonies of Israeli soldiers are adding weight to the evidence of war crimes. In fact, it is unlikely that the ICC can have jurisdiction over the situation. Nonetheless, the idea of considering what has happened in terms of individual criminal responsibility rather than state responsibility may open the way to a more fertile debate in Israel and beyond. Marlies Glasius is a lecturer in international relations at the University of Amsterdam.

She was formerly a research fellow at the Centre for the Study of Global Governance, London School of Economics. She is co-editor of the Global Civil Society Yearbook, and author of The International Criminal Court: A Global Civil Society Achievement (Routledge, 2007)

Also by Marlies Glasius in openDemocracy:

"Global civil society comes of age" (14 November 2001)

"Global civil society: the politics of a new world?" (15 January 2004) - with Helmut Anheier and Mary Kaldor

"What is global justice and who is it for? The ICC's first five years" (21 July 2008) 

A photo opportunity

The Palestine National Authority (PNA) submitted a declaration in February 2009 to the effect that it now recognises the jurisdiction of the International Criminal Court in relation to any crimes committed on its territory since 2002 (when the ICC came into force). To mark the moment, the ICC prosecutor Luis Moreno-Ocampo met Palestinian foreign minister Riad al-Malki and justice minister Ali Kashan in The Hague on 13 February 2009, and issued a press release with a photograph showing the meeting. He also stated that he had received more than 300 communications relating to the Israel-Palestine situation since 27 December 2008. After the four-hour meeting, Kashan said they were "going back confident".

The text of the PNA declaration speaks of the "Government of Palestine" and the "territory of Palestine", implying statehood. The ICC's acknowledgment of receipt also makes interesting reading. It says, inter alia: "without prejudice to a judicial determination on the applicability of article 12, paragraph 3 to your correspondence, I wish to inform you that a declaration under article 12, paragraph 3 has the effect of acceptance of jurisdiction". This can be read as saying something like: "we receive this as something that looks like a declaration, without determining whether you can actually make such a declaration".  

A question of jurisdiction

It seems unlikely that Luis Moreno-Ocampo will make a claim to having jurisdiction over the events in Gaza, and even less likely that a pre-trial chamber would confirm such a determination. The machinations of the United States in the final days of the conference negotiating the Rome statute in 1998 ensured that the International Criminal Court can have jurisdiction only with the consent of the state of nationality of the suspect, or the state where the alleged crime had taken place. Israel has not given such consent, either through ratification or through an ad hoc declaration.

The Palestine National Authority has now tried to make such a declaration, but can it? The ICC statute's Article 12, on which the PNA declaration is based, speaks exclusively of "states" accepting jurisdiction. So the prosecutor would have to recognise Palestine as a state. Although quite a few states have done so, it would nonetheless be a controversial determination, and one outside his core area of authority.

The prosecutor could try to bypass the issue by arguing that the PNA was somehow a state-like entity with de facto control over territory. But this is equally problematic: the PNA clearly no longer has de facto control over Gaza, Hamas does. This situation might be eased if Hamas somehow joined the declaration, a less likely outcome as Hamas would thereby risk prosecution of its own leaders.

So if the PNA is not the government of a state or a state-like entity in control of Gaza, who is? Some international lawyers argue that Israel's withdrawal from Gaza has not abrogated its responsibilities under international law as an occupying power. But that does not help give the ICC jurisdiction: Israel's non-ratification of the ICC statute would then also cover Gaza. If it were then insisted that Gaza still properly belongs to Egypt, this does not confirm jurisdiction either: Egypt too has not ratified the ICC statute.Also in openDemocracy on the ICC and international justice:

Eóin Murray, "'Tear down that wall!' The world court and Israel" (29 July 2004)

Anthony Dworkin, "The Hague tribunal after Milosevic" (14 March 2006)

William Schabas, "The enigma of the International Criminal Court's success" (17 February 2006)

Nick Grono & David Mozersky, "Sudan and the ICC: a question of accountability" (31 January 2007)

Anthony Dworkin, "The law and genocide: Bosnia, Serbia, and justice" (2 March 2007)

Ben Kiernan, "Blood and soil: the global history of genocide" (11 October 2007)

Nick Grono, "The International Criminal Court: success or failure?" (9 June 2008)

Gérard Prunier, "Sudan in a fix" (26 June 2008)

Alex de Waal, "Sudan and the International Criminal Court: a guide to the controversy" (14 July 2008)

Victor Peskin, "The Omar al-Bashir indictment: the ICC and the Darfur crisis" (15 July 2008)

Marlies Glasius, "What is global justice and who is it for? The ICC's first five years" (21 July 2008)

Gérard Prunier, "Sudan's Omar al-Bashir: a useful war criminal" (15 October 2008)

Conor Gearty, "Israel, Gaza, and international law", 21 January 2009)

Eyal Weizman, "Lawfare in Gaza: legislative attack" (1 March 2009)

Martin Shaw, "Sudan, the ICC and genocide: a fateful decision" (11 March 2009) 

The only way the Gaza attacks can be investigated without all these jurisdictional obstacles would be if the United Nations Security Council (UNSC) ordered it. There is a precedent for this in the case of Darfur, which was taken to the ICC through a UNSC resolution (with American, Chinese and Russian abstentions). But is this imaginable in the case of Israel?

A final route would be to target those, presumably few, members of the Israeli government or the Israel Defence Forces (IDF) for prosecution who happen to have dual nationality with a state that has ratified the ICC statute. But this would go quite against the prosecutor's policy of selecting a "situation" for investigation first and then prosecuting "those most responsible".

So why has the prosecutor met the Palestinian ministers, sent out a press release, and stated that he is making a "preliminary analysis" of the situation? He may be doing this precisely because it is the most he can do. The prosecutor too has come to realise that the ICC has symbolic political functions beyond the legal. He may never catch Omar al-Bashir, but having an arrest warrant against him still means something. Similarly, being seen to take seriously the killing and destruction in Gaza has a symbolic function. 

A question of retribution, and politics

Since the International Criminal Court began its active work in 2003, it has issued thirteen outstanding arrest-warrants (two Ugandan suspects have since died), and actually arrested four people (all warlords from the Democratic Republic of Congo [DRC]). The first (and so far sole) trial was halted and nearly aborted because of a prosecutorial error of judgment, and has only just restarted. Human rights and gender groups are very critical of it because the suspect, Thomas Lubanga, stands trial only for the use of child soldiers, when there is also substantial evidence relating him to murder, rape, mutilation and pillage. From the perspective of retributive justice (crimes must be punished), the record of the ICC to date looks dismal.

It will improve, as there will eventually be more trials and presumably also some convictions; but not by very much. The ICC has a small staff and few powers. It will continue to have to rely on civil society for submitting evidence and finding witnesses willing to testify, and on states for funding and arrests. It will never be able to try more than a handful of suspects, and who these are will necessarily be a function of who can be apprehended as much as who in the world is most guilty.

But that is not to say that the four investigations to date, and even the threat of investigations in Kenya and Georgia, have been devoid of political consequences, in particular for civil society. I think these "unintended consequences" of the ICC will continue to be far greater than its legal authority and capacity would suggest.

Above all, in three of the four situations the ICC is currently investigating, the existence of the investigation has given local civil-society actors room to discuss "difficult subjects" that might otherwise have been impossible to broach. The Lubanga case, for all its flaws, has put a spotlight on the use of child-soldiers, which had been a widespread and not necessarily seen as criminal in the DRC. In the Central African Republic (CAR), the ICC focus on sexual violence helped the victims' association break the taboo on public discussion of rape and the trauma resulting from it. In the Ugandan case, there was initially much local opposition to the ICC as it was seen as interfering with the peace process. Even though it remains to be seen whether either side in the conflict will ever be held accountable, the ICC involvement has opened the space for local and national civil-society debates about what might be desirable forms of accountability.

Even in Sudan, where the space for these sorts of discussions is the most constrained, there may be some accountability effect. The Sudanese newspapers have been vilifying the ICC on a daily basis since the prosecutor requested an arrest warrant for Omar al-Bashir in July 2008. The Sudanese public, well versed in reading state propaganda, may begin to wonder what al-Bashir can have done to deserve the attention of the ICC.

The ICC has also had various other political effects, such as aiding the mobilisation and boosting the self-esteem of victims and raising the profile of ongoing human-rights violations. More speculatively, it can be argued that awareness that the ICC is conducting an open-ended investigation may be having some preventive effect on the behaviour of the military as well as rebel leaders.

A question of responsibility

But it is the debate element that may be of most interest in relation to Gaza. Both international relations and international law are configured so as to persuade analysts, citizens and media to think of states as if they were persons. This way of seeing the world has been so influential that although the statement "Israel likes ice-cream" would be patently absurd, the statement "Israel is guilty of war crimes" leads to emotive responses that do not question who "Israel" is.

It is within this framework - because the issue is immediately seen as connected to Israel's right to exist and to defend itself - that the space in Israel for debating the morality and legality of the Gaza operation has been very small. The United Nations's board of inquiry on Gaza, announced by secretary-general Ban Ki-moon on 12 February 2009, will probably frame its report in similar statist terms and come to conclusions about "Israel's" responsibility in relation to deaths and injuries.

In legal terms there is nothing wrong with such collective attribution of responsibility: it has been the main currency of international law for centuries. But in political terms, such a collective condemnation is open to being read as implying a) that every Israeli citizen (including for instance Arab Israelis or conscientious objectors) shares in the guilt, and b) that Israel, being guilty, has no right to exist. This collectivisation serves only to strengthen a siege mentality and self-justifying attitudes, and to narrow the space for critical voices.

But the International Criminal Court, if it were to have jurisdiction, would do something very different. It would disaggregate exactly which political or military leaders could be considered "the most responsible" in relation to specific crimes. In the former Yugoslav republics, initial local reactions to the International Criminal Tribunal for the former Yugoslavia (ICTY) were intensely hostile; but the long-term effect of indictments has precisely been to marginalise some of the most hawkish individuals and open debates about what exactly happened in the wars of the 1990s. In the United States, even without any actual threat of criminal prosecution, a similar frame-shift occurred: from seeing the war in Iraq as an American war (which it would therefore be unpatriotic to question) to the perception that this was George W Bush's war (which could be criticised and eventually opposed).

The focus on individual responsibility might therefore also be more promising in helping Israeli citizens reflect and speak out loud about whether the Gaza attacks occurred, and similar attacks should continue to occur, "in their name". It could feed into the debate that is beginning to be opened by the testimonies of Israeli soldiers, which has the same effect of distinguishing between "Israel" and Israeli individuals.

But can the ICC have the effect of pushing the Gaza debate in the direction of individual accountability with the mere hint that it "might" open an investigation? The new Israel-based website www.wanted.org.il , featuring mock arrest-warrants for fifteen political and military leaders, appears to be trying to spark exactly that kind of discussion. The fact that the website is anonymous speaks volumes about the current space for such a debate. But the fact that the liberal newspaper Ha'aretz chose to report the existence of the website, with its address, speaks volumes about the appetite for it.

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