• UGI USER
  • May 27, 2024
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UPHOLDING JUSTICE: THE ICC’S BOLD STEP IN THE GAZA CONFLICT

Syllabus:

GS 2:

Effect of Policies and Politics of Developed and Developing Countries on India’s interests, Indian Diaspora.

  • Important International Institutions, agencies and fora – their Structure, Mandate.

Why in the News?

The ICC’s request for arrest warrants against Israeli and Hamas leaders in the Gaza conflict highlights the court’s efforts to address war crimes and crimes against humanity, sparking significant international debate and challenging the jurisdictional limits and enforcement mechanisms of international law.

Introduction and Context

  • Recent Announcement: On May 20, the ICC Prosecutor Karim Khan revealed an application for arrest warrants against five individuals linked to the Gaza conflict, including Israeli Prime Minister Benjamin Netanyahu, Israeli Defence Minister Yoav Gallant, and three Hamas leaders.
  • Legal Basis: The application has sparked significant controversy and potential repercussions for the ICC, prompting a deeper examination of its legal foundations and implications.
  • Role of the ICC: Established by the Rome Statute, the ICC aims to address grave international crimes such as genocide, war crimes, and crimes against humanity, focusing on individual accountability rather than collective national or group culpability.
  • Historical Precedents: The ICC builds on the legacies of earlier international courts, including UN tribunals for Rwanda and Yugoslavia, in holding individuals criminally responsible.
  • Objective: Understanding the legal rationale behind the ICC’s request and its broader implications is essential amid the ongoing international uproar.
About the International Criminal

Court (ICC)

Establishment and Purpose:

  • The ICC is a permanent judicial body established by the Rome Statute in 1998.
  • Its mandate is to investigate, prosecute, and try individuals accused of genocide, war crimes, crimes against humanity, and the crime of aggression.
  • The court can impose prison sentences on individuals found guilty of these crimes.

Background and Headquarters:

  • The Rome Statute, the founding treaty of the ICC, was adopted in July 1998.
  • The ICC began its operations in 2003.
  • Headquarters: The Hague, Netherlands.

Membership:

  • The ICC has 123 member states that recognize its authority.
  • Notable non-members include the United States, China, Russia, and India.

Funding:

  • Funded by contributions from member states and voluntary contributions from governments, international organizations, individuals, corporations, and other entities.

Composition:

  • Judges: Eighteen judges from different member countries, elected to nonrenewable nine-year terms.
  • The Presidency: Consists of three judges (President and two Vice-Presidents) elected from among the judges, representing the Court and organizing judges’ work.
  • Judicial Divisions: Pre-Trial, Trial, and Appeals Divisions.
  • Office of the Prosecutor (OTP): Responsible for receiving referrals, examining information, conducting investigations, and prosecuting cases.
  • Registry: Provides administrative and operational support to the Chambers and OTP.

Jurisdiction:

  • Handles prosecutions of individuals, unlike the International Court of Justice, which handles disputes between states.
  • Competent to hear a case if:

o   The crime was committed in a country party to the Rome Statute.

o   The perpetrator’s country of origin is a party to the Rome Statute.

  • Can exercise jurisdiction if national courts are unable or unwilling to do so.
  • Jurisdiction only covers offences committed after July 1, 2002, when the Statute entered into force.

Relation with the United Nations (UN):

  • Not a UN organization but has a cooperation agreement with the UN.
  • The UN Security Council can refer situations outside the Court’s jurisdiction to the ICC, granting it jurisdiction.

Nature of the Crimes Alleged

  • Hamas Leaders: The Prosecutor accuses Hamas officials of committing a range of war crimes and crimes against humanity, including murder, extermination, hostage-taking, rape, torture, and other inhumane acts.
  • Israeli Officials: The case against Israeli leaders involves allegations of war crimes and crimes against humanity, including persecution, extermination, starvation of civilians, wilful killing, and targeting civilian populations.
  • Supporting Evidence: The application for arrest warrants is backed by an independent panel of experts who have reviewed the evidence.
  • Timing of Incidents: These allegations stem from events starting on October 7, 2023, with Hamas’ attacks, and the subsequent actions by Israeli officials beginning October 8, 2023.
  • Legal Process: The ICC’s pre-trial chamber judges must decide whether to issue the warrants based on the evidence presented by the Prosecutor, requiring “reasonable grounds to believe” that the individuals committed crimes within the court’s jurisdiction.

Jurisdictional Challenges and Precedents

  • Jurisdiction Argument: A common argument against the ICC’s actions is that Israel is not a state party to the Rome Statute, supposedly limiting the court’s jurisdiction.
  • Precedent Cases: The ICC has previously exercised jurisdiction over non-state parties, such as in the Bangladesh/Myanmar situation and the arrest warrant for President Vladimir Putin.
  • Legal Basis for Jurisdiction: According to the Rome Statute, the ICC can exercise jurisdiction over crimes committed in the territory of a state party or a state that has accepted its jurisdiction.
  • Palestine’s Status: In 2021, a pre-trial chamber affirmed that the ICC could exercise jurisdiction in the Situation in the State of Palestine, including Gaza, the West Bank, and East Jerusalem.
  • Current Case: This jurisdictional scope includes the actions since October 7, reinforcing the ICC’s authority to pursue the current cases.

Obligations to Cooperate

  • State Responsibilities: If the arrest warrants are issued, states that have ratified the Rome Statute are obliged to cooperate with the ICC, including executing arrests.
  • Previous Failures: Historical instances, such as the failure to arrest Omar al-Bashir in South Africa, highlight challenges in enforcing ICC warrants.
  • Legal Repercussions: Non-compliance, like South Africa’s decision not to arrest Bashir, has been condemned by judicial bodies, including the Supreme Court of Appeal of South Africa and ICC judges.
  • Impact of Warrants: Even if arrests are not immediately executed, warrants restrict the mobility and activities of the accused, imposing a significant burden on them.
  • Global Obligations: Over a hundred states party to the Rome Statute are bound to enforce the ICC’s decisions, underscoring the widespread implications of such warrants.

Parallel Proceedings and Broader Implications

  • ICJ Proceedings: Concurrently, the International Court of Justice (ICJ) is handling a separate case where South Africa alleges Israel’s violations of the Genocide Convention regarding its actions in Gaza.
  • ICJ’s Role: The ICJ focuses on determining the legal responsibility of states, not individual criminal responsibility, and has issued provisional measures akin to domestic injunctions.
  • Testing International Law: The ICC’s decision represents a significant test for international law, highlighting the challenges and importance of legal accountability in conflict situations.
  • Rule of Law: The ICC’s actions emphasize the principle that no one should commit international crimes with impunity, reinforcing the value of accountability.
  • Global Significance: The decision by the ICC Prosecutor signals a commitment to the rule of law, demonstrating that international legal mechanisms remain vital in addressing grave crimes.

Way Forward

  1. Strengthen International Cooperation: Ensure all ICC member states reaffirm their commitment to cooperate with the court, particularly in enforcing arrest warrants and supporting investigations.
  2. Enhance Jurisdictional Clarity: Address ambiguities regarding the ICC’s jurisdiction over non-state parties through clear legal interpretations and precedents, reinforcing the court’s authority.
  3. Increase Awareness: Promote global awareness of the ICC’s role and mandate to build international support and legitimacy for its actions against war crimes and crimes against humanity.
  4. Bolster Legal Frameworks: Encourage states to ratify the Rome Statute and integrate its provisions into national laws, facilitating domestic legal support for ICC decisions.
  5. Foster Regional Alliances: Develop regional cooperation mechanisms to support ICC initiatives, ensuring local backing and implementation of international legal standards.
  6. Enhance Resource Allocation: Provide the ICC with adequate resources and funding to conduct thorough investigations and maintain operational effectiveness.
  7. Promote Accountability: Continue to advocate for accountability in international conflicts, ensuring that individuals responsible for grave crimes face justice regardless of their political status.
  8. Engage Civil Society: Involve civil society organizations in monitoring and supporting ICC efforts, leveraging their influence to promote compliance and address human rights violations globally.

Conclusion

The ICC’s recent step in seeking arrest warrants for individuals involved in the Gaza conflict underscores the enduring relevance and challenges of international law. Despite potential repercussions and jurisdictional debates, this move reaffirms the principle that grave international crimes warrant accountability. It serves as a reminder of the ICC’s role in upholding justice and the rule of law amidst global conflicts.

Source:The Hindu

Mains Practice Question:

Discuss the significance of the International Criminal Court (ICC) in addressing war crimes and crimes against humanity, with reference to its recent actions in the Gaza conflict. What challenges does the ICC face in enforcing its jurisdiction and decisions?”

Associated Article:

https://universalinstitutions.com/indias-evolving-stance-on-gaza-israel-conflict/