Palestinians and the ICC

Empowering Weak & Oppressed

Zafar Bangash

Dhu al-Qa'dah 06, 1435 2014-09-01


by Zafar Bangash (Opinion, Crescent International Vol. 43, No. 7, Dhu al-Qa'dah, 1435)

Is it a good idea for the Palestinians to take their case to the International Criminal Court? We look at the conduct of such institutions.

There is great temptation for the Palestinians to take their case against Zionist rulers to the International Criminal Court (ICC) in the Hague. Their friends and supporters are urging them to do so because of Israel’s murderous assault on the besieged Gaza Strip where thousands of civilians have been murdered, among them more than 550 children.

Will the Palestinians succeed in getting justice against the Zionists? There is no doubt about the validity of their case but the world unfortunately does not operate on the basis of what is right. Might makes right. This is already evident on the one hand in Western pressure being exerted on the court not to open an investigation into Israeli crimes, and on the other hand, on the Palestinian Authority head, Mahmoud Abbas, not to pursue the case at the ICC. Even if Abbas musters the courage to defy his Western paymasters, will the court open an investigation, and if so, will it be able to deliver justice?

Lawyers representing the Palestinians insist that the ICC prosecutor, Fatou Bensouda, has all the legal authority she needs to launch an investigation. This is based on the Palestinians’ initial request made in 2009 following Israel’s assault on the Gaza Strip in December 2008–January 2009. Bensouda, however, insists on a new Palestinian declaration.

The ICC prosecutors had told Palestinian officials in 2009 when the court was first approached that they must obtain statehood status before their case can be considered. This they achieved in November 2012 when the UN General Assembly voted overwhelmingly in their favour, granting Palestine the status of non-member observer state. The prosecutors are now demanding a new application. Some former ICC officials say the Palestinians were misled in 2009 into thinking their request for a war crimes investigation would remain open pending confirmation of statehood. John Dugard, Professor of International Law at the University of Leiden in the Netherlands believes the Palestinians’ 2009 application is valid and the ICC prosecutors have all the legal authority to open an investigation. He said, “I think the prosecutor could easily exercise jurisdiction. Law is a choice. There are competing legal arguments, but she [Bensouda] should look at the preamble to the ICC statute which says the purpose of the court is to prevent impunity.”

The prosecutors are refusing because of Western, primarily US pressure that wants to protect Israel from censure. President Barack Obama has repeatedly uttered the obscene phrase, as have numerous other western rulers, that “Israel has the right to defend itself.” Professor Dugard rejects this interpretation saying that as an occupying power, Israel has an obligation, under International Law, to protect people under its occupation, not kill them.

The Western and Israeli fear is based on the ICC’s founding charter (the 1998 Rome Statute), when not only Israel’s crimes in Gaza but also the question of Israeli settlements in the Palestinian territories would be raised and Zionist leaders would be held accountable. The Rome Statute describes as a war crime “the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies.” What is more likely in the event of the ICC taking up the Palestinians’ case is that Hamas and other Palestinian resistance groups would be charged with war crimes. After all, Hamas has been declared a “terrorist” organization despite struggling to resist the occupiers and having won in a fair and free election.

The question the Palestinians must therefore consider is whether the ICC is a suitable forum for their case. Unfortunately international bodies — the UN, the ICC and the International Court of Justice — are Western creations and are there to serve their interests. None of these bodies can act without approval of their Western masters. The US does not recognize ICC jurisdiction over its citizens yet Washington has used the court as a blunt instrument against rulers it does not like. Many American officials —George W. Bush, Dick Cheney, Donald Rumsfeld, Paul Wolfowitz et. al — are far more suitable candidates for the ICC docket but is it realistic to expect that anyone of them would ever be brought before the court? And if so, would the ICC prosecutors have the courage to charge them with war crimes? The same holds true for the Zionist war criminals.

So what should the Palestinians do? The simple answer is: they must continue the struggle for their rights. When Muslims and other fair-minded people have built enough strength against the oppressors, then they can grab the war criminals and put them on trial at a forum where they can secure conviction based on the evidence of their horrible record.

Zafar Bangash is Director of the Institute of Contemporary Islamic Thought

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