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[vc_row][vc_column][vc_column_text]The only way forward, for the prosecution of Israel, would be in terms of the prosecutor-initiated investigations and prosecutions, argues ADVOCATE ANWAR ALBERTUS SC. This is the first of a two-part series dealing with the delay of the International Criminal Court (ICC) in bringing Israeli war criminals to justice. Click here for part two.
The world has over the last two months, mainly on social media, seen raw footage of the most horrendous suffering by Palestinians, primarily in the Gaza Strip. The relentless and indiscriminate bombing by Israel reduced whole residential neighbourhoods to rubble. Israeli targets include hospitals and related healthcare facilities, such as clinics and ambulances, and other civilian infrastructure, such as mosques, churches, schools and public amenities. Thousands who sought refuge in hospitals, including critically wounded patients, were forced to vacate these facilities and relocate to the south of Gaza. Many of them died in the process.
Harrowing accounts of healthcare workers and journalists killed on duty are on record. There are countless video clips of young children wailing for their parents, either buried under the rubble of their homes or lying dead on the ground or on stretchers in hospitals. There are scenes of parents weeping at the sight of their dead children and other kindred scenes of horror. In some hospitals, relatives were not able to retrieve their dead and in others, healthcare workers were forced at gunpoint by Israeli Defence Force (IDF) soldiers, to abandon their patients and leave them to die.
Beyond physical harm, profound psychological trauma has been and continues to be inflicted on the people of Gaza (and of late also in the West Bank), by the IDF, especially on children. A particularly haunting video clip is that of a tearful boy, around ten years old, sporting a t-shirt branded with the name of his soccer hero, Ronaldo. He narrates, inter alia, details of how another child, Saleh al Qaraan’s head exploded and his brains scattered on the ground as a result of a bombing. Another video is that of a traumatised little boy on October 19 in Rafa, southern Gaza. The shell-shocked boy managed to cry only after doctors started comforting him.
[/vc_column_text][vc_row_inner css=”.vc_custom_1702141264393{margin-bottom: 0px !important;padding-bottom: 0px !important;}”][vc_column_inner width=”1/2″][vc_video link=”https://youtube.com/shorts/_XHJ-CwNOB4?si=nCsuPXaFgO3bYeKa”][/vc_column_inner][vc_column_inner width=”1/2″][vc_video link=”https://youtu.be/YDv0mTxPMXA?si=8H-qNSi9QSCNQWok”][/vc_column_inner][/vc_row_inner][vc_row_inner css=”.vc_custom_1702141299057{margin-top: -10px !important;margin-bottom: 0px !important;padding-bottom: 0px !important;}”][vc_column_inner][vc_column_text css=”.vc_custom_1702141321885{margin-top: -20px !important;}”] The writer references the above two videos circulating on social media as examples of a vast and ‘veritable tomb’ of evidence that may be used to build a case to successfully prosecute Israeli war criminals
Sources Tik Tok and Youtube.[/vc_column_text][/vc_column_inner][/vc_row_inner][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]At the time of writing this article, on December 5, the so-called humanitarian pause, had hardly ended, and Israel promptly resumed its indiscriminate bombing of Gaza without any regard to life and limb of the Palestinian civilians. By December 3, merely three days after Israel’s re-commencement of its bombing campaign, more than 700 Palestinian civilians, mostly children and women, had been killed. This brings the tally of Palestinian civilians killed from 7 October 2023, in Gaza, to approximately 21 000, most of whom were children and women. The brief cessation of hostilities, it would now seem, was merely to allow the Palestinian civilians a brief reprieve to receive food and medical attention, only to be perversely massacred immediately thereafter.
The video footage of these IDF atrocities since October 7, is simply overwhelming in terms of its sheer volume and constitutes a veritable tomb of what is known, in law, as real evidence. In addition, there are reports by accredited agencies backed up by hard evidence, both within and outside of the United Nations Organisation, as well as the documented reports of medical practitioners and other health care workers and journalists. These healthcare workers and journalists are all eyewitnesses to the continuing destruction and carnage. There is overwhelming evidence supporting the allegations of the crime of genocide, crimes against humanity and war crimes, as contemplated in the Rome Statute, against the IDF and the Israeli government. The same applies to the heads of state of many western countries, who have openly aided and abetted Israel, both by word and materially, in its unlawful conduct.
There is no indication that Israel’s bombing campaign on Gaza will end soon. However, one way of likely staunching the bloodletting by Israel, will be the prosecution, by the Prosecutor of the ICC, of the principal persons in its government and armed forces. The ICC is mandated to indict the persons at whose behest this carnage and destruction is being carried out, and issue warrants for their arrest. Should this occur, all States Parties to the Rome Statute, will then be bound to arrest such persons, should they set foot on the territory of any State Party, and transfer them to the Hague (the seat of the ICC) to stand trial. This may well be the only game in town, since it will at least serve the purpose of deterring those presently engaged in committing international crimes, from persisting therein.
At present the International Criminal Court (the ICC) is empowered to exercise jurisdiction over individuals who are alleged to have committed genocide, crimes against humanity and war crimes after July 2002. The ICC’s mandate, in line with international criminal law, is to end impunity for international crimes. It is a Court of last resort, in the sense that it will only undertake investigations and prosecutions where States Parties to the Rome Statute, are unwilling or unable to do so.
The requirement for States Parties to comply with their international obligation to investigate international crimes is crucial in circumstances, where the said crimes are perpetrated by citizens of and within the territory of countries that are not parties to the Rome Statute, since not to do so, would allow impunity. Since Israel (and the United States) is not a party to the Rome Statute, it is improbable that Israel will investigate and prosecute any member of the IDF for the perpetration of crimes contemplated in the Rome Statute.
If an investigation is not instituted by non-signatory countries in which the crimes have been committed, the perpetrators may be brought to justice by countries who are signatories to the Rome Statute. This is possible by means of the application of what is known as universal jurisdiction, namely, the investigation and prosecution of these alleged crimes by such state parties under the Rome Statute. This investigation may be conducted by the State Party in the absence of the accused, but the actual prosecution can only take place when the accused is in the territory of the State Party.
Therefore, the ICC’s jurisdiction can be triggered in one of three ways under the Rome Statute:
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- By way of a referral to the ICC Prosecutor of a situation by a State Party under Article 14, in which one or more crimes within the jurisdiction of the ICC appear to have been committed. The Prosecutor may then investigate the Situation for the purpose of determining whether one or more persons should be charged with the commission of such crimes. The difficulty with this kind of jurisdiction is that States Parties may only refer alleged crimes contemplated by the ICC statute, committed on the territory or by the nationals of (i) a State Party (including their own), or (ii) a non-State Party that has consented ad hoc to the exercise of jurisdiction by the ICC. Given that Israel is not a signatory to the Rome Statute, it is highly unlikely that it will consent to the exercise of jurisdiction by the ICC pursuant to any complaint lodged with the Prosecutor of the ICC.
- By way of a Security Council referral under Article 13(b). The Security Council has (controversially) employed this provision on two occasions, namely, in respect of Darfur (Sudan) and Libya. Neither of these countries was a State Party to the Rome Statute.
- By way of prosecutor-initiated investigations and prosecutions. However, this may only be done with the approval of the Pre-Trial Chamber, as provided for by Article 15 of the Rome Statute. The Prosecutor may exercise his or her power proprio motu to launch an investigation based on information on crimes within the jurisdiction of the Court. The Pre-Trial Chamber will only sanction such an investigation if it finds there is a reasonable basis for it to proceed, and if the case falls within the jurisdiction of the Court. Granting this power to the Prosecutor was contentious during the negotiations leading up to the Rome Statute, since some states voiced concerns about rogue prosecutors abusing this power. As a compromise, the requirements of a Pre-Trial Chamber approval were introduced.
Israel is not a State Party to the Rome Statute, and is not likely to consent to the exercise of jurisdiction by the ICC. Nor is there any prospect that the Security Council will refer the Situation in Palestine to the ICC for investigation and prosecution. The only way forward, for the prosecution of Israel, would be by way of a prosecutor-initiated investigation and prosecution.
Hence the crucial role of the ICC Prosecutor, Karim Khan, will be explored in part two.
- MA ALBERTUS SC, is a practising member of the Cape Bar, former Chairperson of the Cape Bar and former Visiting Professor in Comparative Law at the Levine College of Law, University of Florida.
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