Federica Marsi
Al-Jazeera / May 11, 2023
A request to investigate the death of Al-Jazeera journalist has been received by the ICC, yet the court has taken no further steps.
One year since Al-Jazeera’s television reporter Shireen Abu Akleh was killed by Israeli forces, demands for justice remain unanswered.
Al-Jazeera Media Network submitted a formal request to the International Criminal Court (ICC) to investigate and prosecute those responsible for shooting the veteran journalist on May 11, as she was covering an Israeli military raid on a refugee camp in Jenin, in the northern occupied West Bank.
Evidence provided in the request, filed in December 2022, includes a comprehensive six-month investigation by the network, gathering witness accounts and video footage, among other material.
The ICC has acknowledged its receipt, yet no further steps have been taken. Attacks intentionally targeting journalists, as civilians, constitute war crimes.
“We are anxious to move it along and ensure that the case is investigated expeditiously so that the evidence can be gathered and those responsible identified, including those in command,” said Rodney Dixon KC, counsel for Al-Jazeera for the ICC case.
“We are hoping that the anniversary will serve as a solemn reminder of the need for justice without delay. We will be following up with the Office of the Prosecutor to find out what the timeline is.”
The family of 51-year-old Abu Akleh, a Jerusalem native and a Palestinian-American dual national, said they also had no information on the court’s handling of the case.
Palestine became the 123rd member of the ICC in 2015. Over the course of 2020, The Hague-based court deliberated that it had legal jurisdiction over Palestine – a party to the ICC – and could respond to legal questions surrounding potential investigations of the “Situation in Palestine”.
Per Article 19(1) of the Rome Statute – the treaty that established the court – the legal body is obliged to ensure it possesses the jurisdictional power to investigate a given situation.
In 2021, former ICC chief prosecutor Fatou Bensouda opened an investigation into alleged war crimes in the Palestinian territories, which she said would look into events in the Israeli-occupied West Bank, East Jerusalem and Gaza Strip since June 2014.
“Al Jazeera’s complaint was filed to request that the ICC investigate the heinous killing of its journalist and the other attacks on Al-Jazeera and its staff, including the bombing of its office in Gaza,” Dixon KC said.
“It should be considered together with the other complaints concerning Shireen’s murder within the ICC investigation which is already open in the Palestine Situation.”
The Office of the Prosecutor (OTP) told Al-Jazeera it was “closely monitoring and investigating a range of events related to the Situation in Palestine,” adding that “confidentiality is a crucial aspect of OTP’s activities.”
“Therefore we do not publicly discuss specifics related to ongoing investigations … to ensure the safety and security of the victims, witnesses, and all those with whom the Office interacts,” it said via email.
Justice for Palestine
Since Karim Khan replaced Bensouda as the new chief prosecutor in 2021, experts have said he has been reluctant to move the investigation forward.
“[Khan] made it clear that he was not interested in pursuing the investigation,” William Schabas, professor of international law at Middlesex University, told Al-Jazeera.
“He very clearly aligns himself with a pro-NATO, pro-West stance. This became obvious to the people working there, particularly after Russia’s invasion of Ukraine, because all the energy was redirected there.”
In March, the ICC issued an arrest warrant for Russian President Vladimir Putin over alleged war crimes in Ukraine, as well as Russia’s commissioner for children’s rights, Maria Alekseyevna Lvova-Belova.
The warrants came a day after a United Nations-backed inquiry accused Russia of committing wide-ranging war crimes in Ukraine, including the forced deportations of children in areas it controls.
Unlike the war in Ukraine, “Europe and the United States don’t want the court to do anything about Palestine,” Schabas said.
Israel has refused to acknowledge the ICC’s jurisdiction and responded that it does not consider war crimes to have been committed.
It said it would not launch a criminal probe into the killing of Abu Akleh, who was shot in the head while wearing a helmet and a bulletproof vest with “press” written on it.
The attempts to disentangle the legal and the political in the pursuit of international criminal justice have been complicated by the lack of a statute of limitation, or a maximum time by which the prosecutor must address a request submitted by a member.
This results in the ICC being “an institution that will have its political orientation determined by the prosecutor,” Schabas said.
If the prosecutor declines to open an investigation, a member state can file an appeal. But in the case of a request going unanswered, there is little legal ground for appeal.
One option is for Palestine to venture into uncharted territory and file an appeal for neglect of the investigation, arguing that the response is overdue.
“We can’t rule out that Palestine won’t find a way to do that, but it’s never done before,” Schabas said.
Federica Marsi – editor
