The politicization of the ICC

Muhammad Jamil

Middle East Monitor  /  March 24, 2023

It was a difficult labour for the International Criminal Court (ICC), which came to life in July 1998. Following the First and Second World Wars, projects to establish a permanent criminal court to eliminate the state of widespread impunity were set up. However, some countries which feared the prosecution of their officials stood against such a body, and the struggle continued until it was finally established.

Diplomatic missions in Rome, including those of the United States of America and Russia, signed the Rome Convention establishing the ICC. In total, 123 countries became State Parties to the body.

However, the US withdrew its support for the body, followed by Russia, and waged a war on the ICC that reached its peak during the Trump era. The American president imposed sanctions on former Public Prosecutor Fatou Bensouda and a number of ICC staff members after she decided to open an official investigation into Israeli crimes committed in Palestine.

The ICC has jurisdiction over serious crimes committed since the entry into force of the Rome Statute on 1 July 2002, but not those that took place prior to this date. Its establishment was also supported by non-governmental organizations hoping to end impunity.

These hopes began to diminish quickly after a Western coalition led by the US invaded Afghanistan in October 2001 and Iraq in March 2002, and committed the most heinous crimes that went without prosecution or accountability until today. The UK, a member of the ICC, was a key partner in the coalition.

It became apparent that the court had been politicized because of its inability to investigate crimes committed by superpowers, while investigating crimes committed in Africa. This bias created a state of anger and restlessness among African countries, resulting in the withdrawal of Burundi and South Africa, with others threatening to follow suit.

The crimes committed in Palestine have been the focus of the humanitarian world since the British Mandate era through to the two catastrophes and until today. Nevertheless, nobody has ever been held accountable for the serious crimes that were committed in Palestine. The ICC claimed it could not investigate these crimes as Palestine is not party to the Rome Convention. In 2012, Palestine acquired the status of a non-member state, and it referred the crimes committed in Palestine since 14 June 2014, to the court. Palestine then joined the Rome Statute, which entered into force on 1 April 2015, however, eight years on, no progress has been made into these investigations, and the Public Prosecutor’s Office has not issued any arrest warrants.

Ukraine and Russia are not a party to the Rome Convention; therefore the court is not able to investigate crimes that occur there, however Ukraine accepted the jurisdiction of the court in crimes committed on its soil. Immediately, the Prosecutor General, Karim Khan, announced that his office had opened an investigation after 39 countries referred crimes committed there to his office.

Where were these countries during the US invasion of Iraq and Afghanistan? What about the crimes committed in Yemen, Libya and Syria, in which Putin destroyed cities, poisoned people, displaced them, and shed the blood of children, women and elderly?

Where did this sudden international will that prompted Karim Khan to agree easily to open an investigation come from?

Why hasn’t this will been present in the case of Palestine? During the Second Intifada that began in 2000 and ended in 2005, more than 5,000 people were killed and more than 50,000 were injured, including women and children, and homes were destroyed. During the war on Gaza in 2008 (Operation Cast Lead), Israel used internationally prohibited weapons, killing more than 1,400, and wounding thousands. During the 2012 war (Pillar of Defence), 180 were killed and hundreds wounded.

Several attempts were made by civil society organizations to push the Public Prosecutor to investigate the crimes committed, but the Public Prosecutor’s Office responded that Palestine is not a party to the Rome Convention.

The case of Palestine does not need referrals, and the former Public Prosecutor made a decision to open an investigation into the crimes committed in February 2021. In spite of this, Karim Khan has not taken action, even though files were ready and complete, leaving the crimes to continue and the perpetrators are free.

Is Khan waiting for more horrific crimes? Has he not heard Bezalel Smotrich, who denied the existence of the Palestinian people and called for illegal settlers to “wipe out” a Palestinian town.

Has he not seen the reports that describe this year as the bloodiest year, where more than 90 Palestinians, including 15 children, have been killed so far.

Khan is fully aware of everything that happens, but he deliberately ignores the complaints that reach him. He also did not continue the investigations or issue any statement over the ongoing crimes in Palestine, and when he was asked about the Palestine file a year ago in an interview with Al-Jazeera, he said, “It is inappropriate to talk about a specific case,” and he refused to go into details. Yet, when he was asked about former Sudanese President Omar Al-Bashir and the case against him, he spoke at length.

In December 2022, the Public Prosecutor’s Office issued a report on the cases it is dealing with; Palestine was only mentioned three times, in the margins. Perhaps this clarifies why all attacks on the Public Prosecutor’s Office have stopped since his appointment.

Since the war in Ukraine erupted in February 2022, under political pressure from various countries including the US, which is not a party to the court, the Public Prosecutor has engaged in activities and conferences about the crimes committed there, calling for the prosecution of suspects, and the establishment of a special court to pursue them. He also visited Ukraine four times and met officials there to prepare files on the crimes committed.

Khan is only focusing on the crimes committed by the Russians in Ukraine and has never spoken about the crimes committed by Ukrainian security and military forces, which is a flagrant breach of the court’s impartiality, and a clear indication of Khan’s blind submission to the West.

However, where Palestine is concerned it was always being emphasized that all parties would be held accountable, as if the parties of the conflict in Palestine are equal in number and arms to those in the occupation state.

Khan’s submission to the agendas of political powers has definitely politicized the court, and this now threatens its existence. If the decision to arrest Putin was carried out under natural justice, humanity would be pleased since he is a criminal who committed the most horrific crimes not only in Ukraine but in other countries.

Putin should have been arrested for his crimes in Syria, where he destroyed entire cities, displaced people and committed heinous massacres.

Though Russia and Syria are not parties to the Rome Convention, if there was political will, their crimes would have been referred to the ICC or a special court would have been established to deal with their crimes.

Khan has indulged himself in a political game that severely damaged the court’s reputation and impartiality. He turned the ICC into a tool for the powers that were already against it and fought it fiercely. The ICC may have had difficulty coming into this world, but Khan is ensuring it is stifled and politicized and unable to fulfil its mandate.

Muhammad Jamil is director of the Arab Organization for Human Rights in the UK