We are Witnessing a Genocide Unfolding in Gaza: To Stop it, the ICC Prosecutor Must Apply the Law Without Fear or Favour

[Shawan Jabarin is General Director of Al-Haq.

Ahmed Abofoul is an international lawyer, legal researcher and advocacy officer at Al-Haq, and a research fellow on international law and legal mobilization at the International Institute of Social Studies of Erasmus University Rotterdam.]

The Prosecutor of the International Criminal Court (ICC), Mr Karim Khan, recently published an op-ed, which read more like a diplomatic cable than a Prosecutorial statement of intent, entitled: “We are witnessing a pandemic of inhumanity: to halt the spread, we must cling to the law.” It is not clear to whom Mr Khan is referring when he says ‘we’. Surely not ‘we’ Palestinians who have clung to the law, by joining the ICC, and who have been ‘witnessing’ and enduring such inhumanity for decades? More likely an appeal to ‘we’ in the eyes of the Prosecutor is to those powerful states and their allies who appear to drop any pretence of clinging to the law in the case of Palestine.

What we are witnessing, more pertinently to Mr Khan’s mandate and responsibilities, is a Western-made prevailing climate of impunity especially for powerful states and their allies who continue to behave as if they were above the law. These governments are not interested or willing to “cling to the law”. On the contrary, the past months have shown unequivocally that they treat the law as a political tool, a wand, by which they can passionately scold their foes but scandalously refuse to use and prevent others from using it on their allies. It is becoming more evident than ever that we do not live in a post-colonial world, but rather in a neo-colonial and imperialist one.

In these times of abhorrent prevailing climate of impunity, which is enabling more and more spirals of horrifying civilian victimization, the Prosecutor of the ICC is the most important person to “cling to the law,” and to the Rome Statute language, legal principles and standards.

Indeed, Israel’s violation of the Palestinian people’s internationally recognized human rights did not start on October 7^th. As the UN Secretary-General noted it “did not happen in a vacuum.” Rather, this is the result of systematic impunity for 75 years of Zionist settler colonialism and apartheid against the Palestinian people as a whole; for 56 years of Israel’s longest-in-modern history illegal belligerent occupation and continuing illegal colonial settlements enterprise in the occupied Palestinian territory (oPt); and the result of Israel’s 16 years suffocating military blockade of one of the most densely populated areas in the world, where 2.3 million Palestinians –over 70% of them are refugees– live in around 360km².

It is long overdue for arrest warrants to be issued against Israeli officials at the highest level. It is time to bring justice closer to victims by prosecuting the international crimes that underline the settler colonial nature of Israel’s occupation and brutality, especially its transfer of population, whether directly or indirectly, into the oPt, including East Jerusalem (settlements), and other abundant war crimes and crimes against humanity, especially starvation, forced displacement, apartheid and persecution. The prosecutor must also consider investigating the serious allegations of genocide, including the worrisome numerous statements entailing a clear incitement and intent to commit genocide.

A problem well-stated is a problem half-solved. It has to be understood at the outset that political will -although usually helpful in terms of cooperation- must not be allowed to influence international justice or dictate its scope and timing. International Criminal Law is understood to be a combination of criminal law and international law. While international law is inherently influenced by States’ political will, criminal law is confined to what the criminal code/law says in line with basic inalienable rights as stated in each state’s constitution.

Similarly, the mandate of the ICC is confined to its applicable law, which includes its criminal code, i.e. the Rome Statute and other relevant ICC official documents. Article 21(3) of the Rome Statute stipulates the Court’s applicable law and entails that its application and interpretation “must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender [..] age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.”

Notably, the Pre-Trial Chamber has already recognised the significance of the right to self-determination in guaranteeing and observing individual human rights, as well as for the promotion and strengthening of those rights. It also ruled that the Palestinian “right to self-determination amounts to an ‘internationally recognized human [right]’” and recalled the Lubanga Appeals Chamber decision in which “it held that ‘[h]uman rights underpin the Statute; every aspect of it including the exercise of jurisdiction of the Court’ and that ‘[i]ts provisions must be interpreted and more importantly, applied in accordance with internationally recognized human rights.’”

The mandate of the ICC, with victims’ rights at its centre, and its cornerstone principle of equality before the law, is set out in its founding Rome Statute. The drafting history of the Statute clearly shows that the absolute independence and autonomy of the Office of the Prosecutor (OTP) was a result of the relentless advocacy by civil society. States, however, especially the permanent members of the Security Council hoped for a Court which might exempt their military personnel, and for a Prosecutor with a mandate that they could influence. At the final adoption of the Statute, such a role was rejected, and states like the USA have since refused to join the Court.

Throughout the years, the short-sightedness, overt self-interest and protectionism of some states (including non-members of the ICC, like the US) have continued, resulting in the neutering of the crime of aggression at the ICC, including by exempting non-states party aggressor states from the Court’s jurisdiction. Over a decade later, this has impeded the Court’s jurisdiction over the crime of aggression in the Situation in Ukraine. Subsequently, the very same states which insisted that their nationals could never be tried for the crime of aggression at the ICC –namely the UK, France and the US– have advocated passionately for accountability at the ICC and the creation of another tribunal for aggression specifically for Ukraine.

As Professor Donald Ferencz puts it: “The [Rome Statute crime of aggression] amendments represent[ed] a plea of law to humanity: they call[ed] out for the support of people and nations of goodwill to help protect humanity from a world of continuing lawlessness.” With this in mind, we can see how certain Western states have already considered such ‘pleas’. However, Western states’ claims to act in defending the ‘rules-based international order’, are fatally undermined by the persistent and shameful hypocrisy, and double standards in their ‘defence’ of such an order in situations which suit their interests. Such selective actions do not –as sometimes asserted– serve to strengthen international law, but rather actively damage adherence to the regime of international (criminal) law and the so-called “rules-based international order”. Therefore, we urge the Prosecutor, the Court and the Assembly of States Parties (ASP) to be exceptionally wary in their engagement with states who have not signed up to, or perhaps do not apply to themselves, the very normative and structural frameworks through which they seek to encourage the Court to hold others to account.

It is, thus, important to remember which states (parties) have been ignoring the plea of the law to humanity and continue to do so today. These are the same states that advocated enthusiastically for accountability in Ukraine, devoted unprecedented resources and cooperation to that end and, in record numbers, referred the situation in Ukraine to the Court. Not a single one of these states referred the situation in Palestine (especially in Gaza) to the Court. Notably, the OTP has recently received a referral of the Situation in the State of Palestine, from five States Parties: South Africa, Bangladesh, Bolivia, Comoros and Djibouti. Most Western states, with very few exceptions, never even mentioned the ICC or called for accountability when addressing the situation in Palestine.

Independently, the interpretation, understanding and execution of the ICC Prosecutor’s mandate should be in accordance with the rules of the Rome statute. The ICC Prosecutor’s mandate according to his office’s policy papers includes not only investigating and prosecuting but also monitoring the situations investigated by his office and performing an early warning function to deter and prevent international crimes.

The Prosecutor’s public engagement on the situation in Palestine before October 7^th was scarce, as no statements were issued on the situation in Palestine. Recently, the Prosecutor went to Rafah crossing in Egypt and filmed brief remarks, then held a press conference in Cairo without taking any questions from journalists. The Prosecutor made it clear that he could not access Gaza, but did not tell the public why or name who is not allowing his team into the oPt? Notably, the States of Palestine is a state party and obliged to cooperate with the OTP. However, Israel, the occupying power, which controls who access the oPt, including the Gaza Strip has rejected the ICC’s mandate and called the decision to open an investigation “pure anti-Semitism”.

Last year, around 200 Palestinian, regional and international civil society and human rights organizations sent a letter to Prosecutor Khan urging him, to expedite his investigation and start issuing arrest warrants, and to deter crimes in Palestine. The letter highlighted the numerous important missed opportunities for issuing preventive statements in the year before. It also showed that previous preventive statements by former Prosecutors have proven to provide sufficient deterrence in Palestine. Unfortunately, the ICC Prosecutor did not heed the calls of these organisations, the perpetuation of international crimes against Palestinians continued and impunity has been prevailing leading to the current situation where we have a genocide unfolding before our eyes in the Gaza Strip. It remains a mystery why the Prosecutor refused to issue any statements before the 7^th of October. Notably, regarding Ukraine, the Prosecutor issued three statements in the first week alone.

In his op-ed, the Prosecutor rightly points out that in these times we need the law more than ever and that victims must not feel forgotten. He clarified: “Not the law in abstract terms, not the law as theory, but the law capable of providing tangible protection to those who need it most.” We respectfully believe that the independent mandate of the OTP is intended to permit any Prosecutor to fill the gaps between law in theory and law in action, not to use them as a pretext to shape the office’s policy.

The Prosecutor also stated that “When the evidence we are collecting reaches the threshold of realistic prospect of conviction, [he] will not hesitate to act pursuant to [his] mandate.” This seems to contradict the pledge Mr Khan made to the ASP during his election campaign to execute his mandate in accordance with the evidentiary threshold of “reasonable prospect of conviction.” Moreover, this is also different from the threshold the Rome Statute provides in Article 58 for the Pre-Trial Chamber in assessing the Prosecutor’s request to issue an arrest warrant, which is, “reasonable grounds to believe that a person has committed a crime in the jurisdiction of the Court.”

Notably, the “realistic prospect of conviction” threshold is used by the UK’s Crown Prosecution Service and is not a standard of proof recognised or used in the ICC legal system, as a matter of fact, the word ‘realistic’ does not even appear once in the Rome Statute. The difference is that ‘reasonable’ as a legal threshold is rooted in the faculty of reason when examined by applying the law to the fact and it is supported by abundant ICC jurisprudence. However, the word ‘realistic’ is usually used to express or represent something as being accurate when examined against reality and what it permits. Thus, it seems –concerningly– more about pragmatism and realpolitik, rather than about the law itself. Indeed, as noted by domestic judges in the US in relation to statutory interpretation, “the word ‘realistic’ carries ominous overtones of judicial submission to political realities.”

This is not merely a usage of terminology, but rather about the way a practitioner approaches the law, this is about reasonableness v. realism. Adopting and implementing the ‘realistic’ standard would “undermine uniformity and certainty of the administration of criminal justice because it is inherently flexible and subjective.” Accepting applying this standard will create a situation in which victims will not be able to comprehend why justice is swift and effective for some situations (e.g., Ukraine) but not for others (e.g., Palestine). Notably, the ICC Pre-Trial Chambers previous arrest warrants requested by the ICC Prosecutor Khan, e.g., in Ukraine and Georgia, were approved “based on the relevant evidentiary standard, namely ‘reasonable grounds to believe’, as required by article 58(1)(a) of the Statute.”

We believe that the ‘realistic’ standard is fundamentally problematic and could have tragic implications for the situation in Palestine. Notably, the ICC was not established to prosecute crimes only when the powerful (usually the perpetrators) are gracious enough to allow justice, and seemingly, only to the extent to which they allow it. Submitting to this understanding under the pretext of pragmatism makes a mockery of the ICC and the legacy of all those who believed in and contributed to its establishment. As Matthew Cannock, Head of Amnesty International’s Centre for International Justice, puts it: “The ICC-OTP’s legitimacy and effectiveness depends on not being seen as an instrument of powerful actors, but rather demonstrating –without fear or favour– that it will pursue accountability in situations where perhaps only its intervention will ensure that certain crimes, perpetrators or situations are investigated.”

In our view, the crucial challenge facing the ICC is for it to urgently recognise that while hypocrisy may mark some states’ approaches to international justice, the Court should demonstrate that it does not itself pursue or acquiesce to such selectivity or double standards. Moreover, the OTP must be acutely aware that it does not, through its decisions or dealings, reinforce existing hierarchies of state power. Furthermore, all of the Court’s organs must be exceptionally careful that they do not allow themselves, including through approaches which would grant further influence to states, to become a tool of (powerful) actors. Indeed, even the perception of possible instrumentalization, selectivity, or double standards as the Court fulfils its mandate will cause immeasurable damage to the future of the Court and the international justice project as a whole.

We believe that the ICC needs Palestine as much, if not more than Palestine needs the ICC. The Palestinian struggle for justice has been persistently underway for over 75 years, started before the Court’s establishment, and will continue. However, the situation in Palestine is the litmus test for the credibility of the ICC to prove that it is truly the world’s criminal court which, in accordance with its mandate, provides justice for all victims regardless of the nationality of the perpetrator or the political alliance of his country. The Court needs to show that it views Palestinians as equal human beings who deserve equal attention and protection under international law.

Issuing arrest warrants expeditiously in Palestine could provide a glimpse of hope to the victims who feel that the world has abandoned them and left them to face alone the hell Israel’s apartheid regime mercilessly unleashed on them. Now, more than ever, victims need to see there’s a way forward in having recourse to international law. Now, more than ever, all alleged crimes must be properly investigated and all those responsible must be held to account.

It is time for the ICC prosecutor to deliver on his mandate by applying the law without fear or favour. Double standards have no place in international justice.