The ICC building in The Hague, Netherlands, could be one of the destinations for prosecuting Israeli war criminals (Reuters)
The idea of prosecuting Israel in international courts is gaining increasing attention in international human rights circles. This comes in light of the high casualties resulting from the shelling of the Israeli occupation forces in the Gaza Strip, which has so far resulted in the death of more than 15,<> civilians, which human rights organizations consider war crimes and systematic killing against the population.
International Criminal Court
The past weeks have recorded legal actions in more than one country aimed at prosecuting Israeli war criminals. The most recent was the complaint filed by South Africa, Bolivia, Bangladesh, Djibouti, and Comoros to the International Criminal Court on November 17. However, the hope for serious action by the International Criminal Court and its ability to prosecute the leaders of the occupation remains in doubt in light of the subordination of criminal mechanisms to the political calculations of major countries, especially the United States of America.
Despite the large number of complaints submitted by states and human rights organizations, international political will remains the most important element in activating the court's mechanisms and translating them into practical measures, especially with regard to Israeli war crimes that have not ceased against Palestinians for decades.
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The ICC's working mechanisms are complex, reducing the effectiveness of prosecution efforts. According to Dr. Mohamed Al-Moussa, an expert in international law, the International Criminal Court operates according to the principle of complementarity, meaning that it intervenes only if the states concerned are unable or unwilling to prosecute those involved in committing war crimes that fall within the jurisdiction of the International Criminal Court, namely war crimes or crimes of genocide and aggression. Dr. Al-Mousa is concerned that the ICC may see the Israeli judicial system as capable of carrying out such mechanisms. On the other hand, Israel's failure to sign the Rome Statute is also an obstacle in some respect, although this obstacle can be overcome if crimes committed within the territory of a member state of the court, in this case Palestine, are proved.
However, the International Criminal Court does not seem to be the only mechanism for prosecuting war criminals, as Dr. Al-Mousa stressed that international criminal mechanisms provide several pathways to prosecute war criminals. He adds that jurisdiction may allow war criminals to be tried in some national courts, whose laws have granted them universal jurisdiction over international crimes, or that can be classified as war crimes.
Mohammed Al-Mousa stresses the importance of national courts with international criminal jurisdiction in prosecuting Israeli perpetrators (Al Bawsala News)
Prosecution through national criminal mechanisms
National courts with international criminal jurisdiction are an important entry point for prosecuting Israeli war criminals. The legal system in most European countries, for example, provides for such jurisdiction. Today, this option seems more effective, because it is easy to apply and does not need many procedural and protocol complexities existing in international tribunals. In addition, it is subject to the national legal umbrella. The past few years have seen examples in Europe, where some of those accused of involvement in war crimes in Syria have been tried, with a German court earlier this year sentencing a person to life after convicting him of belonging to a militia affiliated with the Assad regime in Syria.
A number of Israeli leaders have also faced challenges while touring some European countries after activists filed a complaint against them in the countries they visit. In 2009, former Israeli Foreign Minister Tzipi Livni was forced to cancel her planned visit to London after a British judge issued an arrest warrant for her following a complaint over her role in possible war crimes in Gaza during the 2008 war. Livni was later killed again in 2016, but British government intervention prevented her arrest on both occasions. In 2005, an Israeli general was forced to return to Israel after staying several hours on the plane at Heathrow Airport for fear of arrest. Arrest warrants have also been issued for potential Israeli war criminals in more than one European country, such as Belgium and Spain.
Dr. Al-Mousa points to the importance of the personal criminal jurisdiction of national courts, and sees it as one of the most effective practical steps from his point of view. Although the only judicial action in prosecuting Israeli war criminals has been through national courts, each time politics has been the main cause of their impunity.
Special International Tribunal
Special international tribunals are an important development in contemporary international criminal mechanisms. The Nuremberg trials after World War II opened the door to this kind of accountability. Special international tribunals record successful experiences in the cases they have targeted to prosecute war crimes and genocide, such as the Tribunal for Yugoslavia (1993), the Rwanda Tribunal (1994), the Tribunal for Cambodia (2003) and the Tribunal for Lebanon (2005).
ICRC publications indicate that ad hoc international tribunals are complementary accountability mechanisms to the International Criminal Court and can convene within a national or international framework. Iranian President Ebrahim Raisi proposed the formation of a special court at the Arab-Islamic summit in Riyadh earlier this month. Dr. Mohammed Al-Mousa pointed out that the idea of forming a special international tribunal within the framework of the Organization of Islamic Cooperation or within the framework of the United Nations General Assembly is legally possible, and a practical and realistic step to prosecute Israeli war criminals, especially in light of the almost certain possibility of a US veto in the event of going to the Security Council for this purpose.
In this context, the four international tribunals mentioned above were established within the framework of the United Nations, three of them by a resolution of the UN Security Council, while the Court of Cambodia was formed by an agreement between Cambodia and the United Nations General Assembly.
Khaled al-Shuli, a lawyer specializing in international criminal law, said that the formation of a special international criminal court may not receive an international agreement, which will reduce its effectiveness, noting that the formation of these courts is due to the competence of the Security Council, which will block such efforts by virtue of the ready US veto.
International commissions of inquiry or fact-finding
Truth commissions are an important mechanism in promoting accountability and an indispensable step in prosecuting war criminals. The findings and recommendations of these commissions can be used to provide information, evidence and witnesses before international jurisdictions. The importance of these committees stems from the availability of mechanisms for their establishment and the speed of their formation. The Security Council, the General Assembly, the UN Secretary-General, the Human Rights Council or the UN High Commissioner for Human Rights could request the establishment of an international commission of inquiry. Fact-finding commissions could also be established in an international framework outside the United Nations.
One example is the 2014 UN Independent Commission of Inquiry on the Gaza conflict, established by a resolution of the UN Human Rights Council in Geneva. The formation of these committees is usually separate from potential judicial mechanisms, but their results are particularly important in providing a historical record and independent investigations that would serve judicial mechanisms, if available.
International commissions of inquiry, which are usually formed after the end of armed conflict, draw on the efforts of NGOs that have accompanied the conflict and documented violations. For example, the 2014 UN Independent Commission on the Gaza Conflict asked human rights NGOs, particularly those with UN consultative status, to cooperate in providing their contributions and reports on violations that occurred during the 2014 war. This is why human rights organizations play an important role during the war, as documenting violations is one of the most important practical steps in prosecuting Israeli war criminals. In this regard, the international lawyer, Khaled Al-Shuli, pointed out that the issue of documenting violations, collecting testimonies and protecting witnesses are important and essential steps on the way to prosecuting Israel, and these tasks are often carried out by civil and non-governmental human rights organizations, and Al-Shuli called for the importance of supporting them so that they can carry out their work to the fullest.
Other ways to go after Israel
Methods of prosecution are not limited to the previous tracks, as the International Court of Justice can be resorted to in specific cases. In this regard, Khaled Al-Shuli pointed out that the jurisdiction of the International Court of Justice can be included in crimes committed in Palestine if it is proven that the crimes committed are acts amounting to genocide, by activating Article IX of the Genocide Convention, since Israel ratified the Convention without reservation to any of its articles. Such a step would require action by a ratifying state that has not made reservations to Article IX, al-Shuli said. It should be noted that the latter procedure is an international jurisdiction between international parties exclusively.
Lawyer al-Shuli points out that there are other practical measures in the context of prosecuting Israel based on general rules for the maintenance of international peace through the United Nations, especially with regard to the resolution of the Union for Peace issued by the General Assembly in 1950, which allows the intervention of the General Assembly in the event that the Security Council is unable to play its role in maintaining international peace and security. Al-Shuli stressed that repeated recourse to the Security Council and the General Assembly carries great importance, as it stimulates the activation of these rules and procedures during periods of armed conflict and aggression.
Israel's prosecution may not be limited to crimes committed in the Gaza Strip at the criminal level. Respect for international legal principles and the non-violation of human rights are fundamental criteria in international economic and commercial agreements. On this point, lawyer Al-Shuli asserts that prosecuting Israel is possible by tracking bilateral or collective trade agreements to which Israel is a member. Such agreements often include accountability mechanisms if parties do not respect human rights norms. Such a move is not only important in the prosecution aspect, but also in shedding light on the rights of the Palestinian people and encouraging international parties to put an end to cooperation with the occupation. Al-Shuli cited the Association and Cooperation Agreement between Israel and the European Union as a non-exclusive example of such agreements.
Even today, efforts to pursue Israeli war criminals still face significant and extraordinary challenges, which may not face any other such prosecutions, due to Western protectionism, which has a long record of protecting Israel and impunity for its criminals.
International commissions of inquiry, and the possibility of prosecution through national jurisdictions available in many countries around the world, represent the most practical measures at the moment to prosecute Israeli criminals. Political bias by Western countries remains the most important obstacle to justice by disrupting international criminal mechanisms such as the International Criminal Court when it comes to Israeli war criminals.
The practical possibility of establishing a special international tribunal outside the jurisdiction of the UN Security Council to prosecute Israeli war criminals could also be a practical possibility if there is political will and activation by Muslim states in particular.
Until a fair and feasible criminal mechanism is in place, nongovernmental human rights efforts to collect and document evidence remain indispensable at this stage.
Source : Al Jazeera