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    International Criminal Court

March 8, 2014

The International Criminal Court – Mammoth or White Elephant?

I first heard about the International Criminal Court (ICC) in 2000 as a student, when I was introduced to the world of international human rights of women. The subject was new and exciting for me. I was enthusiastic about grasping all that I could about international mandates. As a women’s rights activist from India, I was thrilled about gaining new insights about mechanisms and institutions that could be tapped at the international level for protecting women’s rights. At that point in time, there was also hope and jubilation among women’s groups globally since by then the International Criminal Tribunal of Yugoslavia (ICTY) had declared that sexual crimes and rapes carried out during armed conflict were a weapon of war and had to be prosecuted as such. The International Criminal Tribunal of Rwanda had set similar precedents. Both of these courts have to be credited with bringing sexual crimes committed during conflict into the realm of international jurisprudence.

The Nuremberg and Tokyo trials held after World War II did deal with the rape of women, but there was no punishment meted out to the perpetrators. While there was substantial evidence on record to demonstrate that sexual crimes and violence against women had taken place as a systematic and planned strategy of war, the courts refrained from acting in that direction [1].

So sexual crimes and violence directed at women during conflict remained untouched or was ignored until the late 1990’s when it began to be mentioned and taken seriously as part of international law [2]. There was hope among women’s rights groups when the United Nations Rome statute was signed in 1998, which would give birth to the International Criminal Court. The statute required ratification by 60 countries before it could become operational. The ICC was born four years later in 2002, a long gestation period indeed!

Today the court stands tall at The Hague, a place that has become symbolic of truth and justice. At present 122 countries are parties to the Rome Statute. The ICC has jurisdiction over four serious crimes to the international community namely genocide, war crimes and crimes against humanity committed after July 1, 2002, as well as crimes of aggression.

So finally after all these years, when I had an opportunity to visit the ICC, I was ecstatic and thrilled! I got to attend a criminal defense proceeding of Jean Pierre Bemba Gombo.

Jean Pierre Bemba Gombo was the leader of the militant group Movement de Liberation du Congo (MLC) which committed atrocities and war crimes from October 26, 2002, to March 15, 2003, in the Central African Republic (CAR). Bemba was arrested as a war criminal and  has been held at the ICC detention center in The Hague since July 2008. He has been charged with crimes against humanity – rape and murder, and war crimes of rape, murder and pillaging towns. The pretrial chamber of the court believed that based on the evidence  presented there were sufficient grounds to bring him to trial for these charges.

The witness testifying that day was a rebel fighter from the MLC. He was reliving stories of how his platoon went about robbing individuals, raping women and girls, and looting towns and villages causing absolute mayhem. While it was unsettling for me to hear all of this, it was difficult to tell whether he felt any remorse or guilt because his voice modulation was continuously changed to ensure confidentiality as part of the witness protection program. Also, it had been almost 10 years since the events occurred, and perhaps he was clinical and detached about it.

The British Defense counsel patiently probed in his clipped English, inquiring about the modus operandi of the platoon. The witness responded in meticulous French (simultaneously translated into English) about the platoon’s actions between 2002 – 2003. The defense was failing in its attempt to establish any alliance between the head of the national forces of the then ruling government of the CAR and the MLC at the time of the conflict. Needless to say, the process was slow, tedious, and time consuming. Interestingly, we could not see the witness.  He was not present in the trial chambers but was instead seated elsewhere with his disguised image being displayed on a TV screen. His voice was also frequently changed so that it would be unrecognizable at a later date.

It was ironic that while the ICC proceedings are supposed to be open and public, there were several times during the trial when the defense counsel asked for a closed session, at which point the shutters were drawn between those of us sitting in the gallery and the trial chamber. At another point, the counsel requested a private session.  In this case, the shutters remained open and, while we could see the judges, the speakers were muted and we could not hear the questions or the responses of the witnesses. This one-day hearing left me wondering about the efficacy of all the previous trial cases.

The court is faced with innumerable challenges. To begin with, it is currently prosecuting only 8 cases and these are all from Africa. In an attempt to provide a fair trial, it is bogged down with providing interpreters and translators for remote Africa languages, which most often do not have a written script. All the accused wants to have their trials conducted in their local languages and the ICC has to honor that provision. So, for instance, languages such as Lingala, Zaghawa, etc., have to be adhered to and finding translators who speak these languages along with English or French poses a huge challenge. Interestingly, some of these languages do not have more than 5,000 words making it difficult to translate sentences in English or French, the working languages of the ICC.

The ICC has an annual budget of 115 million euros. Countries that have ratified the Rome statute fund the court in proportion to their per capita income and population. Sadly, the court has handled only 13 cases since its inception in 2002, out of which four cases were thrown out at the pretrial stage as the prosecution did not build a strong case against the accused.  Only one case has led to conviction at the trial stage and that, too, has gone into appeal.

Thomas Lubanga Dyilo is a convicted war criminal from the Democratic Republic of the Congo and the first person ever to be convicted by the International Criminal Court. Regrettably, the prosecutor’s office did not include charges of sexual crimes despite there being enough evidence on the ground to support that. Lubanga was convicted only for child recruitment. The reason given for dropping these charges was that his trial had already been quite lengthy, putting the ICC was under pressure to finish it at the earliest date. The fact that sexual crimes were the first charges to be dropped in light of the long tedious proceedings, highlights the low level of relevance attached to these crimes even by the international court.

Further criticisms of the court include accusations of ‘race hunting’ by the African Union since all the cases presented before the court to date have been from Africa. It is a valid criticism since there are far more individuals who would fit the bill of a war criminal from other parts of the world but who go unscathed. And what about countries like Syria and Afghanistan, which are in flames, and where crimes against humanity and war crimes are being carried out daily?

The manner in which the ICC can take up cases is itself limiting. Member states to the ICC can refer cases.  The UN Secretary Council, through a resolution, can refer the case of a UN member state even if that state has not ratified the Roman Statute [3].  Also, the Prosecutor’s office can take on a case proprio motu i.e. the Prosecutor may decide on his own motion that there is reasonable basis to initiate an investigation into a situation in a State Party on the basis of information received. However, to date there have been no proprio motu investigations initiated. In the light of these constrained powers, it is highly unlikely that the ICC would ever extend its tentacles to capture world powers like the USA or the UK who have been responsible for initiating wars, invasions and gross human rights violations on civilian populations as was evidenced in Afghanistan and Iraq. Hence, the African nations have to bear the brunt of this western hegemony to keep the ICC functional and moving.

The African Union is now proclaiming that since the ICC is only prosecuting criminals from Africa, they would set up their own human rights court on African soil. This thinking has an interesting facet as well. The ICC indicted Ahmad Al Bashir of Sudan during the pretrial stage and issued warrants for his arrest. He has been charged with genocide, war crimes and crimes against humanity, which also include charges of torture, rape and sexual violence. However despite two warrants being issued against him by the ICC, one in 2009 and the other in 2010, no African nation is willing to arrest him and send him to Hague, hence disallowing the prosecution to move forward [4]. The argument offered is that if he is arrested, then the ongoing peace process in Sudan will break down. While this theory might hold ground and throw up dilemmas of prosecution versus peace building, to me the more realistic argument is that a coterie of African nations protecting each other is the sole reason to push for a Human Rights court in Africa. It is unlikely though that Africa would be able to afford a structure like the ICC.  But if it were to happen then it would indeed be a hilarious reflection of the chaotic state of affairs in the world with respect to international law. Incidentally, I had a chance to interact with the President of the ICC, Mr. Sang Hyun Song. I asked him what opportunities were available to the judiciary at the ICC to engage in judicial activism with specific reference to sexual crimes. Not surprisingly, Song evaded my question and politically resorted to highlighting the gender parity at the court. The fact that there are more women judges are more than male judges (the ratio being 11:8) is proudly proclaimed. But how has it helped advance women’s rights by having more women judges at the ICC? Sexual crimes and crimes against women have been ignored. The court’s first conviction of Lubanga did not charge him with the offense of sexual crimes despite weighty evidence. When the prosecution office ignored/ sidetracked these charges, the judiciary (including the women judges) did not rise to the occasion. What then is the guarantee that future cases will try to include sexual crimes?

Has the ICC become extinct even before it could start performing?  Or is it such an expensive experiment that it should be shelved before it consumes more funds? Considering that the existence, jurisdiction, sustainability and efficacy of the ICC today are itself a burning question, the women’s movement that had so ecstatically welcomed the birth of ICC are now left stoic and demotivated. While interacting with women’s groups here in The Hague, I was told that the negotiating room for NGOs and civil society at the international level has been reduced and there has been a drop in the energy levels of the once enthusiastic and vibrant women NGO coalitions.

India is not a member of the ICC. In fact it opposed its formation vehemently [5]. Nevertheless, even if India had ratified the Rome statute, it is highly unlikely that mass murderers from India would have ever made it to the ICC as war criminals, courtesy the economic clout that India wields internationally. So at least the Indian exchequer has  saved a few million rupees every year.

As for me, while I fulfilled my aspiration, which I had harbored for 13 years, to visit the International Criminal Court and attend a hearing there, the experience left me feeling despondent about the accountability and relevance of international mechanisms in furthering and protecting women’s rights. But as the old adage goes, never say never, so hopefully the judgment day will come.


[1] Evidence shows that in one instance Japanese troops had raped close to 20,000 Chinese women during the first week of their occupation of China, and there were innumerable cases of ‘comfort women’ during the second Sino-Japanese War and World War II; entire conflict from 1931-1945 is also referred to as the Asia Pacific War.

[2] The thinking had started in 1945 but was solidified in February 2001 with the verdict of the Foca Rape Case at the International Criminal Tribunal for the former Yugoslavia (ICTY).

[3] The case of Darfur in Sudan was referred to the ICC by the Security Council.

[4] The ICC has now left the matter to be dealt by the UN Security Council.

[5] India had concerns about the definition of ‘war crimes’ and ‘Crimes against Humanity’ in the Rome Statute. It was mainly concerned about the inclusion of non-international conflicts like Kashmir and other internal disputes in the category of war crimes. It also expressed strong reservations to the use of nuclear weapons or other weapons of mass destruction not being explicitly outlawed and to the right given to the Security Council to refer cases, delay investigations and bind non-State Parties, and to the power of the prosecutor to initiate prosecutions.

April 23, 2013

Palestinian Statehood and the Quest for a Lasting Middle East Peace

The Palestinian-Israeli issue has always been controversial.  Palestine’s upgraded UN status from “non-member observer entity” to “non-member observer state,” passed in the General Assembly by a large margin on November 30, 2012, brings with it, on one hand,  new opportunities for Palestinians, while on the other hand,  it is potentially more of “a headache” for Israel.

Israeli-settlementsThe change from “non-member entity” to “non-member state” for Palestine at the UN has deepened the concerns and hardened the positions of both sides in the conflict.  Israel considers the fact to be counter-productive in terms of returning to direct negotiations for peace while Palestine continues to call for a freeze on building new settlements in the occupied territory as a precondition for direct negotiations.  Hence, the upgraded status for Palestine at the UN seems to have largely impeded further efforts and possibilities to reach reconciliation.

The complex issue of whether Israeli settlements in the occupied territory are legal or illegal was addressed in the UN Human Rights Council report, approved in Geneva in March 2013.  The report states that the settlements are illegal because they violate international humanitarian law under the Fourth Geneva Convention, specifically Article 49 which sets out basic criteria for what is acceptable as humane during wartime.  Palestine insists that before direct negotiations for peace can resume with Israel, building by Israel in the occupied territory must stop.  Israel is firm in its position that there can be no preconditions to the resumption of peace talks.

UN ruling on Palestine status changeThe recent change of status allows the Palestinians to participate in UN General Assembly debates, and gives them a chance to join UN agencies and the International Criminal Court (ICC). Palestine could choose to sign the ICC’s treaty and Rome Statute which may offer the opportunity to urge an investigation of perceived Israeli war crimes, and/or make other legal claims against Israel. This possibility, however, is not without potential problems for Palestine as Israel could lodge charges of their own against Palestine and ask for an ICC investigation.  Hence, while Palestine’s access to the ICC through its new UN status could eventually lead to enforcement of international law decisions resulting in an Israeli retreat from its present positions, ICC access exposes Palestine to the same international law and its enforcement.

Considering the historical experience and rapid developments in the Middle East, it remains very hard to predict whether a sustainable solution to the Israeli-Palestinian conflict can be reached for the long-term. But the UN action in November 2012 to upgrade Palestine’s status can be a first step to bringing the elusive lasting peace in the Middle East, so long sought after by both Palestine and Israel.  Perhaps it can offer an alternative road-map to Israeli-Palestinian coexistence.

December 27, 2012

Palestine’s Membership at the International Criminal Court: What It Could Mean for Israel

palestine hillsIntroduction

With Resolution A/67/L.28 on the Status of Palestine at the United Nations having been passed with an overwhelming majority at the General Assembly on November 29, 2012, the Palestinian Authority’s status has been upgraded from a United Nations permanent observer entity to that of a non-member observer State. Although the Resolution does not necessarily mean that all States, including the nine that voted against the Resolution and the forty one that abstained, must now recognize Palestine as a State, it does mean that Palestine will have access to United Nations and agencies, including the International Criminal Court.

For many observers, this has been hailed as a great triumph for Palestine, and some commentators anticipate that Palestine will seek membership at the International Criminal Court in order to file claims against Israeli officials for the Gaza blockade, disproportionate attacks against and collective punishment of Palestinians, and the occupation of the West Bank. However, as will be shown below, seeking membership at the Court will prove to be a double-edged sword for Palestine. Israel will inevitably counterclaim against Palestinian officials, including members of Hamas responsible for intentional attacks against civilian targets in Israel.

Palestine’s Right to File Claims without Israel’s Consent

Under article 12 of the Rome Statute of the International Criminal Court (SICC), in order for the International Criminal Court to exercise jurisdiction, either: (i) the crime must have been committed in the territory of an International Criminal Court member State or on board a vessel or aircraft registered with a member State; (ii) the nationality of the accused must be with a member State; or (iii) the State in question must agree to jurisdiction. Israel is not a member State of the International Criminal Court. Therefore, the only way that Israeli officials could be tried by the Court would be if either Israel accepted the Court’s jurisdiction, which given Israel’s past conduct would be highly unlikely, or a crime over which the Court exercises jurisdiction is committed in the territory of an International Criminal Court member State or on board a vessel or aircraft registered with a member State. What this means is that if Palestine becomes a member State of the Court, which it may now do as a result of the recognition conferred by Resolution A/67/L.28, it could file claims against Israeli officials at the Court for crimes that occurred on Palestinian territory.

Palestine’s New Right— Robust as It Seems?

This sounds like a major shift in politics and relations of Israel and Palestine, since Palestine may now pursue Israeli officials before the International Criminal Court without Israel’s consent. It is so significant that some nations, including the United Kingdom, sought a commitment from Palestinian leaders that Palestine would not file a claim against Israel before the International Criminal Court as a precondition to voting for Resolution A/67/L.28. When the United Kingdom did not receive this commitment, it abstained from voting on the Resolution.

UN Intl Court of JusticeHowever, while Palestine’s potential International Criminal Court membership appears significant and, according to some commentators, it may significantly derail the Israel-Palestine peace process, the reality is that the Court will not likely play any important role in the relations between the two nations. Palestine is keenly aware if it were to join the International Criminal Court and file a claim against Israel, Israel would immediately retaliate with a counterclaim. Palestine would quickly find its membership with the Court to be a mixed blessing: Palestine would not only enjoy the right to bring actions before the Court but would also be vulnerable to actions brought against it. Of the claims over which the Court holds jurisdiction, one could make the argument that Palestine, through its Gaza Strip arm ruled by Hamas, is far more vulnerable to claims brought against it than is Israel.

For example, it would be difficult to characterize the blockade of the Gaza Strip or Israel’s disproportionate counterattacks as crimes falling under the Court’s jurisdiction, such as murder or extermination “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (art. 7.1 SICC). Israel would argue that the blockade and attacks were never aimed at civilians, but rather at Hamas militants who have repeatedly fired rockets into civilian areas of Israel. Other supposed crimes such as collective punishment of Palestinians and the settlements are, in the words of Kevin Jon Heller’s November 29, 2012, Opinio Juris commentary, “fraught with ambiguity and difficult to prove.”

Defending Against Israeli Claims

Palestine, in contrast, would encounter great difficulty defending against an Israeli claim that Hamas fired rockets directed at civilians in Tel Aviv and Jerusalem, thus constituting crimes against humanity. If Israel could prove that rockets were fired indiscriminately at civilian targets, Palestinian leaders could be held guilty of violating the principle of distinction (discrimination), a key precept of international humanitarian law that requires parties to a conflict to distinguish between the civilian population and combatants in order to spare civilian populations and property.

Palestinian Fatah leadership could argue that rockets fired were under the exclusive control of Hamas, a non-state entity that neither represents the Palestinian people nor serves as the legitimate governmental authority of Palestine. However, such an argument would likely be futile. International criminal law over the last century has increasingly recognized non-state actors as potential violators of international law. There has been renewed and increasing interest in assigning responsibility and accountability to them for their actions. There has thus been a trend in both domestic as well as international law to find jurisdiction in such cases. Even the 1945 Charter of the International Military Tribunal (London Charter), which laid out the laws and procedures of the Nuremberg Tribunal that adjudicated crimes against the Nazi regime, could be read to apply to non-state actors. The International Criminal Tribunal for Rwanda made clear that crimes committed by non-state actors could be adjudicated, and the International Criminal Tribunal for the Former Yugoslavia went as far as even convicting a number of non-state actors for crimes against humanity.

Following this trend, the International Criminal Court allows prosecutions of individual non-state actors. In defining crimes against humanity, the Statute of the Court requires that attacks directed against any civilian population involve a course of conduct involving the multiple commission [of murder, extermination, enslavement, etc.] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack” (art. 7.2 SICC). Thus, by including “organizational policy,” the Statute of the Court can be read to include acts by organizations, such as insurrection movements or other groups such as Hamas that may not have a clear nexus with state action.


The General Assembly’s upgrade of Palestine from observer entity to non-member observer State is more complicated than would seem at first glance. Although the upgrade will grant Palestine new rights under international law, the exercise of at least some of these rights, including the filing of claims against Israeli officials before the International Criminal Court, could be more detrimental to Palestine than to Israel.

palestine sea of galilee