DUE to the gruesome atrocities committed by Israel in its current ongoing war with the Palestinian people, some concerned Malaysians have recommended Malaysia and other countries bring Israel to the International Criminal Court (ICC).
Truth be told, it is an awesome idea.
Though such proposals may sound extremely intriguing, and I would be extremely happy if Israel is duly brought to the ICC, the proposals may, in probability, face enormous impediments to be carried out, let alone be effectively implemented.
Many may not be aware that, as of now, all the taxes that are payable to the Palestinian Authority (PA), are being collected by Israel.
Though the office of Benyamin Netanyahu has declared that it would use US$39 million (RM185 million) from PA funds to compensate victims of Palestinian armed attacks and would also offset the stipends the PA pays to Palestinians who carried out attacks and their families, Israel has also publicly announced that any attempt by the PA to bring an action before the ICC would be viewed as an unfriendly and hostile act.
And such a move would, in turn, generate dire consequences. Israel may consequently suspend the transfer of the taxes and customs duties that it collects on behalf of the PA.
If such a threat is duly carried out by Israel, it would only exacerbate and aggravate the plights not only of the PA but also of all the helpless Palestinians, especially in Gaza.
Israel has categorically maintained that any attempt to bring it to the ICC would run foul of the PA’s commitment under the Oslo Accords, whereby parties to the Accords have duly agreed to treat the Oslo process as the sole legitimate avenue for ventilating and deliberating disputes between the two parties.
Be that as it may, any such move by the PA would probably be construed as a “unilateral action”, thus violating and infringing the Oslo Accords.
International law highly values any international treaty, and by virtue of the Vienna Convention on the Law of Treaties (VCLT), the principle of pacta sunt servanda is often strictly adhered to.
To rub salt into the wound, the US government has equally declared that the ICC has no jurisdiction and that any attempt or action by the PA to bring matters before the court would be viewed as an act of “unilateral action”, thus void and ineffective.
Under the Trump administration, the USA decided to brazenly interfere in the ICC’s legal duty by imposing sanctions on ICC prosecutors and threatening legal action against them if they investigated any crimes allegedly committed by the US and Israel.
True to its words, on September 2, 2020, the United States government imposed sanctions against the ICC prosecutor, Fatou Bensouda, and another senior prosecution official, Phakiso Mochochoko.
Apart from that, then US Secretary of State Michael Pompeo also proclaimed that the United States had restricted the issuance of visas for certain unnamed individuals “involved in the ICC’s efforts to investigate US personnel.”
For whatever reason, any threat by the US should never be belittled, let alone deliberately ignored, in that being a superpower, it is always capable of converting its threats into effective execution.
Yes, pursuant to Article 15 of the Rome Statute, the provision clearly authorises the court prosecutor to undertake investigations based on the requests and submissions of individuals and organisations, not only member states.
Armed with such a provision, the former brave lady Prosecutor – Fatou Bensouda – had applied, via a pre-trial chambers hearing, for ICC judges to issue an order for her office to be allowed to pursue an investigation against Israel for alleged war crimes committed by Israel since June 13, 2014, against Palestinians.
Unfortunately, after such an order was duly granted by the ICC for the prosecutor to proceed with the investigation, such an investigation has never been carried out hitherto.
For those who are not familiar with the dynamics of the ICC, unlike criminal proceedings in municipal court, under international criminal law, the prosecutor has to get an explicit order from the ICC via a pre-trial chamber hearing, even for the purpose of investigating any core or international crimes under the Rome Statute.
We may, however, still breathe a sigh of relief when the current ICC prosecutor is reported to have confirmed recently that the mandate for the prosecutor of the ICC applies to the current conflict between Israel and the Palestinians.
The ICC has had an ongoing investigation into “the situation in the State of Palestine” for alleged war crimes committed since June 13, 2014.
Having said that, we believe that the aforementioned “hurdles” ought to be duly considered before Malaysia and others are really determined to bring Israel to the ICC.
Perhaps the proponents of this noble idea may consider other workable strategies, like what Gambia did to Myanmar on Rohingya issues or urging the UN to pass a special resolution asking for an advisory opinion from the International Court of Justice (ICJ) in relation to the present aggression allegedly committed by Israel against the Palestinians in Gaza.
Though advisory opinions of the ICJ may not be binding against Israel, the impact of such an advisory opinion in bringing some pressure against Israel should not be ruled out. This measure was resorted to in the past in the “Wall” case.
At this juncture, however, the best immediate solution would be to broker a ceasefire – at least to de-escalate the devastating impacts of the armed conflict.
In my view, a ceasefire would be possible if parties could be brought to the negotiating table under Article 33 of the UN Charter.
Hence, parties ought to fully utilise the good office of the UN SG to go for shuttle diplomacy. – October 19, 2023
Mohamed Hanipa Maidin is a former deputy law minister in Malaysia as well as a former MP. He was also a practicing lawyer for almost 25 years.