[COLUMNIST] Pressure must be exerted on the Chief Prosecutor of the ICC

WITH the commencement of the institution of legal proceedings against the State of Israel at the International Court of Justice (ICJ) based on the application by the Republic of South Africa (RSA)/The Applicant on January 11, 2024 concerning violations by the Zionist entity of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) in relation to Palestinians in Gaza, the quest for bringing the guilty and culpable have finally become a reality.

But it’s only the start/beginning and necessary step but not yet the end itself (i.e., sufficiently so) – “beginning of the end”.

For the ICJ only has jurisdiction over all 193 member-states of the United Nations (UN) in their capacity as a State.

The ICJ, therefore, critically lacks the judicial will and jurisdiction to try individuals from a member-state, especially that’s now a subject of legal proceedings or litigation as is the current case in relation to the Zionist entity.

As such, the ICJ is unable to function and play the role of a criminal court, including lacking in the operational faculty to have a prosecutor to prosecute legal proceedings, unlike the International Criminal Court (ICC).

However, the role of the ICJ and that of the ICC should be conceptualised as complementary and in “coordination” in this regard.

That is, the commencement of legal proceedings at the ICJ by the RSA/The Applicant should definitively open and pave the way for the involvement of the ICC later on, i.e., the movement from the State as the guilty party to the specific individuals as the guilty parties (as representing organic and seamless continuity).

In its Application Instituting Proceedings, the RSA/The Applicant stated that, “acts and omissions by Israel … are genocidal in character, as they are committed with the requisite specific intent … to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical [sic] group … [which] … include killing …, causing … serious bodily and mental harm, and inflicting … conditions of life calculated to bring about … physical destruction [all of which are] … attributable to Israel, which … is continuing to violate its other fundamental obligations under the Genocide Convention, including by failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others” (p. 1 of the Application Instituting Proceedings by RSA/The Applicant).

The “… conduct of Israel – through its State organs, State agents, and other persons and entities acting on its instructions or under its direction, control or influence – in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention” (p. 70 of the Application Instituting Proceedings by RSA/The Applicant).

The RSA/The Applicant’s case is based on the ICJ’s jurisdiction as contained in Article IX of the Genocide Convention (in coordination with Article 36 of the Statute of the Court – which by default or ipso facto legally obligates the Zionist entity to accept the jurisdiction of the ICJ in all legal disputes) to which both South Africa and Israel are Contracting Parties.

By extension, RSA/The Applicant is, thereby, applying for an “indication of provisional measures” (in effect amounting to or analogous to an injunction or judicial order for restraining the Defendant from further acts or omissions in question or under review) in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” (p. 73 of the Application Instituting Proceedings by RSA/The Applicant) and to ensure Israel’s compliance with its obligations under the Genocide Convention “not to engage in genocide, and to prevent and to punish genocide”.

The ultimate goal of the injunction is to ensure a permanent ceasefire of an unconditional nature as the preliminary step.

The prosecution and execution of the RSA/The Applicant’s case for the indication of provisional measures are based on the following compelling circumstances (p. 74 of the Application Instituting Proceedings by RSA/The Applicant):

• Nowhere is safe in Gaza.

• Israel is dropping ‘dumb’ bombs and bombs weighing up to 2,000 lbs (900 kg) on one of the most densely populated places in the world.

• Palestinians in Gaza are being killed at a rate of approximately one person every six minutes.

• At least 21,110 Palestinians have been killed in Gaza, with a further estimated 7,780 are missing [“so far”], presumed dead under the rubble.

• An estimated 7,729 Palestinian children had already been killed by 12 December 2023; at least 4,700 other children and women [have been] reported missing, presumed dead under the rubble, leading UNICEF [United Nations Children’s Fund] to describe Israel’s military attacks as a ‘war against children’.

• Hundreds of Palestinians in Gaza are being wounded daily, many with life-changing and life-threatening injuries.

• Besieged and bombed hospitals are no longer able to treat the sick and wounded; only 13 of Gaza’s 36 hospitals are still functioning.

• 1.9 million Palestinians in Gaza – approximately 85 per cent of the population – have been forcibly displaced from their homes.

• Palestinians in Gaza are being corralled into ever smaller areas of Gaza, without sufficient shelter, where they continue to be bombed by Israel.

• Israel continues to prevent sufficient humanitarian assistance to Palestinians in Gaza, including preventing sufficient access to food, water, shelter, medicine and medical assistance.

• Vulnerable Palestinians, including the sick and infirm, children and expectant mothers are at particular risk.

• Infectious diseases are spreading rapidly.

• International experts are warning of imminent mass starvation.

Under Article 59 of the Statute of the Court, the decisions of the ICJ are legally binding on the parties to the case.

In terms of the operational enforceability, under Article 94 of the UN Charter, the UN Security Council (UNSC) is endowed with the authority to enforce ICJ decisions.

Enforcement can take “a range of measures to ensure compliance, including economic sanctions, travel restrictions, and the use of military force” (“Enforcing International Law: An Analysis of ICJ Decisions”, International Journal of Creative Research Thought, Sanjay Sarraf, Vol. 11, Issue 4, April 2023).

The provisions of Article 94 of the UN Charter are as follows:

1. Each Member of the [UN] undertakes to comply with the decision of the [ICJ] in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the [ICJ], the other party may have recourse to the [UNSC], which may … make recommendations or decide upon measures to be taken to give effect to the judgment.

The hearing, viz.., the oral submissions, by both parties (RSA/The Applicant versus Israel – the Zionist entity as the Defendant) – which is open to the public – is only for two days, i.e., January 11-12, 2024.

Should the ICJ ruled in favour of the RSA/The Applicant under the preliminary or provisional ruling that’s expected within weeks, the Chief Prosecutor of the ICC will have no more reasons (“excuses”) any longer to delay the commencement of criminal proceedings against specific individuals of the Zionist State of Israel – even without having to “wait” or “anticipate” the final ruling which could take years.

A favourable decision/ruling/judgment of the ICJ should or would form the legal and substantive basis for the Chief Prosecutor of the ICC’s prosecution of specific individuals within and of the State organs and institutions of the Zionist entity that’re subject to the violations enumerated and accounted for under the Application Instituting Proceedings of the RSA/The Applicant in the (near) future.

Towards that end, all pressure ought then to be brought to bear on the Chief Prosecutor of the ICC to take the necessary measures under the “crime of aggression” as per Article of 8 bis(1) of the Statute of Rome which is the governing constitution thereof (see EMIR Research article, “Israel and the crime of aggression under the Rome Statute”, December 18, 2023).

Likewise, pressure should also be brought to bear on the UNSC by the UN General Assembly (which comprises all the member-states of the UN) to act under Chapter VII of the UN Charter in relation to “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”, so as to refer the crime of aggression to the ICC under this situation. That the Zionist entity isn’t a State Party to the ICC is completely irrelevant and inapplicable/non-applicable (in this instance).

That is, increasing/intensifying the pressure on the UNSC to pressure the Chief Prosecutor of the ICC to act (accordingly and decisively) when the time comes.

The Chief Prosecutor of the ICC would, thereby, be empowered by and acting upon the request by the UNSC and, by extension, the UN General Assembly apropos to the provisions of Chapter VII of the UN Charter with regards to Article 48 which stipulates that “[t]he action required to carry out the decisions of the [UNSC] for the maintenance of international peace and security shall be taken by all the [member-states] of the UN ..”.

In this respect, the UN General Assembly (of which we’re a standing participant) would be able to exercise pressure on the Chief Prosecutor of the ICC, as such (at the appropriate time).

Malaysia’s stance as a member-state would also be supported, complemented and supplemented by submissions of evidence of war crimes by our local non-governmental organisations/NGOs (see e.g., “Malaysian NGO to submit evidence to ICC against Israeli war crimes”, New Straits Times, November 3, 2023).

Whilst the Chief Prosecutor of the ICC has been continuing his investigations into Israel’s crimes in Gaza (and also the West Bank as part of the wider State of Palestine/Dawlat Filastin), not least of all as demonstrated in his most recent probe into the killing of journalists by the Israeli Defense Forces (IDF), the international community (sans or with the exception of the US and the UK and their few associates) have been increasingly frustrated over what’s seemingly to be gross inaction on his part.

As commencement of legal proceedings according to standard criminal procedures require the prosecution (in this case that of the Chief Prosecutor of the ICC) to act, the ICC, including via the Pre-Trial Division which provides the authorisation for the issuance of warrants for arrest, is unable to exercise jurisdiction and competency outside of such a scope.

It's critical, therefore, that the outcome of the ICJ proceedings – even where it turns out to be unfavourable (in what ought to be a highly remote possibility, it has to be said) – will or should only result in the intensification of the pressure against the Chief Prosecutor of the ICC to act, finally.

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Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focussed on strategic policy recommendations based on rigorous research.

** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.

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