The founding of the International Criminal Court was a watershed moment in the pursuit of justice. In establishing a global forum for prosecuting the world’s worst crimes, the Court’s creation crystallized the notion that mass atrocity necessitates a collective response, and that no perpetrator, no matter how powerful, can enjoy impunity.
But the Court has abdicated these responsibilities by prioritizing the most politically expedient cases, absolving those responsible for the gravest of crimes. There are too many for whom the Court is truly the last resort and hope – not only to secure accountability, but to prevent ongoing atrocity – but who are being ignored in this ignoble politicization of the Court’s priorities.
The sad reality is that the Court appears to have no time, resources or inclination to investigate atrocities suffered by Syrian civilians, Iranian dissidents, the Uigurs in China, or the Venezuelan people – but boundless patience in engineering a tendentious judicial framework in order to target Israel.
For a Court looking to mitigate accusations of a disproportionate focus on Africa, and more broadly shore up its credibility among member States in light of serious criticisms, targeting Israel may seem like low-hanging fruit and a helpful distraction. But Israel has a free press, free elections, an independent judiciary and vibrant civil society that has been vigorously pursuing genuine, if imperfect, accountability.
In a world witnessing genocide and mass murder – ongoing atrocities like Xi Jinping’s concentration camps in Xinjiang, and Bashar al-Assad’s cruel barrel bombing of Syrian civilians – this case is not the most appropriate, nor the most urgent, focus for a Court of final resort with finite resources.
The ICC is nonetheless prioritizing such cases, running roughshod over its foundational principles and formal procedures in the process.
The Court launched an "Inquiry into the Situation in Palestine," to cover alleged crimes committed in the West Bank, the Gaza Strip and East Jerusalem, despite the fact that Israel is not a member State, and based on a referral by Palestine, which is not a State. The Prosecutor herself acknowledged the tenuous foundation of this approach in her submission seeking approval from the Pre-Trial Chamber to move ahead with the case.
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Recently, the Court moved onto the next stage of its "inquiry" with the Chief Prosecutor reiterating her erroneous position that the Court has - and should act upon – jurisdiction, a position opposed by some of the world’s leading legal minds, and a growing list of diverse member States including Australia, Austria, Brazil, Canada, Czech Republic, Germany, Hungary, and Uganda.
The Pre-Trial Chamber prejudicially pre-empted the entire process by issuing an unprecedented order for the establishment of "outreach activities among...the victims of the situation in Palestine" with the goal of "facilitating [their] participation" and "support for the mandate and work of the Court," before the Prosecutor had decided whether to pursue the case, the first time such a move had been made in the Court’s history. Israel, in contrast, has an independent judicial and legal system, which guarantees the pursuit of justice against any perpetrators of crimes, to the fullest extent.
There has also been a reasonable apprehension of bias in the Court’s conduct in this case, as the Prosecutor engaged those with ties to terrorism, misrepresented legal scholarship in her submission, and heavily relied on non-legally binding political resolutions of the UN Human Rights Council, which is run by the very human rights violators the Court is supposed to hold accountable and is notorious for singling out Israel for discriminatory and disproportionate opprobrium.
All the while, the Prosecutor was meeting with despotic regimes with a well-known track record of systemic human rights abuses like Ayatollah Khamenei’s Iran to discuss "strengthening engagement" and "cooperation," without any mention of their victims.
Such misguided motivations, mismanagement of cases, and misallocation of resources is damaging the Court’s credibility and diminishing its capacity to secure justice for victims.
Venezuelans are facing ongoing and intensifying crimes against humanity – one of the world’s worst humanitarian crises– and in response six member States of the Court initiated the first-ever joint referral in the Court’s history. Unlike its more contentious cases, both the referring States and the subject of the referral are all established States and members of the Court, and jurisdiction is not in dispute.
Yet over a year has passed, and the Prosecutor has not opened an investigation into the deteriorating situation. Meanwhile, there have been thousands more arbitrary arrests, brutal beatings, and extrajudicial executions, forcing millions to flee.
The horrors of the Rohingya Genocide were also not enough to move the Court to meaningful action, which could have potentially curtailed the cruelty of Myanmar’s military. After over a year of inaction and prolonged suffering, the International Criminal Court only opened an investigation when proceedings were instituted at the International Court of Justice (ICJ), and the ICC’s ineffectiveness on behalf of the Rohingya was being exposed. While the ICJ urgently instituted "preliminary measures" to protect the Rohingya and preserve their rights, the ICC has still not addressed their plight and pain in any substantive way.
For Venezuelan and Rohingya victims, the costs of the Court’s meanderings are visibly acute. But the abandonment of its core mission is most evident in its handling of the inquiry into the Democratic Republic of the Congo (DRC). It has been nearly two decades since some six million people were killed in the DRC conflict, and the ICC has had only a handful of trials, half of which have ended in acquittals.
While its recent controversial targeting of Israel may seem like a useful distraction from these failures, it is draining resources from those who need it most and only intensifies the mistakes from which the Court is trying to distract.
No one should be above the law – including Israelis – but everyone should be entitled to equality under the law. Although the Court is bearing the burdens of being underfunded, understaffed, and under immense pressure from competing caseloads, this should not excuse the Court undermining its core principles.
First, whether in private representations or public pronouncements, member States should make clear to the Court that its current direction is prejudicial to the interests of justice. The landmark interventions of seven regionally diverse member States to oppose the Court taking jurisdiction in its "Inquiry into the Situation in Palestine" is an expression of good-faith engagement that supports the Court’s mandate and should be replicated on a wider scale.
Second, the election of judges should be given greater scrutiny, with a view to encouraging the candidacies of only the most competent jurists, and reforming the process more generally. In the interim, a code of conduct and correlative training for judges should be implemented in order to minimize bias and maximize professionalism.
Finally, member States should mobilize for the forthcoming election of the Prosecutor. Whoever is elected will serve a term of nine years, and will therefore set the tone and direction for the Court over the coming decade. A bold new leadership is needed, one that is willing to respect the foundational rules enshrined in the Rome Statute while pursuing justice for the gravest of crimes, the whole anchored in service to their victims and the vulnerable.
Likeminded member States should therefore look beyond the traditional candidates of the international legal bureaucracy to identify a visionary successor, and broker a consensus on their behalf, or failing that, galvanize the simple majority vote needed to prevail.
Non-member States should engage in these processes with likeminded countries that are members of the Court, and which would only serve to strengthen long-term cooperation and the Court’s credibility.
By pursuing this path, the International Criminal Court could be steered in a positive direction, where it would properly fulfill its purpose as a beacon for victims and bulwark against the world’s worst violators.
Justice Professor Elyakim Rubinstein is the former Deputy President of the Supreme Court of Israel, former Attorney General of Israel, and played a leading role in the successful peace processes with Egypt and Jordan. He headed the Israeli delegation to the formation of the Rome Statute, the founding of the International Criminal Court
Brandon Silver is the Director of Policy and Projects at the Raoul Wallenberg Centre for Human Rights and leads its international justice initiatives on behalf of victims of mass atrocity