Due to the gruesome atrocities perpetrated by Israel in its war with the Palestinian people, some concerned Malaysians have recommended Malaysia and other countries to bring Israel to the International Criminal Court (ICC).
Though such proposals may sound intriguing and I would be thrilled if Israel is duly brought to the ICC, the proposals may, in all probability, face enormous impediments to be carried out let alone be effectively implemented.
Many may not be aware that all the taxes payable to the Palestinian authority (PA), are being collected by Israel.
The office of Israeli Prime Minister Benjamin 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.
But at the same time, Israel has publicly announced that any PA attempt to bring an action before the ICC would be viewed as an unfriendly and hostile act.
Such a move would generate dire consequences including Israel suspending the transfer of the taxes and customs duties that it collects on behalf of the PA.
Assuming such a damning threat is carried out, it would only exacerbate and aggravate the plights not only of the PA but also 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 agreed to treat the Oslo process as the sole legitimate avenue in 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 an 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.
No jurisdiction
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” and thus void and ineffective.
Under the Donald Trump administration, the US decided to brazenly interfere in the ICC's legal duty by imposing sanctions on ICC prosecutors and threatening legal action against them if they investigate any crimes allegedly committed by the US and Israel.
True to its words, on Sept 2, 2020, the US government imposed sanctions against then ICC prosecutor Fatou Bensouda and another senior prosecution official, Phakiso Mochochoko.
Apart from that, the then US secretary of state Michael Pompeo also proclaimed that the US had restricted the issuance of visas for certain unnamed individuals “involved in the ICC’s efforts to investigate US personnel”.
For whatsoever reason, any threat by the US should never be belittled let alone deliberately ignored as being a huge superpower the US is always capable of converting its threats to 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.
Being armed with such a provision, the former brave lady prosecutor - Fatou - had applied via pre-trial chambers hearing from the 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.
To the frustration of many, after such an order was duly granted by ICC for the prosecutor to proceed with the investigation, such an investigation had never been carried out.
(For those unfamiliar with the dynamics of 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 chambers 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 prosecutor of the ICC was reported to have confirmed recently that the mandate for the prosecutor of the ICC applies to the conflict between Israel and the Palestinians.
The ICC had an ongoing investigation into "the situation in the state of Palestine" for alleged war crimes committed since June 13, 2014.
Other strategies
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.
They may also urge 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.
Call for ceasefire
At this juncture, however, the best immediate solution would be to broker a ceasefire - at least in de-escalating the devastating impacts of the armed conflict.
In my view, the 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 secretary-general to go for shuttle diplomacy. - Mkini
MOHAMED HANIPA MAIDIN is a former deputy minister in the Prime Minister’s Department (Parliament and Law).
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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