“ICC was a hoax from the start”: How the rules were broken to deny justice to Israel’s victims in Gaza

Ali Abunimah 4 April 2012

The International Criminal Court (ICC) “was a hoax from the start.”

So said Michael Mandel, a professor at Osgoode Hall Law School at York University in Toronto, in response to the ICC Prosecutor’s shocking decision yesterday to refuse jurisdiction over Gaza war crimes without even referring the matter to judges.

In comments to the Institute for Public Accuracy, Mandel, author of How America Gets Away With Murder, Illegal Wars, Collateral Damage and Crimes Against Humanity elaborated:

It’s disgraceful but not surprising that the ICC has dismissed Palestine’s complaint against Israel. It sat on the complaint for over three years, always proudly announcing that it was investigating it to give the appearance of impartiality. Meanwhile the ICC jumped to attention in less than three weeks when the US government, which is not a signatory to the treaty, wanted to go to war against Libya, justifying Western aggression with bogus charges against the Libyan regime.

Referring to Luis Moreno Ocampo, the prosecutor of the International Criminal Court, Mandel said:

Ocampo and company have been busy putting Africa on trial for crimes aided, abetted and exploited by the rich countries, while the US government killed hundreds of thousands of Iraqis and tens of thousands of Afghans, and Israel has been committing Nuremberg’s ‘supreme international crime’ of aggression against the Palestinians for 45 years.

Amnesty International presses for reconsideration

Yesterday Amnesty International strongly condemned as “dangerous” and “political” the decision by the ICC Prosecutor to refuse to investigate war crimes committed in the course of Israel’s 2008-2009 attack on the Gaza Strip, on the grounds that Palestine is not a “state.”

Amnesty stated that the determination as to whether the ICC had jurisdiction is one that had to be made by the judges, not by prosecutors.

Today, the human rights organization has gone even further, issuing a detailed “Questions and Answers” document explaining why the ICC prosecutor’s decision is incorrect and should be reconsidered.

At the heart of the document, Amnesty explains why it has taken such a strong stance:

Given that access to justice for victims of war crimes by both sides is at stake, Amnesty International is calling for an independent judicial determination of the issue by the ICC judges, rather than a political determination by external bodies where the matter will likely remain unresolved indefinitely while victims continue to be denied justice.

Furthermore, delegating this decision to a political body undermines the vital independence of the Court and exposes the ICC to political influence over justice issues.

The Office of the Prosecutor’s position establishes another a major barrier to justice for the victims and fails to address the fact that the Prosecutor has yet to seek an independent judicial determination from the Pre-Trial Chamber on the questions surrounding the ICC’s jurisdiction in this situation, despite the fact that the preliminary examination has been ongoing for more than three years.

“A dark day”

Meanwhile, the Palestinian Centre for Human Rights (PCHR), which has spearheaded legal efforts to bring justice for Palestinian victims of war crimes, condemned the ICC prosecutor’s decision, calling it a “dark day for international justice.”

PCHR said the “ICC Prosecutor has completely failed to address this issue in an appropriate manner,” and had exceeded its powers in deciding for itself whether Palestine was a “state” for the purposes of ICC action.

In contrast to the strong stances of PCHR and Amnesty International, it is notable that other human rights groups, including B’Tselem and Human Rights Watch have so far remained silent about the ICC prosecutor’s action.

There’s no doubt that the politically-motivated decision of the ICC Prosecutor is, and is intended to be, an obstacle on the path to justice for Palestinians. Even worse, it may serve as a green light to Israel to commit even more crimes fully assured of international complicity and impunity.

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linda arthurs replied on

it is true...the UN knew it was useless before it went in to check on violations

an absolute hoax. The UN is probably the most ineffective body for social justice today. There are of course well meaning people but the US killed it with it's Axis of Evil campaign, ignoring all the rules and still they call the shots..I don't know what the hold is that Israel has but it is a good one. No matter how embarrassing Israel can make the US look, it sucks it up. Shame on you US

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AZC replied on

You anger is justified but it may be misplaced. The International Court of Justice (also known as the World Court) is apart of the U.N. The ICC is not a agency of the U.N, although certain cases may be referred to the ICC by the U.N security council where countries such as the U.S (not a signatory of the Rome Statute) possess a veto.

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emwatcher replied on

The ICC revealed itself a fraud a dozen years ago when it prosecuted only the losers in NATO's attack on Serbia/Yugoslavia. Mandel himself presented a petition calling for investigation of NATO's war crimes to the chief prosecutor, Louise Arbour. But Arbour, a former Supreme Court justice in Canada who for some reason has a good reputation among liberals, chose to prosecute only Milosevic and other losers.

As Edward Herman wrote in Z Magazine (http://www.whale.to/c/michael_...):

"The Tribunal was obligated by its charter to investigate and prosecute all credible charges of war crimes in Yugoslavia, which would include any by NATO forces. Thus in May 1999 Mandel presented Arbour with a compilation of evidence on NATO war crimes, with an accompanying legal analysis of why these constituted serious crimes. But Arbour and Del Ponte stalled for over a year, with Del Ponte eventually announcing that there was no basis for even opening an investigation with a crime base of only 500 dead, although Arbour’s May 1999 indictment of Milosevic was based on a crime base of 340 victims, mostly from a war zone, following the provision of information by one side in the war (the United States and Britain), information not verified by the Tribunal, and with only a three week lag to an indictment."

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Dr John Jennings replied on

We can still take action at the ICC right now by exploiting the concept of 'aiding and abetting' re the big players who support Israeli actions in the OPTs. This route is important for circumventing the problem of Israel as a non-signatory to the Rome Statute. It means one can target key individuals in European governments as 'aiding and abetting' (they ARE signatories to the Rome Statute) as long as one can identify Israeli individuals as the 'principal offenders'; that is easy of course. A Court decision in this circumstance would undermine the current EU support of Israel. The fact that Israel is not a signatory is irrelevant in this situation. The crime in question is 'aiding and abetting'. Best to adopt a tangential approach rather than head on. Anyone can submit a Proposal to the Prosecutor of the ICC. All of you, submissions to the ICC.........NOW.

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Ernie replied on

The ICC prosecutor is probably not an idiot and is almost certainly aware of the ICC rules. It is naive to think we can point out his error and he'll just say, 'Whoops, I didn't know that. I'll rectify it straightaway.' Nor is it likely that he'll be overly concerned about how this makes him and the whole edifice of International Law look.
Little could be more obvious than that in International Law, as in domestic law, what matters is not what you've done, but who you are. There are points where precepts of International Law mirror concepts of justice, but I think we ought to be clear that where violations occur, the issue is not whether they are technically illegal, but whether they are unjust. The Law has never been a friend of the oppressed.
As far as I'm concerned, the principal impact of this decision is that it endorses the principle that the stateless have no rights, and that's as it should be.

Ali Abunimah

Co-founder of The Electronic Intifada and author of The Battle for Justice in Palestine, now out from Haymarket Books.

Also wrote One Country: A Bold-Proposal to End the Israeli-Palestinian Impasse. Opinions are mine alone.