Al-Ahram Weekly | International

		29 August - 4 Sept. 2002 Issue No. 601 International	Current issue Previous issue Site map
Published in Cairo by AL-AHRAM established in 1875		Recommend this page

Fair to all
Does Israel come under special scrutiny from the International Criminal Court? Dena Rashed looks for an answer

According to a fact sheet recently released by the Washington Working Group on the International Criminal Court (WWICC), "the International Criminal Court (ICC) is not a threat to Israel." The WWICC is a broad grouping of Washington-based NGOs (non-governmental organisations) and think-tanks who support the ICC. The WWICC published this fact sheet on the criminal court's affect on Israel to clear up a common misconception in Washington political circles. In fact, Israel has already signed a treaty ratifying the criminal court, and groups such as the Religious Action Centre of Reform Judaism worked in support of the ICC before it was established this summer.
Heather Hamilton, the coordinator of the WWICC told Al-Ahram Weekly that the fact sheet was not published to make a political stand by the group. Hamilton said, "There has been an ongoing debate about the danger the ICC poses to Israel, and that debate has been used by policy makers who oppose the ICC in order to distract the American public from the need for America to ratify this treaty." She emphasised that the fact sheet simply presents the situation, and does not pass judgment on the relationship between Israel and the newly-created ICC.
Two months ago the long struggle to establish a permanent international criminal court ended in the successful creation of the ICC. The court has jurisdiction over crimes against humanity, war crimes, and genocide. The creation of the court has been viewed by many as a victory for international humanitarian law. However, not everyone agrees with the usefulness of the court. In particular, the United States has been vocal of its disapproval of the court.
The US has already succeeded in exempting its peace-keeping forces from the court's jurisdiction for one year. This exemption is subject to renewal every year. The US is fervently working on bilateral agreements with countries who have ratified their participation in the ICC. These bilateral agreements would exempt US personnel and nationals from ICC jurisdiction on a country by country basis. Israel has also had strong reservations about the court. Attorney General Eliakim Rubinstein claimed that Israel was hesitant to ratify the treaty because of the potentially political nature of the court.
Many throughout the Middle East have been calling for the trial of Prime Minister Ariel Sharon for war crimes and crimes against humanity.
In July, Palestine's envoy to the United Nations, Nasser Al-Kidwa, demanded that Israeli leaders face trial in front of the ICC. These calls were in response to the Israeli bombing of a neighbourhood in Gaza as part of a search for one man. Hamas leader, Salah Sheada, was the intended target. But the use of a one-tonne bomb in a residential neighbourhood resulted in the killing of 16 civilians and the wounding of 100. "It was the first war crime committed since the ICC opened on 1 July," Al-Kidwa told the UN Security Council.
The WWICC fact sheet states that "the court has no jurisdiction over non-ratifying countries, whether over Israeli territories, or Israeli citizens, unless the Security Council refers a case (which would require US consent or Israel's consent)."
The fact sheet also points out that "the ICC will always be barred from proceeding with a case against any Israeli once Israel conducts its own bona fida investigation of the charges, even if Israel declines to prosecute." According to Article 124 of the treaty, there is a seven-year transitional period in which the newly ratified country has the right to opt out of the court's jurisdiction.
However, professor of international law Ahmed Ref'at believes that these are true interpretations of the Rome Statute, but still there is a threat to Israel. "If the ICC was not a real threat, then the USA would not have pushed hard for the exemption of its peace-keeping forces all over the world," he said. Israel and the US signed a joint agreement exempting their troops from prosecution by the ICC.
Adel Maged, a judge and author of the book The ICC and National Sovereignty argues that Israel is violating the Fourth Geneva Convention of 1949. The country is in violation by building settlements in the occupied territories in the West Bank and Gaza. "If Syria ratifies the treaty then there would be a great possibility of them taking the case to court, since the Israelis still occupy the Golan Heights, and are building settlements there," Maged said.
The ICC does not have retroactive powers. It will not review cases that involve crimes committed before 1 July, 2002. The WWICC has stated that this would exempt Israel from persecution for settlement activity. Maged disagrees with this assessment saying that "legally the settlement activity is still ongoing and is therefore a continuous war crime, whether in the occupied territories or in the Golan Heights."
The Rome Protocol clearly states that "the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" is a violation of international law. According to Attorney General Rubinstein, during the first conference of the ICC in Rome, Israel was shocked to learn that Jewish settlements in the West bank and Gaza are considered war crimes. He also told the Knesset Law and Constitution Committee that the court could decide to try settlers who move to the territories after 30 June.
Law Committee chairman in the Knesset, Ophir Pines-Paz warned the Israeli government of the implications by saying, "If we don't change our policies regarding the settlements, we will get ourselves in trouble. We don't need another settlement and another outpost. The government must not take ideological decisions that will cause problems for Israeli individuals."
Israeli human rights groups have already started to gather information on crimes in the occupied territories that could be considered war crimes. An act that the Israeli government's legal advisor, Alan Baker, described as dangerous to the Israelis -- "We will do everything possible to prevent it."
Although Hamilton from the WWICC views the court's jurisdiction as weak, he believes that if many more countries ratify the agreement it can be a powerful institution. There seems to be a consensus of hope among experts. "The existence of the ICC is already a breakthrough in the history of international law," Ref'at added, "It just needs true support from the international community."

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