Experts are urging the ICC to investigate the European Commission president over her alleged support for Israel’s genocidal assault on the Palestinian people.
By Richard Falk – 5 minutes read time.
In the nearly 80 years that the UN has existed, never before has such a range of law-oriented approaches in international tribunals been undertaken in attempts, so far futile, to halt a genocide, which continues to ravage the lives of 2.3 million Palestinians in Gaza.
Not only has the International Court of Justice (ICJ) issued three interim orders since January that require Israel to halt its “plausible genocide”, but the state has also been ordered to stop interfering with the delivery of emergency aid to starving Palestinians.
Also during this period, the chief prosecutor of the International Criminal Court (ICC), Karim Khan, recommended arrest warrants against Israeli and Hamas leaders.
This upsurge in international judicial activity comes amid frustrations at the UN over failed attempts to impose a ceasefire, as Israeli warfare leads to increasingly precarious conditions in Gaza. The US has used its veto at the UN Security Council to insulate its criminal ally from UN pressures.
Israel has reacted to the latest developments with fury and defiance, enjoying US support more discreetly expressed.
Israeli Prime Minister Benjamin Netanyahu has repeatedly contended that in light of the Holocaust, Israel can never be charged with the crime of genocide; that since 7 October, Israel has been exercising its right to self-defence against a terrorist attack by Hamas; and that the proposed ICC arrest warrants, if issued, would undermine the ability of democracies to defend themselves in the future.
He has even, with some success, called upon the US government and other nations supportive of Israel to exert pressure on the ICC to reject the prosecutor’s request.
Maximising pressure
Amid all this legal controversy, it is becoming evident that Israel cares deeply about being criminally branded by these tribunals that it derides as having no competence to entertain complaints about its behaviour.
This apparent contradiction suggests that Israel realises that its refusal to comply with the rulings of these international tribunals will not erase their influence throughout civil society, making it important to maximise pressure to discourage such ICJ/ICC assessments of Israel’s alleged criminal behaviour in Gaza, especially with regards to genocide, the crime of crimes.
Against this backdrop, the Geneva International Peace Research Institute (GIPRI) has added a further dimension of legal complexity, calling on the ICC late last month to investigate the president of the European Commission, Ursula von der Leyen, for alleged “complicity in war crimes and genocide committed by Israel”.
The Rome Statute of 2002, which sets forth the treaty framework that shapes the work of the ICC, gives NGOs and individuals a right under Article 15 to bring evidence of criminality to the attention of the prosecutor, who can determine whether the evidence offered is sufficiently compelling to warrant an investigation.
Against this backdrop, the Geneva International Peace Research Institute (GIPRI) has added a further dimension of legal complexity, calling on the ICC late last month to investigate the president of the European Commission, Ursula von der Leyen, for alleged “complicity in war crimes and genocide committed by Israel”.
The Rome Statute of 2002, which sets forth the treaty framework that shapes the work of the ICC, gives NGOs and individuals a right under Article 15 to bring evidence of criminality to the attention of the prosecutor, who can determine whether the evidence offered is sufficiently compelling to warrant an investigation.
In April, the ICJ rejected Nicaragua’s request by a 15-1 vote, saying the circumstances did not justify an emergency order. But the court also rejected Germany’s effort to have Nicaragua’s complaint on complicity dismissed, which means that the ICJ will in due course hear arguments on the merits of the underlying contention from both sides, and eventually reach a substantive decision.
In contrast, the GIPRI initiative came in the form of a statement delivered to the ICC prosecutor in May, endorsed by various international law experts, including myself.
The GIPRI statement is also based on a theory of criminal complicity and aiding and abetting, but the target is necessarily an individual, Von der Leyen, rather than a state. GIPRI alleges that the European Commission’s support “has had a substantial effect on Israel’s commission and continuation of crimes, including genocide”.
This support, GIPRI notes, has consisted of political backing, military materials, and failure to take reasonable steps to prevent genocide.
Whatever becomes of the GIPRI initiative, it illustrates the breadth of the ICC’s potential, and exhibits an effort of civil society to invoke international law, given the failure of the UN or the inter-governmental system to prevent and punish such a transparent genocide.
Along with such solidarity moves as the boycott, divestment and sanctions (BDS) campaign and university protests, especially in the US, civil society is showing itself to be a political actor that even Israel understands it cannot ignore if it has any hope of avoiding long-term pariah status.
However the ICC responds to this GIPRI initiative, it is a further sign that civil society is becoming a political actor on the global stage.
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