Obstacles in resorting to ICC

In times of war, are laws and norms temporarily frozen to give way to man’s politics?
Obstacles in resorting to ICC

The guns have been silenced in Gaza. The world is heaving a collective sigh of relief. The deal for the release of 50 hostages in exchange for 150 Palestinian prisoners and a four-day truce took effect — a significant turning point in the more than one-month war.

Arab Muslim state Qatar took center stage as the negotiator. This offers a streak of optimism that it could lead to other concessions that would ease the devastation and momentarily halt the collective punishment that Israel has heaped on innocent non-combatants.

The truce gives us space and time to ponder certain facets of the war and the issues that some quarters had raised. One such issue, now a hot topic among legal scholars and litigators, is the culpability of those who had wantonly disregarded international laws and customs. In times of war, are laws and norms temporarily frozen to give way to man's politics? Of course not!  

Man's greatest contribution to the social order is the creation of courts. The family of nations called the United Nations has created the International Criminal Court or Rome Statute and other tribunals to address injustices of global magnitude committed by the state, including non-state actors. Their raison d'etre is to correct wrongs and render justice.

But not every perceivable wrong is, what we call in law, justiciable, meaning triable by courts. Some essentials must be satisfied before the courts take cognizance of a case.

"Justiciability concerns the limit upon the legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is to determine if the party bringing the suit is a party appropriate to establishing whether an actual adversarial issue exists." 

In light of the perceived genocide (as of press time, there were 13,300 reported Palestinian casualties with 5, 500 of them children), war crimes, and crimes against humanity in the Israel-Hamas war, the question raised is: Are the acts committed by the combatants justiciable before the International Criminal Court? We learn that, as in the case of the complaint against former president Rodrigo Duterte, the ICC can only investigate if the state where the crime was committed is "unwilling" or "unable" to investigate and prosecute the case. That is a question that begs more questions.

Let's briefly dissect some insights into the issue raised in media without getting into nitty-gritty legal hermeneutics to educate non-lawyers. As a caveat, we have not conducted in-depth research on the issue. These are off-the-cuff insights based on stock knowledge and media reports.

Knowing the weakness, if not futility, of enforcing decisions of UN tribunals because of the concept of states' sovereignty could initially discourage any resort to the ICC. What good is filing a case with the ICC if the guilty state party is not sanctioned but will just pay lip service to the tribunal? Filipinos do not have to look far. Our victory against China in the issue of territorial waters is treated as being empty by China.

A worry for legalists in the present war between Hamas and Israel is the fact that Israel is not a signatory to the Rome Statute and rejects ICC jurisdiction. It asserts it is beyond the "long arm of the law."

Former ICC Prosecutor Fatou Bensouda "spent five years" investigating the occupation of Palestinian lands and other human rights violations and found that "war crimes have been or are being committed…but no arrests were made." Bensouda retired in 2021, and the burden falls on the new Prosecutor, Karim Khan.

Another obstacle is the definition of legal terms used in the Rome Statute, which are susceptible to interpretation that could twist their real meaning and spirit to suit a party. For instance, the word "proportionality" found in the law text could justify the retaliation by Israel for Hamas's devastating attack of 7 October. What may be a proportionate retaliatory action against Israel is genocide to Hamas.

But for now, let's celebrate and savor the lull. It can give a temporary lease on life to Gazan Palestinians.


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