Palestine Can’t Get Justice Through The ICC But Iraq Can

The ICC – or the international criminal court – is a court of last resort to bring to justice individuals who committed ‘the most serious of crimes’. The most serious of crimes are defined as those that have an effect on international stability and security. These include 4 crimes: crimes against humanity, genocide, war crimes, and crimes of aggression. The ICC has jurisdiction in 2 cases: on crimes committed within the territory of a country that is a member of the ICC, or on crimes committed by citizens of a member country. This means the ICC does not have automatic universal jurisdiction. It also means that just proving that the court has jurisdiction is a lengthy, contentious, and very political process. Furthermore, the ICC can only investigate cases when it can demonstrate that the country in question is unwilling or unable to deliver a fair trial to the accused. Meaning enough time should have elapsed before it can prove that the country didn’t even try or half-heartedly did, with no justice in its justice.

The idea to take the Palestinian case to the ICC is by no means a new one. As early as 2009, it was submitted to the ICC for investigation. The ICC investigated whether it had jurisdiction over Palestinian territories for 3 years, only to decide that it didn’t. The reason quoted by the ICC was that Palestine was not a recognized state, which meant the court did not have jurisdiction on its territories. Nor was Israel a member country of the ICC, which also meant it has no jurisdiction over Israeli citizens conducting crimes on Palestinian territories. This exhausted all the possible ways for jurisdiction in the Palestinian case. And hence the case was rejected.

In 2015, the Palestinians tried again. This time Palestine had been granted ‘observer state’ status in the UN, which the ICC translated as state recognition. One more time, the ICC launched an investigation on whether or not it has jurisdiction for the new, old Palestinian complaint. Israel was furious. It wrote a letter to the ICC that they were acting without authority against it. Israel later declared that it will not cooperate with the court, meaning it will not arrest accused Israelis and bring them to the court’s custody. This pretty much eliminates any chance of trials with the accused physically present; because what country is reckless enough to try to arrest alleged criminals in an active war zone. Another point fueling the impossibility of an investigation is the guaranteed American backlash against the ICC if it does take the case forward. US support for Israel has been one of the pillars of American foreign policy. Coupled with its own chronic irritation with the ICC for possibly investigating American crimes in Afghanistan, America would certainly not sit and watch while the ICC brings a case against its ally.

Israel also challenges the court on the sovereignty of Palestine, partiality, and the legal status of the land. Perfectly reasonable arguments that can be and have been made by skilled Israeli lawyers. This means that even if – by some miracle – the Palestinian case was eventually taken up by the ICC, it will just become another front in the Israeli-Palestinian war. The front of words. And so instead of arguing on behalf of and against selected crimes, both sides will argue on behalf of the entire Israeli-Palestinian cause. And the result? 73 years of winning arguments by both sides. And two losers, on one land.

Iraq, on the other hand, is lucky in that it isn’t Palestine. But that’s where its luck ends. On April 7, 2003, British forces took control of Basra. 10 days later, the American-led coalition forces had successfully dismantled the Ba’ath party, achieving the supposed goal of the invasion. Yet, British troops stayed on and on and on, until 12 May 2011. Numerous reports started to surface from human rights organizations accusing British troops of engaging in war crimes against the Iraqis.

The reports in perfect legal linguistics summarized 4 horrific crimes: 1) willful killing and murder, 2) torture and inhuman treatment, 3) outrages upon personal dignity, and 4) rape and other forms of sexual violence.

Nobody needed convincing. Images of British crimes against Iraqis had leaked out and are amongst the most shocking visual violations we have.

Surely, the rape of Iraq qualifies as the most serious of crimes worthy of the time of a court of last resort?

Iraq was never a member of the ICC. Yet, the UK is supposedly an encouraging member of the ICC. Hence, unlike in the Palestinian case, the ICC has clear legal jurisdiction in Iraq vs. UK case. Similarly, the evidence for British crimes is publicly available, self-explanatory, and not open for political maneuvering. Furthermore, any law student is capable to neatly recite exact articles that the British violated, making the case so ridiculously straightforward. And the UK is predestined to be a loser. Hence, it’s simply a better strategy to want what you can get as opposed to what you can’t. What the Middle East can’t get for now is justice for Palestine, but it can for Iraq. A symbolic victory can never “unrape” Iraq, but maybe, just maybe it can boost this deflated state.

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