Will ICC Be Able To Achieve Justice For Shireen Abu Akleh?

100 days after the assassination of Palestinian-American journalist Shireen Abu Akleh, Palestinian human rights organizations and media institutions such as Al Jazeera continue their tireless efforts to transfer Shireen Abu Akleh ‘s case to the International Criminal Court, in the hope of deciding and prosecuting those involved.

Before addressing this subject, we must point out several main points. Does the International Criminal Court have the judicial jurisdiction to consider the case of Sherine’s assassination? Does the assassination of Shirin fall within the substantive jurisdiction of the court? What are the mechanisms of investigation and prosecution?

There is no doubt that the International Criminal Court has the jurisdiction to consider crimes committed on the Palestinian territories after declaring in February 2021 its judicial jurisdiction over the Palestinian territories, so any crime committed in the occupied Palestinian territories after 1967 is considered within the geographical scope of the judicial authority of the Court. With regard to Jurisdiction ratione temporis as well, the court is qualified to consider crimes committed on the occupied Palestinian territories after 2014.

In the context of this, we must realize that the International Criminal Court tries people only and does not have jurisdiction according to international law to suit entities or states, Article 1 of the Rome Statute states that: “An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute. Rome Statute of the International Criminal Court.”

The soldier who shot Shireen and the military commander who gave these orders (according to Clause B of Paragraph 3 of Article 25 of the Rome Statute) should hold accountable for committing murder crime. According to Article 5 of the Rome Statute, the International Criminal Court deals with four main crimes: (a) The crime of genocide;(b) Crimes against humanity;(c) War crimes; (d) The crime of aggression. The assassination of journalist Sherine Abu Akleh is considered a crime against humanity and falls under paragraph A of Article 7, which is the crime of murder. In the event that the file is referred to the International Criminal Court and the court declares its jurisdiction to look into the crime, there is a long and complex process that will hit many barriers until it ends with the arrest of the perpetrators.

First of all, the court needs to enter the occupied Palestinian territories to conduct an independent and comprehensive investigation to assess the crime of assassination and identify the perpetrators responsible for it, the court will not be able to follow the progress of the investigation or carry out the arrests, as Israel, the state whose members are accused of carrying out the assassination, will never cooperate.

The light should shed on an important point that trials in the International Criminal Court do not take place in absentia )Article 63/ paragraph 1 of the Rome Statute(, so that even if the perpetrators are identified, their trial will not be possible unless they are arrested and referred to the court. This seems far-fetched given Israel’s long history of impunity.

There may be alternative legal means in case the legal path of the International Criminal Court falters, such as the Global Magnitsky Act which imposes sanction on perpetrators of human rights violations Or raise the possibility of bringing the case before the American courts, given that Sherine Abu Akleh holds American citizenship. However, the possibility that the US authorities will resort to these means to punish and hold Israel accountable remains unlikely and complicated, given that the current US President Joe Biden is a big supporter of Israel and the Zionist movement. Biden again reiterated during his recent visit to Israel that ” You don’t need to be a Jew to be a Zionist.”

Unfortunately, it has been proven that international law has shifted into an ineffective tool in the context of prosecuting violators of international treaties and human rights, and turned into a means in the hands of superpowers to punish and impose sanctions on weak countries. In light of all this, and nearly three months after the assassination of Shireen Abu Akleh, the path towards holding Israel accountable for this crime is still long and thorny, and it may encounter obstacles that prevent the completion of the investigation or the arrest of the killers. Perhaps carrying out more political and economic boycott campaigns against Israel and working to withdraw investments and spread cultural awareness among societies about the Israeli apartheid system’s crimes may be more effective at this stage.

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