Opinion: it's abundantly clear that war crimes within the Court's jurisdiction have been committed in Israel and Palestine before, on and since October 7th
Opposition parties are calling upon the Irish Government to refer the ongoing atrocities in the Middle East to the International Criminal Court in the Hague. A Social Democrats private members' motion to be debated this week calls on the Government to "make a referral to the International Criminal Court requesting that it investigate whether members of the Israeli government and military have committed war crimes, genocide and crimes against humanity in Gaza".
In her address to the Sinn Féin ard fheis at the weekend, party leader Mary Lou McDonald said that "Israel cannot be allowed to commit atrocities with impunity". Furthermore, she added, the Irish Government "should take the lead and refer Israel to the International Criminal Court".
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From RTE Radio 1's Morning Ireland, Tánaiste Micheál Martin saws an investigation by the International Criminal Court should take place into the Israel-Gaza conflict
Ireland is a long-standing supporter of the International Criminal Court and Tánaiste Micheál Martin has acknowledged the role for the Court in determining whether war crimes have taken place in Gaza. In response to the opposition calls, Martin stated that "the International Criminal Court is the cornerstone of the system of international criminal justice". While Ireland would continue to support its work, the Government is not likely to refer the situation, although a firm position has yet to be adopted.
It's abundantly clear that crimes within the International Criminal Court’s jurisdiction have been committed in Israel and Palestine before, on and since October 7th. The United Nations and human rights organisations have for decades documented Israel’s unlawful actions, from the illegal establishment of 'settlements’ in occupied territory to the indiscriminate attacks on civilian areas causing mass Palestinian casualties and extensive property destruction.
Starvation is now being deployed as a weapon of war in Gaza, with essential supplies being withheld as a form of collective punishment by the Israeli authorities. This cannot be justified by reference to the atrocities perpetrated by Hamas on October 7th. Killing civilians and taking hostages are unquestionably war crimes.
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From RTÉ Radio 1's Morning Ireland in 2014, Irish lawyer Fergal Gaynor, who has acted at UN War Crimes tribunals and International Criminal Court war crimes trials, on war crimes allegations in the Gaza conflict
The International Criminal Court is yet to prosecute anyone in the context of Israel/Palestine and no arrest warrants have ever been issued. Might a State referral by Ireland advance the prospects of prosecutions?
What is a state referral?
The Rome Statute provides three triggers to activate the International Criminal Court’s jurisdiction: by the Prosecutor, by a state referring a situation to the Court or by the United Nations Security Council doing so.
State referrals have happened several times. Referrals were initially made by states upon whose territory the alleged crimes were taking place, although several countries took the unprecedented step of jointly referring the situation in Venezuela in 2018. In the aftermath of Russia's unlawful invasion of Ukraine last year, Ireland joined 42 other countries in referring the situation to the ICC. It was a remarkable move and an important endorsement of the role of the Court in addressing ongoing atrocities.
Palestine has sought the court’s intervention for over a decade, and became a party to the Rome Statute in 2015. The court’s prosecutor, Karim Khan, has recently acknowledged that the Court has jurisdiction over Gaza and the West Bank, including East Jerusalem. The State of Palestine made a referral in 2018 triggering jurisdiction and an investigation has been ongoing since 2021. Even though Israel is not a State party, the Court has jurisdiction over any crimes committed by Palestinian nationals on the territory of Israel.
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From RTÉ Six One News, what exactly constitutes a war crime?
What would a referral by Ireland do?
A referral by Ireland, ideally with other like-minded states, would not grant the Prosecutor any additional significant legal powers given the investigation is already open. The referral by states for Ukraine allowed for the bypassing of certain procedural requirements arising from Ukraine not being a state party.
But what a referral would do is reaffirm a commitment to international law during these dark times, and critically, underline the need for its effective enforcement. It would carry significant symbolic weight, even if small comfort for the victims in Gaza.
A referral would also signal to the prosecutor the pressing need for him to fulfil his solemn mandate and advance the investigation in Palestine. Successive prosecutors have been called upon by Palestinian human rights organisations to deliver justice and to issue arrest warrants (as have states recently), but they have stubbornly failed to do so.
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From RTÉ Radio 1's Morning Ireland in March 2023, International Criminal Court to open two war crimes cases over Russian invasion of Ukraine
Arrest warrants against Israeli political or military leaders, or those Palestinians responsible for the crimes of October 7th, would act as the clearest warning of the consequences of unlawful conduct. Investigations and prosecutions can bring a degree of justice for victims. They can also assist in establishing the truth in an era of disinformation and deflection.
Why is the court not taking any action?
Prosecutor Khan has made frequent references to the limited resources of his office, including in relation to his Palestine investigation. Regardless of whether there is a referral by Ireland, additional funds must be provided to avoid insufficient funds serving as an excuse for inaction. The Irish Government has done so for Ukraine and should do likewise again.
There are palpable fears that the International Criminal Court may never deliver justice for Palestinian victims of international crimes, even in a context where ethnic cleaning and potentially genocide could be unfolding. This could well sound the death knell for the Court.
The court's mandate is to deliver justice for victims and deter international crimes
Two former highly-experienced international prosecutors, in calling for the ICC Prosecutor to pursue arrest warrants, have warned of the Court’s damaged reputation: "There’s a perception that there are double standards at play, and that the ICC disproportionately focuses on African countries and non-state actors, while allowing Western countries and their allies to evade their responsibilities."
The prosecutor bears significant responsibility for the fulfilment by the court of the mandate given to it by states, like Ireland, who created the institution for the purpose of combatting impunity, delivering justice for victims, and deterring international crimes. A referral by Ireland, together with other countries, will not guarantee that those objectives are achieved, but it would be an important statement that every effort must be made by a prosecutor who is dragging his feet. Meanwhile, the Middle East convulses and civilians, as ever, are paying the ultimate price.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
