The War in Gaza: International Law is Nothing if it is not Applied

Posted on November 3, 2023 by Guest Post Admin

Chantal Meloni joins JiC for the blog post on the situation in Israel and Gaza and the need for international law to be applied. Chantal Meloni is International criminal law professor at the University of Milan and Senior legal advisor for international crimes accountability with the European Center for Constitutional and Human Rights of Berlin (ECCHR). She also consults with the Palestinian Centre for Human Rights (PCHR) and represents victims in the Situation Palestine before the International Criminal Court.

(Photo: BBC)

With the unprecedented attention dedicated to international criminal law over the Russian aggression in Ukraine, many activists, scholars and lawyers have concluded that international law is a living instrument. Its principles are still valid even at times of war and collapse of politics and diplomacy. In light of the unspeakable horrors committed by Hamas on 7 October and the ensuing response by Israel, international law’s mechanisms must be reactivated once again. Civilians are paying the price of atrocities while the basic principles of international humanitarian law – distinction, proportionality, and necessity – are being blatantly violated. 

International law is nothing if it is not applied. Courts must be able to address its violations. The international community has witnessed the support that both the International Court of Justice (ICJ) and the International Criminal Court (ICC) rightly received in the Ukraine situation from states not involved in the conflict there. Forty-three State Parties referred the situation to the ICC, and deployed funds and resources on an ad hoc basis to support the Court. The issuance of arrest warrants in relation to war crimes, including one for President Vladimir Putin, came relatively quickly.

Why is the same not happening with respect to the situation in Israel/Palestine? For those who follow the issue closely, the answer may not be surprising. But it is helpful to consider this question in detail in light of past and recent events.

As early as twenty years ago, several States opposed the very possibility of the ICJ delivering an advisory opinion regarding the consequences of Israel’s construction of a wall requested by the General Assembly. Some European governments declared that they “firmly believe[d] that the Court should refuse to answer the question posed by the General Assembly resolution of December 8, 2003, concerning the consequences arising from the construction of the wall by Israel, the Occupying Power, in the Occupied Palestinian Territories, including East Jerusalem and its surroundings.” 

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Posted in Gaza, Guest Posts, ICC Prosecutor, International Court of Justice, International Court of Justice (ICJ), International Criminal Court (ICC), International Humanitarian Law, International Law, Israel, Palestine, Palestine and the ICC | Tagged | 14 Comments

If not the ICC, then who? The need for an international investigation into atrocities in Israel and Palestine

Posted on October 26, 2023 by Mark Kersten

A version of this article was first published at Al Jazeera, here.

Damage seen following the explosion at the al-Ahli Arab Hospital in Gaza (Photo: BBC)

The devastating explosion of al-Ahli Arab Hospital in central Gaza, in which the Palestinian Health Ministry says at least 500 people were killed, shows exactly why the International Criminal Court (ICC) must investigate atrocities committed in Israel and Palestine. With allegations levied from all directions, the ICC may just be the best option to provide an impartial and independent assessment of the bombing and, critically, who bears responsibility for it.

There is little doubt that the destruction of the al-Ahli Arab Hospital is a war crime, no matter who is ultimately responsible. Under the international law that governs conduct in armed conflict – International Humanitarian Law – civilians and medical professionals can never be targeted by military attacks, whether they are committed intentionally or recklessly – “when an attacker consciously disregards a substantial and unjustifiable risk of harm to civilians or civilian objects”.

Even if a warning is issued to those in a hospital or any other civilian infrastructure, patients and medics who cannot leave or who choose not to leave, still cannot be targeted. Warnings are not a magic wand that does away with the legal protections that civilians enjoy. No military advantage can be lawfully gained by bombing a hospital where civilians sought refuge, believing it was safe.

Someone is responsible. The question is who? Who is responsible for this massive loss of life, for this war crime? How are we supposed to know amid so many competing accounts and the misinformation that characterises this war?

In the immediate aftermath of the bombing, Gazan officials maintained that Israeli forces had bombed the hospital. There was some confusion as reports from sources close to Israeli authorities suggested that the Israeli military had bombed the hospital in an attack against Hamas, in an apparent admission that they had bombed it. Some observers may have been quick to assume Israeli forces were responsible because of past precedence, including reports from the World Health Organization that in the 2009 Gaza War, Israeli forces damaged more than half of the 27 hospitals and 44 medical clinics in Gaza. The Israeli military, however, denied any involvement and insisted that Islamic Jihad had misfired rockets and destroyed the hospital. Some states have backed Israel up Israel’s version, but many remain unconvinced.

Under the Geneva Conventions, Israel is required to investigate war crimes, including any committed by its own forces. Under international humanitarian law, states have an obligation to investigate and, where necessary, prosecute anyone who has committed a war crime. The problem is that states which are themselves implicated in hostilities and alleged atrocities are rarely able or willing to impartially investigate their own.

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Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine | 6 Comments

Who’s Afraid of an International Investigation? The al-Al-Ahli Arab Hospital blast and atrocities in Israel and Palestine deserve an international probe

Posted on October 24, 2023 by Mark Kersten
The BBC among others have sought to investigate the blast at the Al Ahli Hospital in Gaza

International investigations play a critical role in establishing responsibility for war crimes. Amidst contradictory and competing claims over wrongdoing that characterize conflicts, international investigations can help us see through the fog of war and pinpoint not just what happened, but who is responsible. The current conflict between Israel and Hamas calls for such an effort.

Since the explosion at the al-Ahli Arab hospital, a panoply of media, civil society, and state examinations have concluded who they believe was responsible for the tragedy. There is no doubt some rushed to conclusions too quickly. But without a proper, well-supported international investigation into the alleged crimes committed in Israel and Palestine, people will be left with conflicting and contradictory findings. That serves exactly no one, not Israel, not Palestine, and certainly not victims or survivors.

The war between Israel and Hamas has already seen a heartbreaking amount of human suffering. Reacting to the hostage taking, murders, shelling of civilian areas, siege warfare, and denial of humanitarian aid (all of which may be violations of international law), states have called for adherence of international humanitarian law and for accountability.

The leaders of the United States, United Kingdom, Canada, Italy, and Germany collectively chimed in with a statement reiterating “their support for Israel and its right to defend itself against terrorism and called for adherence to international humanitarian law, including the protection of civilians.” Yet not one of those states supports an international investigation into violations of international humanitarian law.

Following the devastating loss of life at the al-Ahli Arab hospital, Canadian Prime Minister Justin Trudeau announced: “It is imperative that innocent civilians be protected and international law upheld. Together, we must determine what happened. There must be accountability. There must be accountability.” 

But accountability is not just a word. It requires a commitment to impartial investigations and to supporting institutions able to hold responsible perpetrators of international crimes. Most Western states have never made that commitment to victims and survivors in Israel or Palestine. They should change course and do so.

Under international humanitarian law – also referred to as the laws of armed conflict – states involved in wars have an obligation to investigate alleged war crimes, including those committed by their own forces. The problem is, they are notoriously bad at it. States at war have an incentive to minimize their own responsibility for atrocities, especially when popular support for a war is at stake. This is true even of democracies.

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Posted in Canada, Commission of Inquiry, Germany, International Court of Justice (ICJ), Israel, Palestine, Palestine and the ICC, United Kingdom, United States | Tagged | 24 Comments

The World Court and the Spectre of Genocide: The ICC is not the only Hague court with jurisdiction over Gaza

Posted on October 16, 2023 by Guest Post Admin

Shane Darcy joins Justice in Conflict for this post on the International Court of Justice and its role in Gaza. Shane is a professor of law and the Deputy Director of the Irish Centre for Human Rights in the School of Law at National University of Ireland, Galway. 

People in Gaza walk following an evacuation order by Israeli forces (Photo: EPA)

The Chief Prosecutor of the International Criminal Court (ICC) has broken his silence on the mass killing of civilians and the taking of hostages by Hamas and the indiscriminate bombing of civilians and civilian property in Gaza by Israeli forces. Karim Khan has confirmed to the media that such atrocities fall within the Court’s jurisdiction. While his mandate “applies to crimes committed in the current context”, he has not followed the approach of his predecessor, Fatou Bensouda, who issued formal statements on more than one occasion expressing her grave concern and emphasising the Court’s jurisdiction.

Successive ICC chief prosecutors have not treated the situation in Palestine with any great sense of urgency. Palestine’s entreaties to the Court began as far back as 2009, but no arrest warrants have been issued, even though Fatou Bensouda considered there was a reasonable basis to believe that international crimes have been committed. The Pre-Trial Chamber confirmed the Court’s territorial jurisdiction over Gaza and the West Bank, including East Jerusalem in 2021. And Karim Khan explained this week that crimes by Palestinians, “including on the territory of Israel”, are also within the jurisdiction of the Court, even though Israel is not a state party.

While the ICC may have jurisdiction, the Prosecutor ultimately remains the gatekeeper when it comes to taking investigations and cases forward. Judicial approval is needed at various stages of proceedings, but if the Prosecutor decides not to take a situation forward, there is little that States, civil society, victims, or even the judges can do. 

The Office of the Prosecutor has acted very quickly in other situations – in Ukraine and Libya, for example – but in the context of Palestine, the slow rate of progress is at odds with the rationale of ending impunity for international crimes. It is important to emphasise that in addition to giving rise to individual criminal responsibility, acts that amount to war crimes, crimes against humanity, genocide or aggression can also lead to State responsibility. This is the domain of the International Court of Justice (ICJ). 

The World Court and Genocide

Where jurisdiction exists, States can initiate contentious proceedings before the ICJ. Certain United Nations bodies can seek advisory opinions from the Court on legal questions (as the General Assembly did earlier this year on the legal status of Israel’s occupation of Palestinian territory). Unless States have accepted the ICJ’s compulsory jurisdiction, and just over a third have, jurisdiction has to be grounded in an existing international treaty.

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Posted in Gaza, Genocide, International Court of Justice (ICJ), International Criminal Court (ICC), International Criminal Justice, Israel, Palestine | Tagged | 6 Comments

Enough with the silence: the ICC Prosecutor must speak and act on the situation in Israel and Palestine

Posted on October 12, 2023 by Mark Kersten
(Photo: EPA, 2014)

Update: on 12 October, the ICC Prosecutor spoke with Anthony Deutsch and Stephanie van den Berg on the situation in Palestine and Israel. His comments can be found here.

The world is once again witnessing mass atrocities committed against civilians in Palestine and Israel. The scenes are heartbreaking and horrific. They demand a response based not on furthering more violence and suffering but based on fostering justice and accountability. There is only one independent, international institution that could investigate and prosecute these international crimes: the International Criminal Court (ICC). 

The ICC has jurisdiction over the territory of Gaza and international crimes committed by Palestinian factions, including Hamas. In 2021, the ICC Prosecutor opened an official investigation into the situation in Palestine. This came in the wake of the Prosecutor’s Office determination that “war crimes have been or are being committed by Palestinian and Israeli actors in the West Bank, including East Jerusalem, and the Gaza Strip”. 

Among those ongoing crimes that the ICC can and should investigate are the deliberate targeting of civilians, taking civilians hostages, as well as indiscriminate bombing campaigns. In addition, there is a clear and obvious risk that some of Israel’s planned conduct may amount to collective punishment – punishing the broader Palestinian population for Hamas’ atrocities – which is a war crime under the Geneva Conventions. 

A United Nations Commission of Inquiry continues to collect evidence of atrocities committed in Israel and Palestine and has recently stated that “there is already clear evidence that war crimes may have been committed in the latest explosion of violence in Israel and Gaza.” Human Rights Watch has also described war crimes committed on both sides and noted that such atrocities would continue “so long as human rights and accountability are disregarded.”

In response to this most recent spate of atrocities, the ICC’s Office of the Prosecutor issued a statement replying to journalist Alice Speri. It said that the Prosecutor’s investigation is ongoing, that the current conflict falls under the Court’s jurisdiction, and invited those with “relevant information” to send it to the Court. That is good, but not good enough. Why is ICC Prosecutor Karim Khan silent in the face of war crimes and crimes against humanity in Israel and Palestine? 

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Posted in International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Palestine and the ICC | Tagged | 4 Comments

It’s Time: Canada should support an investigation by the ICC into Palestine

Posted on October 10, 2023 by Mark Kersten
Photo: UNWRA, Shareef Sarhan 2015)

It is time. It is, in fact, well beyond time. 

The images and information of atrocities streaming from Israel and Palestine – the murders, rapes, bombings, the hostages taken by Hamas, including children – are harrowing and heartbreaking. They demand accountability. 

Canada has a role to play. It should immediately offer its unyielding support to the International Criminal Court (ICC) and its investigation into war crimes and crimes against humanity committed by Palestinian and Israeli figures. 

In 2019, the ICC Prosecutor announced that “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip”. In 2021, Judges at the Court officially ruled that the Prosecutor had jurisdiction over those areas. The Court subsequently opened an investigation into the situation in Palestine in 2021. 

The Prosecutor’s investigation is not about demonizing or excusing either party. The ICC has shown no bias in its investigation. The Court is mandated to investigate all sides of the conflict between Israel and Palestine, including indiscriminate attacks by Hamas as well as alleged atrocities committed by Israel’s military and government. 

Canada has never fully supported an independent international investigation into atrocities committed in Palestine and Israel. Unlike most other countries and many of its own allies, Ottawa has repeatedly insisted that it “does not recognize a Palestinian state” and therefore that the ICC cannot investigate crimes committed there, whether they be perpetrated by terrorist organizations like Hamas or the Israeli military. Ottawa’s position has left victims in the lurch, communicating clearly that it does not believe they are worthy of justice.

What makes its position especially bizarre is that Canada has been an admirable supporter of the ICC since its creation in 2002. Yet this support ends when it comes to atrocities committed against Israelis and Palestinians. 

Canada also remained silent when Israel – which deeply opposes any ICC investigation into the country – equated the Court with terrorist organizations and mounted a sophisticated campaign to undermine the very existence of the only independent and permanent court capable of investigating and prosecuting international crimes.

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Posted in "Peace versus Justice" Debate, Canada, International Criminal Court (ICC), Israel, Palestine | Tagged , , | 1 Comment

The Shadow of Impunity: Justice for the killing of Baha Mousa and lessons for Afghanistan

Posted on September 18, 2023 by Mark Kersten

Elizabeth Brown joins JiC for this guest-post on ongoing need for accountability over the death of Baha Mousa and other Iraqis killed in UK detention. Elizabeth is a doctoral researcher in the Department of War Studies at King’s College London, where her PhD research concerns accountability mechanisms following allegations of war crimes by British forces in Iraq and Afghanistan. She is also co-ordinator of Kings’ War Crimes Research Group, and can be found on Twitter and LinkedIn.

Baha Mousa’s father, showing photos of his son to the UK press in 2004 (Photo: CNN)

Twenty years ago, on 15 September 2003, a 26-year-old Iraqi man named Baha Mousa died following catastrophic mistreatment carried out by British soldiers in a detention facility in Basra. The incident spawned a complex web of accountability efforts, including a Royal Military Police investigation, a Court Martial, a judicial review case which ultimately concluded at the European Court of Human Rights in Strasbourg, a full Public Inquiry, and a civil litigation seeking compensation. 

Britain’s experience of engaging with allegations of war crimes in Iraq was not isolated to this case. In the years after the Mousa family’s judicial review, thousands of additional alleged victims emerged. Yet more accountability efforts followed, including a second Public Inquiry, further judicial review and civil proceedings, and the establishment the Iraq Historic Allegations Team (IHAT), to investigate the claims. Now, twenty years later, a new Public Inquiry is preparing to hear evidence, this time into allegations of war crimes by British forces in Afghanistan. So, what, if anything, has the United Kingdom learnt in the two decades since the tragic death of Baha Mousa? 

The Death of Baha Mousa

After being arrested on 14 September 2003 during a raid on the hotel where he worked, Baha Mousa and his colleagues were taken by members of the First Battalion, Queens Lancaster Regiment (1QLR) to their headquarters. There, according to the subsequent Public Inquiry, the men were subjected to continued and deliberate brutality. They were forced to hold painful stress positions for hours at a time, whilst their hands were bound, and thick hessian sacks were hung over their heads in the oppressive Iraqi heat. They were prevented from sleeping and given limited food and water. One was forced to sit next to a noisy and hot generator simulating white noise. 

The use of these techniques had been outlawed by then-Prime Minister Edward Heath in 1972 (the ‘Heath ban’) after their controversial use in Northern Ireland. However, the ban was effectively forgotten by the time British forces were deployed in Iraq. The poor conditions were enforced through a regime of brutal violence, casually inflicted. Detainees deemed uncooperative were beaten, shouted at, and sexually humiliated. The Inquiry found “that most, if not all, of the Detainees were the victims of serious abuse and mistreatment by soldiers during their detention.”

After withstanding 36 hours of this treatment, Baha Mousa was found having removed his hood and hand restraints. Perceiving this as an escape attempt, 1QLR’s Corporal Donald Payne brought Mousa to the floor and knelt on his back whilst attempting to re-apply the restraints. According to witness testimony, frustrated that Mousa was not submitting easily, Payne ‘lost control of himself’, punching and kicking the detainee and slamming his head against a concrete wall. Baha Mousa stopped moving and was pronounced dead by the unit’s medical officer. 

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Posted in European Court of Human Rights, Human Rights, Iraq, Torture, United Kingdom, War crimes | Tagged , | 1 Comment

Junta against junta: Guinea between transitional justice and political uncertainty

Posted on July 31, 2023 by Mark Kersten

The following article is a guest-post by Marco Bocchese on the trial of former junta members in Guinea over the 2009 Conakry Stadium massacre. Marco is an Assistant Professor at Webster Vienna Private University.

(Photo: France 24)

For the last year, Guinea has been mired in a bizarre political situation . Exactly thirteen years after the massacre at the Dixinn football stadium, a district in the capital Conakry, the trial against the leaders of the military junta finally began last September. The junta ruled the country from December 2008 to January 2010. The list of defendants includes Moussa Dadis Camara, better known as Dadis, captain of the presidential guard (the so-called red berets) and former head of state. What follows is the remarkable story of how one junta endorsed international criminal law to prosecute members of another and how these unprecedented proceedings may impact Guinean politics and society for years to come.  

How Guinea got here

Guinea was the first sub-Saharan Africa nation to gain independence from France in October 1958. It is known for its rich bauxite deposits, making it the second largest producing country globally. Despite its mineral wealth, however, Guinea ranks among the ten least developed countries according to the United Nations (2022 Human Development Index – HDI). The armed forces have always played a crucial role in the country’s domestic politics. They first guaranteed their support to Ahmed Sekou Touré, a nationalist leader and the first president of independent Guinea (1958-1984). Subsequently, the military staged the coup that installed career soldier Lansana Conté at the helm of the country for a quarter century (1984-2008). Military spending, which already amounted to 12.65% of the national budget in 2008, ballooned following the military’s seizure of power again in December 2008, reaching 24% in 2009 and 33.5% in 2010. 

The military’s grip on the country’s political and economic life did not loosen after Alpha Condé’s election in 2010. The latter’s decision to entrust two ministries (one for the fight against organized crime, the other for presidential security) to prominent members of the previous junta personally implicated in the massacre of 28 September 2009 demonstrated the army’s control. In July 2011 Condé luckily escaped an assassination attempt carried out by members of the army and the presidential guard. In the following ten years, Condé sought to consolidate his power and managed to get re-elected for a controversial third term in autumn 2020 after having the constitution amended to allow him to do so. 

In September 2021, when Colonel Doumbouya’s red berets put an end to Condé’s regime, the news was greeted with relief, if not joy, by all opposition forces who feared the establishment of a presidency for life. After months of exhausting negotiations with political and social forces, and under constant pressure from the international community, the current junta finally announced the roadmap towards areturn to the polls: presidential elections will be held in early 2025, and neither Doumbouya nor other junta members will be eligible to run for office.

Towards Trial

The following analysis is based on twenty-five interviews I conducted in Conakry with political leaders, government officials, judges, prosecutors, lawyers, and victims between the May and June 2023. These interviews shed light on the primarily political reasons which led the current junta to try Dadis alongside ten more defendants, all members of the armed forces. 

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Posted in Conakry Stadium Massacre, Guest Posts, Guinea, International Criminal Court (ICC), International Criminal Justice | Tagged | 2 Comments

Ukraine’s allies can and should find a way to seize repurpose Russian assets to fund reparations

Posted on July 11, 2023 by Mark Kersten
A Russian plane seized by Canada at Toronto Pearson Airport in February 2022 (Photo: BlogTO)

Pass through Toronto Pearson airport and you might spot a tired looking plane on the tarmac. No, it’s not another delayed Air Canada flight. The aircraft is the Russian-registered Volga-Dnepr, seized by Canadian authorities in February 2022. That plane is now likely to be forfeited, with the proceeds directed to Russia’s victims in Ukraine. But more is needed: Canada should lead an international effort to seize Russian assets and repurpose them as reparations for Ukraine.

Since Russia’s 2022 invasion of Ukraine, global accountability efforts have focused on prosecuting Russian war criminals. But going after their money is crucial too, for least three reasons.

First, it’s the right thing to do. World Bank estimates put the damage caused by the first year of Russia’s invasion at $410 billion – before the destruction of the Kakhovka Dam. Only Russia is responsible for those costs. As former Canadian Foreign Minister Lloyd Axworthy says, making Russia pay through the forfeiture of assets is “a Robin Hood proposition. You take from the Sheriff of Nottingham who was putting people in jail, and you give it to the people who were affected by this.”  

Second, with the onset of fatigue among some populations over spending billions of dollars on a foreign war, redirecting Russian assets is the practical thing to do. Using Russian assets to help pay for Ukraine’s recovery could reduce the political costs of using taxpayer dollars to support the war and reconstruction effort.

Third, converting Russian assets into reparations can help address Russian atrocities. International crimes – like the war crimes and crimes against humanity Russia has committed in Ukraine – are lucrative. There exists an economy of human rights violations and international crimes. As I concluded in a recent study, atrocities often create opportunities for perpetrators to make money by plundering resources and creating profitable markets for the trafficking of drugs, precious resources, and even people. 

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Posted in Asset Seizure, Canada, Russia, Sanctions, Transnational Criminal Law, Transnational Organized Crime, Ukraine, United Nations | Tagged , , | 4 Comments

Keeping the Hope of Justice Alive: Canada and The Netherlands take Syria to the International Court of Justice over Torture Allegations

Posted on July 3, 2023 by Mark Kersten
(Image: Brandan Reynold)

For the most part, Syrian President Bashar al-Assad has gotten away with it. Rather than being held to account for the countless atrocities his regime has committed against civilians, Assad has been busy reconciling with world leaders. But a Canadian-Dutch initiative might just change that.

The Syrian civil war erupted in 2011. Since then, it is likely that every single human rights violation and international crime enshrined in international law has been perpetrated – most repeatedly. There was a time when these atrocities and the desperate plight of civilians fleeing Syria earned the world’s attention. In recent years? Not so much.

It is therefore little surprise that accountability for atrocities committed in Syria has been fleeting. China, Russia and, initially, the United States, all thwarted efforts to allow the International Criminal Court (ICC), which has jurisdiction over war crimes, crimes against humanity and genocide, to investigate atrocities in Syria.

There has been a steady stream of cases in European states that exercised their legal powers to prosecute Syrian war criminals in their own courts, although these cannot hope to adequately tackle the widespread and systemic nature of atrocities committed in Syria. Canada, for its part, has pointedly refused to do the same – neglecting to prosecute even its own foreign fighters who joined the Islamic State in Syria for their alleged participation in war crimes and crimes against humanity.

In this context, the announcement that Canada and the Netherlands have begun legal proceedings against Syria at the International Court of Justice (ICJ)  – which Canada, the Netherlands and Syria are all members of – is especially noteworthy. Ottawa has said that it is seeking to hold Damascus accountable under the United Nations Convention Against Torture, “for the countless human rights violations it has inflicted on the Syrian people since 2011”. Legal hearings are likely to begin later this summer and offer some hope that the thousands of Syrians brutalised, maimed, and murdered by the Assad regime will not be forgotten.

This does not mean that Assad will find himself hauled before an international tribunal to answer for atrocity crimes. Rather, Canada and the Netherlands are going to the “world court” in an attempt to ensure that Syria complies with international law in relation to torture.

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Posted in Canada, International Court of Justice, International Court of Justice (ICJ), Syria, The Netherlands, Torture | Leave a comment