Wednesday, 20 August 2014

Can the ICC hold Israel and Hamas accountable for war crimes?

During the early morning hours of July 30th, 2014, Israeli shells bombarded a United Nations Relief and Works Agency (UNRWA) for Palestine Refugees School housing 3,300 Palestinians, killing 15.
According to a briefing by the organisation Security Council Report, the UN Relief and Works Agency for Palestine Refugees (UNRWA) Commissioner, General Pierre Krahenbuhl, stated that the precise location of the school and that fact that it was housing thousands of Internally Displaced Persons (IDPs) was communicated to the Israeli army 17 times including just hours before the fatal shelling.
In addition to the attacks, the UNRWA stated that it had earlier found a cache of rockets at one of its schools in the Gaza Strip, lending credence to the accusation by Israel that Hamas was using these shelters, and they were therefore legitimate military targets.
The continuous shelling of designated UN Shelters and schools by the Israeli army has moved the United Nations Security Council to hold an urgent meeting to address the deteriorating humanitarian situation in Gaza.
In the 23 days since the beginning of the Gaza invasion, the accusations and counter-accusations of atrocities between Israel and Hamas has taken centre stage, leaving the victims of the conflict exposed, without hope for an end to the violence.
On July 25th, the Palestinian Authority filed criminal complaints at the ICC, accusing Israel of war crimes in its ongoing campaign in Gaza, a war whose death toll now includes more than 1200 Palestinians and 61 Israeli soldiers.
It is likely that Palestine will seek a UN Security Council referral of the Gaza situation to the ICC. In cases where crimes that fall within the mandates of the articles of the Rome Statute occur in non-member states, the UNSC is at liberty to make referrals to the ICC as is the cases of Darfur in Sudan, and Libya.
THOROUGH INVESTIGATIONS
At this juncture, the considerations of the UN Security Council and the probability of referral of the situation to the International Criminal Court become most imperative. The greatest challenge is that Israel is itself not a state party to the Rome Statute.
The Palestinian Authority issued a declaration to accept the jurisdiction of the ICC over Palestine in 2012. Its acceptance of ICC jurisdiction was rejected by the then ICC Chief Prosecutor, Luis Moreno-Ocampo, as he could not make a determination as to whether Palestine was a state as per the tenets of the Rome Statute.
READ: The Situation in Palestine (International Criminal Court)
The challenge facing such a decision by the UNSC lies in both the legal limitations of the ICC and also the political considerations to be undertaken by the member states of the Security Council. As with such deliberations, the matter is likely to take a long and arduous course despite the best of intentions.
Moreover, should such a referral be made, the ICC would be forced to conduct thorough investigations into all parties’ actions, in order to obtain justice for victims of the conflict.
All this notwithstanding, it is clear that there is an incredible humanitarian crisis looming, and both the attacks on UNRWA-designated shelters and the use by Hamas of shelters for storing weapons leave the UN Agency and the IDPs it houses in grave danger.
AN ICC DETERRENT
Both the attack by Israel of designated UNRWA shelters and schools, and their use for weapons storage by Hamas are to be condemned.
The fundamental questions thus remains: while the ICC is intended to act as a deterrent to war crimes, in an ongoing conflict situation, can the ICC adequately provide any sort of deterrent against aggressive forces, especially when the parties involved are not state parties to the Rome Statute?
Moreover, how would the findings of the Court bring justice to those caught up in the ongoing conflict?
At this stage, it is increasingly clear that both Israel and Hamas are actively engaged in what could constitute crimes of war, by attacking designated humanitarian sites and using designated shelters to harbour weapons and militants.
These actions have placed the most vulnerable and unarmed right in the middle of an escalating situation. For this, both Israel and Hamas should be held accountable.
Update: The former chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has recently said that Palestine is eligible to join the Court.
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Even with the Eastern African Standby Force, reforms are still needed http://www.nation.co.ke/oped/blogs/dot9/waitherero/East-African-Standing-Force--reforms/-/2274550/2381554/-/6ovmkb/-/index.html

The Eastern African Standby Force and its accompanying protocols were adopted On 26th June, at the 23rd African Union Summit in Malabo Equatorial Guinea by the Assembly of Heads of State and Government of the Eastern Africa Region
Under the chairmanship of President Paul Kagame of Rwanda, the main role of EASF is seen as fighting the conflict in Somalia, and is expected to have the full support of its various governments.
The truth is, the formation of an Eastern African Standby Force in response to the threat of the Al-Shabaab group is neither novel concept nor unexpected.
The Harakat Al-Shabaab Mujahideen (HSM) group, an Islamic extremist group that seeks to set up an Islamic state in Somalia, was formed as the militant wing of the Islamic Courts Union (ICU), which at the time controlled much of central and southern Somalia.
Since the ICU lost power, Al-Shabaab has waged a relentless war against the then Somali Transitional Government, its successive established regimes and its Ethiopian supporters, with fighting escalating from May 2009.
In 2007, the formation of the African Union Mission in Somalia (AMISOM) under the auspices of the African Union’s Peace and Security Council , as documented in Security Council Resolution 1744 (2007) meant that the troubled Somali Transitional Government now had the support of an AU-led peace keeping force.
CROSS BORDER ATTACKS
Al-Shabaab claimed its first terror attack outside Somali borders in June 2010 in Uganda during the World Cup finals, in which 70 people were killed and several injured. At the time Al-Shabaab threatened additional attacks if Uganda and other AU Countries did not withdraw AMISOM peace keeping troops.
At the time, the AMISOM mission was meant to last only 6 months, a temporary measure intended to support what it was hoped would be a quickly stabilized government. The 6-month deadline came and passed without this being accomplished.
By October 2011, it was clear that the Al-Shabaab group was a bigger threat to neighbouring Kenya after consistent cross border attacks left several people dead. In response, Kenya launched “Operation Linda Nchi” a military incursion by the Kenya Defense Forces into Somalia.
It is this particular act that seems to have refocused Al-Shabaab’s onslaught to Kenya. Since 2011, attacks within Kenyan borders have increased in frequency and intensity, with people being killed in attacks on ‘soft’ targets such as churches, shopping malls, markets and public vehicles. After the recent killings in Lamu the terrorist group warned the government of further attacks.
The decision by Mr Lenku to label the attacks on Mpeketoni as politically instigated and targeted at a particular ethnic community was strange, and also indicative of the distracted manner in which the entire ministry has approached the war on Al-Shabaab.
Make no mistake, Kenya is at war, and the use of the Eastern African Standby Force is an indication that this war is greater than the Kenya government cares to admit. The EASF is likely to provide a succinct “punch” against the forces of Al-Shabaab.  
However, much like AMISOM and “Operation Linda Nchi”, without a complimentary “block” in the internal structures of the concerned nations, terror groups may be able to hit back.
We can visibly see the effects of years of corruption in the police service especially. It is certainly necessarily to thoroughly examine the management of the police service and to extract the elements that hinder its success.
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Immunities clause at the African Court of Justice and Human Rights is outrageous http://www.nation.co.ke/oped/blogs/dot9/waitherero/-Heads-of-state-Immunities-clause/-/2274550/2369696/-/10039icz/-/index.html

On June 27th at the 23rd AU Summit in Malabo, Equatorial Guinea, the General Assembly surreptitiously adopted draft legal instruments giving immunity for Heads of State and government at the African Court of Justice and Human Rights.
The immunities article (Article 46A bis "Immunities") states that:
"No Charges shall be commenced or continued before the court against any serving AU head of state or government or anybody acting or entitled to act in such capacity or other senior state officials based on their official functions, during their tenure in office."
Most notable about the structure of this particular article is the ambiguity in relation to exactly who is liable for prosecution. In totality, the article gives immunity to just about every senior government official in every government of every member state of the AU.
The clause not only completely weakens the jurisdiction and ultimate purpose of the African Court of Justice and Human Rights, but makes an utter mockery of the entire reason for expansion of the court to include prosecution of individuals for war crimes and crimes against humanity.
Steve Arther Lamony, Senior Adviser - AU, UN and Africa Situations at the Coalition for the ICC (CICC) put it most succinctly:
“This outcome is disgraceful. The principle of no immunity for grave crimes before international tribunals or courts - no matter the status of the offender - is crucial to the fight against impunity and part of the foundation of the Rome Statute of the ICC, which most African states have signed and ratified. African members of the ICC should bear that in mind and not ratify this protocol. Africa should be moving forward in the fight against impunity, not retrogressing!”
Such a move by the AU goes directly against its own efforts, through the Peace and Security Council, to stabilize these countries and bring about constitutional order. There certainly can be no peace without justice.
“At a time when the African continent is struggling to ensure that there is accountability for serious human rights violations and abuses, it is impossible to justify this decision which undermines the integrity of the African Court of Justice and Human Rights, even before it becomes operational,” said Netsanet Belay, Amnesty International’s Africa Director for Research and Advocacy.
Indeed, the very creation and adoption of the clause exacerbates many conflict situations. It gives free reign to perpetrators of grave crimes in the knowledge that as long as they retain power they will not be held accountable.
“Accountability is surely needed in countries like the CAR and South Sudan if they are to return to peace. Under the AU’s proposal, however, government leaders would be beyond the reach of justice even if they were found to have directed alleged atrocities,” says Lamony.
WORRIED ABOUT THEIR OWN FATE
The adoption of such a protocol seems to be only the tip of the iceberg when it comes to the apparent reluctance of the African Union to commit to the pursuit of justice for African citizens.
The African Court not only faces the challenge of restrictive and harmful legal instruments that impede its jurisdiction, but also the challenge of funding a matter that severely limits the ability of the court to function.
The matter of funding for the court in turn hinges on the political commitment from the member states and the heads of state and government. It is quite a conundrum.
"This amendment is a law to shield the strong and the powerful; it does nothing to protect the victims of horrendous crimes in Africa," said Carla Ferstman, the Director of REDRESS. "Not surprisingly, the decision comes at a time when two sitting presidents and one former president are facing charges for serious human rights abuses at the International Criminal Court."
The inclusion of an immunities clause makes the argument for an African Court similar to the ICC null and void, given that the AU is yet to show the slightest commitment to its own justice agenda.
"This decision calls into question the African Union's commitment to ensuring justice for victims of serious crimes such as war crimes, crimes against humanity and genocide," added Ferstman. "At a time when the African continent is grappling with accountability for massive violations, one should wonder why some leaders instead of cooperating to ensure justice, would want to give themselves immunity unless they are worrying about their own fate."
The International Criminal Court is intended to be a complimentary court to regional international tribunals, but with the inclusion of such a broad and ambiguous clause, there can be no complementarity between the ICC and the African Court. According to Mr Lamony:
“In its current form, the Rome Statute of the ICC is only complimentary to national criminal jurisdictions. Kenya and South Africa submitted an amendment suggesting that the ICC should also be complimentary to regional criminal jurisdictions, but if the expanded African Court gives immunity to heads of state, it will in an important sense not be complimentary to the ICC, because it will be unable to prosecute the most powerful perpetrators of grave crimes.”
Moreover, the broad description means that one cannot determine who is a senior member of government and who is not, leading to a situation where immunity can be granted at the mere behest of a person’s official title.
The immunities clause goes against the AU Constitutive Act, as well as the constitutions of several member states and protocols of regional bodies. Steve Lamony explains:
“The new protocol would also be in contradiction to many AU members’ own constitutions that do not allow immunity, e.g. Kenya Article 143(4) and the Protocol for the Prevention and the Punishment of the Crime of Genocide, War Crimes and Crimes against Humanity and all forms of Discrimination of the International Conference of the Great lakes region.”
The immunities clause in the draft protocol of the African Court, quite simply, has dealt the ultimate blow to the court.
It is the culmination nearly 18 years of reluctance by the AU to form any regional functional judicial system, where the people of Africa can seek legal duress against regimes that commit crimes against humanity.
As it stands now, the survivors and victims of atrocities will be forced to seek justice from other international tribunals, hopefully none of which will contain any sort of “African solution.”
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