In December 2018 the ICC Prosecutor announced to swiftly conclude its preliminary examination into the alleged crimes committed during the Gaza War in 2014 on both the Israeli and Hamas side, which was launched in 2015. How realistic is a prosecution of these events before the ICC?
One of the major jurisdictional obstacles seems to be overcome now that the Palestinian authority has been accepted as a State, which was able to ratify the ICC-Statute on 2nd January 2015. The main obstacle for the ICC Prosecutor will be an evidentiary one: can any attack on Hamas military targets that has also caused human casualties be perceived as “war crimes”, for which criminal intent is required? The 2000 Kosovo report of the former chief prosecutor of the Yugoslav Tribunal, Ms Carla Del Ponte, already shows that the existence of civilian casualties following the NATO air strikes in the city of Belgrade does not in itself constitute war crimes. In this realm, the commander’s intent and his military-operational discretionary power bears, according to the NATO report from 2000, considerable weight.
There seems to be yet another potential obstacle for the ICC Prosecutor. On 12 April of this year, the Pre-Trial Chamber II of the ICC unanimously rejected the request of the ICC Prosecutor to open a formal investigation into alleged crimes against humanity and war crimes committed during the armed conflict at the territory of Afghanistan since 1 May 2003. The judges held that it would not be in the interest of justice to open such an investigation, while the preliminary investigation already started in 2006.
The judges did accept that there existed a reasonable basis to consider that crimes within the ICC jurisdiction had been committed in Afghanistan, and that potential cases would be admissible before the Court. However, the judges took into account the time elapsed since the opening of the preliminary examination in 2006 and the politically changing scene in Afghanistan since then. The Chamber was also susceptible to the lack of cooperation that the Prosecutor had received and which was likely to be scarcer, should an investigation be authorized. Finally, the judges anticipated that the chance of a successful investigation and prosecution was limited, while noting the need for the Court to use its resources prioritizing activities that would have better chances to succeed.
On balance, the ICC judges held that, notwithstanding the fact that all the relevant requirements were met as regards both jurisdiction and admissibility, the current circumstances of the situation in Afghanistan were such as to render the prospects for a successful investigation and prosecution extremely limited. As a consequence, they also found that it was unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favoring the investigation.
It is tenable that some of these arguments might be applicable to a future decision on the opening of a potential formal investigation into the Gaza war once the preliminary investigation would lead to such a follow up. This especially counts for the prospect of a successful prosecution in view of the outcome of the mentioned Kosovo report. This conclusion could even be reinforced by the recent judgment by the ICC on acquittal of the former president of Ivory Coast Mr Gbagbo and former Youth Minister of Ivory Coast Mr Blé Goudé of 15th January 2019, whereby both Mr Gbagbo and Mr Blé Goudé were acquitted of allegedly having committed crimes against humanity during the civil war in Ivory Coast in 2010-2011.
One of the allegations pertained to the government military forces having used excessive military force and artillery fire in the capital city of Abidjan. These operations allegedly caused civilian casualties. In the reasons for acquittal, the majority of the Chamber held in this regard that the government forces were “…engaged in asymmetrical warfare against exclusive enemies who did not identify themselves and who appear to have blended in with the civilian population…”.
One can observe similarities with the Gaza conflict. This can be demonstrated by the majority ruling of the trial chamber in the Gbagbo-Blé-Goudé case, in which it was underlined that the prospect of offensive operations against these government forces (FDS) ” …would have been in the forefront of the minds of senior FDS officers”. This significance of this reality contradicts a narrative that such forces were involved in crimes against humanity against their own population. Perhaps the ruling of the Pre-Trial Chamber II in the Afghanistan situation might foreshadow the outcome of the Gaza investigation. Whatever the evidentiary prospect of the Gaza file, the view of the ICC judges in the Afghanistan case as to the interpretation of what constitutes “the interests of justice” within the realm of opening a formal ICC-investigation, creates a precedent. Any deviation of this precedent could encounter a defense of “procedural equality” to be invoked by either Israel or Hamas.