The International Criminal Court’s Tribunal on Israel’s Prime Minister Ehud Olmert

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The purpose of this simulation is to outline the potential debate between the International Criminal Court Prosecutor and the Israeli Defense Council in a theoretical trial of Ehud Olmert in the ICC for crimes committed during the Gaza raids of 2008/2009. This scenario is fictional and it is the writer’s own speculation on the Court’s proceedings. The matters of concern include the Court’s jurisdiction, the trial of Olmert for committing certain crimes, and the verdict. Issues of admissibility will not be discussed here. The Palestinian state has referred this case to the Court.

Facts

  • December 2008 – January 2009: approximately 1,500 Palestinians and 13 Israelis were killed in the Gaza raids.
  • Women and children have been killed, homes raided, and hospitals bombed.
  • Israeli forces began by killing six Hamas gunmen, which effectively breached their four-month ceasefire.
  • Hamas responded by shooting rockets toward IDF camps, which caused no deaths or injuries.
  • IDF forces began raiding Gaza, Khan Yunis, and Rafah, which are densely populated with civilians.
  • Israel enforced an economic and political blockade on the Gaza Strip, restricting importation of goods, closure of border crossings, and cutting fuel and electricity.
  • Israel established a buffer zone on the borders of Gaza and Israel affecting Gaza’s economy by reducing Palestinian fishing zones, reducing land available for agriculture and industry, and reducing the ability for health, water, and other public sectors to respond to the emergency state.
  • The Israeli navy shelled the coast of Gaza.
  • Israeli armed forces launch several attacks against buildings and persons of Gaza authorities, including the Palestinian Legislative Council building, the Gaza main prison, 6 police facilities resulting in the death of 99 policemen and 9 civilians.
  • A ground invasion took place on January 3rd effectively increasing the death toll of civilians and violating several principles of international law.
  • Shelling of al-Fakhura junction in Jabaliyah by Israeli armed forces, which is located next to the UNRWA school.
  • Israeli forces destroy civilian life through destruction of industrial infrastructure, food production, water installations, and sewage treatment plants and housing.
  • Palestinian civilians in Gaza are rounded up and detained throughout the conflict.
  • A unilateral ceasefire was declared by Israel on January 18th and a few days later the land was evacuated.
  • Throughout the conflict, Prime Minister Ehud Olmert endorsed the acts of the IDF and was a key decision-maker in the process as a whole.

 Jurisdiction

 Prosecutor:

 Prime Minister Ehud Olmert has shown considerable responsibility for the acts that have occurred in the Gaza Strip through his public statements and should be tried accordingly for war crimes and crimes against humanity, among other violations under international humanitarian law. Palestine has become a non-member observer state of the United Nations since November 2012. In December 2014, Palestine ratified the Rome Statute and granted the International Criminal Court jurisdiction to adjudicate on crimes committed in its territory. The ICC is therefore required to try Olmert for the acts committed during this conflict due to the fact that Israel has yet to make reparations for the homes that have been destroyed.

According to Article 5 of the Rome Statute, the Court has the jurisdiction to try individuals for crimes against humanity and war crimes, both of which have been committed by the State of Israel under the command of Ehud Olmert, which under Article 28 of the Statute, regarding responsibility of military commanders and other superiors, considers him responsible. Furthermore, as per Article 14 of the Rome Statute outlining jurisdiction, the Palestinian State has referred the case to the Prosecutor for investigation, and as a party to the Rome Statute the court has jurisdiction over crimes that occurred in Palestinian territory.

Defense Council:

It must be established that the State of Israel has explicitly expressed its unwillingness to become party to the Rome Statute since 2002, as it does not wish to grant the Court jurisdiction to adjudicate on matters related to its occupation of the Palestinian territories. Considering that Prime Minister Olmert was not within the Palestinian territories during the attacks, and is not the military commander or the superior of the IDF (the Minister of Defense is), the Palestinian state cannot refer him to the Court. In addition, because the State of Israel is not bound by the Statute and has not accepted the Court’s jurisdiction the Court therefore does not have the jurisdiction to try Olmert on the mentioned crimes.

Furthermore, regarding the Palestinian State’s referencing this case to the Court, Palestine only became party to the Rome Statute in December 2014 and gave the Court jurisdiction to adjudicate on matters since June 2014. The Statute expresses its non-retroactivity under Article 24; therefore, the Gaza raids of 2008/2009 are not under the jurisdiction of the court.

Judge:

 The Palestinian State has granted the Court retroactive jurisdiction under Article 11 of the Statute, which can go as far as 2002 when Palestine declared its independence and created a three-branched government. In addition, Palestine initially submitted its request to become a party to the Statute in 2009 and the Court is willing to consider this as its intent to have the Court consider the events of 2008/2009. Furthermore, under Article 28 of the Statute, there is no mention that the superior of military forces must be present on the land where the crimes are taking place and the practice of structure of command in the IDF has proven to show that Prime Minister Olmert is directly involved in IDF’s military actions. The attacks occurred on the lands of the Palestinian State and the Court therefore has jurisdiction over this case and we will proceed to assessing the crimes.

It must be noted that in reality, the ICC Prosecutor has rejected the retroactive application of this case, and decided to only consider situations that arose after General Assembly Resolution 67/19, upgrading Palestine’s status in November 2012. Furthermore, since the Prosecutor rejected Palestine’s admission to the Court in 2009, the issue remains debatable in the international community if this motion will be regarded as an express of intent. However, for the purposes of this simulation, we will assume that the Prosecutor has accepted and will proceed to assess the crimes.

Crimes

Prosecutor:

Crimes against humanity are explicitly defined in Article 7 of the Rome Statute as attacks that are “widespread and systemic” committed against a civilian population including, but not limited to, murder, extermination, the forcible transfer of that population, torture, persecution of groups based on political, racial, national, ethnic, cultural, or religious bases, apartheid, among others, all of which Israel is guilty of. The attacks have been proven to be widespread throughout Gaza, Khan Yunis, and Rafah and were systemic throughout the three-week period.

Furthermore, War Crimes are defined under Article 8 of the Statute. Israel is in violation of this article in which it has breached the Geneva Conventions of 1949 in several cases, which amounts to war crimes.

Olmert has been responsible for IDF’s indiscriminate attacks that include, but are not limited to, willful killing of civilians, causing great suffering and serious injury, extensive destruction and appropriation of property, intentionally attacking civilians and their property, among others. The most explicit violation is that of Article 8.2.b.viii where there occurred an indirect transfer by the Occupying Power of a large portion of the Palestinian population within Palestine, Israel, and outside both territories to countries such as Jordan, Syria, Lebanon, and Egypt.

Finally, Olmert was in violation of the principle of necessity and proportionality, whereby the Israeli response to the threat of attack by Hamas forces is not justified by military necessity as mentioned by the Human Rights Council in the Report of the UN Fact Finding Mission (p. 17). This is particularly true when Israel deliberately attacked governmental buildings and civilian property (as mentioned in the facts) claiming that these institutions are a part of the “Hamas terrorist infrastructure”, while the UN Fact Finding Mission rejected this position entirely with the argument that there was no evidence to provide that these institutions “made an effective contribution on military action” (p. 17) and therefore was useless in furthering military benefit for Israeli forces. It is clear that there was a deliberate target of civilians, which not only violates the Geneva Conventions in the protection of civilians, but also completely violates the principle of military necessity and proportionality under customary international law. The attacks were not proportional, as the Hamas rocket response, that did not cause any injuries, did not constitute as a large-scale attack that required the invasive response that Israel took on January 3rd, which was also determined by the HRC (p. 86). Israel’s use of certain weapons such as white phosphorus and uranium munitions is also a violation of the principle of proportionality as well as a violation of the Geneva Conventions in causing superfluous injury and unnecessary suffering to soldiers let alone civilians (p. 194 of the HRC). We aim to reemphasize Olmert’s violation of Article 28 of the Rome Statute, where Olmert is “criminally responsible for crimes within the jurisdiction of the Court committed by forces under his…effective command and control, or effective authority and control” as per the provision under section (a). It is significant to note that Olmert knew that his subordinates were committing these acts and “failed to take all necessary and reasonable measures within his…power to prevent or repress their commission…” Olmert specifically ordered the launch of a wide-scale military attack on Gaza. He is therefore in breach of Article 28 in its entirety.

Defense Council:

It must be noted that in 2008, Palestine was yet to be declared a state by the United Nations and gain recognition of other states. Its Declaration of Independence in 2002 does not constitute statehood as per the Montevideo Convention. Therefore, it was considered to be under the military control of Israel and lacked the attributes of sovereignty as the Palestinian Territories during the 2008 conflict. Furthermore, the attacks that were occurring were led by the non-state actor, Hamas, which is deemed as a terrorist organization. This means that the conflict occurring is of a non-international character and therefore Common Article 3 of the Geneva Conventions is the only applicable law under Article 8.c, d, e, and f of the Rome Statute, which Olmert cannot be found guilty of. This is because the violations of these were not committed directly by Olmert. Considering the Prosecutor has invoked Article 28, there has been no proof to show that Olmert was directly responsible for the conduct of each and every one of his soldiers and commanders. Olmert, even under Article 28, is only in charge of the large military strategy. Common Article 3 stipulates that no attacks should be made on persons taking no active part in the hostilities. Any breaches of this article would potentially hold solider or commanders liable. There is no proof that Olmert knew about these violations and could have prevented them.

To discuss the conflict itself, at the beginning of the conflict, Israeli Defense Forces suspected a potential attack on its barracks by Hamas gunmen. This potential threat against them by a non-state actor who poses a terrorist threat allows the IDF to invoke its right to preemptive self-defense. The 2008 Gaza raid was a necessary step towards achieving peace in the region. As the Israeli military stated, “This was a pinpoint operation intended to prevent an immediate threat, there is no intention to disrupt the ceasefire, rather the purpose of the operation was to remove an immediate and dangerous threat posed by the Hamas terror organization.” The attack of the policy station and other governmental buildings serviced the purpose of dismantling Hamas members. The attack was not made to harm civilians but was a military objective considering that most members of the Palestinian police force are members of Hamas and are therefore a lawful military objective.

The invasion that occurred on January 3rd was necessary to end the conflict, which it did a few days later and Olmert then ordered for the IDF to evacuate Gaza. He, therefore, had the intention of simply deterring the threat and ending the conflict; however, due to Hamas’s retaliation and indiscriminate attacks against Israeli civilians, the IDF were forced to react in a necessary and proportional manner, both of which have been proven.

The Hamas organization has chosen to use the tactic of hiding behind civilians causing the IDF to be forced to attack residential areas where the organization resides. These are necessary targets that justify military utility. With regards to the proportionality aspect, the use of certain weaponry is proportional to the threat of future attacks that Hamas may pose on Israel.

*Judge interrupts:

The threat of future attacks is an element of jus ad bellum and not the law of armed conflict (jus in bello). We are questioning the elements of the crimes from an IHL perspective, so kindly refrain from involving irrelevant aspects. Please proceed.

Defense Council:

Thank you, Judge. The final statement is that the Israeli forces took the necessary and adequate precautions by warning civilians before every attack. They did this through telephone calls, leaflets, and radio broadcast. Israel also encouraged residents to leave the premises where danger may occur, as noted in the UN Fact Finding Mission on page 18.

Therefore, Olmert is in no violation of Article 8.e of the Rome Statute due to the fact that the attacks of civilians or civilian materials were clearly not intentional but necessary to end the conflict and deter the threat.

There is a concrete argument that the International Criminal Court may have jurisdiction over the case of the Prime Minister Ehud Olmert committing crimes during the Gaza raids of 2008/2009. However, the intricacies of the conflict reveal much debate and controversy, as both parties to the conflict have arguments in favor and against them. This kind of tribunal would most likely take months, if not years, to reach a verdict. Therefore, it would be difficult to provide a simplified verdict in such a case. This was merely a demonstration of the complications that may arise from such a tribunal.

Bashar Al Assad: Can International Humanitarian Law Make Him Innocent?

Taken from The Telegraph http://i.telegraph.co.uk/multimedia/archive/01925/Bashar-al-Assad-su_1925765b.jpg
Taken from The Telegraph
http://i.telegraph.co.uk/multimedia/archive/01925/Bashar-al-Assad-su_1925765b.jpg

Since the 2011 uprisings, Syria has been facing bloodshed between two factions in society; the government, led by Bashar Al Assad’s regime, and the opposition, largely responsible for the uprisings. The Syrian regime has not met these uprisings with kindness. Instead, state security apparatuses have been using modes of violence against these groups including the extensive use of chemical weapons. The question lies in whether the regime’s reactions to the uprisings are lawful under International Humanitarian Law (IHL) or not.

It must be established that the International Criminal Court (ICC), has not taken Bashar Al Assad to trial because it is argued that the ICC does not have jurisdiction over the case. Under Article 12 of the Rome Statute, the ICC only has jurisdiction if (1) the state that the individual represents is party to the Rome Statute, (2) if the state that the individual represents accepts the jurisdiction of the Court, or (3) if the Security Council has referred the case directly to the Court.

Under the first condition, Syria has only signed but not ratified the Rome Statute, absolving it from being bound by all of the provisions of the Statute, but only its object and purpose. Under the second condition, Syria has not accepted the jurisdiction of the Court, given that the regime represents the state. Based on the third condition, the Security Council has not referred the case to the Court largely because of political reasons as argued by Annika Jones in her paper Seeking International Criminal Justice in Syria. The fact that China and Russia have shown a lack of support for a referral and have vetoed resolutions attempting to refer the situation in Syria to the Security Council, means that the Council has been ineffective in granting the Court jurisdiction to adjudicate on the case. Russia specifically suggests that the referral is “ill-timed and counterproductive” as mentioned by Jones (p. 807). The Security Council is therefore effectively blocked and it seems unlikely that the P5 will agree (whether accept or abstain) on referring the case to the Court.

Furthermore, the nature of the conflict is one that requires particular attention. If we are to assume that one of the three above conditions for the exercise of jurisdiction by the ICC are finally met, the nature of the conflict potentially limits the Court’s ability to adjudicate on some of the most pressing issues in the Syrian conflict, such as the use of chemical weapons. The nature of the conflict aims to distinguish between international armed conflicts (IAC) and non-international armed conflicts (NIAC).

Another issue is whether the case of Syria would be admissible before the ICC. This is especially significant because it can be argued that the case should fall under the jurisdiction of national courts; however, these courts cannot (or would not) try Assad. In addition, Syrian national courts do not have the mechanisms or proper institutions to try a person, let alone a leader, for the crimes that the Court would try him over. It could therefore be argued that national courts are unwilling or unable to put Assad on trial, giving the ICC its complementary jurisdiction. However, the question remains whether trying Assad in the ICC will be effective, considering that some issues within the ICC’s jurisdiction do not apply to NIACs and only apply to IACs (further discussed below). This is why it is important to first qualify the nature of the conflict before attempting to apply any laws that fall under IHL.

  • Qualification of the Conflict

An IAC should occur between two or more states. The conflict began with internal uprisings that were led by the rebel groups. In this scenario, only domestic law applied to the legality of this rebellion as well as international human rights law, where Syria is bound by some of its statutes such as the Convention on the Rights of the Child (CRC) among others. The events of the conflict then escalated in extensiveness and intensity classifying it as a civil war, which under IHL is considered a NIAC. However, the emergence of new actors and coalitions lead to the questioning of whether the conflict is in fact a NIAC.

Several opposition groups arose against the Assad government, some of which possess secular identities while others are more Islamic. Some of these opposition groups joined to form the National Coalition for Syrian Revolutionary and Opposition Forces, who claim to be the legitimate representatives of the Syrian people and are recognized as such by the Arab League and the Cooperation Council for the Arab States of the Gulf (CCASG). Also, the emergence of the Islamic State of Iraq and Syria (ISIS) as a coalition claiming its de facto statehood leads to the necessity of qualification. In reality, claims and recognition are not enough to create a state. According to the Montevideo Convention, the criteria of statehood are the following: possessing (1) a permanent population, (2) defined territory, (3) an effective government, and (4) the ability to enter into relations with other states. The number of states that recognize the state in question often defines the fourth condition. But, this condition is not sufficient enough to call any of the opposition groups a separate state. Therefore, the Syrian opposition group is not considered a state and the conflict is effectively a civil war, and therefore a NIAC.

  • The Applicable Law

Thus under IHL, a civil war constitutes a non-international armed conflict, where IHL does not apply in its entirety. The applicable laws under a NIAC are limited to (1) customary international law (CIL) regarding NIACs, (2) Common Article 3 in the Four Geneva Conventions of 1949, and (3) Additional Protocol II of the Four Geneva Conventions.

In reference to CIL, “the principles of distinction and proportionality are held to apply in a NIAC” meaning that under CIL, it is important during an internal conflict that the state adheres to discrimination between civilians and combatants. It should also ensure that the attacks against the rebel groups are proportional under IHL. Because these principles are part of CIL, Syria is obliged to adhere to them.

Looking at Common Article 3 of the Geneva Conventions, to which Syria is a State Party, the provision briefly discusses the required treatment of non-combatants, which include any person who has laid down their arms, and prohibits certain actions against them. It does not specifically regulate the principle of discrimination or the conduct of armed groups in a non-international armed conflict. Syria is therefore obliged under international law to adhere to Common Article 3.

AP II was made as an extension to the regulations of NIACs due to the fact that Common Article 3 did not suffice in protecting civilians in non-international armed conflicts. AP II discusses the importance of discrimination and humane treatment towards victims of NIACs. However, it is important to note that Syria is potentially not bound by AP II. According to Article 1(1), there are two conditions for Syria to be bound by AP II. Firstly, Syria must be a party to the Protocol through signing and ratifying it, which it has not done. Being a signatory of the Geneva Conventions does not automatically mean that Syria also becomes a party to Protocol II. Secondly, the rebel groups acting within Syria must exercise control over part of that territory. Both of these conditions must be present for the Protocol to take effect. It can be argued, as mentioned by BBC, that the rebel groups in several situations have taken control of parts of Syria, such as in central Damascus where ISIS has exercised effective control in instances in the past three years. Regardless of this fact, the first condition was not met and Syria is therefore not bound by AP II.

  • Assessment

Because Syria is not bound by Additional Protocol II, Assad’s regime is under no obligation to adhere to the specific provisions of discrimination outlined in AP II (although it must adhere to the principles of distinction under CIL) or the specific protection of noncombatants under AP II. Furthermore, being a NIAC, the Syrian conflict is only bound by Common Article 3 of the Geneva Conventions and CIL. Under Common Article 3, Bashar’s regime may be found guilty of not treating humanely those who are not actively participating in hostilities, although Common Article 3 does not specifically regulate the conduct of war. According to Al Jazeera, there were countless incidents between May 2012 and August 2013 where Bashar’s regime attacked towns and villages in Homs and Damascus without taking the necessary precautions in protecting noncombatants. However, there have been simultaneous attacks made by the rebels on the same towns and villages, making it difficult to determine who exactly was completely responsible for the bloodshed in particular situations.

Under the principles of CIL, Bashar’s regime may be found innocent of nondiscriminatory attacks due to the fact that the opposition groups began as civilians and eventually became deemed as combatants who take part in hostilities and have possessed arms, causing them to become eligible targets. They also do not wear insignia causing it to be difficult to discriminate between them and civilians. With regards to proportionality, United Nations Missions confirmed the rebels’ use of chemical weapons against the regime as well as civilians causing the most severe of actions taken by the Assad regime to become proportional to those used by the rebels.

It can, therefore, be argued that the Syrian conflict is a non-international armed conflict and is bound by customary international law and Common Article 3 within the Geneva Conventions. It is difficult to prove that the Assad regime is entirely responsible for any violations under these laws if they have allegedly committed any.

  • Significance

What is the significance of such a verdict? This verdict leads to the conclusion that under the mechanisms of international law, it is very well possible that a leader, who exercises violence against his largely civilian population, can be deemed innocent. It also means that there is no international mechanism to try a leader for gross violations of international law if the conditions of ICC jurisdiction are not met. Bashar Al Assad can be guilty of committing crimes against humanity or genocide had there been Court jurisdiction. Even so, the state is largely responsible for violations in other areas of international law.

It was also argued by Jones that due to the nature of the conflict, it being a NIAC, some of the Rome Statute provisions that address the use of chemical weapons do not apply to NIACs (p. 809), causing there to be a deficiency in international mechanisms to govern NIACs. In addition to this, although there are several treaties that theoretically oblige each party to the conflict to adhere to international law principles (p. 37), including CIL, it is difficult to practically bind non-state actors making it almost impossible to hold the opposition groups legally accountable for their conduct during the conflict.

Bashar’s government has also violated the principle of discrimination simply because they have the ability to pinpoint the camps and targets of the opposition yet choose to target areas with civilians. Amnesty International had released reports documenting the Assad regime’s purposeful targeting of medical workers and journalists. They have also shown considerable evidence that government intelligence conducted investigations on the whereabouts of the opposition groups, yet have still been bombing cities and villages where civilians lie.

There is also a clear violation of Common Article 3 where, according to the Human Rights Watch, there have been arbitrary arrests, disappearances, torture, and deaths of civilians, including women and children, conducted by the Assad regime. Yet there are arguments made that exonerate the Assad regime, as mentioned above.

Furthermore, the conditions under which Syria must be party to Additional Protocol II are unrealistic and ineffective. There are situations, such as this one, where it is imperative for AP II to apply considering the gross violations of civilian protection and conduct of war. These gross violations include that the regime has not exercised humane treatment against the combatants nor have they exercised proper protection of civilians, as mentioned by both Amnesty International and Human Rights Watch reports. However, considering that the treaty does not bind Syria, the Assad regime cannot be held accountable.

Although it can be argued that Assad is in violation of CIL, there is no mechanism to try Assad due to the reasons mentioned above regarding the Court’s jurisdiction. The use of chemical weapons alone is in a gross violation of the Chemical Weapons Convention, to which Syria is a State Party. There is also an international law principle that requires parties to avoid employing weapons calculated to cause superfluous injury and unnecessary suffering; however, this principle falls under the Fourth Geneva Convention that governs IACs, which does not apply in this case. However, according to the ICRC, this principle is considered CIL and applies to both IACs and NIACs, as per the International Criminal Tribunal on the Former Yugoslavia (ICTY).

The issue remains that there is no mechanism to try Assad for violations of customary international law. This shows that there are several situations of armed conflict where it is clearly logical that a person is guilty of committing crimes but the barriers of international law do not allow for his/her trial. There are also illogical grounds to exonerate a regime from being bound by laws that they should be bound by. The manipulation of international law could also potentially allow for his innocence. IHL is not so humanitarian after all.

To answer the first question, can IHL make Bashar Al Assad innocent? Yes it can. Is IHL therefore an effective mechanism of trying leaders in non-international armed conflicts? No, it is not.