By Stephen Gowans
The International Criminal Court, the body which has jurisdiction over grave crimes committed under international law, is expected to issue a warrant for the arrest of Sudanese President Omar al-Bashir on charges of war crimes and genocide in the coming weeks.
This will happen not too long after over 200 organizations, including the Palestinian Authority, asked the ICC to investigate war crimes committed by Israel in its three week long assault on the Gaza Strip.
While we don’t know for sure that warrants for the arrest of Bashir will be issued, or that the ICC will turn down the request to investigate Israeli war crimes, both are widely expected to happen.
So why is Sudan caught it the ICC’s web, while Israel looks like it will easily brush it aside?
The answer lies in the nature of the ICC’s jurisdiction.
The court has jurisdiction in two areas. The first is over states that voluntarily submit to its authority. Many countries have signed the treaty that established the court, thereby agreeing to allow the ICC to investigate and try grave crimes committed on their territories. But there are notable exceptions: the United States, Russia and China, refuse to ratify the treaty. Israel also rejects the ICC. And so too does Sudan.
Media reports have made much of the fact that Israel does not accept the court’s jurisdiction. Appeals to the ICC for a war crimes investigation are therefore viewed as frivolous and little more than a publicity stunt. How can the ICC investigate Israeli war crimes, if Israel rejects the court?
The groups that have brought the appeals either naïvely believe that the court is neutral and capable of taking on Israel (and therefore the US), or know the score and are hoping that raising the issue with the ICC will reinforce a point that Israel has made, itself, many times over – that its greatest export is war crimes.
But Sudan no more accepts the court’s jurisdiction than Israel does. So how is it that Bashir has been indicted on war crimes charges and could be dragged before the court, while the Middle East branch of War-Crimes-R-Us enjoys its usual impunity?
The reason is that the ICC also “has jurisdiction over situations in any State where the situation is referred by the United Nations (UN) Security Council,” as the court’s web site explains. This means that the US, China and Russia can use their permanent presence on the Security Council to order the ICC (whose jurisdiction they themselves do not accept over their own territories), to investigate war crimes in countries that similarly reject the court’s authority over their territories.
In other words, the ICC can investigate grave crimes under international law in any country so long as the UN Security Council tells it to.
This works out well for the big three — the US, Russia and China. They’ll never have to answer for grave crimes before the ICC because they refuse to recognize the court – that is, they refuse to recognize its jurisdiction over their own territory, but when it comes to other countries’ territories, well, that’s an entirely different kettle of fish.
It’s like your dad telling you not to drink, even though he’s plastered every afternoon by 4:00, and has arranged for the local psychiatric hospital to force feed you daily doses of Antabuse to keep you on the straight and narrow while he pops off to the pub for another pint.
At the same time, the terrible trio can fail to order the ICC to investigate war crimes committed by allies, or to veto resolutions that do.
It is because the US can veto any effort to refer Israel’s grave crimes in Gaza to the ICC, and because the US, far from being an honest broker, has always acted to facilitate Israel’s crimes, that no one in Israel is breaking out in a sweat over scores of groups beseeching the ICC to look into what no one could have avoided seeing over three weeks in January – that Israel ran a clinic on how to violate every article of war. Anyway, isn’t calling for an investigation into whether Israel committed war crimes kind of like demanding an inquiry into whether McDonald’s sells hamburgers?
UN Secretary General Ban Ki-moon broke off contact with Bashir on the advice of legal counsel, who told him he should limit contact with an alleged war criminal. The Secretary General has since resumed contact, but Ban never struck George W. Bush from his Rolodex and he continues to dialogue with Israeli Prime Minister Ehud Olmert, though the evidence both men have committed war crimes is mountainous.
The key here, however, is that neither man is alleged by the ICC to be a war criminal. And because Washington has considerable influence over the ICC, they never will be. The criminals are effectively running the court.