When, on Friday, January 2, Palestine took steps to join the International Criminal Court (ICC), Israel responded by stopping the transfer of $127m in tax revenues to Palestine the next day. It claimed it would not allow its soldiers to be tried before the International Criminal Court in the Hague, where Palestine hoped it would stand trial for war crimes. United States senators issued a warning that they would protect Israel from “politically abusive actions”, and the US State Department referred to the move as “counterproductive”.
Although Palestine is not a member of the UN, Payam Akhavan, the first Legal Advisor to the Prosecutor’s Office of the International Criminal Tribunals for the former Yugoslavia and Rwanda, says that, according to Article 125 of the ICC statute, any state can join, including Palestine, which is recognized by 135 of the 193 UN member states. On January 7, UN Secretary-General Ban Ki-moon confirmed that Palestine will join the International Criminal Court (ICC) on April 1.
As the first permanent, international criminal court, the ICC’s mandate is to end impunity for the perpetrators of crimes against humanity, war crimes, crimes of aggression and genocide. The ICC was established on 17 July 1998 under the Rome Statute treaty. It came into force on July 1, 2002, with 120 countries adopting the treaty. And, given that the General Assembly recently upgraded Palestine's status at the UN to that of a "non-member observer state” — the same status that Switzerland had prior to becoming a UN member — Akhavan says there is good reason to believe its application will be accepted.
Iran has undoubtedly paid close attention to Palestine's ICC engagement, and not only because of Palestine’s symbolic and strategic role in Middle East politics. Iraq’s invasion of Iran 1980, and the long, violent war that followed, has left deep scars on the nation — yet, from Iran’s perspective, this damage was never fully acknowledged by the international community. So Palestine’s pursuit of justice and compensation for what it regards as Israel’s war crimes matters to Iran. The ICC is a court of last resort and will only act if a case is not investigated or prosecuted by a national judicial system, or one that is flawed. Since Palestine’s announcement in January, Palestine has focused specifically on bringing charges against Israel for settlements in the West Bank.
The Crime of Aggression: The Iranian Experience
“Iran has an ambivalent position towards the statute of the ICC, ranging from enthusiastic support to open skepticism,” writes Hirad Abtahi, legal adviser to the president of the ICC.
In 2000, says Abtahi, Ayatollah Yazdi, then head of the Judiciary, emphasized the importance of dealing with war crimes and crimes of aggression. Iran has been an active participant in multi-lateral discussions about war crimes since the Rome Statute was ratified in 2002.
Officials in favor of joining the ICC believe the court could offer Iran more international support, giving it recourse to deal with potential crimes of aggression and war crimes in the future.
Saddam Hussein’s troops invaded Iran on 22 September, 1980. Throughout the eight-year war, Iraqi forces used the nerve agent Tabun and mustard gas against Iranian soldiers, which resulted in a death toll of between 500,000 and one million Iranians, and left millions of veterans disabled. Ballistic missiles destroyed civilian targets, devastating whole areas, a tactic that had not been used on such a large scale before, according to Abtahi.
Today, these crimes would be classified as war crimes under the Geneva Convention, to which the ICC adheres, and such crimes would fall under the jurisdiction of the court. It would not be possible for Iran to bring a retroactive case against Iraq today because the court’s jurisdiction only applies to crimes committed after the statute coming into force. At the time of the Iran-Iraq war, the UN Security Council failed to respond to Iran’s repeated requests for it to recognize that Iraq had initiated and was leading a war of aggression. “By the time a ceasefire was agreed on 17 July 1988,” Abtahi says, the Iran-Iraq war had resulted in one of the longest, most expensive international armed conflicts between two states of the 20th century.”
For Iran, being a member of the ICC would mean that it could have legal grounds to hold states responsible for genocide, crimes of aggression and war crimes.
The ICC and the Green Movement
Following the disputed presidential election of 2009 and the repression of the Green Movement, civil society renewed calls for Iran to join the ICC. Human rights groups wanted Iranians to be able to come to the court with cases pertaining to crimes against humanity.
But although human rights and pro-democracy activists can make noise about the importance of Iran joining the ICC, they have no power to push the government in this direction. In 2009, nearly 200 lawyers and legal experts appealed to the prosecutor of the ICC to comment on events in Iran. Though they can appeal to the court in this way, Akhavan says that human rights lawyers and activists’ time might be better spent documenting and publicizing violations, sending a message to the perpetrators that the international community is being informed and made aware of violations against civil society.
What else might pose a problem for Iran joining the ICC? “There are major issues,” says Abtahi, including “some of the penalties provided for under Iranian criminal law, including capital punishment, as well as whipping, stoning and the sectioning of limbs and the treatment of minorities and women”. Non-Muslim judges at the Court could pose further problems, as some Iranian officials fear they would not be familiar with or sensitive to sharia principles. In keeping with Iran’s own theological guidelines, Muslims cannot be judged by non-Muslim judges, Abtahi says.
So, given the obstacles, is there any hope that those responsible for crimes against humanity in the aftermath of the 2009 election will stand trial at the ICC?
Payam Akhavan thinks there is. “It is true that Iran is not a party to the ICC. But both Afghanistan and Tajikistan have become parties to the ICC and, as a result, if an Iranian accused of committing international crimes is found on the territory of Afghanistan or Tajikistan, the court could still have jurisdiction over that person. Otherwise, the only basis for the court's jurisdiction regarding Iran would be a referral by the UN Security Council under Chapter VII of the UN Charter.” This, he says, was successfully invoked in the cases of Sudan in 2005 and Libya in 2011.
But of course, as in the case of Syria, a referral will not always be approved. There is a limitation inherent in Security Council referrals, says Akhavan. “They are dependent on political interests rather than a principled approach towards global justice.”
Palestine and the Future of the ICC in the Region
If Palestine does become a member of the ICC, Akhavan says that, under Article 12, the court’s jurisdiction will extend “to either the territory of the state party, or to those of its nationals that are accused of international crimes within the court's jurisdiction”. The ICC’s jurisdiction would presumably follow the territories recognized by the UN based on the borders with Israel in 1967 when the occupation of the West Bank and Gaza first began, following the Six-Day Arab-Israeli War, also referred to as the 1967 war.
According to Akhavan, as long as Israel is not a member of the ICC, it is under no obligation to cooperate with the court. And in any case, under the agreement’s "complementarity" principle, it is up to national justice systems to hold persons accountable for international crimes. A court would only interfere if a national court is "unwilling" or "unable" to rule. And a UN criminal investigation focusing on either Palestinian or Israeli individuals in Palestiniian territory is a time-consuming and costly exercise, so experts like Akhavan say results could take years to materialize.
So far, the only Arab States to have become party to the ICC Statute are Jordan and Tunisia, so, Akhavan says, “Palestine’s commitment to the court could open the way for greater Arab engagement with the court in the years ahead.”
When it comes to Iran, the ICC, and human rights, Akhavan says, “even if the court did have jurisdiction, the democratic transformation of a country is much deeper than what can be achieved through a trial.” He says transitional justice requires “the transformation of judicial and political institutions, to make them more accountable to the people" and "the establishment of truth commissions to help victims heal”, as well as education and reconciliation initiatives. “In that sense”, he says, “while the ICC is an important institution to which human rights advocates should look, we should never forget that the most important arena of struggle is among the people of Iran. After years of hatred and violence, they must learn the art and science of non-violence, dialogue, and justice.”
While there was widespread approval when the ICC was established, there was also a practical understanding that it could not be a solution to a country’s fundamental, deep-rooted problems, or the way they deal with the crimes of the past. The idea of Iran as a potential member goes some way to reminding the world of the ICC’s limitations. And Palestine’s efforts to join represent not only the hope that the ICC represents, but also the political forces that limit it.