By Lutakome Imran Kigongo
In recent international developments, there is an attempt to issue an arrest warrant to the prime minister of Israel Benjamin Netanyahu, due to crimes against humanity that erupted under the Israel- Gaza conflict. The response from Israel was a threatening letter. This background has necessitated an assessment to answer the question of whether or not the International Criminal Court (ICC) can prosecute Benjamin Netanyahu in the arena of International Law.
The International Criminal Court is a product of the Rome Statute that was founded on 1st July 2002, and it has jurisdiction over international crimes, complimenting national jurisdictions. The crimes under which the ICC as a Permanent International Court’s jurisdiction is stipulated under Article 7 of the Rome statute, which provides the crime of genocide, crimes against humanity, war crimes and the crimes of aggression. All this aims to ensure international peace and security, to ensure punishment of perpetrators, to ensure justice for victims and to ensure accountability in cases of impunity.
It is fundamental to note that Israel is not a party to the ICC and thereby has no international obligation towards the statute. It follows suit of countries like the USA, China, Russia, Iraq, India and many others. Such countries have no space to compromise their sovereignty to any extent and also reason to protect their citizens and state officials from prosecution by the ICC. This means that in principle, the ICC has no jurisdiction over Israel because it is a non-party to the Rome statute.
It was brought to book in the recent case of South Africa v. Israel in the dissenting judgement Julia Sebutinde, the current vice president of the International Court of Justice, that the Conflict between Israel and Palestine is a historical one which alarmed the international community that the ICC cannot do much to bring to final end to the conflict. A renowned scholar, PLO Lumumba supports the two-state solution to end the conflict amicably.
On the face of it, Israel’s armed attack on Gaza under the leadership of PM Benjamin Netanyahu violates Article 7 of the Rome statute, particularly aggression, war crimes and crimes against humanity. The current prosecutor of the ICC Mr Karim A. A Khan has powers to initiate investigations proprio montu which means an official act taken without a formal request from another party. He can also issue an arrest warrant after conducting a preliminary examination and investigation and bring the case to court. This is concomitant with the doctrine of command responsibility, which is to the effect that holds the commanders accountable for their role in international crimes, hence focusing on the prime minister.
In conclusion, the ICC has one puzzle to decipher because, although it claims independence and universal jurisdiction, practically, it has a statutory relationship with the UN Security Council. The UN Security Council has the power to refer to and defer any matter under the ICC. The composition of the UN Security Council includes permanent members like USA, China, Russia, Britain, and many others. The USA, which is also a non-party to the Rome statute, always upholds the interests of Israel, and this will make it next to impossible to continue the prosecution of the Israeli Prime Minister.
Lutakome Imran Kigongo is a final year law student interested in corporate law). He is also the Executive Director of the Ethical African Organisation)
