There was a sense of hope across the world in 1998 when 120 countries signed a treaty that would establish an international court.

This court would, among others, follow noble principles to protect citizens from violence and abuse by their own governments, rebels or even foreign nations.

The International Criminal Court which was to be permanently based at The Hague in Netherlands, was to ensure that “no ruler, no state, no junta and no army anywhere will be able to abuse human rights with impunity”, and if the court satisfied itself that such crimes are happening, they would be brought to book.

In recent years and days, I believe such hope has been slowly diminishing.

And for many of us who believe in international justice, the last straw was this week, when the court decided that the death of 1 300 Palestinians in the hands of their bully neighbour Israel, were not good enough to deserve justice.

For the sake of those who had forgotten, let me remind you of the picture of a young Palestinian child crying in agony while lying in hospital after being shot at and burnt with white phosphorus fired from some of Israel’s sophisticated artillery.

This was part of the sad results of a three-week deadly war Israel launched on the Gaza Strip between December of 2008 and around March 2009. They carried out a series of indiscriminate bombing raids and ground invasions on heavily populated civilian areas, under the guise of looking for Hamas militants who had allegedly attacked Israel cities with long-range rockets.

But it was Israel’s bombardment that was so deadly and indiscriminate, that they also bombed UN compounds in Gaza. It was one of the saddest tales of the fighting in the Middle East, since the killing by Israel of the 1 200 Lebanese women and children in the summer of 2006.

Following the 2008/09 raids, the Palestinians attempted to seek justice through the international criminal system, for war crimes committed by Israel.

And after three year-long wait, justice wasn’t to be. ICCProsecutors Luis Moreno-Ocampo decided against the Palestinian Authority’s bid to have the crimes prosecuted, saying instead that Palestine was not determined as a state by UN bodies and ICC statutes. (Another set-back to Palestinians’ campaign for international recognition as an independent state.)

Here we have a situation where “a ruler” (Israel), “state” (of Israel), “or junta” (which is how Israel is behaving considering its rebellious occupation and indiscriminate killing of the defenceless), is allowed to kill and “abuse human rights with impunity”, and the international court intrusted with protecting humanity, including the Palestinians, says it can’t do anything about it?

Instead in a statement after this blunder, the prosecutor cowardly passed the buck to “relevant bodies at the United Nations” to determine whether Palestinians are a state enough to can sign up to the Rome Statute.

Fair enough the court can only launch investigations if asked by the UN Security Council or an involved state that has recognised the court. The Palestinian Authority has brought itself forward to be part of the court. As expected, and perhaps knowing its bulliness and international crimes already in its name, Israel has decided not to recognise the court.

The question now is for whom was this court created, if those committing international crimes against humanity cannot be prosecuted and don’t even recognise this court? What kinds of crimes suit its definition of “war crimes”?

Everybody agree that the 2008/09 killings in Gaza shocked people, not to mention how they were committed. And the pictures from newspapers showing children with bullet holes, and burnt, and broken limps didn’t help the situation.

Even a British court issued an arrest warrant against Israel Foreign Minister Tzipi Livni in December 2009 for her role in the killings. But after a lot of lobbying by the US, the ruling was overturned.

I believe this is a lost chance for the ICC and Moreno-Ocampo to redeem themselves. It was a perfect chance for the court to exert its relevance and shed the label of it being an instrument of the powerful to settle political scores.

Should we now believe that the court is selective in its prosecutions, and the weak, are the easy targets to prove its worth?

I support Amnesty International when it accuses the ICC of “political bias” and that its “dangerous” blunder is “inconsistent with the independence of the ICC. It also breaches the Rome Statute which clearly states that such matters should be considered by the institution’s judges,” Amnesty added.

Moreno-Ocampo came with the decision ignoring voices of condemnations and calls from leaders and activists across the world and some of investigations by the UN Human Rights bodies, and provisions in the Rome Statute that the ICC should judge on such matters.

Already the mandate of the ICC has come under serious scrutiny from many including the African leaders, especially after the indictment of Sudan’s seating-president Omar al-Bashir. Questions have been raised about the selective nature in which investigations are carried.

Worth noting is the fact that almost all the cases that are currently on the roll at the ICC are for crimes committed in Africa. Its currently investigating “situations” in Uganda, Democratic Republic of Congo, Central Africa Republic, Sudan, Libya and Côte d’Ivoire.

I am sure anyone reading this will agree that Africa is not the only warzone or where serious crimes against humanity are being committed. Whoever forgets the killing of civilians in Iraq and Afghanistan,(and Palestinians) to mention just a few, is nothing but a hypocrite.

Former US President George Bush should have been tried for the Iraqi war. But as Arab News’ Linda Herd observed, Bush or any leader in the US and Israel may never have their day in court because their countries have not signed up to the ICC. The last option is if their citizens can be referred to the court by the UN Security Council. The US holds a veto power and its “hardly likely to agree to its own referral to the ICC or that of its Middle Eastern appendage, Israel”.

I believe the saying that “whoever pays the piper will call the tune”. Moreno-Ocampo, and the entire ICC, is funded by the dollars from the US. Whoever the US wants the court to go after, Moreno-Ocampo will be on the like a bad rush. He is thinking about his pension life coming in few months’ time when he steps down as the chief prosecutor. The US will not pay ICC prosecutors to prosecute the US or its allies and definitely not Israel.

After this many will agree that there is no confidence left in the court. I am also thinking it’s a waste of time for Turkey to think its sons and daughters will get any justice from their petition they sent to the ICC to investigate war crimes after the Israeli Defence Force’s raid on Gaza-bound flotilla in which nine Turks were killed.

Actually it would be interesting to see if the ICC will ignore the UN Human Rights Commission report (compiled by three leading UN human rights experts) which concluded that the Israeli forces, as usual, violated international law, and their attack on the flotilla was “brutal and disproportionate”.

For what it is, I think history will judge the ICC as much as it will Israel. I support those who say the court should either close its doors or open them for everyone to be equal before the international law, if it wants to be credible rather than a sick joke.


Isaac Mangena

Isaac Mangena

Isaac Mangena is a Chapter Nine Communicator slash activist. He has spent much of the past ten years of his life in a newsroom. He is a former TV and Newspaper journalist who focuses on African and international...

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