Defend the International Criminal Court

The International Criminal Court (ICC) is a milestone in the construction of a more just, peaceful and democratic world. It is an instrument of international justice that finds its legal foundation in the United Nations Charter and in the international human rights Conventions.

Its establishment represents the most extraordinary and revolutionary advancement in the civilization of international law. Its Statute - also known as the "Rome Statute" - was adopted in Rome on July 17, 1998, at the conclusion of the "Diplomatic Conference on the Establishment of an International Criminal Court" (June 15 - July 17, 1998) and entered into force on July 1, 2002.

The establishment of an independent, impartial, fair and effective tribunal, capable of bringing to justice those responsible for all war crimes, crimes against humanity and genocides, is the result of the mobilization of numerous citizens and civil society organizations that in 1995 formed an "International Coalition for the International Criminal Court" of 150 countries, strongly supported by the European Union.

For many years, the European Commission implemented a long-term policy in support of international criminal justice and the fight against impunity based on a comprehensive partnership with civil society organizations and through the endorsement of a financial instrument called "European Initiative for Democracy and Human Rights," created in 1994 at the initiative of the European Parliament.

Between 1995 and 2002, the Commission provided over 12 million euros in funding for civil society organization projects aimed at (1) supporting information campaigns and raising public awareness about the establishment of the "International Criminal Court," (2) undertaking actions aimed at ratifying the Rome Statute in all regions of the world, and (3) supporting the work of legal experts in implementing national legislation to cooperate with the Rome Statute.

The EU Council's "Common Position" of June 2001 states that "the principles of the Rome Statute are fully in line with the principles and objectives of the Union" and that "respect for international humanitarian law and human rights is necessary for maintaining peace and consolidating the rule of law." In the same document, the Council calls for the rapid entry into force of the Statute and commits to working towards achieving the required number of ratification instruments and fully implementing the Rome Statute as soon as possible. Article 2 expressly states that the EU and its member states will work to promote this process by raising the issue of ratification and implementation of the Statute in negotiations and political dialogues with third countries and international organizations.

It is worth recalling that under the Bush presidency (2001-2009), the USA launched a campaign to promote bilateral immunity agreements which, through misuse of Article 98 of the Rome Statute, aimed to prevent US officials, employees, military personnel or citizens from being surrendered to the International Criminal Court.

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The International Criminal Court is the first and only permanent international jurisdiction competent to judge individuals responsible for the most serious international crimes: crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.

The countries that recognize the jurisdiction of the International Criminal Court and have ratified its Statute are 124, including all member states of the European Union. Italy ratified it on July 26, 1999.

Among the countries that do not recognize the jurisdiction of the International Criminal Court are: United States, Russia, China, India, Israel, Iran, Egypt, Saudi Arabia, and Turkey.

The Assembly of the 124 States Parties to the Statute, composed of one representative from each State, elects the judges of the Court: 18 individuals chosen based on nominations submitted by States and possessing high moral qualities, impartiality, and integrity. Once elected, judges serve for nine years and are not eligible for re-election. The Assembly of States Parties is also responsible for appointing the chief Prosecutor and Deputy Prosecutors. The President, Vice-Presidents, and Registrars are elected by the Court itself.

The "Rome Statute" provides for three different modalities through which the Court can exercise its jurisdictional power. The first procedure consists of a referral - by one or more States Parties to the ICC - to the Prosecutor regarding crimes committed in their territory or in the territory of another State. The second modality provides for the activation of the Court on the initiative of the UN Security Council, which adopts a Resolution. In this case, the Court's competence can extend to States that are not parties to the Statute. The third modality provides for the Court to be activated following an investigation proprio motu by the Prosecutor.

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The proceedings against Netanyahu and Gallant

At the formal request to initiate investigations submitted by several States - South Africa, Bangladesh, Bolivia, Comoros, Djibouti, Chile, and Mexico - the ICC Prosecutor issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. He also issued an arrest warrant for Hamas leader Muhammad Deif. This is the first time the Court has issued an arrest warrant for a "Western" head of government.

The Court has determined that there are reasonable grounds to believe that Netanyahu and Gallant are responsible for war crimes and crimes against humanity. Among the alleged crimes are: blocking humanitarian aid to Gaza, using starvation as a method of warfare, murder, persecution, and other inhumane acts. The Court also considers Netanyahu and Gallant responsible, as "civilian superiors," for the war crime of intentionally directing attacks against the civilian population.

With the international arrest warrant, the Prosecutor has applied two fundamental principles: the effectiveness of the Court's jurisdiction over the Palestinian Territories and that of "complementarity." According to the latter principle, the Court intervenes if national jurisdictions do not demonstrate that they have initiated "independent and impartial" judicial proceedings. Thus, the Court's intervention was imposed in the face of Israel and Palestine's "unwillingness or inability."

Netanyahu and Gallant have thus joined the group of criminals guilty of war crimes and crimes against humanity, which includes Vladimir Putin, Congolese Germain Katanga, Thomas Lubanga Dyilo and Jean-Pierre Bemba Gombo, Ivorian Laurent Gbagbo, Ugandan Dominic Ongwen, and Sudanese Omar Al Bashir.

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The rules of the International Criminal Court are imperative. All member states of the International Criminal Court - including all EU member states, Norway, and the United Kingdom - are obliged to respect its decisions and therefore to arrest Netanyahu and Gallant if they enter their territory.

The EU and its member states are historical supporters of the ICC and the international rule of law. They should declare their support for the Court as an independent judicial body without ifs and buts and execute the arrest warrants. Actually, the first statements by the governments of Italy and Hungary are questioning the legitimacy of the ICC.

In light of unconditional European support for the arrest warrant issued by the ICC in 2023 against Russian President Vladimir Putin, such statements undermine our political credibility. The ICC's jurisdiction is universal; it cannot apply only to countries that do not belong to the "Western" bloc.

The High Representative of the European Union for Foreign Affairs and Security Policy, Josep Borrell, has admitted the "lack of unity" in the EU regarding the consistent defense of international justice and norms and expressed concern about internal divisions among Union members on ICC decisions. He stated that the Court's decision "is a legal decision, not a political one, and there is nothing anti-Semitic about it."

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International law is either respected or violated.

The alternative to the International Criminal Court and the multilateral system is the law of the strongest, the dominion of illegality, arbitrariness and impunity, the systematic violation of fundamental human rights, freedoms, and democracy.

Those who reject the centrality of law and (democratic) institutions, even for the international political system, place themselves outside the international legal order and at the head of a project for a hierarchical international order where the law of force prevails over the force of law. Thus, a cynical and criminal project.

In short, Italy, the European Union, and its member states no longer have any alibis. They must once and for all decide which side to stand on.

On the side of international law, the ICC, the UN, and multilateralism, or on the side of those who refuse authorities superordinate to States, act unilaterally or through coalitions, and refuse to respect those international norms that their predecessors, in the aftermath of World War II, laid as the foundation of the international order "to save future generations from the scourge of war."

International law must apply to all, starting with democratic states. It is the law that exercises its control over political power. If it were the opposite, as the Prime Minister and the Minister of Foreign Affairs of our country would like, it would be the end of democracy and the rule of law, principles on which our Constitutional Charter and the Treaty on European Union are founded. Italy and the EU, which have been the main supporters of the International Criminal Court, must be consistent. The Court's Statute was approved and opened for signature on Capitol Hill on July 18, 1998, and is known as the "Rome Statute." Noblesse oblige.

Marco Mascia, President of the Human Rights Center "Antonio Papisca"- University of Padua

Flavio Lotti, President of Fondazione PerugiAssisi per la Cultura della Pace

P.S.1.    The Italian Government, instead of reaffirming its willingness to respect the decisions of the International Criminal Court, had decided to submit the issue to the meeting of G7 Foreign Ministers held in Fiuggi on November 25-26, 2024. The outcome of this clumsy attempt to oppose the G7 to the International Criminal Court was disastrous. To the point that in the final statement of the Summit, the Court's decision was not even mentioned, and our Minister of Foreign Affairs was forced to say "We will respect our obligations."

P.S.2.    On June 15, 1998, on the occasion of the opening of the "Diplomatic Conference on the Establishment of an International Criminal Court" in Rome, the National Coordination of Local Authorities for Peace and Human Rights, together with the Municipality of Rome, the UN Information Office in Italy, and the Human Rights Center of the University of Padua, organized a campaign and a national Demonstration in Rome, on Capitol Hill, for the establishment of the International Criminal Court, that was attended by Municipalities, Provinces, and Regions from all parts of Italy.

November 27, 2024

For communications:

Human Rights Center “Antonio Papisca”
Via Beato Pellegrino, 28 – Padova - Tel 049 827 1811
email centro.dirittiumani@unipd.it - https://unipd-centrodirittiumani.it/

Fondazione PerugiAssisi per la Cultura della Pace
Via della viola 1 (06122) Perugia - Tel. 335.1401733
email adesioni@perlapace.it - www.perlapace.it - www.perugiassisi.org