ICC Assembly of States Parties (ASP)

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Policy brief 

29 November 2023 

States Parties to the Rome Statute must take action at the upcoming International Criminal Court Assembly of States Parties (ASP) in New York to end double standards, stop Israel’s ongoing genocide in Gaza, and bring justice to Palestinians. 

“Justice too long delayed is justice denied.” 

Rev. Martin Luther King, Jr.

The ICC Assembly of States Parties meets this year in the context of what 36 UN experts have described as Israel’s “genocide in the making” against 2.3 million Palestinians in the occupied and besieged Gaza Strip. The leading international law scholar on the crime of genocide, William Schabas, has stated in a legal opinion that indeed there is a serious risk that Israel is committing the crime of genocide in Gaza. Prominent genocide and Holocaust studies scholar Omer Bartov as well as over 880 international scholars, the US-based Center for Constitutional Rights, and Palestinian human rights organizations have also warned of an unfolding genocide. Prominent Israeli genocide scholar Raz Segal and ex-Director of the Office of the High Commissioner for Human Rights in New York, Craig Mokhiber, have called it a “text-book case of genocide.”

The International Criminal Court (ICC) founding prosecutor, Luis Moreno Ocampo, has warned that Israel’s ongoing blockade of Palestinians in Gaza is “extermination” and could amount to genocide, urging to stop the ongoing crime even before investigating crimes that have been committed. 

Several States Parties to the Rome Statute that have condemned Israel’s war on Palestinians in Gaza as genocide include Brazil, South Africa, Colombia, Jordan, among others. Other States Parties have endorsed statements addressing Israel’s unfolding genocide in Gaza issued by regional and international bodies including the Organization of Islamic Cooperation, African Union, and the Arab League

Five States Parties, including South Africa, Bangladesh, Bolivia, Comoros, and Djibouti, have referred the Situation in the State of Palestine to the ICC Prosecutor, citing, among other crimes, genocide and apartheid. This followed a submission by Palestinian human rights organizations to the Prosecutor calling on his office to issue arrest warrants against Israeli leaders. European states including Liechtenstein and Switzerland made statements referring to the role of the ICC.  

On November 6th, the United Nations Secretary General (UNSG) said that Gaza is not only a humanitarian crisis but “a crisis of humanity” and is becoming “a graveyard for children,” as Israel has killed one Palestinian child every ten minutes on average there. Israel has also killed more journalists in Gaza over a four-week period than in any conflict anywhere in the world in at least three decades. It has killed more UN workers than in any other armed conflict since the establishment of the UN. Israel’s war crimes and crimes against humanity have over many weeks included indiscriminate bombing, ethnic cleansing, denial of humanitarian aid, and the illegal, deliberate use of explosive weapons and white phosphorus against civilians, cutting off water, food, medicine and fuel, and employing “starvation as a weapon of war.” 

Yet, despite all such warnings and documentation of live-streamed war crimes and crimes against humanity as defined in the Rome Statute, the ICC Prosecutor, Karim Khan, is yet to take any meaningful action to stop the ongoing crimes, deter further crimes, or prosecute crimes that have been already perpetrated. The Prosecutor’s failure to fulfill his obligations underlines what the majority of states, particularly in the Global South, see as an irrefutable double standard, particularly when compared to the Prosecutor’s speedy action in the case of Ukraine, where it served Western interests. Palestinian human rights organizations have been calling on the prosecutor to apply the law without favor, while the largest coalition in Palestinian society has called out the Prosecutor's inaction towards the carnage in Gaza as complicity that is enabling genocide. 

The ICC’s ongoing failure to stop or deter Israel’s unfolding genocide and war crimes in Gaza, and to a lesser extent in the occupied West Bank including East Jerusalem, is the epitome of not just the ICC’s failure of Palestinian victims but also its double standards with regards to justice for the Global South more generally. The situation in Palestine was brought to the court in 2009 and then more rigorously raised since 2014 when the State of Palestine joined the Rome Statute. After 8 years under “preliminary” examination, an investigation was opened formally in 2022, but meaningful action is yet to be seen. Much of humanity today views the ICC as dominated by hegemonic Western states that are currently arming and otherwise enabling Israel’s genocidal war on Gaza including by shielding it from accountability. 

The ICC’s long term failure towards the situation in Palestine, and especially at a time of unfolding genocide, is a crisis of justice that further entrenches the growing divide between the West and the Global South, serving a detrimental blow to the legitimacy and credibility of not only the ICC but the entire system of international law in place since the end of WWII. As South African jurist John Dugard has once said, Palestine is the litmus test for human rights globally; indeed this test looms large in front of the ASP this year. 

At the Assembly of States Parties this year member states face a serious challenge with regards to Israel’s unfolding genocide in Gaza that can result in the collapse of the legitimacy of the ICC with wide ranging impact worldwide. Therefore, during the general debate, Palestinian civil society calls on states to:

1- Name and condemn Israel’s unfolding genocide in Gaza and other crimes under the Rome Statute against the Palestinian people more generally, including the crime against humanity of apartheid.

2- Make a clear and definitive demand on the ICC Prosecutor to issue arrest warrants against Israeli leaders responsible for crimes under the Rome Statute, or otherwise move to replace the prosecutor with one that can carry out the mandate without favor or double standards.