International Criminal Court's Spokesman for "Al-Estiklal": El-Sisi And Al-Assad Can Be Prosecuted with Condition

On March 4, 2021, the International Criminal Court (ICC) announced opening of an investigation about war crimes in the occupied Palestinian territories, according to the Court's Prosecutor Fatou Bensouda in an official statement.

The statement of the International Court explained that the investigation would cover the crimes, which fall within the jurisdiction of the Court, and which have been committed since June 13, 2014 in the “Gaza War”.

In 2018, Palestine filed a referral request to the International Criminal Court for an Israeli crime file that included 3 cases: “The settlement, the prisoners and the aggression against Gaza, including violations of the “March of Return and Breaking the Border Siege”.

"Al-Estiklal" met with International Criminal Court Spokesman Dr. Fadi Al-Abdullah, to know the reasons for the Court's decision and its implications, and the obstacles that may prevent its work on the ground, especially in light of Tel Aviv's rejection of the decision.

Al-Abdullah also spoke about the Court's determination to open an investigation into U.S. crimes against civilians in Afghanistan, pointing out that Egypt, Syria and Yemen, are countries that are not bound by the Criminal Court, Therefore, no crimes can be investigated on the territory of those countries, only by a decision from the Security Council, and the dialogue dealt with other issues.

 

The Court and Palestinians

• How do you see the statements of the head of the occupation government, Benjamin Netanyahu, in which he attacks the Court and accuses it of siding with the Palestinians, following the Prosecutor's announcement of her readiness to open an investigation about committed war crimes by Israel?

Mr. Al-Abdullah: The International Criminal Court, as known, is a judicial institution, as such it does not comment on the political statements, it does its job as professionally and legally.

 

• What is the Court's position in general against this type of behavior, by some leaders opposed to its decisions, like former U.S. President Donald Trump, who did not stop at attacking the International Criminal Court, but imposing punishments on the Court's prosecutor, Fatou Bensouda?

Mr. Al-Abdullah: The United States of America originally did not join the Rome Statute from the beginning, but at stages of the Court's work, it helped extradite some of the defendants, it also voted in favor of opening an investigation in Libya against the crimes of Saif al-Islam Gaddafi and Mahmoud al-Werfalli, while abstained from voting in Darfur.

The Trump administration has even imposed punishments on the Court's Attorney General, Fatou Bensouda, after announcing the Court's readiness to open an investigation about war crimes against civilians in Afghanistan.

The Court's position is also against imposing these punishments, and calls on President Joe Biden's administration to lift them, there are many countries calling for the lifting of these punishments, the Court thanks them for their support for the Court.

• With regard to the situation in Palestine… What is the Court's position on the Israeli occupation contraventions on the Palestinian people in the 2014 aggression and before? What is the possibility of prosecuting Israel's leaders in the international assemblies?

Mr. Al-Abdullah: Palestine joined the Rome Statute in 2015, and Palestine then applied to investigate a number of incidents against Palestinian civilians by Israel, the Prosecutor decided to open a preliminary investigation, to ask judges about the geographical framework over which the Court exercises jurisdiction in Palestine , the judges therefore responded to the Prosecutor's request, that on the basis of United Nations decisions, Palestine as an observer member of the United Nations has become a member of the Criminal Court, all Palestinian territories occupied since 1967, including East Jerusalem, are subject to the jurisdiction of the Criminal Court.

 

• Palestine has joined the Rome Statute since 2015. Is it easy to prosecute the figures of Israeli governments that committed violations against them in 2008 and beyond? 

Mr. Al-Abdullah: The Prosecutor stated that there was “a reasonable basis” to believe that crimes had been committed by members of the Defense Forces and the Israeli authorities during the Gaza War in 2014, it decided opening an investigation about the crimes committed on Palestinian territory against civilians or by Palestinian citizens.

 

• Does the Court have jurisdiction over personalities with immunities, as heads of state, heads of governments or ministers in the happening at the Court mandate?

Mr. Al-Abdullah: In accordance with the Rome Statute and international law, no one is immune to the International Criminal Court when the terms of its jurisdiction are available, where there are arrest warrants for the convicted persons, even if it comes to heads of state, there is no immunity in the issue of crimes committed.

 

El-Sisi's Crimes

• There are international reports approved by the UN Committee against Torture that have condemned extrajudicial killings, field liquidation and enforced disappearance by the Regime of General Abdel Fattah El-Sisi in Egypt. He has also committed genocide, displacement of Sinai residents and the demolition of entire villages since 2013. Could it be a valid article to prosecute El-Sisi and his men in front of the Criminal Court?

Mr. Al-Abdullah: Countries such as China, Egypt, Syria, Yemen and Iraq have not joined the Rome Statute, none of their Governments has made announcement accepting the Court's jurisdiction, the Security Council has not passed a decision on them to refer any alleged crimes to the International Criminal Court, the Court therefore does not have jurisdiction to investigate in any crimes allegedly committed on the territory of these Countries by its citizens.

 

• But Lawyers for the Egyptian “Freedom and Justice” Party filed a warrant to prosecute at the International Criminal Court against the El-Sisi Regime, regarding what committed against civilians, in dispersing the “Rabaa Al-Adawiya” and “Ennahda” sit-ins using excessive force, his Government's admission that some 900 citizens had been killed in a single day, through official death certificates registered with the Ministry of Health, but their request was rejected by the Court. Why?

Mr. Al-Abdullah: The Court cannot hear the crimes, unless there is prior validity and jurisdiction, or by referring the Security Council to the Court. Also, considering the allegation must be directed by the government of the state concerned, which did not happen in the Egyptian case, so the Court did not consider their request, because any allegations of crimes reaching the Court, we should look. First, Does the Court have jurisdiction to consider it or not?, and in the Egyptian case, it is difficult to begin because there is no jurisdiction over the Court, and no legal adaptation by the Court can be launched to what happened in Egypt.

Displacing Syrians

• How can the head of the Syrian Regime be prosecuted for his crimes of killing about a million citizens, more than 12 million others have been displaced and infrastructure destroyed across the country. Why has he not yet appeared in the Court?

Mr. Al-Abdullah: When there are allegations of serious crimes, the Court's approach is based on its law stems from the Rome statute, in the cases of Syria, Yemen and Egypt, they are non-joined countries, the Court does not have jurisdiction in this case, the only exception is that there is a request for an investigation into what happened from the Security Council, as happened in Libya and Sudan.

 

• A French lawyer filed a Criminal case against the Syrian Regime in March 2017, on behalf of displaced Syrians in Jordan, he submitted a warrant linking the Syrians to Myanmar’s Rohingya minority. What is the fate of that case?

Mr. Al-Abdullah: On the subject of the Rohingya in Burma, the crime of displacement happened on the territory of a Court-bound country, Bangladesh, the prosecutor therefore accepted the case, and the judges of the Court agreed that there was a jurisdiction for it, the conditions are available in the Burma case. But this is not available in Syria, Yemen and Egypt.

There is also research into whether or not there is a crime, on the issue of displaced Syrians in Jordan, because Jordan is a signatory to the Rome Statute, the Court is still looking into it.

 

Libya and Yemen

• What is the Court's position about officer Mahmoud al-Werfalli's practices in Libya against civilians documented by voice and image, and before him the crimes of "Saif Gaddafi's son"?

Mr. Al-Abdullah: Initially, the Prosecutor of the Court regretted the fact that individuals who had been issued arrest warrants, like Saif Gaddafi and Mahmoud al-Werfalli, they are still at large, this remains a major obstacle, preventing the Court from seeking effective justice for the victims of the terrible crimes committed in Libya over the years.

The International Criminal Court decisions are also in effect, confirming the suspicion of “al-Werfalli”, who allegedly executed 43 civilians, as commander of the “Thunderbolt Brigade” on September 21, 2020, and that the EU imposed economic punishments against him.

The Court remains at its decision that they should be extradited, under the Security Council decisions which decisions that imposed on the authorities in Libya the need to cooperate with the International Criminal Community, in particular, Akila Saleh called on in the eastern Libya to take all necessary steps, and intensify efforts to arrest and extradite al-Werfalli.

Similarly, arrest warrants against Saif al-Islam Gaddafi have not been executed, and “Al-Thami Mohammed Khaled”, who is still in Egypt, Bensouda urged all relevant countries, including Egypt to ensure that the wanted fugitives are handed over to the Court without delay.

• The mass graves in Tarhuna, and the mines scattered in civilian homes in Tripoli, by the forces of retired Major General Khalifa Haftar. Do you put him and his forces under the international Criminal law?

Mr. Al-Abdullah: Victims of terrible crimes in Libya must be assured that despite the ceasefire and the signing of an agreement, individuals allegedly responsible for serious crimes within the jurisdiction of the International Criminal Court will be immediately arrested, they extradite themselves into the Court to face accusations of their alleged crimes.

The Court also works with national authorities, with regard to these mass graves, which are reported to have discovered more than 100 bodies, many of them were blindfolded and handcuffed, and this is thanks to the efforts of the Libyan Reconciliation Commission to work to preserve evidence of these crimes.

There is no doubt that the Prosecutor of the Court confirms that the use of mines and improvised explosive devices in the homes, kitchens, bedrooms and roads, as a means of attacking the civilians indiscriminately, it is a crime under the Rome Statute, despite the challenges posed by the Corona pandemic, the Court has sent two crucial investigative missions to Libya, to collect additional evidence to strengthen our issues.

 

• What about the Court's position on what is happening in Yemen? Did any of the warring parties file lawsuits at the Court?

Mr. Al-Abdullah: As we have already confirmed that Yemen is not among the member countries of the Court, the Court therefore has no jurisdiction over what is happening on its territory, except under the mandate of the Security Council, this did not happen as in the Egyptian and Syrian situation.

The Terms of Competence

• Is the International Criminal Court allowed to initiate cases and crimes that occurred before the date of its establishment?

Mr. Al-Abdullah: The International Criminal Court was established by an international agreement called the “Rome Statute”, it came into force in early July 2002, the Court may not prosecute any crime prior to this date, or an offence prior to the date the Statute came into force, for countries that join it after 2002, the existence of the Court has been a dream since the beginning of the twentieth century, after the end of the Cold War, the world was able to meet and decide to establish a permanent Criminal Court.

The International Criminal Court is an independent and permanent Court, which does its completely legal function in accordance with the Rome Statute, which has so far been ratified by 123 countries, unlike other Courts, the priority of prosecution is not up to the Criminal Court, it is “a Court of the last resort”, in accordance with the principle of integration it cannot investigate, unless the national judiciary is unable or unwilling to conduct serious prosecutions.

 

• But more than 70 countries are not signatories to the Rome Statute. How does the Court have the power when crimes happen in those countries?

Mr. Al-Abdullah: The Court was established by an international agreement, and we absolutely respect the choices of all countries. We seek to demonstrate the professionalism and seriousness of the Court to convince all countries of the usefulness of joining the Court, but in the end, this is a decision to choose each country and its elites.

The Rome Statute allows the Court to prosecute the war crimes, crimes against the humanity, genocide and the aggression, if these crimes are committed on the territory of a country bound by the Rome Statute or accepted by this Statute, or committed by citizens of this country, the only exception to this requirement is when the Security Council refers the situation to the Court by a bound decision in accordance with the Chapter VII, as it happened regarding Darfur in Sudan and Libya.

 

• What is the nature of the Court's work, the nature of its relations with international Courts and when it intervenes. What is the difference between it and the Courts of Nuremberg and Tokyo?

Mr. Al-Abdullah: The difference is that the Tokyo Courts created them victorious to pursue defeated, while this Court was established to be permanent, and voluntarily joined by 123 countries, it precedes the conflict, and even it deters basically and can intervene with complete impartiality, it is independent of the Courts related to the former Yugoslavia and Rwanda, even it benefits from the legal progress which made through these Courts.

 

• Some say that the Court is subject to international political pressures and interests ultimately, so what is your response?

Mr. Al-Abdullah: The Court is subject to the Rome Statute and the conditions set out in it, namely the terms of competence, and it's no different from now, and the decisions that are made are reasoned, can be found, and follow-up of the Court proceedings that operate legally and professionally.

 

• If a person or his family has been assaulted, can he file a lawsuit at the Criminal Court?

Mr. Al-Abdullah: Finally, any person or organization with information that may benefit the Prosecutor can be sent to the Public Prosecutor's Office, which is studying and deciding whether or not there is a possibility of initiating an investigation, based on the evidence and the applicable law.

The Court also opens an investigation only at the request of the Security Council, in the interest of justice or the interest of the victims, it is opened at the request of a member country or the Security Council, or at the request of Prosecutor Bensouda, after permission from the judges of the Court.