A ceasefire has been agreed upon between Hamas and Israel, bringing the war in Gaza to an end. Whether the sanctity of this ceasefire agreement will be maintained and respected by Israel is something the entire international community awaits with concern. At this juncture, discussions surrounding liability for the atrocities committed during the war have come to the forefront. The situation in Palestine is already under consideration by the International Criminal Court (ICC), the permanent international tribunal mandated to prosecute international crimes – genocide, war crimes, crimes against humanity, and the crime of aggression. Palestine is a member state of the Court, and arrest warrants have been issued against both Hamas and Israeli leaders.
Since the inception of the ICC, the Muslim world has viewed the institution of international criminal justice with skepticism. Although a majority of Muslim nations actively participated in the Rome negotiations that established the ICC, only a few ultimately ratified the Rome Statute (the ICC Statute). Islamic countries expressed reservations about the conception of international criminal justice and its principles, which were largely Eurocentric and rooted in Western legal traditions. The ICC’s jurisprudence has also rarely transcended the boundaries of common law and civil law traditions to accommodate principles and values from other legal systems, including Islamic law. Islamic principles governing the conduct of war are often regarded as analogous to the principles of modern international humanitarian law. These principles equally prohibit grave atrocities such as genocide and crimes against humanity. Victims’ reparation and reconciliation, features also present in the international criminal justice system, are central to Islamic criminal jurisprudence as well. Nevertheless, Islamic law and its principles have largely been disregarded by international criminal tribunals, including the ICC. On several occasions, the ICC’s decisions have appeared prejudiced against Islam. This persistent apathy toward Islamic legal thought and Muslim-majority countries has led to widespread criticism and distrust within the Muslim world, raising serious concerns about the ICC’s legitimacy.
The Palestinian issue has long been a central concern for Muslim nations. How sincerely each nation has acted toward the Palestinian cause is, however, a different question altogether. Nonetheless, the liberation of Palestine and the question of Palestinian statehood remain core issues for the Islamic world. When the Organisation of Islamic Cooperation (OIC) was formed, its Charter identified Jeddah as its temporary headquarters and stated that the permanent headquarters would be located in the city of Al-Quds once it was liberated. One of the principal objectives of the Organisation is to support and empower the Palestinian people to exercise their right to self-determination and to establish a sovereign State with Al-Quds Al-Sharif as its capital. The extent to which this objective has been effectively pursued is open to debate.
Now, following the ceasefire agreement, Gaza needs the support of the world more than ever. The perpetrators of the heinous atrocities committed in Gaza must be brought to justice. A just and fair trial must be conducted to hold the war criminals accountable for their violations and to ensure justice for the people of Gaza. Whether the ICC is the appropriate forum for such prosecution is a matter requiring careful deliberation. Considering the ICC’s previous engagements with Islamic countries and situations concerning Muslim populations, it is essential to examine whether an ICC-led prosecution would be perceived as legitimate. The ICC primarily functions on the principle of complementarity, wherein its jurisdiction is complementary to national jurisdictions. The Court may intervene only if the national courts are unable or unwilling to prosecute. Therefore, a domestic prosecution remains a plausible option in the case of Gaza. But where should such a trial take place?
If the model set by Nuremberg is to be followed, then, ideally, the trial of Israeli war criminals should be held in an independent Palestinian State. A special tribunal for Gaza, possessing a cosmopolitan character, could be one effective means of ensuring true justice for the people of Gaza. There already exist several models of hybrid and mixed tribunals guided by international norms yet adapted to national contexts. International criminal justice that disregards Islam, its history, principles, and the cultural and religious values intrinsic to Palestinians would lack legitimacy in the Muslim world. Nevertheless, it is unlikely that the international community would agree to such a tribunal. If the ICC is to undertake the prosecutions of crimes committed in Gaza, it is imperative that the Court takes into account Islamic principles and values that are deeply rooted in Palestinian society. Global justice detached from local realities cannot be considered true justice.