Abortion Access in the U.S. and South Africa: A Comparative Analysis

By: Danielle Spitz

Edited By: Hannah Cheves and Tess Ballis

         In the U.S., the Due Process Clause of the Fourteenth Amendment constitutionally prohibits states from depriving “any person of life, liberty, or property, without due process of law” in the U.S.[1] The Court turned to this amendment in its decision on Roe v. Wade to decide that the right to privacy is “founded in the Fourteenth Amendment’s concept of personal liberty” and “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[2] As a result, Roe v. Wade set the precedent that the U.S. Constitution protects a woman’s right to choose to have an abortion. This right to privacy and its relation to abortion rights, however, is not absolute.

         The Court decided that while “the right to personal privacy includes the abortion decision,” this right is also “not unqualified and must be considered against important state interests in regulation.”[3] According to the Court, the state’s interests in matters of abortion concern the health and safety of the woman receiving an abortion. To address this issue, the Court also ruled that the “‘compelling’ point, in light of present medical knowledge, is at approximately the end of the first trimester.”[4] After this point in the pregnancy, the Court wrote, “a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.”[5] Although the Court in 1973 set a concrete timeline for when a woman’s abortion becomes compelling enough for state intervention, it was much less clear on other key points regarding the issue of abortion.

         The Court in Roe did not attempt to settle the dispute over when life begins, welcoming ensuing litigation that would challenge the limits of the right to privacy. A central anti-abortion argument is that life begins at conception, meaning the health and safety of a fetus is just as compelling to warrant state intrusion as that of the woman receiving an abortion.[6] Believing that life begins at conception also introduces the argument that the fetus’ fundamental right to life is protected by the Due Process Clause.[7] Following Roe, states concerned with protecting the life of the unborn sought to restrict abortion access through different provisions including mandatory waiting periods, parental consent, and spousal notice.[8] These regulations tested the balance between a woman’s right to privacy to choose whether or not to have an abortion and the unqualified nature of that right.

         The 1992 case Planned Parenthood v. Casey attempted to reconcile this balance by introducing the undue burden standard. Although the Court upheld the 1973 decision that the right to privacy encompasses the right to choose to have an abortion, it also amended the reasoning used to substantiate this decision. In the 1992 opinion written by Justices O’Connor, Kennedy, and Souter, the Court rejected “the trimester framework” adopted in Roe “as a rigid prohibition on all previability regulation aimed at the protection of fetal life.”[9] Arguing that the trimester framework “undervalues the State’s interest in potential life,”[10] a broader standard of fetal viability was adopted. Having recognized the state’s interest in potential life and the regulations that states imposed to protect it, the Court also wrote that “only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”[11] Although this undue burden standard protected a woman’s right to privacy to a certain extent, it also further legitimized the anti-abortion argument that the fetus’ fundamental right to life must be recognized in addition to a woman’s fundamental right to privacy. As a result, 31 states currently have some laws restricting access to abortion, the severity of which varies by state.[12]      

         Unlike the U.S. Constitution, the South Africa Constitution explicitly guarantees the right to privacy.[13] Due to other rights listed in the South Africa Bill of Rights, however, the right to privacy is not considered the most relevant fundamental right when it comes to the legality of abortions in the country. The right to privacy, as provided by the South Africa Constitution, protects against unsolicited home searches and seizures of individuals’ possessions.[14] This differs from the U.S. right to privacy determined in Roe, which protects against government intervention in personal and intimate decision-making, such as choosing whether or not to have an abortion.

         Just as the South Africa Constitution explicitly provides the right to privacy, it also explicitly addresses matters of reproduction. The Constitution guarantees the right to freedom and security of the person. Specifically, “everyone has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction” and to “security in and control over their body.”[15] Furthermore, “everyone has the right to have access to health care services, including reproductive health care.”[16] Other constitutional rights relevant to abortion access include the right to human dignity[17] and the right to life.[18] The right to equality is also significant, as it protects against discrimination on the grounds of gender, sex, pregnancy, and marital status among other identity markers.[19]

         Seven months after South Africa transitioned from an apartheid government and adopted its new constitution in 1996, the federal government also passed the Choice on Termination of Pregnancy Act. The Act repealed the provisions of the Abortion and Sterilization Act of 1975, which restricted access to legal abortions only when a pregnancy could threaten a woman’s life, could cause harm to the child, or was the result of rape or incest.[20] The law also required approval from two physicians and for the procedure to be performed by a third physician.[21] This 1975 law was an attempt from the apartheid government to “reconcile concerns about high levels of illegal and unsafe abortion” with the government’s interest “in preferentially increasing birth rates among white women while lowering them among black women.”[22] Alternatively, the 1996 Act sought to establish more equitable abortion laws for all South African women by establishing abortion as a “legally codified and constitutionally underpinned right.”[23] The right to choose, therefore, is one afforded by the South Africa Constitution, which helped enable the passage of the 1996 Act.

         The preamble of the 1996 Act alludes directly to rights provided by the Constitution that made the passage of the Act possible, demonstrating the Constitution’s role in resolving the controversial question of the legality of abortions. The Act opens with recognizing that the “Constitution protects the right of persons to make decisions concerning reproduction and to security in and control over their bodies.”[24] The preamble also addresses the constitutional right to have access to health care, which includes reproductive health care and “safe conditions under which the right of choice can be exercised without fear or harm.”[25] These rights, according to the language of the Act, are essential to a democracy that values human dignity and equality.[26] However, these rights are also qualified under South African law just as the right to privacy is not absolute in the U.S.

         Similar to the rule of viability adopted in Planned Parenthood v. Casey, the 1996 Act includes certain regulations on the timing of legal abortions. A woman may receive an abortion in South Africa upon request during the first 13 weeks of her pregnancy. Abortions between weeks 13 and 20 of the pregnancy are then available, with a physician’s approval, if the pregnancy jeopardizes the health of the woman or fetus, was a result of rape or incest, or could compromise the woman’s social or economic status.[27] The 1996 Act and its included qualifications have welcomed certain challenges to the legality of abortions.

         The 1998 case Christian Lawyers’ Association v. Minister of Health brought to the Transvaal Provincial Division of the High Court of South Africa was the primary constitutional challenge to the 1996 law. The plaintiff argued that the Choice on Termination of Pregnancy Act violated the constitutional right to life of the fetus. The Court dismissed the case, deciding that constitutional rights do not apply to the unborn.[28] Furthermore, the Court ruled that a woman’s right to have an abortion is protected by several constitutional provisions, including the right to life.[29] Although the plaintiff’s case crumbled when matched with the Constitution’s explicit provisions protecting matters or reproduction, several issues still exist regarding the implementation of the 1996 Act.

         Despite the codified legality of abortion in South Africa, access to abortion is not always guaranteed for South African women. Past week 13 of pregnancy, “the country reports a widespread obstruction to access posed by the abuse of the so called right to ‘conscientious objection.’”[30] Although the Act includes a provision that makes it a crime for anyone to prevent a legal abortion or obstruct access to an abortion facility,[31] a number of practitioners still refuse to perform the procedure on the grounds of conflicting moral or religious beliefs and exercise their right to conscientious objection.[32] Research indicates that as a result of the practitioners’ abuse of conscientious objection, up to 50% of abortions in South Africa take place outside of designated health facilities.[33] Grave inconsistencies exist, therefore, between the promises made in the Choice on Termination of Pregnancy Act and the promises abandoned in the Act’s implementation.

         As evidenced by the countries’ differing constitutions, the U.S. and South Africa rely on different rights to address the issue of the legality of abortion. Whereas the South Africa Constitution includes specific and explicit provisions protecting a woman’s reproductive choices, the U.S. right to privacy is much more abstract. South African courts have addressed this difference directly, most notably in the Christian Lawyers’ Association’s second attempt to challenge the Choice on Termination of Pregnancy Act in 2004. In the High Court’s decision, which again dismissed the plaintiff’s case, Justice Mojapelo wrote it was “not necessary to resort to those general guarantees” of privacy provided by the U.S. Supreme Court because the South Africa Constitution “specifically guarantees the woman’s right ‘to bodily and psychological integrity.’”[34] These specific guarantees also made it possible for South Africa to enact federal legislation that does not exist in the U.S.

         Due to the passage of the Choice on Termination of Pregnancy Act, the legality of abortions is regulated on the federal level in South Africa. By contrast, the issue is regulated on the state level in the U.S. Localized regulations compounded with the undue burden standard established by Planned Parenthood v. Casey have paved the way for states to adopt restrictions such as 20 week abortion bans, mandatory waiting periods, and parental consent, all of which can severely restrict a woman’s access to abortion services.[35] Although federal legislation in South Africa has established a uniform policy throughout the nation, practitioners' refusals to perform abortions have created a distinct gap between the 1996 Act’s alleged guarantees and its real impact on women’s access to abortion. Therefore, despite differences between the two countries’ constitutions and legislative acts, similarities exist in their executions.

         The problems resulting from the enforcement of abortion laws in both countries are strikingly similar. Both the restrictions included in the Choice on Termination of Pregnancy Act and certain state restrictions in the U.S. can make it very difficult for a woman to receive an abortion. Moreover, the restrictions in both countries disproportionately affect women in poverty. This is most evident in the far distances that poor women must travel to receive a legal abortion. Research conducted by The Washington Post shows that women below the poverty line account for about half of the abortions in the U.S., and yet they are more likely than other women to have to drive more than one hour to reach the nearest abortion provider.[36] Additionally, these women who have to travel greater distances “are also subject to state laws that require at least two days to get a procedure,”[37] meaning two trips, and all of the costs required for two trips, are often necessary. Similarly in South Africa, the refusal of practitioners and facilities to provide abortion services on the grounds of conscientious objection disproportionately affects poor women who cannot afford to travel long distances to receive an abortion.[38] Research from the South Africa Department of Health found that only 264 of the 505 health facilities designated to provide abortion services actually provide first and second semester abortions.[39] Therefore, differences in codified law between the two nations appear to have little impact on the actual implementation of abortion laws, as both nations face very similar issues regarding access to abortion services.

         Unequal access to abortion services in South Africa sheds light on the significance of a law’s enforcement and not just the content of the law itself. Upon first glance, abortion access in South Africa does not appear to be a controversial issue due to explicit constitutional provisions protecting reproductive decision-making and a federal legislative act that legalizes abortion services. However, in practice and due to faults in the law’s implementation, promises of equal access to abortion have not been fully realized throughout South Africa. There are plenty of lessons to be learned for the implementation of similar laws in the U.S. First and foremost, a constitutional amendment explicitly guaranteeing a woman’s right to choose to have an abortion would be necessary to enable federal legislation. Furthermore, as demonstrated by the uneven enforcement of federal legislation in South Africa, a comprehensive education both for women to understand their rights and for health care workers to acknowledge those rights is crucial. To ensure accessibility for all, regardless of socioeconomic status, a government body to monitor the implementation of a federal legislative act could also see to it that abortion facilities and services were widespread and equitable. The issue of abortion access in South Africa, therefore, is a necessary reminder that a law is only as powerful as its enforcement.

notes:

1. US Constitution, Amendment XIV.

2. Roe v. Wade 410 US 113 (1973).

3. Roe v. Wade 410 US 113 (1973).

4. Roe v. Wade 410 US 113 (1973).

5. Roe v. Wade 410 US 113 (1973).

6. Molly Jong-Fast, “Life Begins at Conception (Except When That’s Inconvenient for Republicans),” New York Times, June 8, 2019,  https://www.nytimes.com/2019/06/08/opinion/sunday/abortion-life-conception.html.

7. BBC Ethics Guide, 2014: http://www.bbc.co.uk/ethics/abortion/legal/usa.shtml.

8. Planned Parenthood of Southeastern Pennsylvania v. Casey. (n.d.). Oyez. Retrieved November 24, 2020, from https://www.oyez.org/cases/1991/91-744.

9. Planned Parenthood v. Casey 505 U.S. 833 (1992).

10. Planned Parenthood v. Casey 505 U.S. 833 (1992).

11. Planned Parenthood v. Casey 505 U.S. 833 (1992).

12. Planned Parenthood Action Fund, “Is Abortion Legal in My State”: https://www.plannedparenthoodaction.org/abortion-access-tool/US.

13. South Africa Constitution, Section 14.

14. South Africa Constitution, Section 14.

15. South Africa Constitution, Section 12(2).

16. South Africa Constitution, Section 27(1a).

17. South Africa Constitution, Section 10.

18. South Africa Constitution, Section 11.

19. South Africa Constitution, Section 9 .

20. Sally Guttmacher, Farzana Kapadia, Jim Te Water Naude and Helen de Pinho, “Abortion Reform in South Africa: A Case Study in the 1996 Choice on Termination of Pregnancy Act,” Guttmacher Institute 24, issue 4, Dec. 2, 1998, https://www.guttmacher.org/journals/ipsrh/1998/12/abortion-reform-south-africa-case-study-1996-choice-termination-pregnancy-act#:~:text=Under%20the%201975%20Abortion%20and,other%20unlawful%20intercourse%2C%20such%20as.

21. Mary Favier, Jamie Greenberg, and Marion Stevens, “Safe abortion in South Africa: ‘We have wonderful laws but we don’t have people to implement those laws,’” International Journal of Gynecology & Obstetrics 143, issue S4, Oct. 30, 2018, https://obgyn.onlinelibrary.wiley.com/doi/full/10.1002/ijgo.12676.

22. Favier, Greenberg, and Stevens, “Safe abortion in South Africa.”

23. Favier, Greenberg, and Stevens, “Safe abortion in South Africa.” .

24. Choice on Termination of Pregnancy Act, 1996.

25. Choice on Termination of Pregnancy Act, 1996.

26. Choice on Termination of Pregnancy Act, 1996.

27. Choice on Termination of Pregnancy Act, 1996.

28. Christian Lawyers’ Association v. Minister of Health 11 SA 1434 (1998).

29. Christian Lawyers’ Association v. Minister of Health 11 SA 1434 (1998).

30. Satang Nabaneh Marion Stevens and Lucia Berro Pizzarossa, “Let’s call ‘conscientious objection’ by its name: Obstruction of access to care and abortion in South Africa,” Oxford Human Rights Hub, Oct. 24, 2018, http://ohrh.law.ox.ac.uk/lets-call-conscientious-objection-by-its-name-obstruction-of-access-to-care-and-abortion-in-south-africa/.

31. Choice on Termination of Pregnancy Act, 1996.

32. Stevens and Pizzarossa, “Conscientious objection.”

33. Stevens and Pizzarossa, “Conscientious objection.”

34. Christian Lawyers’ Association v. Minister of Health 10 SA 7728 (2004).

35. Planned Parenthood Action Fund, “Is Abortion Legal in My State.”

36. Dan Keating, Tim Meko, and Danielle Rindler, “Abortion access is more difficult for women in poverty,” Washington Post, July 10, 2019, https://www.washingtonpost.com/national/2019/07/10/abortion-access-is-more-difficult-women-poverty/?arc404=true.

37. Keating, Meko, and Rindler, “Abortion access.”

38. Sally Guttmacher, Farzana Kapadia, Jim Te Water Naude and Helen de Pinho, “Abortion reform.”

39. Stevens and Pizzarossa, “Conscientious objection.”.

Bibliography

BBC Ethics Guide (2014): Laws restricting abortion. http://www.bbc.co.uk/ethics/abortion/legal/usa.shtml.

Christian Lawyers’ Association v. Minister of Health 11 SA 1434 (1998).

Favier, M., Greenberg, J. and Stevens, M. “Safe abortion in South Africa: ‘We have wonderful laws but we don’t have people to implement those laws.’” International Journal of Gynecology & Obstetrics 143, issue S4 (Oct. 30, 2018): 38-44. https://obgyn.onlinelibrary.wiley.com/doi/full/10.1002/ijgo.12676.

Guttmacher, S., Kapadia, F., Te Water Naude, J. and de Pinho, H. “Abortion Reform in South Africa: A Case Study in the 1996 Choice on Termination of Pregnancy Act.”
Guttmacher Institute 24, issue 4 (Dec. 2, 1998): 191.  https://www.guttmacher.org/journals/ipsrh/1998/12/abortion-reform-south-africa-case-study-1996-choice-termination-pregnancy-act#:~:text=Under%20the%201975%20Abortion%20and,other%20unlawful%20intercourse%2C%20such%20as.

 Jong-Fast, M. “Life Begins at Conception (Except When That’s Inconvenient for Republicans).” New York Times, June 8, 2019.  https://www.nytimes.com/2019/06/08/opinion/sunday/abortion-life-conception.html.

Keating, D., Meko, T. and Rindler, D. “Abortion access is more difficult for women in poverty.” Washington Post, July 10, 2019. https://www.washingtonpost.com/national/2019/07/10/abortion-access-is-more-difficult-women-poverty/?arc404=true.  

Nabaneh, S., Stevens, M. and Berro Pizzarossa, L. “Let’s call ‘conscientious objection’ by its name: Obstruction of access to care and abortion in South Africa.” Oxford Human Rights Hub, Oct. 24, 2018. http://ohrh.law.ox.ac.uk/lets-call-conscientious-objection-by-its-name-obstruction-of-access-to-care-and-abortion-in-south-africa/.

Planned Parenthood Action Fund (2020): Is Abortion Legal in My State. https://www.plannedparenthoodaction.org/abortion-access-tool/US.

Planned Parenthood of Southeastern Pennsylvania v. Casey. (n.d.). Oyez. Retrieved November 24, 2020, from https://www.oyez.org/cases/1991/91-744.

Planned Parenthood v. Casey 505 U.S. 833 (1992)

Ravitz, J. “The surprising history of abortion in the United States.” CNN, June 27, 2016. https://www.cnn.com/2016/06/23/health/abortion-history-in-united-states/index.html.

Roe v. Wade 410 US 113 (973).

South Africa Constitution.

South Africa Choice on Termination of Pregnancy Act, 1996.

US Constitution, Amendment XIV.

A Denial of Justice

By: Ashley Ravid

Edited By: Tess Ballis and Claire Lu

Diplomatic immunity can be a force for good, but it can also be used to subvert justice. A plethora of crimes committed by diplomats—ranging from parking tickets and speeding to sexual assault, pedophilia, and even murder—are swept under the rug by their home countries. Diplomats are almost always unable to be prosecuted thanks to international protections guaranteed by the Vienna Convention on Diplomatic Relations (1961).[1][2] There is often nothing that can be done to bring these subject diplomats to due process of the law unless the home country of a diplomat agrees to revoke diplomatic immunity or the accused surrenders to the jurisdiction of the court. However, in cases where an envoy commits a crime unrelated to their official role, their home nation should revoke diplomatic immunity to maintain democracy and fairness; one’s job should never be a shield against justice.

This abuse of power is sometimes detrimental to international relations. One example of this abuse was when a Malaysian diplomat in New Zealand robbed and assaulted a young woman. After widespread outcry in New Zealand followed the ambassador’s return to his home country, the Malaysian government offered to try him there or waive his diplomatic immunity. He eventually was sentenced and sent to prison in New Zealand, though mild tension between the two governments over his extradition underscored this process.[3][4] Diplomatic immunity can also inflame already-strained relationships between nations, such as when a Russian diplomat and his wife were arrested in the Netherlands for drunk driving and child abuse.[5] The action was partly seen as retaliation to the detainment of Greenpeace activists sailing under a Dutch flag arrested in Russia. Russian authorities alleged that the Netherlands had violated the diplomat’s immunity, further exacerbating the tension between the two nations.[6] 

Diplomats often act as proxy pieces of the nations they represent, and the power differential between nations is an essential piece of the discussion as to when and why diplomatic immunity is sometimes revoked. A case study of vehicular manslaughter incidents involving diplomats either in or from the United States bares the problem of diplomatic immunity essentially begetting government-sanctioned crime. A consulate employee paralyzed a young Russian man in a car accident.[7] A popular Romanian musician was struck and killed by a car.[8] A different driver killed one and injured eight in a crash in Kenya.[9] What do these incidents have in common? All three responsible parties were American envoys who Asclaimed diplomatic immunity and were quickly sheltered from facing charges thanks to protection by the U.S.. The victims of these crimes were left without sufficient restitution, and a lingering resentment against the country they felt denied it to them: the U.S.. Aleksandr Kashin, the young Russian national paralyzed by American Consul General Douglas Kent, described his experience attempting to secure justice for himself: “The United States government treated me not like a human, but like a dog they hit on the street, and they don't have to take care of as anything."[10] The widow of the Kenyan man killed in another crash involving a State Department official faced similar difficulty in receiving restitution for the death of her husband who was the sole provider for the family of six. According to reports, U.S. officials were concerned about the possible impact that the incident would have on relations with Kenya. The official was quickly evacuated from the country out of fear of retaliation, leaving no financial assistance for the victims or their families.[9] In contrast, heavy controversy over diplomatic immunity followed the 1997 death of an American teenager when he was hit by drunk driver Gueorgui Makharadze. Makharadze, an official of the Republic of Georgia, had a history of driving offenses but was released after claiming diplomatic immunity. Georgia—to the praise of U.S. officials—eventually waived this protection, and Makharadze was sentenced to prison in the United States.[11]

The disparity in these cases suggests that those diplomatic officials who come from countries with hegemonic political power need not fear that their diplomatic immunity will be waived. In 2014, the case of an Indian consular official accused of breaking the law in the United States became controversial when the U.S. detained the employee under fraud charges. Officials in India retaliated by removing safety barriers around the U.S. embassy and closing a local club for expats. The issue was only resolved when the U.S. agreed to allow the official to claim diplomatic immunity and return home.[12] Cases like this seem to undermine the principle of diplomatic immunity entirely; why was India different from Georgia? Why in one case was an official returned to U.S. custody, and in the other sent home with an apology? Perhaps it is because India has a population of over 1 billion people; perhaps it is because they are in possession of nuclear warheads. Either way, it seems clear that the system of diplomatic immunity is tied to the preservation of certain international relationships rather than a commitment to justice and the prevention of retaliation. 

Who can afford to anger whom and get away with it? In 2014, a Venezuelan diplomat arrested in Aruba after the United States called for his detainment was released after Venezuela threatened to suspend commercial travel to Aruba, which would decimate the small island’s economy. This incident, however, is not representative of the typical outcome when the United States goes up against other nations in matters of waiving diplomatic immunity to smooth relations; usually it’s the U.S. coming out victorious in these situations.[7][8] It is difficult to ascertain exactly how many diplomats get away with their crimes versus being prosecuted for them. The mere existence of this discrepancy, however, illustrates the necessity of a global reconsideration as to what or who, exactly, diplomatic immunity is protecting. The United States’ position as a world power allows it to protect diplomats without considering the threat of sanctions or strained relations the way that smaller nations must. These abuses of power can harm international relations, but they are also worthy of re-examination simply because they are a perversion of the foundational principles of justice that the Constitution supposedly guarantees. 

An ongoing controversy surrounds diplomatic immunity in the UK and highlights the need for the US to examine its use of the privilege: the death of Harry Dunn, a young British motorcyclist killed by American Anne Sacoolas in a 2019 car accident. Sacoolas, the wife of a CIA operative, admitted to driving on the wrong side of the road.[13] After the accident which killed Dunn, she claimed diplomatic immunity and fled back to the United States, which refused to extradite her to face sentencing in England; this was referred to by the British government as “a denial of justice.”[14] Complications in the case arose when Sacoolas herself was revealed to be employed by an American intelligence agency, which complicated (and possibly nullified) the legality of her claiming spousal diplomatic immunity in the first place; this revelation has not changed the United States’ steadfast refusal to extradite Sacoolas.[15] The case generated immediate buzz and eventually led to the reworking of diplomatic immunity laws between the U.S. and England in order to exclude protection for diplomats’ families, though both Dunn’s family and supporters continue to fight to bring justice for Harry.[16] Most recently, the Dunns have begun civil proceedings against Sacoolas in her home state of Virginia; the fact that they have had to literally cross an ocean in order to seek restitution against their son’s killer, however, points to the essential problem with diplomatic immunity.[17] 

This is not to say that diplomatic immunity as a whole should be revoked for all envoys; it was established in order to protect individuals who would otherwise be the target of many forces involved in the push-and-pull of international politics. Trying to rework the legislation that grants these protections in the first place would likely lead to innumerable complications and unfortunate precedents; this means that the best solution to the abuse of diplomatic immunity is for envoys’ home countries to waive this protection and allow them to face justice. The practice of nations regularly waiving diplomatic immunity for crimes unrelated to their envoys’ direct duties (as in the aforementioned case of the Malaysian diplomat in New Zealand) must become both normalized and regular, regardless of where the crime was committed and who the victim was. If such a thing were considered standard procedure and countries regularly extradited their own diplomats for such crimes, perhaps diplomatic immunity could be unlinked from both controversy and international hegemony.

 It isn’t enough for the United States to simply close the loophole of spousal diplomatic immunity that led to Sacoolas being able to flee her crime in the first place.[18] A guidance brief on diplomatic immunity provided by the State Department itself states the point perfectly: “Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions. The purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments.”[19] If the United States wishes to maintain its position as a nation that stands for justice for all, Anne Sacoolas should be extradited to the United Kingdom to be prosecuted for the death of Harry Dunn. Her being married to an intelligence agent, or even working as an informant herself, has no relation to the fact that she hit and killed a 19-year-old with her car. Harry Dunn, like many other victims of diplomatic envoys, deserves justice. 

Dunn, like many others, is a victim of a system which is set up with the best of intentions and which cannot be easily dismantled without inviting further complication. The need for the diplomatic immunity system has not abated, yet the plethora of controversies and crimes it has caused raises the need for greater accountability by diplomats’ home countries. Because diplomatic immunity as a whole must be preserved, the international community must call on lawbreaking diplomats’ home countries—regardless of how powerful they are—to subject these individuals to due process for their crimes. 

Notes:

1. “Diplomatic Immunity.” Encyclopædia Britannica. Encyclopædia Britannica, inc. Accessed March 9, 2021. https://www.britannica.com/topic/diplomatic-immunity. 

2. “Sudan Diplomat in New York and Other Cases of Diplomatic Immunity.” BBC News. BBC, January 11, 2017. https://www.bbc.com/news/magazine-38576257. 

3. “Malaysian Official on Sex Charge Uses Diplomatic Immunity to Leave NZ.” The Guardian. Guardian News and Media, July 1, 2014. https://www.theguardian.com/world/2014/jul/01/malaysian-official-sexual-assault-charge-diplomatic-immunity-leave-new-zealand. 

4. “Malaysian Envoy Gets Nine Months Detention for Indecent Assault.” The Telegraph. Telegraph Media Group, February 4, 2016. https://www.telegraph.co.uk/news/worldnews/asia/malaysia/12139460/Malaysian-envoy-gets-nine-months-detention-for-indecent-assault.html. 

5. “‘Borodin Was Gevaar Voor Kinderen.’” NOS. Accessed March 9, 2021. https://nos.nl/artikel/560093-borodin-was-gevaar-voor-kinderen.html. 

6. “Dutch Take Legal Action over Greenpeace Ship in Russia.” BBC News. BBC, October 4, 2013. https://www.bbc.com/news/world-europe-24395769. 

7. Juan Forero and Dan Molinski. “Netherlands Says Venezuelan Detained in Aruba Has Immunity.” The Wall Street Journal. Dow Jones & Company, July 28, 2014. https://www.wsj.com/articles/netherlands-rules-venezuelan-detained-in-aruba-has-diplomatic-immunity-1406505987. 

8. José de Córdoba. “U.S. Plans Sanctions on Some Venezuelan Officials.” The Wall Street Journal. Dow Jones & Company, July 30, 2014. https://www.wsj.com/articles/u-s-plans-sanctions-on-some-venezuelan-officials-1406697081. 

9. Glenda Cooper. “Ex-Diplomat Sought for Lawsuit.” The Washington Post. WP Company, August 10, 2001. https://www.washingtonpost.com/archive/politics/2001/08/10/ex-diplomat-sought-for-lawsuit/116d1ba2-3560-4cd0-8382-2f1e7be0ebf7/. 

10. Katie Paul, Pamela Denise Long, and Monica Osborne. “A Thorn in Bush's Side.” Newsweek, March 13, 2010. https://www.newsweek.com/thorn-bushs-side-85793. 

11. Jason Straziuso. “U.S. Diplomat Kills Man in Car Crash, Leaves Kenya.” USA Today. Gannett Satellite Information Network, August 2, 2013. https://www.usatoday.com/story/news/world/2013/08/02/diplomat-kenya-car-crash/2612229/. 

12. Tom Jackman. “Russian Hurt In Crash Sues U.S. Diplomat.” The Washington Post. WP Company, September 15, 2002. https://www.washingtonpost.com/archive/local/2002/09/15/russian-hurt-in-crash-sues-us-diplomat/c845de31-cf4d-49ca-b048-5c9152505519/. 

13. “Ex-Diplomat Gets 7 Years for Death of Teen in Crash.” Los Angeles Times. Los Angeles Times, December 20, 1997. https://www.latimes.com/archives/la-xpm-1997-dec-20-mn-531-story.html. 

14. Jason Burke and Dan Roberts. “Indian Diplomat Devyani Khobragade Leaves U.S. under Immunity.” The Guardian. Guardian News and Media, January 10, 2014. https://www.theguardian.com/world/2014/jan/10/devyani-khobragade-to-leave-us-under-diplomatic-immunity. 

15. “Harry Dunn Death: Anne Sacoolas Lawyers Say She 'Drove on Wrong Side of Road'.” BBC News. BBC, September 10, 2020. https://www.bbc.com/news/uk-england-northamptonshire-54112841. 

16. “Harry Dunn Crash: Suspect Anne Sacoolas 'Wanted Internationally'.” BBC News. BBC, May 11, 2020. https://www.bbc.com/news/uk-england-northamptonshire-52619998. 

17. Jonny Hallam. “Case against American Woman Accused of Killing a UK Teenager Can Go Ahead in the US, Judge Rules.” CNN. Cable News Network, February 17, 2021. https://www.cnn.com/2021/02/17/us/harry-dunn-anne-sacoolas-damages-intl/index.html#:~:text=Case%20against%20American%20woman%20accused,in%20the%20US%2C%20judge%20rules&text=Harry%20Dunn%20was%20killed%20in,Sacoolas%20in%20England%20in%202019. 

18. Jen Kirby. “The Death of a British Teen Has Put a Strain on the US-UK Relationship.” Vox. Vox, October 16, 2019. https://www.vox.com/2019/10/16/20917164/harry-dunn-white-house-trump. 

19. Bill Chappell. “U.S. Court Sides With Family Of Man Killed In Crash Involving Diplomat's Wife.” NPR. NPR, February 16, 2021. https://www.npr.org/2021/02/16/968433574/u-s-court-sides-with-harry-dunns-family-keeps-wrongful-death-lawsuit-in-virginia. 

20. Patrick Wintour. “Harry Dunn Death: Family Begins Court Case against Foreign Office.” The Guardian. Guardian News and Media, November 11, 2020. https://www.theguardian.com/politics/2020/nov/11/harry-dunn-death-anne-sacoolas-family-begins-court-case-against-foreign-office. 

21. “Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities.” UNITED STATES DEPARTMENT OF STATE OFFICE OF FOREIGN MISSIONS, 2018. https://www.state.gov/wp-content/uploads/2019/07/2018-DipConImm_v5_Web.pdf. 

Bibliography:

Burke, Jason, and Dan Roberts. “Indian Diplomat Devyani Khobragade Leaves U.S. under Immunity.” The Guardian. Guardian News and Media, January 10, 2014. https://www.theguardian.com/world/2014/jan/10/devyani-khobragade-to-leave-us-under-diplomatic-immunity. 

Chappell, Bill. “U.S. Court Sides With Family Of Man Killed In Crash Involving Diplomat's Wife.” NPR. NPR, February 16, 2021. https://www.npr.org/2021/02/16/968433574/u-s-court-sides-with-harry-dunns-family-keeps-wrongful-death-lawsuit-in-virginia.

Cooper, Glenda. “Ex-Diplomat Sought for Lawsuit.” The Washington Post. WP Company, August 10, 2001. https://www.washingtonpost.com/archive/politics/2001/08/10/ex-diplomat-sought-for-lawsuit/116d1ba2-3560-4cd0-8382-2f1e7be0ebf7/.

de Córdoba, José. “U.S. Plans Sanctions on Some Venezuelan Officials.” The Wall Street Journal. Dow Jones & Company, July 30, 2014. https://www.wsj.com/articles/u-s-plans-sanctions-on-some-venezuelan-officials-1406697081.

“Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities.” UNITED STATES DEPARTMENT OF STATE OFFICE OF FOREIGN MISSIONS, 2018. https://www.state.gov/wp-content/uploads/2019/07/2018-DipConImm_v5_Web.pdf.

“Diplomatic Immunity.” Encyclopædia Britannica. Encyclopædia Britannica, inc. Accessed March 9, 2021. https://www.britannica.com/topic/diplomatic-immunity.

“Dutch Take Legal Action over Greenpeace Ship in Russia.” BBC News. BBC, October 4, 2013. https://www.bbc.com/news/world-europe-24395769.

“Ex-Diplomat Gets 7 Years for Death of Teen in Crash.” Los Angeles Times. Los Angeles Times, December 20, 1997. https://www.latimes.com/archives/la-xpm-1997-dec-20-mn-531-story.html.

Forero, Juan, and Dan Molinski. “Netherlands Says Venezuelan Detained in Aruba Has Immunity.” The Wall Street Journal. Dow Jones & Company, July 28, 2014. https://www.wsj.com/articles/netherlands-rules-venezuelan-detained-in-aruba-has-diplomatic-immunity-1406505987.

Hallam, Jonny. “Case against American Woman Accused of Killing a UK Teenager Can Go Ahead in the US, Judge Rules.” CNN. Cable News Network, February 17, 2021. https://www.cnn.com/2021/02/17/us/harry-dunn-anne-sacoolas-damages-intl/index.html#:~:text=Case%20against%20American%20woman%20accused,in%20the%20US%2C%20judge%20rules&text=Harry%20Dunn%20was%20killed%20in,Sacoolas%20in%20England%20in%202019.

“Harry Dunn Crash: Suspect Anne Sacoolas 'Wanted Internationally'.” BBC News. BBC, May 11, 2020. https://www.bbc.com/news/uk-england-northamptonshire-52619998.

“Harry Dunn Death: Anne Sacoolas Lawyers Say She 'Drove on Wrong Side of Road'.” BBC News. BBC, September 10, 2020. https://www.bbc.com/news/uk-england-northamptonshire-54112841.

Jackman, Tom. “Russian Hurt In Crash Sues U.S. Diplomat.” The Washington Post. WP Company, September 15, 2002. https://www.washingtonpost.com/archive/local/2002/09/15/russian-hurt-in-crash-sues-us-diplomat/c845de31-cf4d-49ca-b048-5c9152505519/.

Kirby, Jen. “The Death of a British Teen Has Put a Strain on the US-UK Relationship.” Vox. Vox, October 16, 2019. https://www.vox.com/2019/10/16/20917164/harry-dunn-white-house-trump.

“Malaysian Envoy Gets Nine Months Detention for Indecent Assault.” The Telegraph. Telegraph Media Group, February 4, 2016. https://www.telegraph.co.uk/news/worldnews/asia/malaysia/12139460/Malaysian-envoy-gets-nine-months-detention-for-indecent-assault.html.

“Malaysian Official on Sex Charge Uses Diplomatic Immunity to Leave NZ.” The Guardian. Guardian News and Media, July 1, 2014. https://www.theguardian.com/world/2014/jul/01/malaysian-official-sexual-assault-charge-diplomatic-immunity-leave-new-zealand.

Paul, Katie, Pamela Denise Long, and Monica Osborne. “A Thorn in Bush's Side.” Newsweek, March 13, 2010. https://www.newsweek.com/thorn-bushs-side-85793.

Straziuso, Jason. “U.S. Diplomat Kills Man in Car Crash, Leaves Kenya.” USA Today. Gannett Satellite Information Network, August 2, 2013. https://www.usatoday.com/story/news/world/2013/08/02/diplomat-kenya-car-crash/2612229/.

“Sudan Diplomat in New York and Other Cases of Diplomatic Immunity.” BBC News. BBC, January 11, 2017. https://www.bbc.com/news/magazine-38576257.

Wintour, Patrick. “Harry Dunn Death: Family Begins Court Case against Foreign Office.” The Guardian. Guardian News and Media, November 11, 2020. https://www.theguardian.com/politics/2020/nov/11/harry-dunn-death-anne-sacoolas-family-begins-court-case-against-foreign-office.

“‘Borodin Was Gevaar Voor Kinderen.’” NOS. Accessed March 9, 2021. https://nos.nl/artikel/560093-borodin-was-gevaar-voor-kinderen.html.

The Legality of Fraudulent Cryptocurrency "Pump and Dump" Schemes

By: Claire Lu

Edited by: Dheven Unni and Maayan Abouzaglo

The growth of the cryptocurrency market has been accompanied by rampant speculation and excitement. However, as buying cryptocurrency has become a popular form of investment, concerns about potential exploitation and fraud have increased concurrently.[1] The decentralized nature of cryptocurrencies makes this system of monetary exchange difficult to regulate, as information is stored and distributed through “blockchain” technology that oversees transactions and records data in place of the central banks that regulate traditional currencies.[2] This absence of an overseeing authority makes cryptocurrency prone to dramatic gains and losses. At the same time, the volatility of cryptocurrency prices offers high-risk, high-reward investments that offer instant gratification to its investors. To those who seek to gain some control over the cryptocurrency market's fluctuations, however, the internet is a network bringing together bad actors who seek to manipulate and profit from cryptocurrency trading.[3]

These online groups congregate in heavily-encrypted anonymous chatrooms such as Discord and Telegram where they openly strategize about “pump-and-dump schemes.”[4] Although pump-and-dump schemes (P&Ds) have existed since the 18th century, they have found new life in the cryptocurrency market. Traditionally, pump-and-dump schemes aim to artificially inflate the price of an asset. After buying an initial amount of a stock, the person orgroup behind the pump and dump will advertise and spread misinformation about the asset. As more people become excited by the prospect of gains and jump into buying assets of their own, the price rises. After a certain point, however, the original person or group will sell their assets at a significantly higher price, exit the market, and dissolve the publicity campaign, causing the price to drop drastically. Inexperienced investors who come into the market late to avoid missing out are then saddled with the devalued asset, no more buyers, and big losses.[5]

In the cryptocurrency market, the overall scheme of a pump-and-dump is identical, but several major differences exist. Unlike the meticulously planned pump-and-dump schemes that occur over several months, cryptocurrency P&Ds can elapse in a matter of minutes, making it nearly impossible for those without insider knowledge to benefit from the scheme. As a result, the modus operandi of cryptocurrency P&Ds relies on the concerted efforts of unrelated strangers who conspire over the internet to drive up the prices at designated times rather than just by spreading misinformation.[6] Perhaps more importantly, however, traditional pump-and-dump schemes have been outlawed by the U.S. Securities and Exchange Commission due to their damage on individuals and financial markets, whereas cryptocurrency P&Ds exist in a grey area that is yet to be addressed by the law.[7]

Despite evidence that P&D groups generate millions of dollars of trading activity – an estimate that may be grossly underrepresented, as it only factors in public P&D groups – cryptocurrency scammers are able to thrive in a decentralized and unregulated environment.[8] There is currently a legal vacuum that fails to properly regulate cryptocurrencies due to their stateless and multifunctional nature. Though cryptocurrencies such as Bitcoin are not considered legal tender in most developed countries, they cannot be classified as securities because they are used across diverse categories. This makes it difficult to apply existing securities laws to cryptocurrencies. In addition, despite the increasing efforts by governments to assign regulatory bodies to govern cryptocurrencies, the premise of cryptocurrency technology means that many transactions exist beyond the jurisdiction of governments.[9] 

Therefore, while the obvious solution to protect investors from perpetrators of pump-and-dump schemes seems to be simply to issue a ban and prosecute those involved, many have questioned the feasibility and effectiveness of regulating cryptocurrencies. Some worry that increased government oversight would stifle financial innovation and induce a shift to other, less regulated platforms.[10] Others cite the challenges described earlier as evidence that regulation of the cryptocurrency market is simply impossible.[11]

While some of these are valid concerns, the damage that P&Ds inflict on individual investors and the health of the cryptocurrency market must be addressed. In 2017, a U.S.-based cryptocurrency exchange named Bittrex banned P&Ds. Though P&Ds were not completely eliminated, researchers found that there was not only a marked decrease in P&Ds, but this ban also increased token prices and liquidity, which proves that P&Ds lead to negative externalities in the market.[12] The Bittrex case study also demonstrates that a ban would be technologically possible, so the remaining challenge would be to create a legal framework that can feasibly impose some type of regulatory oversight over market manipulations in the cryptocurrency market.

Addressing this concern would require governments to establish new categories and laws to address the changing landscape of fintech.[13] Currently, the US government is attempting to apply existing laws to monitor cryptocurrency. For example, in January 2017the Department of Justice and Treasury Department's Financial Crimes Enforcement Network (FinCEN) used money-laundering provisions in the Bank of Secrecy Act to indict Coin.mx with bank fraud.[14] This approach is short-sighted, however, as cryptocurrencies fall outside of most currently-used categories, and existing laws will likely be inadequate as cryptocurrency evolves and new issues emerge. Therefore, while it may be possible to temporarily address P&D schemes with similar laws that ban stock-market P&Ds, it would be much more effective for the government to take proactive steps to properly address this new category of assets.[15]

As evidenced by the rampant exploitation of legal loopholes, the lack of appropriate governance over the cryptocurrency market contributes to a “Wild West” mentality. This comes with a sense of lawlessness and lack of accountability that creates a dangerous arena for inexperienced investors and threatens the credibility of cryptocurrencies. The ubiquity of fraudulent P&D schemes in the status quo points to a larger question about where and if cryptocurrencies fit in current legal frameworks. In order to create a more sustainable and ethical trading environment, governments must provide regulation over cryptocurrency exchanges by reimagining laws and offering protection for investors looking to expand into the crypto-space. 

NOTES:

1. Yukun Liu and Aleh Tsyvinski, “Risks and Returns of Cryptocurrency,” The Review of Financial Studies, 2020, https://doi.org/10.1093/rfs/hhaa113.

2. Jake Frankenfield, “Cryptocurrency,” Investopedia (Investopedia, March 8, 2021), https://www.investopedia.com/terms/c/cryptocurrency.asp.

3. Galen Moore, “The Mechanics of Market Manipulation,” CoinDesk (CoinDesk, December 4, 2019), https://www.coindesk.com/the-mechanics-of-market-manipulation.

4. Josh Kamps and Bennett Kleinberg, “To the Moon: Defining and Detecting Cryptocurrency Pump-and-Dumps,” Crime Science 7, no. 1 (2018), https://doi.org/10.1186/s40163-018-0093-5.

5. Ibid.

6. Tao Li, Donghwa Shin, and Baolian Wang, “Cryptocurrency Pump-and-Dump Schemes,” SSRN Electronic Journal, 2018, https://doi.org/10.2139/ssrn.3267041.

7. J.T. Hamrick et al., “An Examination of the Cryptocurrency Pump-and-Dump Ecosystem,” Information Processing & Management 58, no. 4 (2021): p. 102506, https://doi.org/10.1016/j.ipm.2021.102506.

8. Josh Kamps and Bennett Kleinberg, “To the Moon: Defining and Detecting Cryptocurrency Pump-and-Dumps.

9. Donghwa Shin, “Should Cryptocurrency ‘Pump-and-Dump’ Schemes Be Regulated?,” Frank Hawkins Kenan Institute of Private Enterprise (The Kenan Institute, December 2020), https://kenaninstitute.unc.edu/kenan-insight/should-cryptocurrency-pump-and-dump-schemes-be-regulated/.

10. Ibid.

11. Daniel Araya, “The Challenges of Cryptocurrency Regulation,” The Regulatory Review, October 13, 2018, https://www.theregreview.org/2018/10/09/araya-challenges-cryptocurrency-regulation/.

12. Gideon Pell, “Regulating Crypto Exchanges: Mind The Gaps,” Forbes (Forbes Magazine, August 15, 2019), https://www.forbes.com/sites/gideonpell/2019/08/14/regulating-crypto-exchanges-mind-the-gaps/?sh=56b6deb16d9c.

13. Tao Li, Donghwa Shin, and Baolian Wang, “Cryptocurrency Pump-and-Dump Schemes.”

14. Rebecca M. Bratspies, “Cryptocurrency and the Myth of the Trustless Transaction,” SSRN Electronic Journal, 2018, https://doi.org/10.2139/ssrn.3141605.

15. Wong Paul, “Pump-and-Dump: Manipulation of Cryptocurrency Markets,” Humphreys Law, September 25, 2019, https://humphreys.law/block4-pump-and-dump/.

BIBLIOGRAPHY:

Araya, Daniel. “The Challenges of Cryptocurrency Regulation.” The Regulatory Review, October 13, 2018. https://www.theregreview.org/2018/10/09/araya-challenges-cryptocurrency-regulation/.

Bratspies, Rebecca M. “Cryptocurrency and the Myth of the Trustless Transaction.” SSRN Electronic Journal, 2018. https://doi.org/10.2139/ssrn.3141605. 

Frankenfield, Jake. “Cryptocurrency.” Investopedia. Investopedia, March 8, 2021. https://www.investopedia.com/terms/c/cryptocurrency.asp. 

Hamrick, J.T., Farhang Rouhi, Arghya Mukherjee, Amir Feder, Neil Gandal, Tyler Moore, and Marie Vasek. “An Examination of the Cryptocurrency Pump-and-Dump Ecosystem.” Information Processing & Management 58, no. 4 (2021): 102506. https://doi.org/10.1016/j.ipm.2021.102506. 

Kamps, Josh, and Bennett Kleinberg. “To the Moon: Defining and Detecting Cryptocurrency Pump-and-Dumps.” Crime Science 7, no. 1 (2018). https://doi.org/10.1186/s40163-018-0093-5. 

Li, Tao, Donghwa Shin, and Baolian Wang. “Cryptocurrency Pump-and-Dump Schemes.” SSRN Electronic Journal, 2018. https://doi.org/10.2139/ssrn.3267041. 

Liu, Yukun, and Aleh Tsyvinski. “Risks and Returns of Cryptocurrency.” The Review of Financial Studies, 2020. https://doi.org/10.1093/rfs/hhaa113. 

Moore, Galen. “The Mechanics of Market Manipulation.” CoinDesk. CoinDesk, December 4, 2019. https://www.coindesk.com/the-mechanics-of-market-manipulation. 

Paul, Wong. “Pump-and-Dump: Manipulation of Cryptocurrency Markets.” Humphreys Law, September 25, 2019. https://humphreys.law/block4-pump-and-dump/. 

Pell, Gideon. “Regulating Crypto Exchanges: Mind The Gaps.” Forbes. Forbes Magazine, August 15, 2019. https://www.forbes.com/sites/gideonpell/2019/08/14/regulating-crypto-exchanges-mind-the-gaps/?sh=56b6deb16d9c.

Shin, Donghwa. “Should Cryptocurrency ‘Pump-and-Dump’ Schemes Be Regulated?” Frank Hawkins Kenan Institute of Private Enterprise. The Kenan Institute, December 2020. https://kenaninstitute.unc.edu/kenan-insight/should-cryptocurrency-pump-and-dump-schemes-be-regulated/.

Significance and Challenges of the International Criminal Court's Decision on the Situation in Palestine

By: Rakkshet Singhaal

Edited By: Tess Ballis and Hannah Cheves

International law is the foundation upon which the rules-based international order is built. It is a joint commitment by all states to perform their operations in compliance with agreed-upon laws that have evolved over time. The absolute commitment to its tenets by all United Nations member states is crucial in attempts to resolve any intractable conflict, including that between Israel and the Palestinians. On February 5, 2021, International Criminal Court (ICC) ruled that it has jurisdiction over the suspected war crimes and international law violations committed in Palestinian territory since 2014.[1] ICC's decision to open an inquiry into the situation in Palestine is significant as it unbolts the door for justice in Palestine. Justice being the first step toward achieving peace, as the latter is meaningless without the former. This paper analyzes how the ICC has tackled the central issue of whether it has jurisdiction over Palestinian territory since its conception and examines the significance and challenges of the ruling given in 2021, especially its role in achieving peace in Palestine.

CENTRAL ISSUE

The Israeli-Palestinian conflict is one of the world’s most contentious conflicts. At its core, it is a conflict between two self-determination states claiming the same territory: the Jewish Zionist initiative and the Palestinian nationalist project. Attempts to resolve the conflict by the ICC have been made several times, but none have been fruitful. Every time the case is raised, the ICC has found itself without jurisdiction over the crimes committed in Palestine.[2]

It was first in 2009, after the Palestinian–Israeli war in Gaza, that the ICC got a declaration from the Palestinian Justice Minister, accepting the jurisdiction of the ICC under Article 12(3) of the Rome Statute of the International Criminal Court and a request to start an investigation into the humanitarian and human rights crimes committed during the war by Israel.[3] Article 12(3) allows non-signatory states to recognize the Court's jurisdiction over international crimes on an ad hoc basis. However, Article 12(3) declaration is not the same as referring to a situation; it merely recognizes jurisdiction in the absence of complete ratification. In the absence of a State Party or Security Council referral, it is a mandatory precondition for the Office of the Prosecutor to exercise its proprio motu powers that allow the ICC Prosecutor to launch an investigation, as laid down in Article 15(1).[4]

After acknowledging the declaration of the Palestinian declaration, the ICC Prosecutor launched a preliminary examination to determine if there is a legitimate ground to proceed with an investigation.[5] As stated in Article 53 of the Statute, the ICC conducts a preliminary investigation into the following matters: (1) whether the Court has jurisdiction; (2) whether the situation is admissible under the principle of complementarity (the ICC can only exercise jurisdiction when national legal structures refuse to do so, including when they appear to act but are unwilling or unable to carry out genuine proceedings); and (3) whether there are substantial reasons to believe that an investigation would serve the interests of justice.[6] The ICC Prosecutor usually conducts these investigations in the above-mentioned order because it would consider jurisdiction first even though a later consideration, such as admissibility, provides fair reasons not to proceed. This approach has the potential to lengthen the preliminary review process and increase the anxiety of states under investigation.

During the preliminary examination's early stages, the Goldstone Report was issued by the United Nations Fact-Finding Mission on the Gaza Conflict. The Mission found that both the Israeli and Palestinian military committed war crimes, as defined by Article 8 of Rome Statute during the conflict, including offenses that fall within the ICC purview. The Mission concludes that the Israeli armed forces' actions entail gross violations of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (referred to as the Geneva Convention IV) in terms of deliberate killings and infliction of severe pain on protected individuals, and as such give rise to individual criminal liability. It also determined that the direct targeting and unlawful killing of Palestinian civilians violate the right to life. The Israeli armed forces used excessive violence, causing significant harm and devastation to civilian property and infrastructure, as well as misery to civilian populations. Based on the findings, the Mission made two recommendations: the Human Rights Council should forward the report to the ICC Prosecutor, and the Security Council should refer the case to the ICC if the examination that is being conducted by the ICC finds that the domestic authorities are not performing credible inquiries into the crimes committed. Furthermore, the Mission also suggested that the ICC Prosecutor should expedite the examination as much as possible.[7]

In April 2012, after much deliberation, the then-prosecutor, Luis Moreno Ocampo, stated that he would not continue an inquiry because he reckoned that the Court's jurisdiction only pertained to states included by the Statute. He believed that it was not up to the ICC to determine whether Palestine is a state or not but, “[i]t is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State to accede to the Rome Statute and thereby enable the exercise of jurisdiction by the Court under Article 12(1).”[8]

Instead of looking at it as a setback, this decision provided Palestine with an opportunity to move beyond the parameters of statehood set by the Montevideo Convention, which required a state must have a permanent population, a fixed territory, a government, and the ability to engage in foreign relations.[9] Gaining recognition from the General Assembly would allow the ICC Prosecutor to start an investigation into the suspected war crimes committed in Palestine.

On November 29, 2012, in a closely watched vote by the international community, the General Assembly adopted resolution 67/10, which recognized Palestine as a sovereign state by granting it non-member observer status, similar to that of the Holy See. A crucial step that facilitated Palestinian efforts to bring the suspected war crimes committed by Israel before the ICC.[10]

The change in status enabled Palestinian delegates to continue participating in general debate, cosponsoring motions, and voting in some procedural votes. They were, however, powerless to ask for a referendum or vote on substantive issues. According to reports, several European countries exchanged a “yes” vote for the resolution 67/10, for promises that Palestine will not hurry to join the ICC. With the promise from Palestinian authorities, there also came a gentle reminder that Palestine's right to decide whether to join ICC and given Palestine's goals and best interests, they will determine the appropriate pacing.[11] Within a month of the decision, the Secretariat started using the designation of “State of Palestine” in all official UN documents[12] and precisely one year later, the Palestinian delegation cast their first vote in General Assembly.[13]

Following the Battle of Gaza in 2007, Hamas, a Palestinian Sunni-Islamic fundamentalist group, became the de facto ruling body of the Gaza Strip.  Hamas was established in order to free Palestine, especially modern-day Israel, from Israeli occupation and to create an Islamic state in what is now Israel, the West Bank, and Gaza.[14] In July 2014, Israel launched “Operation Protective Edge,” a military operation in the Hamas-ruled Gaza Strip, following the kidnapping and murder of three Israeli teenagers by Hamas’s members. A seven-week conflict broke out, with both sides taking part in airstrikes and ground bombardment, killing thousands and leaving tens of thousands homeless.[15]

As soon as the conflict ended, ICC had to issue a statement on whether it has jurisdiction over Palestine due to immense pressure from the media and their claim that ICC is avoiding investigation over crimes committed in Gaza due to international pressure. ICC reiterated that the situation on Palestinian territories was outside the ICC's jurisdiction at the time, despite certain legal scholars' such as Geoffrey Robertson claiming that the Court should interfere even though formal jurisdictional parameters have not been reached as “it would be a new and possibly productive way to deal with the cloudy legalities.”[16]

With the memory of the conflict still fresh, multiple attempts were made by Palestinian authroity in the General Assembly and Security Council for Palestine’s statehood, but they all failed.[17] With complete statehood out of sight, on December 31, 2014, President Mahmoud Abbas ratified the Rome Statute of the International Criminal Court, giving non-member observer status. The ratification placed the Palestinian Authority's territories under the jurisdiction of the ICC.[18] In addition, President Abbas and the Palestinian Authority released a new Article 12(3) resolution acknowledging the ICC's retroactive jurisdiction, “for the purpose of identifying, prosecuting and judging authors and accomplices of crimes within the jurisdiction of the Court committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.”[19] Within seventeen days (January 16, 2015) of ratifying the Rome Statute, a preliminary examination was opened by the ICC Prosecutor “in order to establish whether the Rome Statute criteria for opening an investigation [were] met.”[20]

After almost five years of examination, on December 20, 2019, ICC Prosecutor Fatou Bensouda established that the preliminary inquiry into the Situation in Palestine has ended with the conclusion that all of the relevant requirements under the Rome Statute for the opening of an investigation have been fulfilled, after a comprehensive, unbiased, and impartial review of all credible evidence available to her office. However, considering the procedural and factual problems surrounding this case, the Prosecutor demanded from Pre-Trial Chamber a jurisdictional decision on the extent of the ICC’s territorial authority in Palestine under article 12(2)(a) of the Rome Statute, which gives the ICC jurisdiction over offenses committed on the territories of a State party to the Rome Statute.[21]

Adhering to the request made by the Prosecutor, on January 28, 2020, the ICC Pre-Trial Chamber released an order outlining the protocol and timetable for submitting findings under Article 19(3) of the Rome Statute regarding the extent of the Court's territorial authority in the situation in the State of Palestine.[22] After a year of investigation, the ICC decided by the majority that in the situation in Palestine, they have jurisdiction over the territory annexed by Israel after 1967, including Gaza, the West Bank, and East Jerusalem.[23] After two decades of struggle and multiple rejections by the ICC, finally, on March 3, 2021, the ICC Prosecutor announced the start of a formal investigation into the Palestinian situation.[24]

SIGNIFICANCE AND CHALLENGES

Around the world, international humanitarian and human rights law is under pressure from and being weakened by a growing culture of impunity. For more than five decades, Israel has occupied Palestinian territories, which has been marked by flagrant violations of international humanitarian law and human rights law. Dozens of UN resolutions and international calls to end Israel's long-term occupation and allow Palestinians to exercise their right to self-determination have been ignored. Not only has the Israeli government refused to meet its most fundamental commitments as an occupying force under international humanitarian law to ensure the safety and protection of the civilian community in the occupied Palestinian territory, but it has also fostered a culture of impunity within its military.[25]

The crisis has been exacerbated by a military justice system that avoids conducting serious and unbiased investigations by relying entirely on debriefings of troops, which are sometimes mislabeled as "operational investigations," to decide whether or not a Military Police inquiry is necessary.[26] Moreover, the Supreme Court of Israel, which established its jurisdiction over the occupied territories shortly after the occupation in 1967, refused to apply the terms of the Geneva Convention IV on the security of citizens, which Israel has ratified. Israel’s stance is that the Convention is not valid within the occupied territories, despite the dominant opinion in international law and among the international community. This stance also allowed the Court to avoid questioning Israeli settlements' legitimacy in the occupied territories in compliance with Geneva Convention IV, article 49, paragraph 6,[27] which states that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”[28]

For a long time, the international community's apparent neglect of international humanitarian law application had compelled individual Palestinians and international human rights organizations to investigate possible ways of privately applying the law in the occupied territories in foreign domestic courts. Credible processes of accountability are required to bring this practice to an end. The significance of an ICC investigation lies in its potential to confront Israel's decades of impunity, through which Palestinian injustice is profoundly rooted. The ICC has the authority to try suspects of specific crimes committed in Palestine. As a result, it offers a significant avenue for pursuing the adoption of the UN investigatory bodies' guidelines for transparency in Palestine.[29] The ICC’s investigation into the Situation in Palestine must now build on dossiers on suspected offenders proposed by the UN Commissions of Inquiry on the 2014 Gaza Conflict and the 2018 Great March of Return, which was tasked with “identifying those responsible.” The investigation discovered that Israeli security forces were responsible for 189 deaths and over 300 casualties. Furthermore, the investigation discovered that the responsibility for wrongful deaths and accidents was shared mainly on two fronts. First, anyone that used deadly force, participated in its use, or allowed its use in exceptional circumstances, such as where there was no immediate danger to life or the target was not actively engaging in hostilities; this involves snipers, spotters, and/or commanders on the ground. And second, those who wrote and accepted the rules of engagement.[30]

As significant as the ICC mechanism is in addressing Israeli impunity, it is insufficient on its own and must be pursued with other routes of accountability. The 2018 Commission of Inquiry emphasized that states parties to the Rome Statute and the Geneva Convention IV have an obligation to exercise criminal authority and punish or extradite alleged suspects of crimes committed in Palestine in their own courts.[31]

The root causes of Palestinian injustice, including Israel's protracted occupation, the closing of Gaza, and the ongoing deprivation of the Palestinian people's right to self-determination,  must be resolved if the Palestinian people's situation is to be meaningfully changed by international justice and transparency processes. Treating only the effects of the Palestinian people's more significant expulsion and dispossession would amount to nothing more than "temporary band-aids." While international criminal justice is critical for confronting Israeli impunity, it must be balanced by targeted multilateral sanctions and other successful punitive actions by third party countries in order to end the illegitimate situation levied on the Palestinian people and deter more crimes in Palestine.[32]

While the Palestinian Authority has accepted the ICC decisions, even though the ruling has implications on both the parties concerned, Israel has refused to cooperate and has fiercely criticized the decision.[33]

Israel's diplomatic allies have aided its attempts to sway the Court. For example, in a letter sent in February 2020, Canada reportedly told the ICC of its opposition to criminal prosecution in Palestine while also informing the Court of Canada's annual commitment to its budget.[34] This was accompanied by various state representations challenging the Court's work in Palestine, including those from Austria, Australia, Brazil, the Czech Republic, Germany, Hungary, and Uganda. 

The most blatant effort to undermine the ICC, though, came from the United States. Following the Court's assessment of the situation in Palestine and suspected war crimes committed by US personnel in Afghanistan, the Trump administration released an executive order permitting penalties to be placed on critical members of the Court's team, including its chief Prosecutor, Fatou Bensouda.[35] ICC has described Trump's executive order as an "unprecedented" assault on justice and the rule of law.  In a statement issued by a spokesman, Ned Price, the State Department voiced "serious concerns" about the ICC’s decision. He further stated that “the United States has always taken the position that the court's jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council.”[36] However, with the new administration in power, Joe Biden rescinded these sanctions on April 2, 2021, as he claimed that the issue could be handled by engaging with all parties of the ICC process rather than imposing sanctions. Despite the lifting of sanctions, the new administration appears to strongly disagree with the ICC's conduct pertaining to the Palestinian situations and opposes the ICC's attempts to claim jurisdiction over personnel of non-State Parties such as Israel.[37]

International support would be critical now that the ICC decision has been made public; all states must honor their legal commitments, as enshrined in the Rome Statute and the Geneva Conventions, and not stand in the way of what Palestinians have long requested.

Despite the political environment in which the ICC would have to operate, it is essential to recognize that the Court's very structure contains various limits. The Palestinian citizens have been colonized, displaced, and oppressed far beyond the Gaza Strip and West Bank, including East Jerusalem, and yet the International Criminal Court (ICC) will only prosecute international crimes committed within the geographical unit.[38]

The Court's temporal jurisdiction is fixed from June 13, 2014, according to the terms of the State of Palestine's accession to the Rome Statute, a time interval that spans just a fraction of the decades-long deprivation of the Palestinian people's human and communal rights since the Nakba of 1948, where half of Palestine's population was forced to flee or was driven from their homes.[39] There has been no concrete international inquiry or UN process that addresses the situation of the Palestinian community as a whole, including Palestinians on both sides of the Green Line as well as Palestinian refugees and exiles refused their right of return.[40]

Importantly, Palestinian oppression is a long-term and systematic process, but the ICC is intended to seek justice on a case-by-case basis. Individual perpetrators of Rome Statute offenses will and should be adjudicated by the ICC, for instance, the building and maintenance of Israeli settlements, as well as the indiscriminate targeting of civilians. However, the Court's mandate is limited in terms of fixing root causes.[41] Despite these restrictions, the ICC must understand the broader sense of Israeli fragmentation of the Palestinian community, particularly by investigating violations that breach the Green Line, the demarcation line established in the 1949 Armistice Agreements between Israel's army and those of Egypt, Jordan, Lebanon, and Syria following the 1948 Arab–Israeli War. This should include the unlawful movement of Palestinian captives from the occupied territories to Israeli detention centers, where they are subjected to torture and other kinds of ill-treatment on a regular basis.[42]

CONCLUSION

ICC ruling on the situation in the state of Palestine, which came six years after the Court's Chief Prosecutor's Office, Fatou Bensouda's, launched a formal inquiry into Israeli conduct in the territories was a precedent-setting decision. ICC ruled that it has jurisdiction over suspected war crimes and violations of international law committed in Palestinian territory, providing the opportunity for a criminal investigation into Israeli actions. It provides the ability to hinder the growth of the conflict fueled by the lack of admissibility to investigate and prosecute the alleged crimes and the unwillingness to recognize international rules. The ruling by ICC broke the continuous cycle of immunity, which has protected all parties involved in the conflict in Palestine for crimes under international law and has opened the doors for justice in the occupied territory where an investigation can finally happen. However, the Court's very structure has limitations in that it not only prosecutes international crimes committed inside the geographical area, but it also has a limited time constraint that does not account for suspected war crimes done before 2014. Moreover, the constant international pressure from nations worldwide makes it hard to find a suitable decision. Nevertheless, the ICC's ruling reaffirms the Court's impartiality, integrity, and ability to respect the rule of law and its aim to ensure that no government, no matter how large or small, is above the rules.

NOTES:

1. Decision on the 'Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court's Territorial Jurisdiction in Palestine'," International Criminal Court, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/18-143.

2. James L. Gelvin, The Israel-Palestine conflict: One hundred years of war, Cambridge University Press, 2014. 

3. Sung Un Kim, "ICC Lacks Jurisdiction to Investigate Palestine War Crimes Claims: Prosecutor," Jurist 3 (2013).

4. "Rome Statute of the International Criminal Court," https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.

5. "Timeline: Palestine and the International Criminal Court," Just Security, January 29, 2019, https://www.justsecurity.org/5199/timeline-palestine-icc/.

6. "Rome Statute of the International Criminal Court," https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.

7. United Nation Human Rights Council 12/48, Human Rights in Palestine and Other Occupied Arab Territories, A/HRC/12/48 (September 25, 2009), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G09/158/66/PDF/G0915866.pdf?OpenElement.

8. “Situation in Palestine,” International Criminal Court, https://www.icc-cpi.int/NR/rdonlyres/9B651B80-EC43-4945-BF5A-FAFF5F334B92/284387/SituationinPalestine030412ENG.pdf.

9. "Montevideo Convention on the Rights and Duties of States," The Faculty of Law, https://www.jus.uio.no/english/services/library/treaties/01/1-02/rights-duties-states.xml.

10. General Assembly 67/10, Cooperation between the United Nations and the Eurasian Economic Community,  A/RES/67/10 (February 6, 2013), https://documents-ddsny.un.org/doc/UNDOC/GEN/N12/479/20/PDF/N1247920.pdf?OpenElement.

11. Al Jazeera, "Palestinians Renew Statehood Bid," Europe News | Al Jazeera, November 29, 2012, https://www.aljazeera.com/news/2012/11/29/un-votes-to-upgrade-palestinian-status.

12. United Nations Department of Public Information, Secretary-General Appoints Yeocheol Yoon of Republic of Korea Chief of Protocol, March 8, 2012, https://www.un.org/News/Press/docs/2012/sga1336.doc.html.

13. Palestinians Cast First-ever Vote in UN General Assembly," The Jerusalem Post | JPost.com, November 18, 2013, https://www.jpost.com/Middle-East/Palestinians-cast-first-ever-vote-in-UN-General-Assembly-332160.

14. Philip Mattar, Encyclopedia of the Palestinians, Infobase Publishing, 2005.

15. Eitan Shamir, "Rethinking operation protective edge," Middle East Quarterly (2015). 

16. "Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda: 'The Public Deserves to Know the Truth about the ICC's Jurisdiction over Palestine'," International Criminal Court, September 02, 2014, https://www.icc-cpi.int/Pages/item.aspx?name=otp-st-14-09-02.

17. Michael R. Gordon, and Somini Sengupta, "Resolution for Palestinian State Fails in United Nations Security Council," The New York Times, December 30, 2014, https://www.nytimes.com/2014/12/31/world/middleeast/resolution-for-palestinian-state-fails-in-security-council.html.

18. Noah J. Gordon,  "Why the Palestinians Joined the International Criminal Court," The Atlantic, December 31, 2014. https://www.theatlantic.com/international/archive/2014/12/Abbas-Palestine-International-Criminal-Court-Rome-Statute/384159/.

19. International Criminal Court, Declaration Accepting the Jurisdiction of the International Criminal Court, December 31, 2014, https://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf.

20. International Criminal Court, State of Palestine, ICC-01/18, https://www.icc-cpi.int/palestine.

21. "Statement of ICC Prosecutor, Fatou Bensouda, on the Conclusion of the Preliminary Examination of the Situation in Palestine, and Seeking a Ruling on the Scope of the Court's Territorial Jurisdiction," International Criminal Court, December 20, 2019, https://www.icc-cpi.int/Pages/item.aspx?name=20191220-otp-statement-palestine.

22. "ICC Pre-Trial Chamber Invites Palestine, Israel, Interested States, and Others to Submit Observations," International Criminal Court, January 28, 2020, https://www.icc-cpi.int/Pages/item.aspx?name=pr1512.

23. Decision on the 'Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court's Territorial Jurisdiction in Palestine'," International Criminal Court, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/18-143.

24. "Statement of ICC Prosecutor, Fatou Bensouda, Respecting an Investigation of the Situation in Palestine," International Criminal Court, March 03, 2021, https://www.icc-cpi.int/Pages/item.aspx?name=210303-prosecutor-statement-investigation-palestine.

25. "Promoting Impunity: The Israeli Military’s Failure to Investigate Wrongdoing," Human Rights Watch, https://www.hrw.org/report/2005/06/21/promoting-impunity/israeli-militarys-failure-investigate-wrongdoing#.

26. "Promoting Impunity: The Israeli Military’s Failure to Investigate Wrongdoing," Human Rights Watch, https://www.hrw.org/report/2005/06/21/promoting-impunity/israeli-militarys-failure-investigate-wrongdoing#.

27. "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: International Court of Justice," International Court of Justice, https://www.icj-cij.org/en/case/131/advisory-opinions.

28. "IV Geneva Convention Relative to the Protection Of Civilian Persons in Time of War " United Nations, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf.

29. "Is the Hague Finally About to Challenge Israeli Impunity?" Novara Media, February 23, 2021, https://novaramedia.com/2021/02/23/is-the-hague-finally-about-to-challenge-israeli-impunity/.

30. "No Justification for Israel to Shoot Protesters with Live Ammunition," OHCHR, https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=24226&LangID=E.

31. "Report of the Independent International Commission of Inquiry on the Protests in the Occupied Palestinian Territory," OHCHR, https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session40/Documents/A_HRC_40_74_CRP2.pdf.

32. "Putting the International Criminal Court's Palestine Investigation into Context," Opinio Juris, April 02, 2021, http://opiniojuris.org/2021/04/02/putting-the-international-criminal-courts-palestine-investigation-into-context/.

33. “Netanyahu: An ICC Investigation of Israel Would Be 'Pure Anti-Semitism',” Aaron Boxerman and TOI staff, Nathan Jeffay, Jacob Magid, Judah Ari Gross and TOI staff, AFP and TOI staff, et al,  The Times of Israel, February 6, 2021, https://www.timesofisrael.com/netanyahu-an-icc-investigation-of-israel-would-be-pure-anti-semitism/. 

34. Ron Csillag, "Canada Backs Israel in ICC Challenge," The Canadian Jewish News, February 27, 2020, https://www.cjnews.com/news/canada/canada-backs-israel-in-icc-challenge. 

35. Jennifer Hansler, "Trump Authorizes Sanctions against International Criminal Court Officials," CNN, June 14, 2020, https://edition.cnn.com/2020/06/11/politics/icc-executive-order/index.html.

36. "Statement of the International Criminal Court on Recent Measures Announced by the US," International Criminal Court, June 11, 2020, https://www.icc-cpi.int/Pages/item.aspx?name=200611-icc-statement.

37. "US Lifts Trump's Sanctions on ICC Prosecutor, Court Official," Reuters, April 02, 2021, https://www.reuters.com/article/us-usa-icc-sanctions/u-s-lifts-trumps-sanctions-on-icc-prosecutor-court-official-idUSKBN2BP1GY.

38. International Criminal Court, Declaration Accepting the Jurisdiction of the International Criminal Court, December 31, 2014, https://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf.

39. International Criminal Court, Declaration Accepting the Jurisdiction of the International Criminal Court, December 31, 2014, https://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf.

40. Micheal G. Kearney, "The Denial of the Right of Return as a Rome Statute Crime," Journal of International Criminal Justice (2020). 

41. "Report on Preliminary Examination Activities (2017)," International Criminal Court, December 04, 2017, https://www.icc-cpi.int/Pages/item.aspx?name=171204-rep-otp-PE.

42. "Addameer Collects Hard Evidence on Torture and Ill-Treatment Committed against Palestinian Detainees at Israeli Interrogation Centers," Addameer, December 23, 2019, https://www.addameer.org/news/addameer-collects-hard-evidence-torture-and-ill-treatment-committed-against-palestinian.

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