Malta Urges the ICC to Hurry Up Its War Crimes Probes in Palestine

 

 

By Damilola Banjo

 

Malta has joined the growing voices of countries calling on the International Criminal Court to carry out prosecutions should the court’s investigations in Palestine prove that war crimes have been committed in Gaza and elsewhere in the occupied territories. Palestine is also planning to re-up its UN member application from 2011 this month, according to several diplomats.

Vanessa Frazier, Malta’s permanent representative to the United Nations, said her country, a member of the European Union, is counting on the court to continue its inquiry and, if it finds evidence of guilt, to prosecute relevant parties or individuals.

Malta is rotating president of the UN Security Council in April, its second time at the helm since February 2023, when it concentrated on rising sea levels as its signature debate. She told reporters on April 1 that she has learned in in the last year that elected members can be a “force to reckon with if they are united” and that the threat of a veto in the Council can leave room for serious negotiations. (She said she even dressed as a veto for Halloween.) What she also learned, jokingly, is that she’s a year older and “all my hair is white.”

The quest to have the ICC probe for possible war crimes committed by Israel in Palestinian territories started as a preliminary examination in 2015 to determine whether an investigation was warranted, although Israel was never named as the perpetrator. Early that year, Palestine accepted the jurisdiction of the ICC over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014,” and by April 2015, Palestine became a member of the court.

Three years later, a referral was made by Palestine for the court to look into crimes allegedly committed since June 13, 2014, in the territories. In 2019, the prosecutor at the time, Fatou Bensouda, concluded that the criteria for an inquiry had been met. The next steps stalled.

In March 2021, the new prosecutor, Karim Khan, initiated an inquiry to ascertain “the situation” in the occupied territories, including the West Bank and East Jerusalem.

“Malta is a great supporter of the judicial institutions of the United Nations as a founding member of both ICJ [International Court of Justice] and the ICC,” Frazier told PassBlue in an interview on March 27, discussing Malta’s agenda in April as Council president and other geopolitical matters. “We urge the Prosecutor Karim Khan to conduct the investigations properly, and where he finds war crimes, he should prosecute. Our position is in support of the judicial institutions.”

In January, the ICJ ordered Israel to guard against any act that might be considered a violation of the Genocide Conventions, adding that it was “plausible” that the Israeli Defense Forces’ actions in Gaza could amount to genocide. On March 28, the world court ordered more provisional measures, mandating Israel to allow unhindered access to “urgently needed basic services and humanitarian assistance.”

The new measures were a result of South Africa’s request for modification to the Jan. 26 order. The court said the previous orders did not address the changing situation in Gaza. Recently, the UN Relief and Works Agency for Palestinian Refugees, or UNRWA, warned that time is running out to avert famine in the Gaza strip as aid delivery becomes tougher. (In fact, cases of famine are being recorded.)

In November 2023, five countries — Bangladesh, Bolivia, Comoros, Djibouti and South Africa — sent a referral to Khan’s office regarding possible war crimes being committed in the occupied territories. The investigation by the ICC into the case of Palestine that began in March 2021 by Khan now extends “to the escalation of hostilities and violence since the attacks that took place on 7 October 2023,” the court noted.

Two months later, in January 2024, Chile and Mexico joined the chorus of referrals of Palestine to the ICC, building up the push for the investigation to be carried out without delay. Israel is not a state party to the court, however, which means that it can only investigate and prosecute individuals and not the country. Additionally, a country that is not a party to the Rome Statute governing treaty has no obligations toward the ICC. Benjamin Netanyahu, Israel’s prime minister, and other top officials deny allegations of war crimes.

Maya Ungar, a UN analyst with the International Crisis Group think tank, said it is important for more countries to keep calling out Israel in its war on Gaza, in which at least 32,000 people have been killed, according to the enclave’s health ministry. “It’s embarrassing for Israel to be called out for these kinds of crimes.”

The United States, Israel’s staunchest ally, backs Israel’s position of not being beholden to the court, given that it is not a state party.

“The ICC has no jurisdiction over this matter,” US Secretary of State Antony Blinken said in 2021, when the court decided its jurisdiction over “the situation in Palestine” extends to the territories occupied by Israel since 1967,
namely Gaza and the West Bank, including East Jerusalem.

“Israel is not a party to the ICC and has not consented to the Court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel,” Blinken said. The US is not a party to the court, either.

Some experts say that Israel is worried that its top military brass and relevant politicians could be arrested if they travel to an ICC member country and are then extradited to the Hague-based court, according to obligations under international law.

During Malta’s rotating presidency of the Security Council, it is also holding an open debate on April 17, chaired by Foreign Minister Ian Borg, on the role of young people in addressing climate-security challenges in the Mediterranean region, related to the Youth Forum Week, from April 25 to 27. Frazier emphasized in a briefing on April 1 that it is not a session about migration.

An open debate on April 18 will carry out the mandated quarterly session on the Mideast. The Arab Group of countries at the UN are planning to elevate it to a ministerial-level meeting to highlight the post-Ramadan status of Gaza. The Palestine mission to the UN told PassBlue that it is also aiming to use this month to try to put its membership application from 2011 to a Council vote. Palestine has held nonmember observer status at the UN since 2012, after a bid for full membership in 2011 didn’t succeed. Globally, 139 countries recognize Palestine as a state, not including the US or Israel.

The membership process requires the applicant to declare in a letter to the UN secretary-general and the respective presidents of the Security Council and the General Assembly that it respects the obligations of the UN Charter and is a “peace-loving” nation. Given that Palestine is calling it a “pending” membership application, that could obviate the need for the Council committee that considers new-member applications to meet. If the Council jumps ahead and agrees to vote and provided no permanent member wields its veto and nine members approve, the application is recommended to the General Assembly for consideration and a vote. Yet the US US will most likely veto the application.

Additionally, the Council will hold an open debate on children in armed conflict, on April 3, focusing on humanitarian access denial in hot zones such as Afghanistan, Myanmar and Sudan — so not solely on Gaza, Frazier said. The head of the UN office on Children and Armed Conflict, Virginia Gamba, is scheduled to speak.

Her office produces an annual report of its research on the protection of children in wars, using six “grave violations” as criteria: the killing and maiming of children; recruitment or use of children as soldiers; sexual violence against children; abduction of children; attacks against schools or hospitals; and denial of humanitarian access for children.

The report is presented by Guterres to the Council and made public usually in the late spring. In the six-month war in Gaza, approximately 13,000 children have been killed out of 32,552 total deaths, taking a huge toll on minors. Gamba has not visited Gaza since the war began (her last visit was in December 2022). Her most recent statement on the conflict, tweeted on March 18, highlighted that children are “starving” in Gaza but did not mention the top priority of her agenda: the killing and maiming of children.

A report by Unicef, the Education Cluster and Save The Children revealed that the Israeli military has directly hit at least 212 schools in Gaza. The World Health Organization said that only 10 out of 36 hospitals remain operational in the enclave. Francesca Albanese a UN special rapporteur on the topic of human rights in Palestine since 1967, told the Human Rights Council on March 25 that there is evidence to believe that genocide is being committed in Gaza.

“There are reasonable grounds to believe that the threshold indicating the commission of the crime of genocide . . . has been met,” she said.

Frazier said that it is “terrible” that the Security Council has been unable to do more to stop the carnage in Gaza. She and the other nine elected members successfully pushed for an immediate ceasefire resolution on March 25, demanding a halt in fighting for the holy month of Ramadan, which ends on April 9, but nothing has changed on the ground.

“It’s not good enough, but it is better than nothing,” she said of the Council’s response to the war, including the March 25 resolution. “Nothing can be done without a ceasefire. If the deconfliction mechanism worked properly and if aid was going in unhindered, then it wouldn’t be important to have a ceasefire. However, the deconfliction mechanism is not respected, and international humanitarian law is not respected . . . the blue flag and the white flag mean nothing in Gaza, we need to have a ceasefire.”

The flag she was referring to is the UN’s, and the deconfliction tool is meant to ensure that the Israel Defense Forces do not strike humanitarian aid workers operating in Gaza.

After weeks of deliberating, Malta led the first resolution adopted by the Council on Gaza in late November, calling for “urgent and extended” humanitarian pauses by focusing on the plight of children and the people still held hostage by Hamas and other militants. However, only a few of the provisions of the resolution have been met.

Ungar said it is unlikely that the Council would agree on another ceasefire before the end of Ramadan, although France introduced another draft text on April 1 demanding a ceasefire, saying the Council “needs to do more.” Yet if a ceasefire does happen, Ungar said it would materialize only through negotiations outside the Council.

Each month, PassBlue profiles UN ambassadors as their countries assume the Council presidency. PassBlue interviewed Frazier on March 27, where we discussed Gaza and Malta’s effort to end the war, among other issues. The interview has been edited and condensed for clarity and space.

 

PassBlue: We know you are passionate about judo, which you have been practicing for 40 years. In our interview with you last year, you said it “defines” you as a “philosophy of life.” How has it been to combine the demands of the Security Council with the judo part of your life?

Frazier: It’s not easy. The private parts of my life have been the things that I’ve had to sacrifice, whether it’s family or sports. My sport is important to me, and it keeps me sane. It is difficult, but I go to judo at 7:30 in the morning two days a week. On the day I go, I do not put on my phone. When I come off the mat and look at my phone, I say, you know what, the world continues turning when I am offline.

PassBlue:  Absolutely. I think it’s important to have personal time, particularly with all the things happening around the world. You are currently one of five women ambassadors in the Council this year. (Britain, Guyana, Malta, Switzerland and the US.) What are the dynamics? Do you have special forums? Do you come together on certain issues?

Frazier: We have had some events for just us. I love the group and love to work in the group. It was really important when we were planning Malta’s campaign [running] for the Council. I became very friendly with the former Albanian permanent representative, who was campaigning for Albania to be on the Council too. We were doing a lot of the same preparations for our campaign. So we thought to come together — the women who were campaigning. We spoke to Geraldine [Byrne] at the time from Ireland, Lana [Nusseibeh of United Arab Emirates] and Pascale Baeriswyl [of Switzerland] arrived. When we joined the Council, we labeled the group the “W5.” It’s not something new because women on the Council have done things together before. We’ve done some events together, like breakfast with Afghan women. It’s difficult for us to get together with all the demands, but the bond is there. In my office, I have my picture, my kids, the five women, and the president. I did not call on the women [envoys in the Council] directly when I was doing my resolution [on Gaza] in November, but I knew I could count on the fact that they were with me.

The five women have had an impact on Gaza. Pascale Baerisywl and I, for example, were considering adopting a Palestinian child. Children are affected more in Gaza, and as women, it affects us too. Men want to end the war, women want to make peace. There is a difference. [Unicef estimates that there are 17,000 orphans in Gaza]

PassBlue: Do you think the sisterhood you shared with Ambassador Linda Thomas-Greenfield of the US contributed to the success of Malta’s resolution in November?

Frazier: I like to think so. The sensitivity she has as a woman helps with how she feels about the children and the women being held hostage. She could block out all the noises and focus on the children and women. I did not bank on the sisterhood, I did not call it, but yes. A veto is not easy to cast, I have to say this on behalf of the permanent members. They genuinely negotiate. [The US has vetoed three draft texts calling for a ceasefire in Gaza]

PassBlue: It’s been four months since the Malta-led resolution passed, but it hasn’t been implemented fully. What are your thoughts?

Frazier: We had a seven-day pause and some hostages were released. It is a bit bittersweet. We introduced the deconfliction mechanism, which is still not working properly. It is a big problem. But it is in a Council resolution, which is very important so that there is a legal obligation.

PassBlue: What does this slow progress on the Gaza war and the Malta-led resolution say about the Council’s ability to manage global conflict?

Frazier: It’s a terrible thing, I have to say, because it was the best that we could get at the time. It was not a ceasefire. Everybody wanted a ceasefire, but the ceasefire resolution wasn’t passed. So this is why we had to go down a notch [calling for  “pauses”]. And it was better than nothing, but not good enough. We are where we are now. We wanted to have been here since the end of October.

PassBlue: Do you think that the resolution of March 25, demanding an immediate humanitarian ceasefire during Ramadan leading to a “lasting sustainable ceasefire” will move the needle forward? 

Frazier: Just looking at the text of it, yes. This is a ceasefire, it should move the needle more. That’s what we expect. The fact that it calls for an immediate ceasefire for Ramadan, leading into a lasting one is very important: it means that we expect a cessation of hostilities now. A ceasefire is the beginning of everything. Nothing can be done without a ceasefire.

PassBlue: What is Malta’s position on the ICC referrals by seven countries recently and your country’s position on the ongoing International Court of Justice case filed by South Africa regarding accusations of Israel carrying out genocide in Gaza?

Frazier: We have stated our opinion in statements, not just in the United Nations but wherever we speak about this. The war is not being fought according to international law. We recognize Israel’s right in international law to protect its territory and its people against terrorist threats, the right that was given to them by the ICJ itself. But this right is not being exercised according to the rules of the game, which is international law and international humanitarian law. Now it is up to the ICJ to determine the legality of what we are saying. Malta is a great supporter of the judicial institutions of the United Nations, as a founding member of both the ICJ and the ICC. We urge Prosecutor Khan [of the ICC] to carry out the investigations properly, and where he finds war crimes, he should prosecute.

PassBlue: What are Malta’s signature events in April?

Frazier: There’s a climate aspect to our signature event on April 17 that will focus on the role of young persons in addressing security challenges in the Mediterranean. On April  3, we have a signature event on children in armed conflict since we chair the Council’s working group on the item.

PassBlue: Malta is vocal about climate change. How have you kept the topic alive in the Council?

Frazier: In our presidency last February, we held a very important event on sea level rise, which launched the whole process, even within the General Assembly. So that was a landmark — the first time such a discussion was held. We were very happy to have been given the platform of the Security Council and especially our seat as a small island developing state [SIDS] to highlight the climate threat of SIDS. Many of the states have identified it as their No. 1 existential threat.

Ambassador’s Profile

Malta’s ambassador to the UN: Vanessa Frazier, 54
Ambassador to the UN since: 2020
Languages: French, Arabic, Maltese, English, Italian
Education: B.A. in business management and French from Luther College, Decorah, Iowa; and a master’s in diplomatic studies, specializing in international law, University of Malta.

Her story, briefly: Frazier was appointed Malta’s permanent representative to the UN in January 2020 as well as to the International Seabed Authority. Two months after her new posting, New York City became a ghost town, having been declared the epicenter of the coronavirus. “I have lots of fantastic memories from Covid, because of the bond that was created with some of the permanent representatives,” Frazier said.

“I was in the PR running club [permanent representatives] [and] that group was very important to me during Covid. We would run alone but together, sharing our experiences.” Frazier has been a judo professional for 40 years, 10 years longer than her diplomatic career. Several judo principles govern her life but one comes to her often, she said:  “The color of the belt does not matter, it is only there to keep your judo uniform in place. And you can learn from anyone irrespective of their rank.”

Before coming to the UN in 2020, Frazier represented her country in its embassies in Washington, Rome, Brussels and London. In Brussels, she was ambassador to Belgium, Luxembourg and NATO. In London, she headed the political unit in the Malta High Commission. In Rome, she was Malta’s emissary to Italy and San Marino. She has also served as Malta’s ambassador on migration. Before working in Italy in 2013, Frazier was in charge of the Defense Matters Directorate in the Maltese prime minister’s office for six years. She has two children.

Country Profile

Prime Minister: Robert Abela
Minister for Foreign and European Affairs and Trade: Ian Borg
Type of Government: Unitary multiparty republic
Year Malta Joined the UN: 1964
Terms in the Security Council: 2023-24 and 1983-84
Population: 518,536 (2021)

Dulcie Leimbach contributed reporting to this article.