Palestinian lawfare
This posting contains 1) a briefing from WAND and articles from 2) JPost, 3) Ynet and 4) NY Times.
Looking for the dead and injured under a house targeted by the IAF in Rafah, July 2014. Targeting houses, as opposed to individuals, is regarded as a war crime. Photo by Ibraheem Abu Mustafa / Reuters.
Palestine and the International Criminal Court
Palestine has joined the ICC. Political wind set fair, legal and resource problems enigmatic.
By WAND (Web Arab News Digest)
March 311, 2015
Palestine joined the ICC on 1 April. Many of the questions we have raised in earlier postings remain unanswered: does Palestine have to wait a further period or can it begin to play immediately? Does membership, or does activism on their part, expose them to charges made by Israel or others? In part these questions are legal and answers will emerge only as battle is joined. In part they are political, and here the position has changed substantially as Israel has alienated world opinion by the horrors of the Gaza war last year and Netanyahu has lost the sympathy of the White House.
Those who are interested may like to follow the symposium “Palestine and the International Criminal Court” organised by Justice in Conflict, a blog run by Mark Kersten of the London School of Economics. A posting by Kevin Jon Heller of the London School of Oriental and African Studies who describes himself as in political sympathy with Palestine considers the question very much from the ICC point of view, arguing that the Office of the Prosecutor simply does not have the resources to tackle another problem as complex as Palestine, and that Israel could easily prevent it from investigating Israeli crimes although it would be more than happy to help investigate Hamas crimes. If there was a formal investigation it might not turn out well for the Palestinians because “Hamas’s deliberate rocket attacks on civilians would be by far the easiest of all the crimes to prosecute.” One comment on the blog argues that much will depend on what each side, Israel and Palestine, is doing to investigate alleged crimes. Another comment, pointing to the question of settlements, asks Heller “did you intentionally skip over the crime of directly or indirectly transporting population from the occupying power to the occupied territory? Because that one is also going to be very easy to prove, requires no complicated proportionality analysis, and Israel can make no claim of complementarity.”
What changed when ‘Palestine’ joined the ICC’s Rome Statute?
Insight into the changes, or lack thereof, that come with the Palestinians officially joining the International Criminal Court.
By Yonah Jeremy Bob, JPost
April 04, 2015
With all of the ceremony, fiery rhetoric and doomsday scenarios surrounding “Palestine” becoming a party to the International Criminal Court’s governing Rome Statute, it is important to pin down what has changed so far – with part of the answer being: not much.
The Palestinians really acceded to the Rome Statute in January, and Wednesday just saw that accession formally “taking effect” because accessions and ratifications of treaties have a waiting period.
“Palestine” can now take part in the Assembly of State Parties, which is the legislative body connected to the ICC.
The Palestinians can also now, without needing to make a temporary or ad hoc declaration, file war crimes complaints against Israelis relating to the settlements and to wars post-November 29, 2012, the day when, according to ICC Chief Prosecutor Fatou Bensouda, “Palestine” became a state.
Also, others can now file war crimes complaints against Fatah and Hamas either regarding actions against Israel or against each other.
Bensouda, not the Palestinian Authority, will still ultimately decide whether to open full criminal investigations or file indictments, with all of her actions on the issue right now and likely for months if not years consisting of preliminary checking of whether there are jurisdictional issues that block any case from going forward.
The list of issues that could stop the whole ICC process in its tracks is long and formidable, so most of the concern now from the Israeli side is what could happen down the road in the worst-case scenario.
Ultimately, April 1 was another small notch in the “Palestine” belt on a long voyage that may never reach shore.
Israel slams Palestinians ‘cynical and hypocritical’ ICC membership
After Palestinians join war crimes court, Israel fires back, saying move undermines two-state solution; slams court for accepting Palestinians, which are not fully recognized as a state.
By Itamar Eichner, Ynet newa
April 01, 2015
Israel denounced as hypocritical on Wednesday the Palestinian decision to join the International Criminal Court in order to seek to prosecute officials from the Jewish state, claiming the court had erred in agreeing to accept them.
“The Palestinian decision to join the ICC to initiate judicial proceedings against Israel is political, cynical and hypocritical,” the foreign ministry said in a statement.
Palestine formally joined the ICC Wednesday in a closed-door ceremony at the court’s headquarters in The Hague. However, Israel claimed the court was in the wrong for accepting the Palesotinians as a member and agreeing to an initial probe into alleged war crimes in Gaza.
“Israel’s position, like that of other nations like the US and Canada, is that the Palestinians are not entitled to join the ICC, and that the court does not have the authority to accept them, first and foremost because a Palestinian state is not recognized according to international law,” the foreign ministry said.
Israel further slammed the Palestinians, saying that “The government of the Palestinian Authority, which is associated with the deadly terrorist Hamas committing war crimes… is the last to be able to threaten legal action” before the court.
Unilateral Palestinian actions such as joining the ICC are “violations of the principles established between the two parties with the support of the international community to resolve the Israeli-Palestinian conflict,” it added.
The Palestinians officially joined the International Criminal Court at The Hague on Wednesday, a move initiated by Palestinian President Mahmoud Abbas after the failure of the US-brokered peace talks last year. Palestinian Foreign Minister Riyad al-Maliki was meeting with court officials Wednesday, in a move that was largely ceremonial.
Senior Palestinian official Saeb Erekat said Monday that the ICC had already begun a preliminary examination of alleged Israeli crimes.
Erekat said that the court had started investigating Israel’s actions during the Gaza operation last summer, Turkey’s Andolu agency reported.
“The legal and technical committees have been extensively working on finalizing the two files,” Erekat was quoted as saying. “We will conduct all practical moves directly after Palestine is officially declared an ICC member on Wednesday.”
At the end of last year, the Palestinians accepted the court’s jurisdiction dating back to June 2014, to ensure that last summer’s Gaza war between Israel and the militant group Hamas will be included in any review.
AFP and AP contributed to this report
Palestinians Join International Criminal Court, but Tread Cautiously at First
By Diaa Hadid and Marlise Simons, NY Times
April 01, 2015
RAMALLAH, West Bank — The Palestinians became members of the International Criminal Court on Wednesday, cementing the most significant and contentious step so far in their new strategy of seeking statehood through international forums.
Palestinians hope to use the court to bring international pressure to bear on Israel and call it to account for policies and actions that the Palestinians maintain are war crimes and crimes against humanity, including the Israeli assault on Gaza last summer and the continuing construction of Jewish settlements in the occupied West Bank.
However, the Palestinian leadership refrained from immediately taking the more provocative step of requesting that the court look into specific cases that may implicate Israeli officials. Instead, the Palestinians said they would wait to see the progress of a preliminary examination that the court’s prosecutor, Fatou Bensouda, began in January.
Foreign Minister Riad al-Malki of the Palestinian Authority with a copy of the Rome Statute at a ceremony on Tuesday in The Hague to welcome the Palestinians into the International Criminal Court. Credit Mike Corder/Associated Press
President Mahmoud Abbas of the Palestinian Authority signed papers on Dec. 31 to join the court as the State of Palestine, building on the observer status the Palestinians achieved at the United Nations General Assembly in 2012. Over the past year, the Palestinians have joined about 40 treaties and international conventions, in defiance of intense pressure from Israel and the United States, and the court is the most significant so far.
Just before they joined, the Palestinians requested that the court’s jurisdiction extend retroactively to June 13, 2014, in hopes that Ms. Bensouda would investigate Israel’s devastating 50-day summer war with Palestinian militants in the Gaza Strip. Hundreds of Palestinian civilians were killed in that conflict, the homes of tens of thousands were destroyed, and hospitals and other facilities were badly damaged by bombing and shelling.
Israel has strongly objected to the Palestinians’ joining the court, saying that such unilateral bids for recognition are counterproductive to the peace process and that Palestinian statehood can be achieved only through direct negotiations with Israel. And it has strongly defended its actions in Gaza. Israel says its military takes great care to minimize civilian casualties and property damage while Hamas, the Islamist group that dominates the territory, and other militants deliberately put Palestinian civilians at risk by hiding among them and firing rockets and mortar shells toward Israel from residential areas.
Indeed, now that the Palestinians have joined the court, Hamas in particular may be exposed to war-crimes charges, accused of firing indiscriminately at Israeli communities.
The Israeli Foreign Ministry said in a statement Wednesday that joining the court was “a political, hypocritical and cynical maneuver.” It called Hamas a “murderous terrorist organization that commits war crimes similar to those of the Islamic State” and said the Palestinian Authority was “the last party that should threaten” to complain to the court.
Saeb Erekat, the Palestinians’ chief negotiator in the sputtering peace talks with Israel, had said that the Palestinians would file complaints about Gaza and about the settlements once their membership took effect. But Ashraf Khatib, a spokesman for the Palestine Liberation Organization, said on Tuesday that the leadership had decided to hold off for now.
It is up to the prosecutor, Ms. Bensouda, to recommend to the court’s judges whether to proceed with full-scale criminal investigations. One criterion for making that decision is whether the Israeli or Palestinian judicial systems are able and willing to deal with the cases on their own.
The Israeli military is investigating several episodes from the Gaza conflict, and the Israeli state comptroller is pursuing an investigation as well. But human rights groups say that Israeli courts have failed to hold soldiers and commanders accountable for their actions in the past, hearing few cases and delivering even fewer convictions stemming from earlier conflicts. They say that for Palestinians in Gaza, in particular, redress is nearly impossible to obtain from the Israeli courts.
Hamas has dismissed allegations by Amnesty International and other groups that its fighters committed war crimes, and it refuses to investigate the episodes that the groups cite.
Palestinians hope that membership in the international court might, at the very least, make Israel less likely to resort to military force.
“Why were there three wars against Gaza in less than six years?” asked Issam Younis of the Al Mezan Center for Human Rights, a Gaza-based rights group. “It is simply because Israel is not accountable. This might act as a deterrent.”
The International Criminal Court was created by the Rome Treaty in 1998 and now has 123 members. (The United States is not among them; neither is Israel.) The court did not begin examining cases until a decade ago, and after several early missteps and failures, it has been struggling to establish and retain credibility. Some supporters fear that being drawn into the tangled Middle East conflict could overwhelm the institution.
“It now has to engage in a situation that is extremely politicized, and the greatest risk is that this can tarnish the court,” said Mark Ellis, the director of the International Bar Association, who follows the court’s work.
For that reason, a number of leading Western countries that were founding members of the court, including Canada, Australia, Britain and Germany, objected to the Palestinians’ membership. Publicly, they said it would undermine negotiations with Israel. Privately, though, some Europeans said their real concern was politicizing the court.
In January, Israel retaliated against the move to join the court by withholding some $127 million in monthly tax revenue that it collects on the Palestinians’ behalf, leaving the Palestinian Authority unable to pay its thousands of employees their full salaries. On Friday, though, Prime Minister Benjamin Netanyahu of Israel said he would release the withheld funds, minus some utility payments, an issue that remains a sore point with the Palestinians.
Though they are now members of the court, the Palestinians will have only limited influence over what it does. Eugene Kontorovich, a law professor at Northwestern University, noted that the court’s jurisdiction is “a torpedo they put in the water, which they can’t remove.” Still, he said that would work to the Palestinians’ advantage, giving them some cover against diplomatic pressure: “It prevents them from being beat up to stop it,” he said. “Now it is, in a sense, a new fact on the ground.”
Some Palestinians welcomed the formal accession to the court. In eastern Gaza, Faraj al-Arir sat with his relatives in their bomb-damaged home on Tuesday and recounted a host of grievances against Israel: One man’s father had died in an Israeli prison; another family member had to have his legs amputated after Israeli forces opened fire on him; Mr. Arir’s own home, across the road, was in ruins from last summer’s war.
“I want Palestinians to go to the International Criminal Court,” Mr. Arir said, “and let the world see what they have committed against us and how we are displaced now.”
Diaa Hadid reported from Ramallah, and Marlise Simons from Paris. Majd Al Waheidi contributed reporting from Gaza City, Somini Sengupta from the United Nations, and Said Ghazali from Jerusalem.