On one hand, the Palestinians’ move on Wednesday to join 15 international organizations and treaties may have significantly strengthened their case for joining the International Criminal Court.
On the other hand, along with several barriers to actually prosecuting a successful case against any Israeli citizen, a little reported statement by International Criminal Court Prosecutor Fatou Bensouda may indicate that principles of retroactivity have already eliminated any chance at pursuing allegations against Israelis relating to Operations Cast Lead and Pillar of Defense.
But let’s turn back and see why the Palestinians’ move could matter in the first place.
The Palestinians tried to bring war crimes allegations to the ICC’s attention in 2009 after Cast Lead against Hamas in Gaza in 2008-2009.
After three years of lawfare between the sides, then-ICC Prosecutor Luis Moreno Ocampo decided in April 2012 that no investigation could be opened because Palestine was not a state and only states could request an investigation. There are two other paths to the ICC, but the focus has been on this one.
Moreno Ocampo’s decision hinted that, if the UN General Assembly accepted Palestine, he might have decided differently.
When the UN General Assembly accepted Palestine as a non-member state on November 29, 2012, many said that Palestine could now return to the ICC and successfully request an investigation not only into Cast Lead, but also into the November 14-21, 2012, Pillar of Defense Gaza offensive.
The Palestinians’ move this week to join more international organizations and treaties only strengthens the idea that Palestine is a state widely recognized within the UN system and international treaties.
This strengthens any Palestinian attempt to join the Rome Statute governing the ICC and to request an investigation against Israelis for war crimes.
Some obstacles that could block any such investigation, let alone an indictment, have been discussed, including: Israel could go after the Palestinian for war crimes, the US and other Israeli allies could withdraw funding from the Palestinians and support from the ICC, and the problems of complimentarity (the ICC can only investigate individuals in countries which are incapable of investigating themselves) and of proving criminal intent in a war zone context.
But there has been little reporting on statements Bensouda reportedly made in a speech in Paris on March 20, 2013.
According to John Whitbeck, an international lawyer who works with the Palestinians, Bensouda said that any Palestinian allegations could go back retroactively to November 29, 2012, at the earliest, but not to the birth of the court in 2002.
This is despite arguments that the ICC’s rules would allow the Palestinians or any other state to bring charges going back to 2002, even if they did not join the ICC until later.
The argument would be that only nations which were states in 2002 can later join the Rome Statute, and make their joining retroactive to 2002.
Bensouda’s office was contacted for comment but had not responded by press time.
Whitbeck published Bensouda’s comments in multiple Arab media outlets. Academic Kevin Jon Heller reported on it on Opinio Juris, one of the leading academic blogs on international law.
The Jerusalem Post was not able to locate any reports to the contrary.
It would be puzzling for Whitbeck to make up such a statement which could be helpful to Israel.
Bensouda issued a report in November 2013 indicating that the Palestinians’ 2009 application remains invalid, which could indicate that any new application would be a new start – a statement which appears to confirm the 2012 cut-off perspective.
If this is Bensouda’s stance, it means that many of those writing about the ICC in recent days have not understood that allegations relating to the UN’s Goldstone Report, Cast Lead and Pillar of Defense are off-limits from the start, even if Palestine can join the ICC. It is important to note that Bensouda reportedly said that the ICC is “waiting” for the Palestinians to “come back.”
This would be a game-changer: While there are more recent allegations that the Palestinians could raise, the main large-scale war crimes allegations Israelis have worried about would be off the table.
The Palestinians’ actions this week may have moved them closer to being able to join the ICC. But if the reported Bensouda statements indicate policy, Israel’s worst case scenario if the Palestinians succeed may not be as bad as some have dreaded.
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