An Israeli law firm on Thursday formally announced its request to the prosecutor
of the International Criminal Court, Fatou Bensouda, to open a criminal
investigation into violations by Palestinian Authority President Mahmoud Abbas
and nine members of Hamas for war crimes, crimes against humanity and crimes of
The allegations include alleged war crimes against Israeli
civilians and by the Palestinians against rival Palestinian groups, such as
Fatah’s forces against Hamas’s sympathizers during rounds of
After years of public threats by the PA to file such a
request or case against Israeli soldiers and political leaders, an Israeli
lawyer, Mordechai Tzivin, was the first to strike, filing a complaint and
request for an investigation.
The request is unprecedented not only
because it involves the Israeli-Palestinian conflict and is against “Palestine”
as a state and its leaders such as Abbas and nine Hamas members, but also
because it is filed by an individual law firm as opposed to by a
Generally speaking, the ICC can only hear cases filed by
However, as the Tzivin wrote in his request to Bensouda, the ICC
prosecutor has a little known and almost entirely unused power to essentially
self-open an investigation and self-file an indictment against individuals for
international law violations.
The power, referred to as the prosecutor’s
“propio motu” power, is generally not used by the prosecutor because it requires
special approvals from the ICC itself and leaves the prosecutor’s office exposed
for using an extraordinary measure not requested by any state.
request is a notable first as, in order to request an investigation and
indictment, it recognizes a “Palestine State, formerly known as the Palestinian
National Authority,” something that Israel has fought against
Some would see such a move as opening up a Pandora’s box, as
the same argument could be easily turned on Israel.
Asked whether he had
coordinated his move with Israeli officials, Tzivin said he had spoken with top
legal officials in all of the key ministries as well as a top official in the
Despite Israel’s official position that there is
still no state of Palestine, Tzivin said that he was either told that he had
their blessing or that at least no one told him to hold back.
that his impression is that there is significant concern among top Israeli legal
officials that the PA already has a stack of complaints ready to file against
Israel and that it is just waiting for the right moment.
The case is also
unusual because while the basis of the war crimes allegations against Hamas
appeared to be Israeli government and human rights groups reports on Hamas
rocket and other attacks on Israeli civilians, the basis of the case against
Abbas appeared to be reports of alleged war crimes his security forces committed
against supporters and sympathizers of Hamas.
At least in theory, anyone
can bring information to the attention of Bensouda, even an Israeli lawyer
reporting on allegations not just against Israelis, but also by Palestinians,
such as Abbas, against Palestinians.
According to the letter, the
November 29, 2012, UN General Assembly vote recognizing “Palestine” along with a
2009 declaration that Abbas has reaffirmed fulfilled the ICC’s criteria for
accepting its jurisdiction.
The ICC can only hear a case against states
that have accepted its jurisdiction.
No official for the PA or for Israel
has formally and successfully accepted ICC jurisdiction to date, although the PA
tried until its application was rejected in April 2012.
Because of all of
the unusual aspects regarding the request, its chances of success are not
However, Tzivin was undeterred, optimistic about his chances and
said he was traveling soon to the ICC to meet with officials there whom he had