Analysis: PA war crimes charges aren’t really about Gaza

The report pushes forward on the issue of whether settlements are war crimes.

By
June 26, 2015 02:32
2 minute read.
Jericho

Israeli soldiers check cars at a checkpoint near the West Bank City of Jericho. (photo credit: REUTERS)

Where does the Palestinian Authority’s Thursday submission of a report on alleged war crimes by Israel fit into the big picture confronting Israel and the International Criminal Court? Regarding the 2014 Gaza war in which some 2,100 Palestinians and 73 Israelis were killed, it is just another report.

It may have some new information, but it is more of a footnote – like Israel’s own report that came out around two weeks ago, with the UN Human Rights Council’s report issued on Monday likely carrying far more weight with the ICC prosecutor.

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But the report pushes forward hard on an entirely separate front with ICC Prosecutor Fatou Bensouda that, absent the Gaza war, she might be more likely to stay away from.

The separate issue is whether the Palestinians can convince Bensouda to go after the settlement enterprise since June 2014 – and possibly since November 29, 2012, when the UN General Assembly declared "Palestine" a state – as an ongoing war crime.

There is no agreement as to what Bensouda will do with the settlements-as-war-crime allegations, particularly since no one has ever been prosecuted by any war crimes tribunal for establishing settlements.

Pushing forward with the settlements- as-war-crime would require Bensouda to ignore a wide range of legal issues.

These include parts of the Oslo Accords, which appear to block an independent "Palestine" emerging without Israeli consent; defining “Palestine’s” borders when it has none and which territories it has “effective control” over, since Israel does not permit it full sovereign action; resolving the disconnect between the West Bank and Gaza; and shifting from a focus on grave war crimes like genocide and mass killing to building roads and other infrastructure.



But many experts believe, given her decision to recognize "Palestine" as a state without a full hearing of Israel’s objections, that she could find legal interpretations to resolve each problem if she were committed to the issue as a whole.

Also, unlike with the 2014 Gaza war, where Bensouda needs Israel’s cooperation to enter Gaza to gather evidence or to obtain privileged documents from the IDF, experts have pointed out that information about the settlement enterprise is publicly available.

Another bigger problem for Israel regarding the settlements than with Gaza war crimes allegations is that Israel is investigating the Gaza war allegations but not settlement issues, as it does not regard the settlements as illegal.

So where Israel may be able to keep the ICC out of Gaza war-related issues with the defense that the ICC cannot inject itself into a situation where a country is investigating itself, that defense will not be available for the settlements.

On the flip side, it is unclear how many countries will support calling the settlements a war crime, even if they view them as illegal, whereas more countries might support war crimes allegations regarding the Gaza war.

Ultimately, the significance of the Palestinian move is giving Bensouda a second and separate reason to inject herself into the Israeli-Palestinian conflict.


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