Analysis: Even if Goldstone Report shelved, threat of ICC prosecutions still looms

Analysis Even if Goldst

By DAN IZENBERG
While Israel, thanks to Libya, suddenly faces the threat that its actions during Operation Cast Lead may be considered in the UN General Assembly and the UN International Court of Justice, there is still a possibility that individual Israeli military and political leaders will be prosecuted at the International Criminal Court in the Hague. The reason for this has nothing to do directly with the Goldstone mission or its recommendation that the UN Security Council ask the ICC to prosecute Israel and Hamas if they fail to conduct genuine investigations and appropriately punish anyone found guilty of committing war crimes or crimes against humanity. Although the Security Council is due to discuss the Goldstone Report on Wednesday, it is hardly likely that it will approve the mission's recommendation on the ICC. Nonetheless, the ICC threat has been looming over Israel since January, when Palestinian Authority Justice Minister Ali Khashan signed a declaration recognizing the jurisdiction of the ICC for the purpose of "identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since July 1, 2002." Khashan did so in accordance with Article 12, paragraph 3 of the Statute of the ICC, which deals with states that are not parties to the statute. According to the provision, a non-member state may accept the jurisdiction of the court on an ad hoc basis regarding a specific allegation. Since Operation Cast Lead, more than 200 complaints have been lodged against Israel about its actions during the fighting. The court is authorized to investigate allegations of war crimes, crimes against humanity, and genocide that are made against individuals. The problem is that Palestine is not a state, and no non-state party can join the ICC or be subject to its jurisdiction. Nevertheless, ICC Prosecutor Luis Moreno-Ocampo, from Argentina, did not reject the PA request out of hand. In a statement issued on February 13, he said, "The Prosecutor's Office will carefully examine all relevant issues related to the jurisdiction of the court, including whether the declaration by the Palestinian National Authority accepting the exercise of jurisdiction by the ICC meets statutory requirements; whether the alleged crimes fall within the category of crimes defined in the statute; and whether there are national proceedings in relation to those crimes." In February, Moreno-Ocampo told the Los Angeles Times that "each of these legal issues is complicated. We move when we are completely sure. Our contribution is impartiality. We will consider this carefully and thoroughly." Ten months later, the prosecutor has still not given his answer. According to Daniel Taub, the Foreign Ministry's deputy legal adviser, more than 200 top lawyers from all over the world have written the ICC stating that accepting the PA declaration would violate the ICC statute, which unambiguously refers only to states. He refused to say what steps, if any, Israel had taken to discourage Moreno-Ocampo from accepting the PA declaration. Taub added that in his report recommendations, Judge Richard Goldstone had urged the prosecutor to expedite his decision. In the text itself, Goldstone may even have hinted that Moreno-Ocampo should accept the PA declaration. John Dugard, the former rapporteur to the UN Human Rights Commission, made it clear in a July opinion piece in The New York Times that the ICC should accept the Palestinian declaration. "Over 100 states have recognized a 'State of Palestine,' and it is a member of the Arab League," Dugard wrote. "Moreover, the Palestinian National Authority has diplomatic relations with many states and observer status at the UN... The purpose of the Rome Statute, as proclaimed in its preamble, is to punish those who commit international crimes and prevent impunity. If an entity claiming to be a state, and recognized as such by a majority of states, makes a declaration under the ICC statute that seeks to give effect to such goals, the ICC should accept it as a state for the purpose of the ICC statute." If, in the end, the ICC decides to accept the declaration, it could also investigate a complaint lodged by the city of Sderot against Hamas for its indiscriminate rocketing of the town.