A group of over 50 Palestinians is expected to request that the International Criminal Court probe the Palestinian Authority for war crimes of torturing them.
Represented by Uri Morad, director of International Law at the Jerusalem Institute for Justice (JIJ), and lawyer Barak Kedem of the law firm Arbus, Kedem and Tzur, the group of Palestinians is trying to capitalize on legal judgments they have already won in Israeli civil courts on the issue.
The JIJ issued a statement on Sunday that they would file their complaint with the ICC in The Hague on Monday.
In November 2018, the Supreme Court effectively endorsed two judgments totaling close to NIS 14 million against the PA for falsely jailing 51 Palestinians, including charges of torture.
In December 2017, the Jerusalem District Court issued a judgment of about NIS 900,000 in attorneys’ fees for the plaintiffs in the case, and in June 2018, a judgment of approximately NIS 13.1m. was issued against the PA for false imprisonment.
In the first case of its kind, an Israeli court in July 2017 ruled that 51 Palestinians who were tortured by the PA for cooperating with Israel could sue the Authority for damages.
That 1,860-page ruling, based on dozens of witnesses over several years, was one of the most bizarre in years, as it involved Palestinian citizens coming before the courts of the Israeli “occupation” to get justice for their mistreatment by their own Palestinian law enforcement.
The PA appealed all of the District Court’s decisions to the Supreme Court and asked that the lower court’s decisions be frozen until the appeal would be decided.
Justice Yosef Elron rejected the PA appeal despite its warnings that having to pay the damages, and possibly much larger future damages, might cause the Authority to collapse. (The NIS 14 million related only to false imprisonment. That sum could pale compared to the damages the District Court might later issue for the full torture liability.) The PA hoped raising the bigger picture would deter the court.
Broadly speaking, though, Elron said the PA failed to bring specific evidence to show the alleged economic disastrous impact that paying the judgments would have on it.
At earlier stages in the case, the plaintiffs were represented by Elon Moreh resident and lawyer Menachem Kornvich. In recent years, however, they have been represented by law partners Barak Kedem, Aryeh Arbus, Netanel Rom and David Zurwill, who plan to push for much higher damages for the torture.
In the July 2017 decision, the District Court said the PA authorities tortured various plaintiffs by “beating them on all parts of the body, hitting them with lead pipes, extinguishing cigarettes on their bodies, hanging them in torture positions for hours and starving them.”
Some of the plaintiffs “were also exposed to extreme heat and cold, or extremely hot or cold water was dumped on them,” and authorities ordered doctors to pull out healthy teeth instead of attending to unhealthy teeth.
The PA attempted a range of defenses before the July 2017 decision, which did not succeed in Israel but which might succeed before the ICC.
At all stages, though, the PA denied that its personnel carried out any torture. In addition, the PA alternately claimed that it had a right to arrest and pressure some detainees who endangered PA security and vital interests by spying or cooperating with Israel. It also argued that Israel had no jurisdiction over the Palestinians, since they are PA citizens.
Moreover, the PA said international law, not local Israeli personal injury law, should govern the handling of the cases.
Other than eight plaintiffs whom the court found were common criminals, the court rejected the PA’s defenses.
Notably, the court said if Palestinians were cooperating with Israel to thwart terrorist attacks on Israelis, the PA is also obligated to assist in such efforts under the Oslo Accords. Accordingly, the court said the PA could not treat such Palestinians as criminals, much less torture them.
Further, the court found that in some cases, the PA had arrested Palestinians while they were within the Green Line, or had arrested Arabs who have Israeli citizenship.
In both cases, the court said the PA clearly had no authority under the Oslo Accords.
In contrast, the ICC Prosecution has recognized a State of Palestine, may view international law as trumping Israeli law, and may not view the Oslo Accords as obligating the PA to prosecute.
Even if the ICC accepts Israeli arguments in the case, it would need to decide that the evidence met the beyond a reasonable doubt standard for criminal law, which is much higher than civil law.
However, at the end of the day, the Israeli case did a serious job collating the evidence, and the volume of it may be too much for the ICC to ignore.
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