Israeli lawyer goes after Abbas, Hamas in ICC

Files request to prosecute "Palestine," as a state; allege crimes by Palestinians against Israelis and Palestinians alike.

By YONAH JEREMY BOB
Mordechai Tzivin 370 (photo credit: Courtesy)
Mordechai Tzivin 370
(photo credit: Courtesy)
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 aggression.
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 in-fighting.
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 state.
Generally speaking, the ICC can only hear cases filed by states.
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.
The 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 fiercely.
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 security establishment.
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.
He added 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 high.
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 connections with.