Israel, Palestine and the ICC

The PA cannot be exempt from answering charges of war-crimes itself at the ICC.

By NEVILLE TELLER
International Criminal Court in the Netherlands 370 (photo credit: REUTERS/Michael Kooren)
International Criminal Court in the Netherlands 370
(photo credit: REUTERS/Michael Kooren)
There is a fairly widespread feeling that one of the Palestinian Authority’s (PA’s) main motives in seeking an upgrade of its status as a non-member observer state at the UN was to enable it to haul Israeli officials before the (ICC) on charges of war crimes committed during Israel’s first – and possibly also its second − Gaza incursion.
Throughout the three weeks of Operation Cast Lead in 2008, the broadcast media was out in force. It captured the horrors of war for television sets all over the world. Soon, charges were levelled against the Israel Defence Forces (IDF) from the usual sources of “disproportionate” military activity.  It was not long before they turned into accusations of war crimes. On the day after hostilities ceased − January 22, 2009 − the PA submitted a declaration to the International Criminal Court accepting its jurisdiction for “acts committed on the territory of Palestine.”
This initiative was seen by world opinion as the first stage in a bid to indict Israeli officials for actions committed during Operation Cast Lead but it failed on purely technical grounds.
It works out that the powers of the ICC are constrained in a number of ways. First, it has no jurisdiction in respect to crimes committed before the ICC came into existence on July 1, 2002. Second, its jurisdiction can only be activated by sovereign states. Finally, it can only investigate crimes in states that signed the Rome Statute, the treaty that created the ICC. However, any state that is not party to the Statute can accept the jurisdiction of the ICC with respect to crimes committed on its territory. This is the crack through which the PA sought to squeeze itself. But the PA was not a sovereign state and having considered its request for three years, in April 2012, the ICC prosecutor rejected it and referred the issue back to the UN Secretary General. 
It is generally agreed − although not, perhaps, by the PA − that the UN upgrade of Palestine to a non-member observer state did not in fact create a Palestinian state. But to the newly appointed ICC prosecutor, Fatou Bensouda of Gambia, she may need to reconsider the opinion of her predecessor, Luis Moreno-Ocampo when considering the PA's case. 
Why? Because in rejecting the PA’s application in April, Moreno-Ocampo cited the UN General Assembly as the final authority for deciding who a “state” is for the purposes of filing a case with the ICC. Moreover, he indicated that his decision was influenced by the fact that the PA had only “observer” status within the UN – implying that if it had been a “non-member observer state” his decision might have gone the other way.
It is a strong possibility that the ICC will agree to accept the PA’s request to submit itself to the jurisdiction of the court. If so, could the PA in fact initiate a criminal action against Israel?  
But in the two external inquiries that each castigated Israel severely for Operation Cast Lead (or the Gaza War), both subsequently had its main charges substantially modified. 
The board of inquiry, set up by UN Secretary General Ban Ki-moon, ignored the eight years of attacks against Israel and Hamas’s tactics to operate from areas that put their own civilians at risk. In seven of the nine incidents it investigated, the board found the IDF was responsible for death, injuries and damage. In opposition to the ruling of the board, Ban sent a response to the UN Security Council that criticized the firing of rockets at Israeli towns, and praised the coordination between the IDF and the UN during Operation Cast Lead and during the inquiry itself. 
The UN then commissioned a fact finding mission led by South African jurist Richard Goldstone. It was set up to investigate alleged violations of human rights during the Gaza War. Its report accused both the IDF and the Palestinian militants of war crimes and possible crimes against humanity. Lo and behold, on April 1, 2011 Goldstone published a personal retraction in The Washington Post, noting that subsequent investigations "indicate that civilians were not intentionally targeted as a matter of policy." He concluded, "If I had known then what I know now, the Goldstone Report would have been a different document."

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Therefore, the PA should reassess the shaky ground it stands on if it seriously considers hauling Israel before the ICC in respect to Operation Cast Lead. As regards Israel’s latest sharp lesson to Hamas, Pillar of Defense, the operation and the outcome resulted generally in a more even-handed account in the world’s media of the initial provocation and the subsequent Israeli reaction. There seems to be little in substance to place before the ICC.
However, assuming that the PA persists, and that the ICC prosecutor accepts it as a competent party, there still remain two questions. First, what are the chances of success for the PA? Second, what can Israel do in response?
As regards the former, the ground rules of the Rome Statute are explicit:
If a state becomes a party to this statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that state… 
The PA’s declaration was made on the day after Operation Cast Lead ended. Therefore, the ICC could not consider alleged crimes committed before that day. 
Is there any counter action Israel could take? If Palestine is eventually considered by the ICC to be a state, Palestinians could be indicted for crimes committed on their own soil which, let us recall, the UN General Assembly assumed to include Gaza. The rockets fired indiscriminately from Gaza at Israeli civilian population centers almost certainly constitute crimes against humanity. Israel and the United States have withdrawn from the Rome Statute, but nothing in the Statute says that a state referring charges to a prosecutor must be a party to the treaty. 
The PA needs to beware, if it persists in pursuing its action, it may find itself opening a Pandora’s box.
The writer is the author of “One Year in the History of Israel and Palestine” (2011) and writes the blog “A Mid-East Journal” (www.a-mid-east-journal.blogspot.com)