Palestinians’ potential access to International Criminal Court worries Israel

JERUSALEM — The Globe and Mail

Ron Prosor, right, Israel’s permanent representative to the United Nations, is seen Thursday after a vote to give Palestine ‘nonmember observer state’ status, at the United Nations General Assembly. An overwhelming majority of countries voted on Thursday to give Palestine the new status. (CHANG W. LEE/NYT)

As a non-member observer state, the Palestine Liberation Organization, the holder of such state rights, will have the capacity to apply for state membership in United Nations agencies, most significantly the International Criminal Court.

This is Israel’s greatest concern – that the Palestinians will become a state party to the Rome Statute that established the ICC and by which it could request an investigation into whether Israel should be charged with committing war crimes and crimes against humanity due to its policies and practices on the West Bank and in Gaza, including its military operations in 2008-09 and 2012.

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Israel, however, is not a state party to the ICC and so need not hand over an individual indicted for crimes.

The Palestinian Authority asked the ICC to conduct such an investigation in 2009 shortly after Israel’s war against Hamas in Gaza, known by Israel as Operation Cast Lead. Some 1,300 Palestinians were killed in the war, including a large number of civilians, and great damage was done to residential and commercial buildings as well as to government buildings and infrastructure.

In April, Luis Moreno-Ocampo, then the ICC chief prosecutor, concluded, without ruling on the merits of the request, that his office had no jurisdiction over the Palestinian territories until the UN, or the nations that have joined the ICC, recognized the Palestinians as a state.

In any event, the court may only prosecute crimes committed on or after July 1, 2002, the date the Rome Statute went into effect.

Should the Palestinian leadership proceed to seek such action by the ICC, it would be a long time coming. The application for membership alone would take months, and requests to investigate can be time-consuming. It was three years before the 2009 request was turned down on a matter of jurisdiction, not on the merits.

“The best the Palestinians can hope for is Sudan-like situation,” said a Western diplomat with UN experience. In that case, President Omar al-Bashir of Sudan was indicted in 2009 for crimes against humanity and war crimes. But since Sudan is not party to the ICC, he can avoid prosecution indefinitely by remaining in Sudan or in other states that are not party to the ICC.

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