Recognition of a Palestinian state could, in theory, lead to Israeli officials being dragged repeatedly before the International Criminal Court in the Hague for claims regarding its settlement policies in the West Bank, legal experts say.

According to the statute of the court, the direct or indirect transfer of an occupier’s population into occupied territory constitutes a war crime.

Open gallery view United Nations General Assembly Hall on Oct. 12, 2010. Credit: AP

“The jurisdiction of the International Criminal Court in the Hague is a complementary jurisdiction, meaning that the court will not intervene in cases when a war crime complaint is being investigated by Israel and those responsible are prosecuted,” explained Prof. Robbie Sabel, a former legal adviser to the Foreign Ministry and an expert in international law.

“But in instances in which Israel is not conducting a war crime investigation and is not trying to ascertain the guilt of the accused, the court may get involved,” he said.

“The settlements are a prime example of this, since in theory one could say that we are talking about a war crime, that Israel is not investigating it and not bringing those responsible to justice. Thus, the court could get involved and investigate.”

Sabelisn’t convinced, however, that the Palestinians will use this tool very often, if at all.

“Interestingly, except for Jordan, no neighboring Arab state [has accepted the court’s jurisdiction],” he said. “Why hasn’t Syria joined? Syria could have joined and asked that an investigation be opened against Israel for settling the Golan. The reason is that if Syria joined, it would also be exposed to having its officials being tried for war crimes.

“It could be that the Palestinians will get caught up in the issue of the settlements, but at the same time, any Palestinian that, say, shot at Israeli civilians would also be subject to the court’s jurisdiction. Undoubtedly Israel could come up with a long list of terrorists that harmed Israelis and were never tried by the Palestinian Authority and turn it over to the court for handling.”

Another issue is whether the newly minted “Palestine” could make claims regarding incidents that occurred before it was recognized as a state. The court has jurisdiction only for claims made by UN member states.

Attorney Nick Kaufman and Prof. Daphne Richmond-Barak, both international law experts who have worked with the International Criminal Court, believe the Palestinians will certainly try. They may even ask the court to investigate incidents that occurred before 2002, which is when the court began operating, even though as a rule, such claims are not accepted, says Richmond-Barak. “The chances that Israelis will find themselves in court in the Hague will be much greater after September,” she said.

Kaufman, meanwhile, petitioned the ICC this week on behalf of the Regavim advocacy group, which asked the court to reject the request by the Palestinians in 2009 to investigate events pertaining to Operation Cast Lead in Gaza.

Regavim argues that the Palestinian intention to declare a state and ask for its recognition now proves that at the time they filed their request with the court, they were not a state. The court thus has no authority to respond to their request and must reject it out of hand, Regavim says.

Meanwhile, attorneys Limor Yehuda and Anne Sucio, of the Association for Civil Rights in Israel, issued a position paper yesterday on the possible ramifications of the recognition of a Palestinian state on civil rights in the territories.

Yehuda disagrees with what she called the “impassioned” approach to the legal changes, including the possible involvement of the ICC.

“You must remember that Palestinian ratification of the Rome Statute [which created the ICC] will obligate them to uphold human rights for example, to refrain from torture and avoid firing on Israeli civilians,” she said. “It is liable to increase both sides’ commitment to human rights.”