Should Israel fear ICC war crimes prosecutions if Palestine becomes a state?

Critics of the Palestinian President Mahmoud Abbas‘s U.N. statehood drive have highlighted the pointlessness of the initiative, saying it will bring the Palestinians no closer to their dream of an independent state, and may in fact delay it.

But the move is anything but meaningless.

A General Assembly declaration recognizing a Palestinian state may provide the Palestinians with a powerful weapon to use in its ongoing struggle with Israel: the right to invite the International Criminal Court prosecutor to investigate alleged Israeli crimes against Palestinians, according to legal experts. But it could also expose Palestinian militants to prosecution for launching missile attacks against Israeli towns.

In a sign of concern, the Obama administration has appealed to the Palestinians to cease the effort, according to a secret U.S. cable released by Wikileaks and published recently in the Israeli daily Haaretz. A top Israeli military lawyer, meanwhile, urged the Obama administration to go further by publicly declaring that the International Criminal Court has no legal authority to pursue alleged crimes.

In a February, 2010, meeting with James C. Cunningham, the U.S. ambassador to Israel, the Israel Defense Forces military advocate general, Avichai Mandelblit, “noted concern with the Palestinian Authority’s effort to undermine Israel through the International Criminal Court and hoped the U.S. would weigh in with both the PA[Palestinian Authority] and the ICC, and publicly state our view of the ICC’s lack of jurisdiction. He warned that PA pursuit of Israel through the ICC would be viewed as war by the GOI [Government of Israel].”

If the General Assembly adopts a statehood declaration, the Palestinians intend to seek membership in the International Criminal Court, according to senior diplomats. But they have also sought to assure the United States that they are not seeking a confrontation with Israel, and are hoping the ICC can protect them from future military operations. They have insisted that by joining the ICC they are simply doing what scores of other law-abiding states have done with little controversy.

Until now, the International Criminal Court has had no authority to investigate alleged crimes committed by either side in the Israeli-Palestinian conflict, because Israel has not joined the court and the Palestinians have not been recognized as a state with the right to join the world’s various treaty bodies. Another path to prosecution of Israeli war crimes would require a green light from the U.N. Security Council, a development that is highly unlikely given the United States’ veto power.

In January, 2009, in the midst of an Israeli military Operation Cast Lead in the Gaza Strip, the Palestinians took advantage of an obscure provision in the Rome Statute (the treaty establishing the ICC) that allows states that have not joined the ICC to grant the prosecutor authority to investigate crimes on its soil. The provision, Article 12.3, says that a state “which is not a party” to the Rome Stature may lodge a declaration to the ICC registrar accepting the “exercise of jurisdiction by the court with respect to the crime in question.”

But the ICC’s chief prosecutor, Luis Moreno-Ocampo, has yet to reach a decision on whether to accept the investigation and is unlikely to do so before the General Assembly acts. A decision by the General Assembly recognizing Palestine, while not legally binding, will increase pressure on Moreno-Ocampo to make up his mind, according to legal experts.

The U.N. General Assembly’s “recognition of Palestinian statehood would likely bolster the argument that the Palestinian territory is a state for purposes of Article 12 of the Rome Statute,” said James Goldston, a former ICC trial attorney and executive director of the Open Society’s Justice Initiative.”Once the statehood legal hurdle were surmounted — by no means a sure thing — the question would arise of how far back jurisdiction attaches.”

The Palestinians asked the prosecutor to exercise jurisdiction over major war crimes dating back to 2002, opening the door to possible investigations of Operation Cast Lead. But legal scholars remained divided over whether the prosecutor can open cases dating back that far.

“The Palestinian initiative at the United Nations this month indeed can transform the whole dynamic. For two and one-half years the prosecutor has deliberated, or perhaps sat on, this very delicate and controversial issue and rendered no opinion whatsoever,” said David Scheffer, a legal scholar who represented the United States during negotiations on the Rome Statue under the Clinton administration. “If the General Assembly grants non-member observer state status, however, to Palestine, the decision is no longer necessarily his to make — he can lean on the General Assembly’s decision and accept the declaration.”

Goldston and Scheffer said that even if the Palestinians are recognized as a state there are other hurdles to launching a prosecution. The ICC prosecutor, who is charged with investigating only the most serious crimes — including genocide, war crimes, and crimes against humanity — would have to determine whether any crimes allegedly committed on Palestinian territory are serious enough to merit his involvement. He would also have to determine whether the local justice system, either Israeli or Palestinian, has failed to make a good faith effort to prosecute alleged crimes themselves.

Scheffer argued that the Israelis’ best defense would have been to negotiate an exemption from ICC prosecution as part of a peace deal with the Palestinians.

“Otherwise, tensions and conflict can easily and needlessly be stoked in the future,” he said. “Israel should be negotiating an arrangement with Palestinian authorities whereby either the peace agreement (if there were to be one) or some other international agreement between Israel and Palestine be concluded that would waive any right to apply to the ICC for past actions…. Israel should leverage this kind of arrangement while it still can, before it’s too late. That alone counsels for a more serious attempt at resuming peace talks.”

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