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The Palestinian Bid for Statehood and ICC Jurisdiction

5:41 PM, Sep 19, 2011 • By DAVID BENJAMIN
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One of the supposed “benefits” for the Palestinians of achieving U.N. recognition of statehood in the West Bank and Gaza would be the possibility for the new "state" to submit itself to the jurisdiction of the International Criminal Court (ICC), thereby paving the way for prosecutions of Israeli military personnel and government officials for alleged "war crimes" committed in the territory.

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In January 2009, the Palestinian Authority's minister of justice, Ali Khashan, submitted a formal declaration accepting the jurisdiction of the ICC over the "Territory of Palestine" for all alleged crimes committed since 2002. The Rome Statute governing the ICC allows for such declarations to be made by states that have not yet submitted themselves to the court's jurisdiction. The legal question the chief ICC prosecutor has been mulling over for the last two-and-a-half years is whether the PA can qualify as a "state" for this purpose. The prosecutor has yet to make a determination on the matter.

The original point of the Palestinian declaration was to create a situation wherein Israelis could be prosecuted in the ICC. Without such a declaration being recognized by the ICC (or a referral by the U.N. Security Council), the court has no jurisdiction over Israel (since Israel is not an ICC member).

Whether the prosecutor would be more inclined to accept the Palestinians' position if the U.N. were to recognize a Palestinian "state" is unknown. However, an unavoidable side effect of the PA's declaration being recognized would be that the Palestinians themselves would then become subject to ICC jurisdiction.

This was a price the Fatah-run PA was willing to pay in the past, since the only Palestinians whom they saw as being potentially susceptible to accusations of war crimes and crimes against humanity were the mortal enemies of Fatah, the terrorist gang Hamas. Hamas is now senior partner with a Palestinian “government” hoping to achieve international acceptance.

The reality is: The persistent, deliberate and indiscriminate launchings of Hamas rockets at Israeli communities, the suicide bombings, and the shootings all constitute heinous war crimes or crimes against humanity. Moreover, there is little or no factual dispute about whether these attacks took place, who was behind them, at whom they were directed, and what their purpose was. On the contrary, attacks on Israeli civilians are a source of pride for Hamas. The Hamas leadership bears responsibility for these crimes. No investigations have been carried out by Palestinian authorities into any of these violations. For the ICC prosecutor, this would largely be a simple case. Moreover, members of other Palestinians factions engaged in terrorism, including elements of Fatah itself, would also become potential defendants if the ICC obtained jurisdiction.

By contrast, the most serious accusations made against Israelis seem to be crumbling: Recently, the chief U.N. fact- inder on the Gaza conflict, Richard Goldstone, acknowledged that initial allegations of a deliberate Israeli policy to attack civilians were unfounded. Moreover, U.N. experts have pointed to a concerted investigation process on the part of Israel into alleged violations by Israeli personnel. This is important since in cases where a country has undertaken genuine steps to investigate and prosecute wrongdoing, the ICC is precluded from acting.

If the ICC recognizes the PA's declaration and extends its jurisdiction to the territories, the PA will be obliged to either conduct genuine prosecutions against Hamas leaders and other perpetrators or render them to the ICC. Whatever the status of the Fatah-Hamas Unity Agreement, this would certainly become a highly divisive issue for the Palestinians.

The parallel with Lebanon looms large: There, the Lebanese government supported an international tribunal to investigate the murder of Prime Minister Rafik Hariri. Subsequently, Hezbollah—the prime suspects in the crime—became partners in the Lebanese government. Now the findings of that tribunal threaten to plunge Lebanon into civil war.

Thus, for the Palestinians, the cost benefit analysis with respect to their ICC jurisdiction gambit has changed somewhat. It would seem they have much more to lose than to gain if the ICC grants their wish.

David Benjamin is an international law consultant and a former senior legal advisor to the Israel Defense Forces.

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