The International Criminal Court (ICC) is urgently considering whether the Palestinian Authority is “enough like a state” for it to bring a case alleging that Israeli troops committed war crimes in the recent assault on Gaza.
The deliberations would potentially open the way to putting Israeli military commanders in the dock at The Hague over the campaign, which claimed more than 1,300 lives, and set an important precedent for the court over what cases it can hear.
As part of the process the court’s head of jurisdictions, part of the office of the prosecutor, is examining every international agreement signed by the Palestinian Authority to decide whether it behaves — and is regarded by others — as operating like a state, which would open the way for it to become a signatory to the court.
Following talks with Arab League Secretary-General Amr Mousa and senior Palestinian Authority officials, moves have accelerated rapidly inside the court to deliver a quick ruling on whether it may be able to insist on jurisdiction over alleged war crimes perpetrated in Gaza, with a decision from the prosecutor’s office expected within “months, not years.”
The issue arises because although the ICC potentially has “global jurisdiction” to investigate crimes that fall into its remit no matter where they were committed, Israel — despite having signed the Rome statute that founded the court and having expressed “deep sympathy” with the court’s goals — is not a party.
The ICC, which has 108 member states, has not so far recognized Palestine as a sovereign state or as a member.
The latest moves in The Hague come amid mounting international pressure on Israel and a growing recognition in Israeli government circles that it may eventually have to defend itself against war crimes allegations. A confidential inquiry by the International Committee of the Red Cross into the actions of Israel and Hamas during the recent conflict in Gaza is expected to accuse Israel of using “excessive force” — prohibited under the fourth Geneva Convention.
The Red Cross has been collecting information for two parallel inquiries, one into the conduct of Israel and a second into Hamas, both of which will be presented in private to the parties involved.
In the case of Israel, the Red Cross is expected to highlight three areas of serious concern: the Israeli Defense Forces’ (IDF) “use and choice of weapons in a complex and densely populated environment”; the issue of “proportionality”; and concerns over the IDF’s lack of distinction between combatants and non-combatants during Operation Cast Lead. Hamas is likely to be challenged over its use of civilian facilities as cover for its fighters; its summary executions and kneecappings of Palestinians during the campaign; and its indiscriminate firing of rockets into civilian areas.
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