The International Criminal Court is exploring ways to prosecute Israeli commanders over alleged war crimes in Gaza.
The alleged crimes include the use of deadly white phosphorus in densely populated civilian areas, as revealed in an investigation by The Times last month. Israel initially denied using the controversial weapon, which causes horrific burns, but was forced later, in the face of mounting evidence, to admit to having deployed it.
When Palestinian groups petitioned the ICC this month, its prosecutor said that it was unable to take the case because it had no jurisdiction over Israel, a nonsignatory to the court. Now, however, Luis Moreno-Ocampo, the ICC prosecutor, has told The Times that he is examining the case for Palestinian jurisdiction over alleged crimes committed in Gaza.
Palestinian groups have submitted arguments asserting that the Palestinian Authority is the de facto state in the territory where the crimes were allegedly committed.
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“It is the territorial state that has to make a reference to the court. They are making an argument that the Palestinian Authority is, in reality, that state,” Mr Moreno-Ocampo told The Times at the World Economic Forum in Davos.
Part of the Palestinian argument rests on the Israeli insistence that it has no responsibility for Gaza under international law since it withdrew from the territory in 2006. “They are quoting jurisprudence,” Mr Moreno-Ocampo said. “It’s very complicated. It’s a different kind of analysis I am doing. It may take a long time but I will make a decision according to law.”
Mr Moreno-Ocampo said that his examination of the case did not necessarily reflect a belief that war crimes had been committed in Gaza. Determining jurisdiction was a first step, he said, and only after it had been decided could he launch an investigation.
The prosecutor’s office has already received several files on alleged crimes from Palestinian groups and is awaiting further reports from the Arab League and Amnesty International containing evidence gathered in Gaza.
Under the Rome treaty that founded it, the ICC can investigate and prosecute allegations of the most serious war crimes only if the country responsible is unwilling or unable to do so through its national courts.
States that are party to the treaty can refer cases of crimes committed by their citizens or on their territory. Cases involving the citizens or territory of a country that has not signed up to the court can be referred by the United Nations Security Council – as in the case of Darfur. Ivory Coast set a precedent as the first nonstate party to accept the ICC’s jurisdiction over alleged war crimes on its territory. It signed the Rome treaty but never ratified it. In 2005 it lodged a declaration with the court accepting the ICC’s jurisdiction over crimes committed there since September 2002.
Palestinian lawyers argue that the Palestinian Authority should be allowed to refer the cases in Gaza on this same ad hoc basis – despite its lack of internationally recognised statehood.
The case has wide-reaching ramifications for the Palestinian case for statehood. If the court rejects the case, it will highlight the legal black hole that Palestinians find themselves in while they remain stateless. However, it also underlines some of Israel’s worst fears about a Palestinian state on its borders. A Palestinian state that ratified the Rome treaty would then be able to refer alleged Israeli war crimes to the court without the current legal wrangling. The case could also lead to snowballing international recognition of a Palestinian state by countries eager to see Israel prosecuted.
One avenue would be for Israel to agree to investigate its commanders and prosecute any crimes discovered. That would remove any case from the orbit of the international court. So far that appears unlikely, given Israel’s repeated denials of war crimes in Gaza.
The Israeli army has, however, launched an internal inquiry into whether white phosphorus was used in some cases in built-up areas, having eventually admitted that it did use the incendiary substance, which is not illegal as a battlefield smokescreen but is banned from being used in civilian areas. Camera footage from one such attack shows what appears to be white phosphorous raining down on a UN school in Beit Lahiya, where Red Crescent ambulances and their crews were stationed.
A coalition of Israeli human rights groups has urged the country’s attorney-general to open an independent investigation into allegations of war crimes by troops, urging that to do so could head off international court cases. The groups, including the antisettlement organisation B’Tselem, said that there had been reports of Israeli forces firing into civilian areas, denying medical aid to the wounded and preventing Palestinian ambulances from reaching them, and of firing at people carrying white flags.
Meanwhile, the UN is preparing an inquiry into the bombardment of a UN school in Jabaliya, in the northern Gaza Strip. Israeli forces fired artillery shells outside the school, which had been converted into a refugee shelter for Gazans fleeing their homes. At least 43 people were killed. Israel said that Palestinian militants had fired from the compound, which was denied by the UN.
Peace and Justice Post 
Palestinians Press for War Crimes Inquiry on Gaza
February 11, 2009THE HAGUE — The Palestinian Authority is pressing the International Criminal Court in The Hague to investigate accusations of war crimes committed by Israeli commanders during the recent war in Gaza.
A mosque in El Atatra, Gaza, that was destroyed by the Israeli military. Israel said the mosque had been used by militants.
The Palestinian minister of justice, Ali Kashan, first raised the issue during a visit to the court’s chief prosecutor late last month, and he and other officials are due back again in The Hague this week, court officials said.
Luis Moreno-Ocampo, the prosecutor, had initially said he lacked the legal basis to examine the case. But since the Palestinian Authority signed a commitment on Jan. 22 recognizing the court’s authority, the prosecutor has appeared more open to studying the Palestinian claim.
“The prosecutor has agreed to explore if he could have jurisdiction in the case,” said Béatrice Le Fraper, the director of jurisdiction for the prosecution. She cautioned that accepting jurisdiction would not automatically set off a criminal investigation. “We are still very far from any decision; this is just the beginning of a long process,” she said.
The prosecutor has received more than 200 requests to look into allegations of war crimes during the recent fighting between Israel and Hamas militants. They include accusations from individuals and organizations that Israel violated the rules of war by singling out civilians and nonmilitary buildings, and by using weapons like white phosphorus illegally.
“Quite a few groups have sent experts to the region, people doing forensic work, studying explosives and other weapons,” she said. “The prosecutor can look at all open sources at this stage.”
Should a criminal investigation begin, the prosecution would send its own investigators, who would look into possible violations by both sides. Hamas’s practice of sending rockets into southern Israel, which often landed in civilian areas, might be viewed as a violation. Israeli officials justified their offensive by saying they were trying to stop the rocket attacks.
But even as envisioned by the Palestinian Authority, the case faces numerous hurdles, specialists say.
The court here is the world’s first permanent international criminal court, created to examine war crimes, crimes against humanity and genocide. It can prosecute any citizen from the 108 countries that are currently members of the court. Individuals, governments, the United Nations Security Council or the prosecutor can initiate cases.
Israel is not a member of the court, and the Palestinian territories, not being recognized as a sovereign nation, appear not to fulfill the requirements. But as a remedy, the Palestinian Authority has taken a first step by presenting a declaration to the court, formally accepting jurisdiction for “an indeterminate duration” over acts “committed on the territory of Palestine” since July 1, 2002, when the court’s authority began.
Lawyers say such a declaration allows for joining the court on an ad hoc basis, and has been allowed before, in the case of Sierra Leone, which is not a member. But while the Palestinian declaration has been recorded at the court, its validity is far from settled. The big question, lawyers at the court say, is whether the Palestinian Authority can grant jurisdiction in any form, and if so, how that will be defined.
The issue has raised the question of whether Palestinian officials hope to obtain an implicit recognition of statehood through the court.
The court “will not use the term statehood,” said a legal expert close to the case who spoke on condition of anonymity because the issue was still being decided. “The court will avoid defining whether Palestine is a state. The decision will be only if Palestine can be admitted for the purposes of the court statute.”
The Palestinian officials visiting The Hague in the coming days are expected to try to demonstrate that they have been allowed to sign other international treaties and conventions, and can therefore be accepted as a party to the 1998 Rome treaty that founded the court.
Ms. Le Fraper, the director of jurisdiction, said her office would call on international experts to help settle such questions.
Another unknown is whether the Palestinian Authority can bring a case involving jurisdiction in Gaza. The authority is run by Fatah, but its rival faction, Hamas, has declared itself the only authority in Gaza and ousted Fatah from the territory.
More than 1,300 Palestinians died in the recent war in Gaza, many of them women and children. Israeli officials have insisted that Israel respected international law during the fighting. Israel has also said that it will investigate its attacks on United Nations schools and headquarters and the use of unlawful weapons in urban areas, including the use of white phosphorus.
Human rights groups and a number of United Nations officials have called for an independent international inquiry into actions by both sides. Human Rights Watch said such an independent effort was essential because of “Israel’s poor record of investigating and prosecuting serious violations by its forces, and the absence of any such effort by Hamas or other Palestinian groups.”
Western politicians and other critics of Israel’s recent conduct in Gaza have also said that Hamas has violated the rules of war and committed war crimes with indiscriminate rocket attacks on Israeli civilians and the use of its own civilians as human shields.
Depending on what happens at the court, Hamas’s rocket attacks and other acts viewed by some as crimes could also become part of any criminal investigation. By accepting the jurisdiction of the International Criminal Court on its territory, the Palestinian Authority has also accepted jurisdiction over any war crimes by its own residents.
“That’s the way jurisdiction works,” said a court lawyer. “The Palestinians know that and have taken that risk.”
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