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Court Membership Wouldn’t Guarantee Palestinians a War Crimes Case Joining International Criminal Court Wouldn’t Guarantee Palestinians a War Crimes Case
(about 1 hour later)
JERUSALEM — The political fallout from the Palestinian move Wednesday to join the International Criminal Court is likely to be swift and profound.JERUSALEM — The political fallout from the Palestinian move Wednesday to join the International Criminal Court is likely to be swift and profound.
Israel is expected to withhold tax transfers to the Palestinian Authority, restrict officials’ travel and possibly advance settlement activity in sensitive spots in the West Bank. The United States Congress may cut off $400 million in aid to the Palestinians. The already dim prospects for renewing peace talks now seem null.Israel is expected to withhold tax transfers to the Palestinian Authority, restrict officials’ travel and possibly advance settlement activity in sensitive spots in the West Bank. The United States Congress may cut off $400 million in aid to the Palestinians. The already dim prospects for renewing peace talks now seem null.
But legal repercussions from last summer’s war between Israel and Palestinian militants in the Gaza Strip, or Israel’s settlements, would take longer and face many hurdles.But legal repercussions from last summer’s war between Israel and Palestinian militants in the Gaza Strip, or Israel’s settlements, would take longer and face many hurdles.
The cases Palestinians plan to bring against Israel, and potential counterclaims against Palestinian officials, are unlike any the International Criminal Court has tackled in its dozen-year history. The Hague court, facing new scrutiny after the collapse last month of its case against the president of Kenya, may be wary of wading into the fraught politics of the Middle East, though doing so could help it rebuff longstanding criticism of its emphasis on pursuing African despots.The cases Palestinians plan to bring against Israel, and potential counterclaims against Palestinian officials, are unlike any the International Criminal Court has tackled in its dozen-year history. The Hague court, facing new scrutiny after the collapse last month of its case against the president of Kenya, may be wary of wading into the fraught politics of the Middle East, though doing so could help it rebuff longstanding criticism of its emphasis on pursuing African despots.
“It may jump at the chance because it’s under fire,” Geoffrey Robertson, a British lawyer and author, said of the court, which he follows closely. “This is an opportunity to get out of the endless African wars and to do something which is very much in the public eye, and very much of public importance,” he added. “It would be a new and possibly productive way to deal with the cloudy legalities.”“It may jump at the chance because it’s under fire,” Geoffrey Robertson, a British lawyer and author, said of the court, which he follows closely. “This is an opportunity to get out of the endless African wars and to do something which is very much in the public eye, and very much of public importance,” he added. “It would be a new and possibly productive way to deal with the cloudy legalities.”
But other legal scholars said the United Nations’ estimate that about 1,500 civilians were killed in Gaza might not meet the court’s threshold for “unimaginable atrocities that deeply shock the conscience of humanity.”But other legal scholars said the United Nations’ estimate that about 1,500 civilians were killed in Gaza might not meet the court’s threshold for “unimaginable atrocities that deeply shock the conscience of humanity.”
Michael P. Scharf, the dean of the Case Western Reserve University law school in Ohio, said that past cases “involved hundreds of thousands or at least tens of thousands of deaths,” and that the court “requires that they be committed as part of a policy or plan, and not simply incidental to attacks on enemy targets.” As for the settlements, Robbie Sabel, an international law professor at Hebrew University in Jerusalem, said delving into them would put the court in the awkward position of essentially defining the borders of a Palestinian state.Michael P. Scharf, the dean of the Case Western Reserve University law school in Ohio, said that past cases “involved hundreds of thousands or at least tens of thousands of deaths,” and that the court “requires that they be committed as part of a policy or plan, and not simply incidental to attacks on enemy targets.” As for the settlements, Robbie Sabel, an international law professor at Hebrew University in Jerusalem, said delving into them would put the court in the awkward position of essentially defining the borders of a Palestinian state.
“Up to now the crimes they have dealt with are mass murders and rapes, not where a border is, an issue which is clearly political,” said Mr. Sabel, a former legal adviser to Israel’s Foreign Ministry. “My assumption is that on the political issue of where the border should be, whether East Jerusalem should be part of the Palestinian state, they would hesitate.”“Up to now the crimes they have dealt with are mass murders and rapes, not where a border is, an issue which is clearly political,” said Mr. Sabel, a former legal adviser to Israel’s Foreign Ministry. “My assumption is that on the political issue of where the border should be, whether East Jerusalem should be part of the Palestinian state, they would hesitate.”
Prime Minister Benjamin Netanyahu of Israel said in a statement Thursday that he expected the court to reject the Palestinian Authority’s “hypocrite application at once,” but experts on international law said the court has indicated that it would not reject the application. Israel, like the United States, is not a member of the International Criminal Court, but Dore Gold, an adviser to Mr. Netanyahu, said Thursday, “the arena is not just The Hague.”Prime Minister Benjamin Netanyahu of Israel said in a statement Thursday that he expected the court to reject the Palestinian Authority’s “hypocrite application at once,” but experts on international law said the court has indicated that it would not reject the application. Israel, like the United States, is not a member of the International Criminal Court, but Dore Gold, an adviser to Mr. Netanyahu, said Thursday, “the arena is not just The Hague.”
“If they want to open up the legal arena, Israel has many tools,” Mr. Gold said on Israeli radio. Citing cases in which victims’ families have sued Iran in American courts for sponsoring terrorism, he added, “if there is property belonging to the Palestinian Authority in the United States and the Palestinian Authority is involved in terror attacks against Israeli citizens, we can help them with claims all over the world.”“If they want to open up the legal arena, Israel has many tools,” Mr. Gold said on Israeli radio. Citing cases in which victims’ families have sued Iran in American courts for sponsoring terrorism, he added, “if there is property belonging to the Palestinian Authority in the United States and the Palestinian Authority is involved in terror attacks against Israeli citizens, we can help them with claims all over the world.”
The papers the Palestinians signed Wednesday acceding to the Rome Statute, which established the court in 2002, will soon be delivered to the United Nations secretary general and distributed to the court’s 122 member countries. There is then a 60-day waiting period before any member state can ask the court’s prosecutor to look at the Palestinian situation, or she could decide to do so on her own. A self-defined “court of last resort,” it would have to determine that Israel’s justice system had not genuinely addressed accusations of war crimes.The papers the Palestinians signed Wednesday acceding to the Rome Statute, which established the court in 2002, will soon be delivered to the United Nations secretary general and distributed to the court’s 122 member countries. There is then a 60-day waiting period before any member state can ask the court’s prosecutor to look at the Palestinian situation, or she could decide to do so on her own. A self-defined “court of last resort,” it would have to determine that Israel’s justice system had not genuinely addressed accusations of war crimes.
There are also technical questions regarding the contours of Palestinian territory, the definition of Palestinian citizenship and the timetable for potential cases. Even preliminary inquiries can last for years.There are also technical questions regarding the contours of Palestinian territory, the definition of Palestinian citizenship and the timetable for potential cases. Even preliminary inquiries can last for years.
Some experts say any incidents since the court was created are fair game, while others say the court can deal only with matters since the United Nations General Assembly upgraded Palestine’s status to nonmember observer in 2012, or perhaps only after the Palestinian Authority joins the court in March. Shawan Jabarin, director of the human rights group Al Haq, said the Palestinians would submit a request for retroactive jurisdiction to last June 13, to coincide with the period being considered by the United Nations Human Rights Council’s commission of inquiry.Some experts say any incidents since the court was created are fair game, while others say the court can deal only with matters since the United Nations General Assembly upgraded Palestine’s status to nonmember observer in 2012, or perhaps only after the Palestinian Authority joins the court in March. Shawan Jabarin, director of the human rights group Al Haq, said the Palestinians would submit a request for retroactive jurisdiction to last June 13, to coincide with the period being considered by the United Nations Human Rights Council’s commission of inquiry.
Mr. Jabarin said the commission, with which Israel has refused to cooperate, would provide an initial report in March that could serve as a road map for the Hague court. Separately, his group and others have been documenting allegations of Israeli war crimes in Gaza, and are working with the Palestinian Authority to prepare complaints about Israeli settlements.Mr. Jabarin said the commission, with which Israel has refused to cooperate, would provide an initial report in March that could serve as a road map for the Hague court. Separately, his group and others have been documenting allegations of Israeli war crimes in Gaza, and are working with the Palestinian Authority to prepare complaints about Israeli settlements.
“The crime is not just the rape and the widespread killing or something like that, but also to transfer civilians and to confiscate land and to destroy property,” Mr. Jabarin said. “It’s a different way of rape, it’s a different way of killing, it’s a different way of destruction.”“The crime is not just the rape and the widespread killing or something like that, but also to transfer civilians and to confiscate land and to destroy property,” Mr. Jabarin said. “It’s a different way of rape, it’s a different way of killing, it’s a different way of destruction.”
The court defines a war crime as “the transfer, directly or indirectly, by the occupying power, of parts of its own civilian population into the territory it occupies.” Nearly 700,000 Israelis live in the West Bank and East Jerusalem, territory Israel captured from Jordan in the Arab-Israeli War of 1967; experts said settlers were unlikely to face prosecution, but charges could be aimed at government officials who provided incentives to lure them.The court defines a war crime as “the transfer, directly or indirectly, by the occupying power, of parts of its own civilian population into the territory it occupies.” Nearly 700,000 Israelis live in the West Bank and East Jerusalem, territory Israel captured from Jordan in the Arab-Israeli War of 1967; experts said settlers were unlikely to face prosecution, but charges could be aimed at government officials who provided incentives to lure them.
“Crimes of aggression” may be added to the court’s mandate in 2017, possibly including the annexation of lands — which Israel undertook in East Jerusalem as well as the Golan Heights — military occupation and the blockade of coasts, as many international critics refer to Israel’s restrictions on Gaza’s waterways.“Crimes of aggression” may be added to the court’s mandate in 2017, possibly including the annexation of lands — which Israel undertook in East Jerusalem as well as the Golan Heights — military occupation and the blockade of coasts, as many international critics refer to Israel’s restrictions on Gaza’s waterways.
But the court has not yet dealt with such issues. Experts said thousands of complaints had been submitted — one in 2011 urging that the pope and three top Vatican officials be prosecuted for “abetting and covering up” the sexual assault of children by priests — but very few pursued. (The church abuse case was not.)But the court has not yet dealt with such issues. Experts said thousands of complaints had been submitted — one in 2011 urging that the pope and three top Vatican officials be prosecuted for “abetting and covering up” the sexual assault of children by priests — but very few pursued. (The church abuse case was not.)
In November, the court’s chief prosecutor declined to investigate the Israel Defense Force’s deadly storming of a flotilla of ships delivering aid to Gaza, saying the “small number of victims” was not sufficiently grave. Joining the court would also open Palestinians to prosecution. Shurat HaDin, an Israeli legal organization, pre-emptively sent complaints to The Hague against President Mahmoud Abbas of the Palestinian Authority and Khaled Meshal, a leader of the militant Hamas faction, as well as one about Turkey’s occupation of Cyprus in 1974, hoping this would deter prosecution of Israelis.In November, the court’s chief prosecutor declined to investigate the Israel Defense Force’s deadly storming of a flotilla of ships delivering aid to Gaza, saying the “small number of victims” was not sufficiently grave. Joining the court would also open Palestinians to prosecution. Shurat HaDin, an Israeli legal organization, pre-emptively sent complaints to The Hague against President Mahmoud Abbas of the Palestinian Authority and Khaled Meshal, a leader of the militant Hamas faction, as well as one about Turkey’s occupation of Cyprus in 1974, hoping this would deter prosecution of Israelis.
Mr. Scharf, of Case Western, said any action in The Hague was “likely to unfold over a period of several years,” if at all. Gaza “is not a case the I.C.C. prosecutor is eager to take on, given its immense geopolitical implications,” he said in an email, and although settlements “may be inconsistent with international law,” the court was “highly unlikely to consider them a crime against humanity or war crime.”Mr. Scharf, of Case Western, said any action in The Hague was “likely to unfold over a period of several years,” if at all. Gaza “is not a case the I.C.C. prosecutor is eager to take on, given its immense geopolitical implications,” he said in an email, and although settlements “may be inconsistent with international law,” the court was “highly unlikely to consider them a crime against humanity or war crime.”
After the criticism she faced over the Kenya case, he added, “I would think the I.C.C. prosecutor would be more cautious.”After the criticism she faced over the Kenya case, he added, “I would think the I.C.C. prosecutor would be more cautious.”