Analysis
Palestinian move to prosecute Israelis for war crimes will get them nowhere
January 8, 2015 12:02
1 min read
Political leaders are, like all humans, subject to feelings of revenge, anger and frustration. When such feelings are coupled with the propensity for Palestinian leaders to shoot themselves politically in the foot, we can perhaps understand the Palestinian application to the International Criminal Court.
It must be assumed that since "Palestine" was granted the status of an observer state by the UN General Assembly in 2012, the ICC will accept their application for full membership. The move may give the Palestinians leaders a feeling of satisfaction, but does not advance their cause.
The ICC was set up in 1998 as a court of last resort to try major war criminals who are not prosecuted in the courts of their own country.
The court has jurisdiction over any person who commits a relevant crime in the territory of a member state. The crimes within the competence of the court are war crimes and crimes against humanity that are "serious crimes of concern to the international community as a whole". The preamble to the 1998 treaty refers to "unimaginable atrocities that deeply shock the conscience of humanity."
The Palestinians hope that by joining the 1998 treaty, the court will then have jurisdiction to try Israelis who committed war crimes in "Palestinian territory".
The Palestinian complaints to the court could presumably be that West Bank settlements are in violation of the Fourth Geneva Convention, which prohibits the deportation or transfer of a population from an occupying state to an occupied territory. The Palestinians may also lodge complaints that the civilian deaths and destruction that occurred in the recent Gaza campaign constitute grave war crimes.
Up to now, the court has dealt with crimes such as murders, rapes and mutilations committed on a large scale. It is highly questionable whether the court will want to deal with the question of settlements, which is basically a political question. The court would have to decide on the borders of "Palestine" and whether, for instance, Jewish suburbs of East Jerusalem are within an existing Palestinian state.
As regards the fighting in Gaza, even the Palestinians do not claim there was a deliberate mass-killing of civilians.
Furthermore, if the Palestinians submit complaints to the court, there is no doubt that Israel will retort with a salvo of documented evidence of real war crimes committed by Hamas.
It will be no surprise if the ICC ignores any Palestinian - or Israeli - submissions in the hope that the parties renew peace negotiations instead.
Professor Robbie Sabel is a former legal adviser to the Israeli Foreign Ministry
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