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Palestinian Membership of International Criminal Court Would be Dangerous ‘Game-Changer’ for Israel, Legal Expert Says

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Palestinian membership of the International Criminal Court will likely boost the international campaign to isolate Israel, experts say. Photo: Twitter

Palestinian membership of the International Criminal Court (ICC) would be a “game-changer” with profoundly negative consequences for the State of Israel, a senior Israeli lawyer has warned.

“If the Palestinians file war crimes charges against Israel, Israel will lose because the court is biased,” Nitsana Darshan-Leitner, Director of Shurat HaDin – the Israel Law Center, told The Algemeiner.

Following yesterday’s failed vote on Palestinian statehood at the UN Security Council, the Palestinian focus has now shifted to joining international treaties and organizations, foremost among them the ICC. A 2009 bid to sign up to the court’s Rome Statute was unsuccessful, as “Palestine” was at the time only an “observer entity” at the United Nations. However, with “Palestine’s” upgrade in 2012 to “non-member observer state,” membership of the ICC is now  a serious possibility.

The US has already signaled its opposition to the Palestinian membership of the ICC. A State Department spokesman told a Washington, DC reporter that such a move “will badly damage the atmosphere with the very people with whom they ultimately need to make peace.”

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In a potential sign that Israel could bring its own cases against Palestinian leaders to the ICC, Shurat HaDin has already filed separate cases at the court targeting Palestinian Authority President Mahmoud Abbas and Hamas chief Khaled Mashaal, both of whom are Jordanian citizens and therefore potentially under the court’s jurisdiction. Darshan-Leitner said that Abbas, in his capacity as the leader of the Fatah movement, was guilty of war crimes for permitting PA territory to be used to stage attacks against Israel, while Mashaal had authorized the extra-judicial execution of 39 Palestinians in Gaza after they were accused of collaborating with Israel during the summer 2014 war with Hamas.

Darshan-Leitner said that, for their part, the Palestinians could bring “two types of cases” against Israel to the ICC. In the first place, IDF commanders and soldiers could be charged with “using excessive force” against civilians, while in the second, Israeli settlements in the West Bank could be classified as a violation of Article 49 of the Geneva Convention, which forbids the transfer of the citizens of an occupying power into occupied territory.

Professor Gerald Steinberg, president of Israeli watchdog NGO Monitor, told The Algemeiner that, in his estimation, it was more likely that the Palestinians would concentrate on Article 49. Steinberg noted that it was the Arab states who had pushed for the inclusion of Article 49 in the Rome Statute, which was one factor behind Israel’s decision not to sign up to the ICC, despite its sympathy for the basic principles underlying the court.

“This is the next stage of the Durban strategy,” Steinberg said, referring to the campaign launched by NGOs at the UN”s notorious “anti-racism” conference in Durban, South Africa, in 2001, to isolate Israel in a manner similar to the former apartheid regime in South Africa. Steinberg also highlighted the financing by European governments of NGOs committed to portraying Israeli settlements as violations of Article 49.

While Darshan-Leitner expressed the fear that war crimes accusations would put Israel in the unenviable position of refusing to extradite accused IDF officers, with the result that the Jewish state would be condemned for violating the rules of the court, Steinberg noted that there was no guarantee that Fatou Bensouda, the ICC prosecutor, would agree to pursue war crimes charges against Israel to begin with.

In an article for The Guardian in August, Bensouda stressed that political considerations would not impact her decisions, writing, “My mandate as prosecutor is nonetheless clear: to investigate and prosecute crimes based on the facts and exact application of the law in full independence and impartiality.”

Indeed, in November 2014, Bensouda announced that there would be no prosecution over Israel’s interception of the Turkish ship Mavi Marmara in 2010, in which 10 Turkish activists died in an attempt to break Israel’s blockade of the Hamas regime in Gaza, stating that the alleged crime was not of “sufficient gravity.”  Article 1 of the Rome Statute makes it clear that the ICC’s mission is to “exercise its jurisdiction over persons for the most serious crimes of international concern.”

In Steinberg’s view, the Palestinians attach greater significance to the “propaganda value” of their ICC application than its actual outcome. Israel would be inevitably be regarded as “the defendant, the accused,” he said, and would have to counter demonizing language about “apartheid” and “war crimes” at the same time.

Darshan-Leitner concluded that Israel faces the prospect of growing isolation among the ICC’s 115 member states. Therefore, she said, “we must do everything we can to prevent the Palestinians from joining the court.”

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