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December 31, 2014 3:40 pm

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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  • sander

    Article 49 of the 4th Geneva Convention does state that transfers by Governments are prohibited.The Jews living in Judea and Samara either were previously residents or decided on their own to live there.To my knowledge they were not forced by the Israeli government.The Arab Palestinians have not been forcefully removed from Judea and Samara.Hopefully the Jewish attorneys who will have to plead Israel’s case should that come to be will be more knowledgeable about international law then Mr.Leitner,Director of the Israeli Law center.

    • dante

      Darshan-Leitner is very intelligent and very knowledgeable; she knows the law and she also knows that in a kangaroo court the law does not mean much. hate-possessed fanatics and their accomplices will twist the law in any way they think serves to attack Israel. so, the history of Article 49 and its purposes mean nothing and the rulings of the League of Nations, adopted by the U.N., mean nothing. though she might be wrong about the consequences, D-L is right about the dangers and she’s right about the intentions of Israel’s “peace partner,” the “moderate” abu mazen.

  • P.S. In the ICC Israel will be able to charge the Arab -Palestinians with crimes against 5the people of Israel and the Jewish people world-wide. Murder has no statute of limitation. The charges against the Arab Palestinians could amount to thousands of complaints for murder and terror going back to 1948. Israel could assign a staff of lawyers who are good at international law and who have handles case for damages against the Arab Palestinians and won.

  • victoria brandeis

    THERE IS SO FEW THAT STANDS WITH US

    THIS IS TRULY A MARKETING LATITUDE FOR THE ‘JEWISH PEOPLE’

    ALL OVER THE WORLD.

    WHAT WAY TO BRING UGLY TO THE SURFACE THEN HAVE IT SHOVED

    DOWN YOUR THROAT ON A DAILY BASIS OF WHINNING.

    ‘THE RAG HEAD WALTZ’…….THE WALTZ WILL DIE AS WILL THE

    CONTINUITY OF MUSLIM EVIL……THERE IS NO GOOD ONE ALIVE

    UNLESS THERE IS A VOICE THAT FOLLOWS……AND THAT GOES FOR

    SORROS AS WELL.

    NO ONE DESIRES TO SPEND A LIFE IN HORROR AND TERROR….

    SHORT RUN WILL DIE BEFORE THE START.

    WHEN HASHEM SHINES THE SWORD IS LOWERED

    THIS IS THE CULMINATION OF ALL HATRED….

    AND, IN NO WAY EVEN IF I ENJOY A MUSLIM FRIEND THEY HAVE NO

    ACCESS TO MY HOME….ITS FOR THEIR SECURITY AND NOT MINE.

    THEIR HATRED WILL HURT THEIR OWN…..DIMINISH THE YOUTH

    AND THEREFORE ALL CHILDREN BORN TO ALL MUSLIMS WILL BE

    BORN DEAD AND BREATHING…WHAT HOPE DO THEY HAVE WHEN

    THEY ARE SOLD TO THE MONARCHY OF ISLAM WITH HATRED

    DO DEAD PEOPLE SMILE.

  • Let’s see how far they get? I suspect Israel is smart enough to contest such action by illegal Hamas further more there is no legal state of palestine. The NYC syndicate legal team have already laid aside $1 billion in defense of Israel so in my opinion Abbas is on to a loosing wicket.

  • E Pluribus Wombat

    The PLO is guilty of ethnic cleansing.

  • If Hamas were put on trial for their seven years of firing rockets into southern Israel’s civilian population, that could help Abbas and Fatah regain their power.It’s also important that all donors to Gaza’s rebuilding make their donations conditional on Hamas being removed from power over Gaza.

  • BonniePrinceCharlie

    When were the cases against Palestinian Authority President Mahmoud Abbas and Hamas chief Khaled Mashaal filed?

    What has been the response of the court?

  • Palestinian Arabs have a history, a history of terror. Already before Arafat invented the “Palestinian people” in 1964, they knew how to plan and execute acts of terror, always against innocent civilians, until today. Let us not forget, that it was a Palestinian Arab, an immigrant in the USA, assassinated Robert Kennedy in 1968.

    Until today Palestinian Arabs, represented by the PA, are unable to understand the world of democracy. Therefore, when they fail, they use terror: remember the many acts of terror, hijacking of planes, a ship and always murdering innocent civilians.

    Palestinian politics is inseparable from terror. In meantime the we observe that there is no difference between Hamas and the murderous IS.

    I hope the ICC will act according to laws and not following requests from 1.6 Billion Muslims and 1-2 Billion Christian anti-Semites.

    Fortunately Israel has Shurat Hadin advocating it. http://ilcblog.org/

    • Eco

      REALLY???????????????????? JEWS assassinated Jon & Robert Kennedy’s AMERICA AND THE WORLD WILL BE MUCH DIFFERENT TODAY IF THOUS 2 KENNEDY’S WILL BE A LIFE!!!!!!!!!!!!!!!!!!!1

  • Pingback: Why Palestinian ICC Membership Creates a Worst-Case Scenario for Israel – and Abbas | Shurat HaDin – Israel Law Center()

  • Helena

    I would say: Prepare yourselves for the worst outcome but be ready to gather all the information you have about the Palestinians, to counter it all.

  • Robert Davis

    leitner is a very very bad lawyer surely a lefter who interprets law as nlefters and arabs do…Only nations have the right to be members of ICC and therefore plo cannot be a member. If fantasy interpretations are involved Israel can refuse to enter this rotten game allthe more since Israel is not a member of ICC itself! As to article 49 again it is irrelevent because Israel occupies LEGALLY its territory as even a french Court stated.leitner is a left politician biaised against Israel and his “opinions” are only wishful thinking. Israel will ignore fakestinians’ rantings as well as leitners”!

    • Lynne T

      Do you know a damned thing about Shurat Ha’din and Nitsana Darshan-Leitner?

      She is simply preparing for the barage of propaganda while she prepares her files. She has had great successes against funders of terror.

      But all of this may prove to be moot anyway. The membership application has to be ratified by the PA, which knows it is exposing itself. More likely, this is just another dog and pony show that Abbas has put on as he clings to office and his $1 million / month salary.

  • VictorMc

    Palestinians joining the ICC. I am speechless. Which Pals. are we talking about Fatah or their terrorist wing Hamas – we ought to be told.
    How about the throwing of rocks at a random driver of a car that is potential murder, just to take a ‘simple’ example.

  • judithg

    they will just keep going because it is all they do. Israel, is the only nation state in the world today that is on the frontlines against muslim terror. it is the only obstacle in the path of the islam death cult that cuts a wide swath around the planet. they know the pushback from other nation states is slight and therefore rely on a cowardly and paralytic response. indeed, they are aggressors who infiltrate western democracies and crush them by any means possible, socially, economically and politically.
    this is a time of deeply evil and dangerous ideology.

  • Ivan Gur-Arie

    The trouble that Israel faces is that not to submit to the oourt will only reinforce the charges against her in that she is afraid to face the “truth”. What is imperative is that Israel presents a well documented attack against the Palestinians for their crimes. Isay attack because I believe taht the position that Israel has to take is not defensive which always makes one look apologetic and weak.
    I worry that the jury has been fixed by the anti semitism of Europe whioh effects the judges who are from those nations as well as others hostile to Israel. Propoganda very often led to evil in this world.

  • Edward

    Neither the US nor Israel have joined the ICC. To nip this in the bud, Congress should defund the UN and remove it from US soil. No one needs this US and Israel bashing crop of dictators, despots, and frightened European Islamicized Democracies. Let it move to Tehran where it belongs.

  • Markus E Brajtman

    I HOPE THAT THE BIBLICAL WORDS OF HASHEM WILL BE SHOWN IN THIS CASE.
    ‘I WILL BLESS THOSE WHO BLESS MY PEOPLE, ISRAEL.
    I WILL CURSE THOSE WHO CURSE MY PEOPLE ISRAEL’

    MAY EVERY CURSE FROM HASHEM FALL ON THE INVENTED PEOPLE, THE PALESTINIAN WAR CRIMINALS AND LIARS,
    MAY HASHEM BLESS ISRAEL FOR PROTECTING HERSELF FROM ARAB TERRORISM

    BARUCH HASHEM

    • Eco

      B.S.

  • MartyNYC

    Judge Bensouda has already shown her lack of bias in ruling in favor of Israel in the case Israel’s interception of the Turkish ship Mavi Marmara in 2010. Israel should therefore have no fear of her ruling unfairly in the case of Israeli settlements in the West Bank for violation of Article 49 of the Geneva Convention, which forbids the transfer of the citizens of an occupying power into occupied territory.

  • Paul Cerar

    There is no misunderstanding here – I predicted this! Canadian Communists and other Fascists will use the International Criminal Court, and other fascist-infiltrated worldwide organizations, to claim authority above and beyond the laws of Canada.

    They will use international intervention in the Palestine War as an excuse to engage in fascism in Canada, against Canadians.

    Paul Cerar
    Toronto, Canada

  • nelson marans

    I would suggest that as long as Mahmoud Abbas continues as head of the Palestinian Authority that Israel severs all communication with him and rules out any negotiations. He has shown his true face by trying to delegitimize the Jewish state, while inciting violence. He is not a partner for peace.

  • Fred

    The world has turned into a bully. Abbas is in the right company.

  • Steve Loeb

    If the ICC is biased – and it is – it will soon be seen by at least half the world as having been further discredited by the Arabs who seem to have a particular talent at discrediting every institution was once upon a time considered credible but after Arab over reach and abuse soon becomes so discredited its almost dangerous – and no one pays much attention to it. Will Israel be guilty of war crimes while Hamas or Syria isn’t even considered relevant ?

  • Yale

    One strategy might be that employed at the time of the Amistad trial: Make it clear that a decision that ignores the law and the facts in favor of a political show trial will discredit the ICC rather than Israel.

    Israel needs to go on the offensive with this by making the case that:

    1) the Palestinian narrative is both false and in violation of the genocide convention, making the entire Palestinian movement a violation of international law.

    2) Palestinian strategy seeks to target Israeli civilians in violation of the laws of war, and the ICC has an obligation to put an end to that. This claim applies both to PA incitement to murder as much as Hamas’s rockets.

    3) The PA’s strategy of going to the UN is itself in violation of treaty commitments into which it has entered, going back to the Oslo Accord. Under the doctrine of pacta servanda, if the PA doesn’t see itself bound by its own treaty commitments, under what conceivable theory could it expect to hold Israel accountable to the PA’s interpretations of treaties, like Article 49 of the Geneva Convention, that clearly mean something quite different from what the PA claims?

  • I do not understand why Israel has not taken Abbas and other PA officials to the criminal court for their incitement of violence.
    And particularly Hamas top brass for their war crimes – unless the ICC does not consider firing rockets at Jews a crime. As Turkey is now harbouring the Hamas top brass, this would place a well deserved spotlight on Endogen.

  • Anthony Dayton

    Why isn’t Israel preparing their own list of war crimes: counseling one’s citizens to kill their neighbours for being Jewish (just to meniton one example)….that’s not a war crime? Not to mention racism.

    • Julian Clovelley

      Absolutely Anthony – you are right. I would have thought that the Hamas Charter constituted an actionable crime per se. But that should be tested in law. The context in which the word Jew is used seems to conflict with the Rome Statute section: War Crimes section 2e(x) ” Declaring that no quarter will be given.

      There are a number of issues in the present situation relating to both sides that would be better brought before a court. Where two or more parties are incapable of negotiating between themselves, for whatever reason, then the use of a Court may unlock a stalemate in seeking resolution.

      For the PA and Israel to BOTH ratify the ICC would be a major step in the right direction and an expression of good faith and intent.

  • Julian Clovelley

    The only person to need to be afraid of the Court is a criminal.

    The Court is about individual behaviour. Israel signed the relevant treaty but has not ratified it. It should immediately do that rather than seek to further oppose the Court. Until Israel does ratify the treaty there will always be a suspicion that the dominant force in the nation’s Government intends to or has already committed actions which under the Rome Treaty constitute crimes

    I cannot see how Israel has anything to lose by the PA using a Court of Law to try to prove their claims. The Court is there to deter crimes such as Genocide. Had it existed in the nineteen thirties the history of Europe,, and of the world, might have been very different. The Nuremberg Trials penalised the perpetrators after the event. A functioning ICC could have acted – at the very least to make the world aware – many years earlier than the worst of the events.

    The most disgraceful refusal to sign and ratify the Rome Treaty is the United States. Many people worldwide are not at all happy at being in alliance with any nation that does not ratify it, because without such ratification Politics takes apparent precedence over Law.

    It is worth noting that in relation to Australia an Australian MP In October 2014, wrote to the ICC, seeking investigation and prosecution of Prime Minister Tony Abbott and 19 members of his cabinet for crimes against humanity, with particular concerns relating to the treatment of asylum seekers. The existence of the ICC extends rather than limits the influence of individual elected representatives in a democracy. Indeed it helps strengthen democracy itself as the core of political, social and economic administration

    With all the conflicting arguments concerning the status of the Israeli Jewish Settlements in the West Bank and of the Occupation in relation to the Geneva Conventions, the sooner a legal court investigation and decision exists, the better. One again, avoiding scrutiny and judgement under International Law rather places Israel, and its dominant Zionism, under suspicion as to their “real agenda”. It is decades past time that matter was brought before a Court and clarified in the eyes of the World.

    • I agree with you, the only thing is that the ICC is byes specially towards ISRAEL.

    • Lynne T

      Don’t hold your breath, Julian. The PA is unlikely to ratify the membership application in the first place, as their own expert has warned them that they are likely to be on the receiving end of complaints. This is more likley just another dog and pony show being put on by Abbas and his inner circle so they can cling to power.

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