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May 23, 2018 5:30 pm

Expert: If Palestinians Take Israel to ICC, They Will Be Defendants as Well as Plaintiffs

avatar by Benjamin Kerstein


The headquarters of the International Criminal Court. Photo: Hypergio via Wikimedia Commons.

Once the Palestinians become plaintiffs against Israel in the International Criminal Court, “they will become defendants as well,” an Israeli legal expert told The Algemeiner on Wednesday

The comments by Nitsana Darshan-Leitner of Shurat HaDin-Israel Law Center came after the Palestinian Authority on Tuesday referred Israel to the ICC on charges of alleged war crimes. The move is the latest salvo in a years-long effort by the PA to join the Court and damage Israel legally.

Later on Tuesday, US State Department Spokeswoman Heather Nauert expressed opposition to the move, saying, “We have long believed that these types of actions are not conducive to peace. … We oppose the actions taking place against Israel at the International Criminal Court because we see that simply as counterproductive.” Neither the US nor Israel are members of the Court.

The Israeli Foreign Ministry stated that it takes a “severe view” of the Palestinian move, calling it “a cynical step without legal validity” and an attempt to “exploit the Court for political purposes.” It also called the referral “legally invalid,” and asserted that “the ICC lacks jurisdiction over the Israeli-Palestinian issue, since Israel is not a member of the Court and because the Palestinian Authority is not a state.”

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Darshan-Leitner agreed with the latter objection, saying that the primary issue is whether the Palestinian Authority has the legal status to pursue its case against Israel. “The Palestinian Authority is formally approaching the International Criminal Court and asking them to open an investigation against Israel for committing alleged war crimes in Gaza. And they did it on behalf of the state of Palestine, something which doesn’t exist,” she said.

“We know that the Rome Treaty [which established the Court] is only for states, sovereign states,” she said, “and the Palestinian Authority is not a state according to international law. They tried before to file war crimes complaints against Israel after Operation Cast Lead in 2008, and they were rejected because they are not a sovereign state.”

The question of the PA’s status must be determined by the chief prosecutor who will “then refer it to the judicial committee to see if it will open an investigation.” Whether this will occur is “an open question.”

Even though Israel is not a member of the Court, she added, “it doesn’t mean that it cannot be investigated, it cannot be indicted. Because if the Court rules that the Palestinian Authority is a state member in the Court, meaning they have the status of a state member, then the Court doesn’t need the consent of Israel to start an investigation against its officials or soldiers or military officials.”

Israel, Darshan-Leitner said, will likely react to the PA’s move by emphasizing the Palestinians’ non-state status and the Court’s lack of jurisdiction. “In the end the Court is not open to any sort of organization,” she said. “Right now the Palestinian Authority is a type of organization. It’s an authority, it’s not a state. Israel, I assume, will make this clear to the Court. Perhaps in non-diplomatic ways. … But one thing that Israel will not do is it will not play the game.”

“Israel has said it’s not going to collaborate with the Court,” she continued. “Israel is not a signatory. Israel will not accept a biased ruling of the Court, a biased handling of the case, and therefore they are not going to defend themselves in the Court and will not allow representatives of the Court to … get to Gaza through Israel to open an investigation.”

Israel will also likely turn to the US for support. “I’m sure Israel will put pressure on the American government to take steps against the Palestinian Authority,” she said. “One of the things, for instance, the Trump administration is already examining whether the PLO mission will stay in Washington and won’t be closed as a result of the Palestinian turn to the Court. There is a law in the United States that says if the Palestinians bring war crime complaints against Israel, the US will close its mission in Washington and put sanctions against the PLO, so Israel is going in this direction as well, and we already hear that the administration is mulling that.”

Most important, however, is that the Palestinians could face their own charges if they join the ICC. Darshan-Leitner noted that her own organization is already in the process of filing war crimes charges against Hamas.

“The range of war crimes they are committing in Gaza is countless,” she said. “It’s using civilians as human shields. They are attempting to cross the international border into Israel. They are using children underneath 15 years old in combat, which is a war crime. They are attacking civilian areas by sending kites with fires and attempting to burn these areas. They are planning to kidnap and murder civilians once they cross the border to Israel. So it’s a slew of war crimes that the Hamas leaders are committing.”

The Palestinians’ use of the ICC, she noted, is a double-edged sword, “And once the Palestinians join the Court, and become plaintiffs, they will become defendants as well because the jurisdiction of the Court is two-faced. The Court will have jurisdiction over Hamas leaders as well. And if the Court really gets into the issue of war crimes allegations in the Gaza conflict, they will have to deal with two aspects of the conflict.”

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