The Palestinian Statehood Push and ICC Jurisdiction

An upgraded statehood status in the UN gives the Palestinians entree for lawfare against Israel in the International Criminal Court. How bad do the Palestinians want to wage a legal war?

In 2009, the PA accepted ICC jurisdiction for “war crimes, crimes against humanity and genocide” even though it isn’t a state. In The Weekly Standard, David Benjamin points out this acceptance of ICC authority is a double-edged sword.

The reality is: The persistent, deliberate and indiscriminate launchings of Hamas rockets at Israeli communities, the suicide bombings, and the shootings all constitute heinous war crimes or crimes against humanity. Moreover, there is little or no factual dispute about whether these attacks took place, who was behind them, at whom they were directed, and what their purpose was. On the contrary, attacks on Israeli civilians are a source of pride for Hamas. The Hamas leadership bears responsibility for these crimes. No investigations have been carried out by Palestinian authorities into any of these violations. For the ICC prosecutor, this would largely be a simple case. Moreover, members of other Palestinians factions engaged in terrorism, including elements of Fatah itself, would also become potential defendants if the ICC obtained jurisdiction.

Judge Richard Goldstone

By contrast, the most serious accusations made against Israelis seem to be crumbling: Recently, the chief U.N. fact finder on the Gaza conflict, Richard Goldstone, acknowledged that initial allegations of a deliberate Israeli policy to attack civilians were unfounded. Moreover, U.N. experts have pointed to a concerted investigation process on the part of Israel into alleged violations by Israeli personnel. This is important since in cases where a country has undertaken genuine steps to investigate and prosecute wrongdoing, the ICC is precluded from acting.

If the ICC recognizes the PA’s declaration and extends its jurisdiction to the territories, the PA will be obliged to either conduct genuine prosecutions against Hamas leaders and other perpetrators or render them to the ICC. Whatever the status of the Fatah-Hamas Unity Agreement, this would certainly become a highly divisive issue for the Palestinians.

Benjamin adds that Lebanon may become the role model for how the Palestinians pursue truth and justice. The Special Tribunal for Lebanon investigating the assassination of Rafik Hariri is a political football that has the country still sitting on a tinderbox.

Can you imagine the Hamas reaction to a comprehensive and credible investigation into the war crimes it openly takes credit for since the PA accepted ICC authority?