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From
The Times
February 2, 2009
Catherine
Philp in Davos and James Hider in Jerusalem
The International Criminal Court
is exploring ways to prosecute Israeli commanders over alleged war
crimes in Gaza.
The alleged crimes include the use
of deadly white phosphorus in densely populated civilian areas, as
revealed in an investigation by The Times last month. Israel
initially denied using the controversial weapon, which causes
horrific burns, but was forced later, in the face of mounting
evidence, to admit to having deployed it.
When Palestinian groups petitioned
the ICC this month, its prosecutor said that it was unable to take
the case because it had no jurisdiction over Israel, a nonsignatory
to the court. Now, however, Luis Moreno-Ocampo, the ICC prosecutor,
has told The Times that he is examining the case for
Palestinian jurisdiction over alleged crimes committed in Gaza.
Palestinian groups have
submitted arguments asserting that the Palestinian Authority is the
de facto state in the territory where the crimes were allegedly
committed.
“It is the territorial state
that has to make a reference to the court. They are making an
argument that the Palestinian Authority is, in reality, that state,”
Mr Moreno-Ocampo told The Times at the World Economic Forum
in Davos.
Part of the Palestinian
argument rests on the Israeli insistence that it has no
responsibility for Gaza under international law since it withdrew
from the territory in 2006. “They are quoting jurisprudence,” Mr
Moreno-Ocampo said. “It’s very complicated. It’s a different kind of
analysis I am doing. It may take a long time but I will make a
decision according to law.”
Mr Moreno-Ocampo said that his
examination of the case did not necessarily reflect a belief that
war crimes had been committed in Gaza. Determining jurisdiction was
a first step, he said, and only after it had been decided could he
launch an investigation.
The prosecutor’s office has
already received several files on alleged crimes from Palestinian
groups and is awaiting further reports from the Arab League and
Amnesty International containing evidence gathered in Gaza.
Under the Rome treaty that
founded it, the ICC can investigate and prosecute allegations of the
most serious war crimes only if the country responsible is unwilling
or unable to do so through its national courts.
States that are party to the
treaty can refer cases of crimes committed by their citizens or on
their territory. Cases involving the citizens or territory of a
country that has not signed up to the court can be referred by the
United Nations Security Council – as in the case of Darfur. Ivory
Coast set a precedent as the first nonstate party to accept the
ICC’s jurisdiction over alleged war crimes on its territory. It
signed the Rome treaty but never ratified it. In 2005 it lodged a
declaration with the court accepting the ICC’s jurisdiction over
crimes committed there since September 2002.
Palestinian lawyers argue that
the Palestinian Authority should be allowed to refer the cases in
Gaza on this same ad hoc basis – despite its lack of internationally
recognised statehood.
The case has wide-reaching
ramifications for the Palestinian case for statehood. If the court
rejects the case, it will highlight the legal black hole that
Palestinians find themselves in while they remain stateless.
However, it also underlines some of Israel’s worst fears about a
Palestinian state on its borders. A Palestinian state that ratified
the Rome treaty would then be able to refer alleged Israeli war
crimes to the court without the current legal wrangling. The case
could also lead to snowballing international recognition of a
Palestinian state by countries eager to see Israel prosecuted.
One avenue would be for Israel
to agree to investigate its commanders and prosecute any crimes
discovered. That would remove any case from the orbit of the
international court. So far that appears unlikely, given Israel’s
repeated denials of war crimes in Gaza.
The Israeli army has, however,
launched an internal inquiry into whether white phosphorus was used
in some cases in built-up areas, having eventually admitted that it
did use the incendiary substance, which is not illegal as a
battlefield smokescreen but is banned from being used in civilian
areas. Camera footage from one such attack shows what appears to be
white phosphorous raining down on a UN school in Beit Lahiya, where
Red Crescent ambulances and their crews were stationed.
A coalition of Israeli human
rights groups has urged the country’s attorney-general to open an
independent investigation into allegations of war crimes by troops,
urging that to do so could head off international court cases. The
groups, including the antisettlement organisation B’Tselem, said
that there had been reports of Israeli forces firing into civilian
areas, denying medical aid to the wounded and preventing Palestinian
ambulances from reaching them, and of firing at people carrying
white flags.
Meanwhile, the UN is preparing
an inquiry into the bombardment of a UN school in Jabaliya, in the
northern Gaza Strip. Israeli forces fired artillery shells outside
the school, which had been converted into a refugee shelter for
Gazans fleeing their homes. At least 43 people were killed. Israel
said that Palestinian militants had fired from the compound, which
was denied by the UN. |
