As the United Nations Human Rights Council moves forward with its commission of inquiry into possible Israeli war crimes during Operation Protective Edge, Western pressure has so far dissuaded the International Criminal Court in The Hague from opening its own investigation.
Citing former ICC officials and lawyers, the Guardian reported Monday that the court itself is divided on the question of whether it should open an investigation into both Hamas’s and Israel’s conduct in the fighting.
Palestinian lawyers and international law scholars are pushing ICC prosecutor Fatou Bensouda to launch an investigation, arguing that she has jurisdiction, while Bensouda is insisting on a new Palestinian request before pressing for such a move. However, such a move would require the approval of Hamas, which would also face scrutiny, and Mahmoud Abbas, who is under intense American and Israeli pressure to eschew such a request.
The Palestinians had submitted a request in 2009 for an investigation into Operation Cast Lead, the previous Gaza war that included an Israeli ground incursion, and thought that it would stay open pending their ascension to statehood. However, when the UN General Assembly voted to grant Palestine non-member observer state status, there was no investigation. Both Bensouda and Luis Moreno Ocampo, her predecessor, ruled that the Palestinians would have to submit a new request after achieving statehood.
Earlier in August, PA Foreign Minister Riyad al-Maliki said that his government intends to apply for membership at the International Criminal Court this year in hopes of holding Israel responsible for alleged violations of war crimes law.
But the ICC said in a statement that it currently doesn’t have jurisdiction over the Palestinian territories. The court couldn’t immediately be reached to clarify whether it would accept an application by the Palestinians for jurisdiction.
Sources in the ICC say that the prosecutor’s office is trying to avoid the political consequences of an investigation. “They are trying to hiding behind legal jargon to disguise what is a political decision, to rule out competence and not get involved,” one official told the Guardian.
“For her it’s a hard choice and she’s not prepared to make it,” University of Leiden international law professor John Dugard said of Bensouda. “But this affects the credibility of the ICC. Africans complain that she doesn’t hesitate to open an investigation on their continent.”
“There is enormous pressure not to proceed with an investigation. This pressure has been exerted on Fatah and Hamas, but also on the office of the prosecutor,” said Gilles Devers, the French lawyer representing the Palestinians. “In both cases, it takes the form of threats to the financial subsidies, to Palestine and to the International Criminal Court.”
The UK and France are among the ICC’s top contributors, and both have lobbied the Palestinians against opening a war crimes investigation. The US does not fund the court, but can support specific investigation diplomatically, economically and militarily.
American University professor David Bosco wrote that US officials warned that an investigation into Israel could be “too much political weight for the institution to bear. They made clear that proceeding with the case would be a major blow to the institution.”
In his book Rough Justice: the International Criminal Court in a World of Power Politics, Bosco revealed that Israeli officials met quietly with Moreno Ocampo, Bensouda’s predecessor, several times in an attempt to dissuade him from going ahead with the investigation.
Both Moreno Ocampo and Bensouda denied they were moved by political considerations. “I was very firm on treating this issue impartially, but at the same time respecting the legal limits,” wrote Moreno Ocampo in an email to the Guardian on Sunday. “I heard all the arguments. I received different Oxford professors who were explaining the different and many times opposing arguments, and I concluded that the process should … go first to the UN. They should decide what entity should be considered a state…Palestine was using the threat to accept jurisdiction to negotiate with Israel. Someone said that if you have nine enemies surrounding you and one bullet, you don’t shoot, you try to use your bullet to create leverage.”
“The ICC is guided by the Rome statute and nothing else,” said a spokeswoman for Bensouda. “Strict rules about jurisdiction, about where and when ICC can intervene should be not be deliberately misrepresented… Geographical and political consideration will thus never form part of any decision making by the office.”
In addition to looking into the fighting in Gaza, an investigation could also rule on Israeli settlements in the West Bank.
The Associated Press contributed to this report.