Palestinians say ICC can examine war crimes allegations now

Court spokesman confirms theoretical possibility, even though Palestinians yet to become formal members of tribunal

The prosecutor of the International Criminal Court can immediately start examining allegations of war crimes against Israel if she chooses, the Palestinian UN ambassador said Thursday.

Riyadh Mansour told a group of reporters that Palestine’s formal acceptance of the court’s jurisdiction starting June 13, 2014 gives prosecutor Fatou Bensouda a green light to take up the question of alleged war crimes on Palestinian territory without waiting for Palestine to formally become a member of the court on April 1.

“It is within her discretion that she can do that,” Mansour said.

Fadi El Abdallah, a spokesman for the ICC in The Hague, Netherlands, confirmed that the prosecutor can now in theory begin a “preliminary examination” of potential cases in the Palestinian territories. Bensouda has not announced any such examination yet.

The potential cases could include allegations of war crimes by Israel during last summer’s Gaza war where the Palestinians suffered heavy civilian casualties. Israel’s settlement construction on occupied Palestinian lands could also be examined.

Israel, in turn, has charged that it’s the Palestinians who should fear prosecution at the criminal court. An Israeli official said that Palestinian leaders “ought to fear legal steps” in the US and at The Hague as a response to their move toward ICC membership.

The cases could also include alleged war crimes by Hamas, which controls Gaza, including the firing of hundreds of rockets into Israeli territory.

“Given past practice we would expect the prosecutor to begin a preliminary examination during which she would decide if she will take the next step and open an actual investigation,” said Richard Dicker, director of international justice at Human Rights Watch.

The ICC stressed on Monday that accepting its jurisdiction “does not automatically trigger an investigation.” It said the prosecutor must determine whether the criteria have been met under the Rome Statute, which established the court.

The prosecutor is currently conducting eight preliminary examinations in Honduras, Ukraine, Iraq, Afghanistan, Colombia, Georgia, Guinea and Nigeria.

Dicker said the court’s acceptance of Palestine’s declaration of court authority would enable the prosecutor to look back at events.

“If they hadn’t filed a declaration, or it hadn’t been accepted, then she would be limited to events subsequent to April 1, 2015,” he told AP.

President Mahmoud Abbas submitted the declaration to the ICC registrar on Jan. 1, accepting the court’s jurisdiction over its territories, going back to June 13, 2014. That’s the day after three Israeli teens were abducted and killed by Hamas militants in the West Bank, an attack that set off events that culminated in the Gaza war.

UN Secretary-General Ban Ki-moon told reporters that the state of Palestine has the right to join the ICC and other treaties, but getting the Palestinians and Israelis to return to negotiations and reach a peace deal is “much more important.”