The International Criminal Court is unable to open an investigation into Palestinian war crimes claims against Israel until the Palestinians join the Rome statute which governs the court's activities, according to ICC Chief Prosecutor Fatou Bensouda.
Writing in the Guardian newspaper last Friday, Bensouda strongly rejected allegations that the ICC had avoided opening an investigation into alleged war crimes in Gaza due to political pressure.
The reason that no investigation had been opened, she said, was that the court lacks jurisdiction. "The prosecutor can only investigate and prosecute crimes committed on the territory or by the nationals of states that have joined the ICC statute" – which the Palestinians have not done.
A Palestinian request to join the ICC was rejected in April 2012, Bensouda wrote, because Palestine’s status at the United Nations as “observer entity” did not qualify it for participation in the statute.
That changed in November 2012, however, when Palestine's UN status was upgraded to “non-member observer" status. "Palestine could now join the Rome statute," she wrote.
But it has not yet done so. "To date, the statute is not one of the treaties that Palestine has decided to accede to, nor has it lodged a new declaration following the November 2012 general assembly resolution… The decision is theirs alone and as ICC prosecutor, I cannot make it for them."
The Palestinian Authority is considering signing up to the Rome statute. PA Foreign Minister Riad al-Malki met with Bensouda in early August to discuss Palestinian participation and President Mahmoud Abbas has said that he will move ahead with joining the statute if the United States and United Nations don't succeed in pressuring Israel to set final borders for a Palestinian state.
Observers believe that two considerations are preventing the Palestinian Authority from taking the step at this stage. The first is that the threat of joining the ICC provides leverage over Israel that could get it to negotiate seriously over a peace settlement. Given the choice between the ICC and a peace agreement, Abbas would prefer the latter.
The second consideration is the fact that ICC membership could work both ways. Not only Israelis are potential candidates for the dock, if Israel and the Palestinians begin tit-for-tat war crimes allegations. Palestinians – particularly Hamas officials who approved rocket attacks on Israeli civilians – could also be implicated.
Bensouda concluded her article by saying that the prosecutor "will execute its mandate, without fear or favor, where jurisdiction is established and will vigorously pursue those – irrespective of status or affiliation – who commit mass crimes that shock the conscience of humanity. My office’s approach to Palestine will be no different if the court’s jurisdiction is ever triggered over the situation."
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