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Palestine Is About to Give the ICC a File Detailing Israel's Alleged War Crimes in Gaza

The effort to steer the International Criminal Court’s preliminary inquiry could eventually see both Israelis and Palestinians brought under investigation.

by Samuel Oakford
Jun 25 2015, 9:33am

Photo by Mohammed Saber/EPA

Palestine will turn over its first batch of documents to the International Criminal Court's prosecutor on Thursday, part of an effort to steer a preliminary inquiry that could eventually see both Israelis and Palestinians brought under investigation for war crimes.

Palestinian officials told VICE News that the handover will take place around 3pm in the Hague, the Dutch city in which the International Criminal Court (ICC) is headquartered. The materials will consist of two main files that cover alleged crimes that took place during the Israeli assault on Gaza last summer, as well as ongoing settlement activity in the West Bank that violates international law. The Palestinians will also provide information on prisoners locked up in Israeli jails.

"We are continuing to demonstrate that we are cooperating fully with the court and giving them whatever information that we have to make the prosecutor conduct her work in the easiest possible way," Riyad Mansour, Palestine's Ambassador to the UN, told VICE News.

In January, shortly after Palestinian President Mahmoud Abbas ratified the ICC's founding Rome Convention, the court's prosecutor, Fatou Bensouda, launched a preliminary inquiry into incidents in Palestinian territory since last summer. Such inquiries are routine, and it does not indicate the court believes violations have occurred. Bensouda will later determine whether to open a targeted investigation that could lead to individuals being prosecuted.

"Any information received will be given due consideration strictly guided by the requirements of the Rome Statute in the independent and impartial exercise of the Office's mandate," a spokesperson for Bensouda told VICE News. "It is in the interests of both Palestine and Israel to fully cooperate with the Office's preliminary examination into the situation."

Related: 'Unprecedented Devastation': Both Sides May Be Guilty of War Crimes During Gaza Conflict

Longtime chief Palestinian negotiator Saeb Erekat led the 45-member committee that compiled the file. The committee also included ministers, five lawyers, NGO staff, elements of the Palestinian security forces, and Ghazi Hamid, a top Hamas official. The submission, which will be delivered by Palestinian Foreign Minister Riad Malki, is hundreds of pages long.

"We will encourage the ICC to take their action from an examination a step further by hopefully starting their investigation," Ashraf al Khatib, an advisor to the Palestinian Liberation Organization, told VICE News.

If Palestinian authorities consider Bensouda's progress too slow, they can push the prosecutor's hand by specifically referring the situation in Palestine to her.

'Our option today is to communicate this information to the ICC, hoping that the ICC will start its own investigation.'

"We are studying all the options," Khatib said. "Our option today is to communicate this information to the ICC, hoping that the ICC will start its own investigation. [If] we feel that we need to take a different course, I'm sure that we will do so."

Israeli officials heavily criticized Palestine's decision to join the court, which officially took place on April 1, and they once again expressed their displeasure at the latest development.

"This is a cynical attempt to politicize the ICC's work and we hope the ICC will not fall in the trap," Nahshon Emmanuel, spokesperson for Israel's Ministry of Foreign Affairs, told VICE news in an email.

On Monday, a UN Human Rights Council inquiry into the 50-day war in Gaza last summer found that both Israel and Hamas may have committed war crimes, and urged that the perpetrators be brought to justice. In joining the ICC, the Palestinian Authority — which controls the West Bank but not Gaza — gave the court jurisdiction retroactive in all Palestinian territories dating to June 13 of last year, around the time Israeli security forces launched a crackdown in the West Bank and roughly a month prior to their assault on Gaza. More than 2,100 Palestinians — the majority civilians — were killed in Gaza during the conflict, as well as 74 Israelis.

The two-member panel headed by former US federal prosecutor Mary McGowan Davis reported that Israel launched more than 6,000 airstrikes and fired roughly 50,000 tank and artillery shells in Gaza between July 7 and August 26. The report also cited 4,881 rockets and 1,753 mortars that were fired from Gaza, calling the barrage "indiscriminate in nature."

Watch Rockets and Revenge Dispatch 1

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International legal experts say a potential case focusing on Israeli settlement activities, which even Israel's closest allies have called illegal, may be the easiest violation for the court to tackle. Proving that Israel used disproportionate firepower, or that either side targeted civilians, may be a harder task. The ICC has thus far only prosecuted Africans, and has not brought a case involving a military as advanced as Israel's. Defenders of Israel's incursions in Gaza often argue that Israel is alone among advanced militaries in being criticized for what it terms collateral damage.

"I think the UN report was not particularly surprising," Alex Whiting, a professor at Harvard Law School who previously worked at the ICC, told VICE News. "It was expected that it would reach those kinds of conclusions, but it certainly adds to the momentum of moving this forward."

Israeli Prime Minister Benjamin Netanyahu, meanwhile, condemned the UN report as biased. "Israel doesn't commit war crimes, but defends itself from a terrorist organization that calls for its destruction," he said.

Related: Netanyahu Calls UN Investigation of Alleged Gaza War Crimes a 'Waste of Time'

Both Israel and US have criticized the Human Rights Council in the past by as being overly focused on the Jewish state.

"We challenge the very foundation upon which this report was written, and don't believe that there's a call or a need for any further Security Council work on this," US State Department John Kirby said.

In a statement on the report that was disseminated through the Twitter account of the Palestine Liberation Organization, Erekat said, "We urge the international community to recall that the only true path to peace lies in ending the Israeli occupation that began in 1967, and in ending crime and the impunity with which it continues to be perpetrated against our people."

Other observers faulted the panel for equating the actions of the Israeli military with those of Palestinians despite the overwhelming death toll, particularly among children, on the Palestinian side. The UN inquiry found that 551 Palestinian children were killed in the Gaza conflict last summer.

'Despite however many mortars or rockets Palestinians may have fired, they have been targeted by magnitudes more of Israeli ordnance.'

Laleh Khalili, a professor of Middle East politics at the University of London, said in an email to VICE News that the report "creates a false 'balance' placing equal blame on Palestinians and Israelis, when despite however many mortars or rockets Palestinians may have fired, they have been targeted by magnitudes more of Israeli ordnance."

The UN panel found that "impunity prevails across the board for violations of international humanitarian law and international human rights law allegedly committed by Israeli forces." The inquiry also found that "Palestinian authorities have consistently failed to ensure that perpetrators of violations of international humanitarian law and international human rights law are brought to justice."

"With an ICC investigation now possible, the parties have to show that they are willing and able to credibly investigate serious allegations and bring the perpetrators to justice," Balkees Jarrah, counsel at Human Rights Watch's International Justice Program, told VICE News. "This report makes clear that neither side is currently doing that."

Abbas' decision to ratify the Rome Statute last December came a day after a Security Council resolution that would have set a timeline for an Israeli withdrawal to pre-1967 borders. The resolution failed to muster enough votes for passage, and Council diplomats say that despite enthusiasm from some members earlier this year, the US is once again holding up action on Palestine at the UN. American officials, they say, are wary of alienating Israel in the midst of negotiations over Iran's nuclear program — talks that Israel's leadership vociferously opposes.

By placing weight on their chances with the ICC, the Palestinians also risk the possibility that Bensouda could launch formal investigations that include both them and Israel.

"We are aware of all the implications that come from the ICC," Khatib said. "That's why our committee was created, they are aware of such implications. We also have to be ready for such issues."

Follow Samuel Oakford on Twitter: @samueloakford

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