The international criminal court is considering whether the Palestinian
Authority is "enough like a state" for it to bring a case alleging that
Israeli troops committed war crimes in the recent assault on Gaza.
The deliberations would potentially open the way to putting Israeli military
commanders in the dock at The Hague over the campaign, which claimed more
than 1,300 lives, and set an important precedent for the court over what
cases it can hear.
As part of the process the court's head of jurisdictions, part of the office
of the prosecutor, is examining every international agreement signed by the
PA to decide whether it behaves - and is regarded by others - as operating
like a state.
Following talks with the Arab League's head, Amr Moussa, and senior PA
officials, moves have accelerated inside the court to deliver a ruling on
whether it may be able to insist on jurisdiction over alleged war crimes
perpetrated in Gaza, with a decision from the prosecutor's office expected
within "months, not years".
The issue arises because although the ICC potentially has "global
jurisdiction" to investigate crimes which fall into its remit no matter
where they were committed, Israel - despite having signed the Rome statute
that founded the court and having expressed "deep sympathy" with the court's
goals - is not a party.
The ICC, which has 108 member states, has not so far recognised Palestine as
a sovereign state or as a member.
The latest moves in The Hague come amid mounting international pressure on
Israel and a growing recognition in Israeli government circles that it may
eventually have to defend itself against war crimes allegations. The
Guardian has also learned that a confidential inquiry by the International
Committee of the Red Cross into the actions of Israel and Hamas during the
recent conflict in Gaza is expected to accuse Israel of using "excessive
force" - prohibited under the fourth Geneva convention.
The Red Cross has been collecting information for two parallel inquiries,
one into the conduct of Israel and a second into Hamas, both of which will
be presented in private to the parties involved.
In the case of Israel, the Red Cross is expected to highlight three areas of
concern: the Israeli Defence Forces' "use and choice of weapons in a complex
and densely populated environment"; the issue of "proportionality"; and
concerns over the IDF's lack of distinction between combatants and
non-combatants during Operation Cast Lead. Hamas is likely to be challenged
over its use of civilian facilities as cover for its fighters; its summary
executions and kneecappings of Palestinians during the campaign; and its
indiscriminate firing of rockets into civilian areas.
Meanwhile, sources at the ICC say it is considering two potential tracks
that would permit it to investigate what happened in Gaza. As well as
determining whether the PA is recognised internationally as a sufficiently
state-like entity, the head of jurisdictions in the office of the
international criminal court's prosecutor, Luis Moreno-Ocampo, is looking at
whether the court can consider war crimes allegations on the basis of the
dual nationality of either victims or alleged perpetrators whose second
passport is with a country party to the court.
The court's deliberations follow more than 220 complaints about Israel's
actions in Gaza. "It does not matter necessarily whether the Palestinian
National Authority is in charge of its own borders," said a source at the
court. "Right now the court is looking at everything from agreements it has
signed on education to the constitution of its legal system."
Yesterday, Ehud Olmert, Israel's prime minister, warned Palestinian
militants their continuing rocket attacks on Israel would not go unpunished.
He said further strikes would "be answered with a painful, harsh, strong and
uncompromising response from the security forces". More than 100 rockets and
mortars have exploded in Israel in the six weeks since it ended its air and
ground assault on Gaza, to which the government has responded with
Olmert's warning came as Israel's attorney general notified the prime
minister that he was considering indicting him on charges of allegedly
taking cash-stuffed envelopes from a Jewish-American businessman. Five
corruption cases are pending against Olmert, although he has denied all
wrongdoing. His spokesman said yesterday the charges against the prime
minister would "disappear in the end".