In 2009, Palestinian leaders attempted to bring Israel’s actions during “Operation Cast Lead” to the International Criminal Court (ICC). Although the bid was refused by the then prosecutor Luis Moreno-Ocampo on the grounds that only states could do so and Palestine was not recognized as a state, the move fuelled hopes that one day Israel could be held accountable.
The United Nations General Assembly approved Palestine’s 2012 statehood bid, upgrading Palestine to a non-member observer state and therefore making it eligible to bring a case to the court. The chief prosecutor of the ICC, Fatou Bensouda, has stated that “the ball is now in the court of Palestine,” “Palestine has to come back” and “we are waiting for them.”
When Palestinian foreign minister Riad Al-Maliki visited The Hague in early August, the seat of the ICC, hopes were once again raised- would Palestine’s leaders finally follow through with its ICC threats? Maliki told reporters that the visit was made in-order to discuss the implications of signing the Rome Statute. Signing the Rome Statute would make Palestine a member of the ICC with the authority to call for an investigation into possible war crimes and crimes against humanity committed by Israel.
“We want really to be assured that if we undertake that decision (for ICC membership), then all Palestinian factions adhere to that decision and know in advance its consequences and ramifications,” said Maliki after the meeting. Hamas’ firing of rockets into Israeli cities and towns could also be considered a war crime under the Rome Statute and may also face the wrath of the court. However, Hamas gave their consent.
In a letter to the Paris-based legal firm Gilles Devers & Associes, which is acting on behalf of the Palestinian Authority, Bensouda said on 14 August 2014 that only the Head of State, Head of Government and Minister of Foreign Affairs could express a state’s consent to be bound to the Rome Statute. Other persons are considered to represent the state if it appears that State considers that person as representing it.
She also said, “On the 5th August 2014, I met with the Minister of Foreign Affair of Palestine, H.E. Mr Riad Maliki, where I provided clarifications that he requested on the different mechanisms for a State to accept the jurisdiction of the ICC…At that meeting, I sought to confirm whether or not your communication (the letter from Gilles Devers & Associes) dated 30 July 2014 was transmitted on the behalf of the Palestinian Authority, as a result of which, I did not received positive confirmation.”
“Accordingly there is no legal basis for my office to consider and/or treat the 30 July 2014 communication as emanating from a reprehensive of Palestine endowed with the required full powers to seize the Court’s jurisdiction… “
From this it looks like the Palestinian leadership will let another opportunity to hold Israel accountable go ungrasped. As it does, memories of the Goldstone Report episode resurface. The Abbas delegation to the United Nations in Geneva abandoned a resolution requesting the Human Rights Council to forward Judge Richard Goldstone’s report on war crimes in Gaza to the UN Security Council for further action.
Whatever the reasons behind this latest decision not to provide confirmation to Bensouda, whether it be pressure from the US and Israel, the outcome remains the same – Israel will evade justice, once again.