Agence France Presse (AFP)
February 4, 2009 - 1:00am

The prosecutor of the International Criminal Court said Tuesday he would determine whether there was such a legal entity as a Palestinian state, a precursor to a possible probe of war crimes in Gaza. Having received a request from the Palestinian National Authority to investigate the recent Israeli offensive on the Gaza Strip, Luis Moreno-Ocampo said: "My work is now to analyze this in accordance with [international] law."

Before a full investigation could be launched, he had to determine whether "the Palestinian Authority [PA] [has] the legal capacity, the legal ability, to accept the jurisdiction of the court," the prosecutor told reporters in The Hague.

The Rome Statute that created the ICC determined that only a state could do so.

"But who is the state in Gaza?" asked Moreno-Ocampo. "What is a state in international law, in particular in the Gaza territory - that is the discussion. It is a complicated discussion."

The question formed part of a preliminary analysis of allegations of war crimes committed by Israelis in the recent offensive, a process the prosecutor said "could take time."

Moreno-Ocampo said Palestinian Justice Minister Ali Kashan had asked him to probe "the crimes" during a meeting in The Hague on January 22. The PA subsequently filed a declaration with the ICC registrar recognizing the court's jurisdiction.

The prosecutor's office previously insisted that the ICC, which started work in 2002 as the world's first permanent tribunal on war crimes, crimes against humanity and genocide, had no competence over the Gaza situation. The court can try an individual if the alleged crime was committed on the territory of, or by a national of, a signatory to the Rome Statute, or if requested by a state that has signed onto the statute - which neither Israel nor the Palestinian Authority has.

The prosecutor can also start an investigation at the request of the United Nations Security Council, or if a nonparty state accepts the court's jurisdiction - the road the PA has now sought to take.

Moreno-Ocampo said his office had received more than 150 other "communications" on Gaza from individuals and nongovernment bodies, as well as from Israeli authorities.

Once he makes his decision on Palestinian jurisdiction, the prosecutor would next have to determine whether crimes under the court's jurisdiction had been committed in Gaza.

Only if the answer is positive on both counts, and no national criminal proceedings had been launched, may the prosecutor ask the court to authorise an official investigation.

A similar analysis into the situation in the Central African Republic took three years before a full probe was opened.

Israel's 22-day offensive last month on Gaza left more than 1,300 Palestinians dead, including over 400 children, before a ceasefire took effect on January 18. Thirteen Israelis were killed, 10 of whom were soldiers.


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