Marlise Simons
The New York Times
February 11, 2009 - 1:00am

The Palestinian Authority is pressing the International Criminal Court in The Hague to investigate accusations of war crimes committed by Israeli commanders during the recent war in Gaza.

The Palestinian minister of justice, Ali Kashan, first raised the issue during a visit to the court’s chief prosecutor late last month, and he and other officials are due back again in The Hague this week, court officials said.

Luis Moreno-Ocampo, the prosecutor, had initially said he lacked the legal basis to examine the case. But since the Palestinian Authority signed a commitment on Jan. 22 recognizing the court’s authority, the prosecutor has appeared more open to studying the Palestinian claim.

“The prosecutor has agreed to explore if he could have jurisdiction in the case,” said Béatrice Le Fraper, the director of jurisdiction for the prosecution. She cautioned that accepting jurisdiction would not automatically set off a criminal investigation. “We are still very far from any decision; this is just the beginning of a long process,” she said.

The prosecutor has received more than 200 requests to look into allegations of war crimes during the recent fighting between Israel and Hamas militants. They include accusations from individuals and organizations that Israel violated the rules of war by singling out civilians and nonmilitary buildings, and by using weapons like white phosphorus illegally.

“Quite a few groups have sent experts to the region, people doing forensic work, studying explosives and other weapons,” she said. “The prosecutor can look at all open sources at this stage.”

Should a criminal investigation begin, the prosecution would send its own investigators, who would look into possible violations by both sides. Hamas’s practice of sending rockets into southern Israel, which often landed in civilian areas, might be viewed as a violation. Israeli officials justified their offensive by saying they were trying to stop the rocket attacks.

But even as envisioned by the Palestinian Authority, the case faces numerous hurdles, specialists say.

The court here is the world’s first permanent international criminal court, created to examine war crimes, crimes against humanity and genocide. It can prosecute any citizen from the 108 countries that are currently members of the court. Individuals, governments, the United Nations Security Council or the prosecutor can initiate cases.

Israel is not a member of the court, and the Palestinian territories, not being recognized as a sovereign nation, appear not to fulfill the requirements. But as a remedy, the Palestinian Authority has taken a first step by presenting a declaration to the court, formally accepting jurisdiction for “an indeterminate duration” over acts “committed on the territory of Palestine” since July 1, 2002, when the court’s authority began.

Lawyers say such a declaration allows for joining the court on an ad hoc basis, and has been allowed before, in the case of Sierra Leone, which is not a member. But while the Palestinian declaration has been recorded at the court, its validity is far from settled. The big question, lawyers at the court say, is whether the Palestinian Authority can grant jurisdiction in any form, and if so, how that will be defined.

The issue has raised the question of whether Palestinian officials hope to obtain an implicit recognition of statehood through the court.

The court “will not use the term statehood,” said a legal expert close to the case who spoke on condition of anonymity because the issue was still being decided. “The court will avoid defining whether Palestine is a state. The decision will be only if Palestine can be admitted for the purposes of the court statute.”

The Palestinian officials visiting The Hague in the coming days are expected to try to demonstrate that they have been allowed to sign other international treaties and conventions, and can therefore be accepted as a party to the 1998 Rome treaty that founded the court.

Ms. Le Fraper, the director of jurisdiction, said her office would call on international experts to help settle such questions.

Another unknown is whether the Palestinian Authority can bring a case involving jurisdiction in Gaza. The authority is run by Fatah, but its rival faction, Hamas, has declared itself the only authority in Gaza and ousted Fatah from the territory.

More than 1,300 Palestinians died in the recent war in Gaza, many of them women and children. Israeli officials have insisted that Israel respected international law during the fighting. Israel has also said that it will investigate its attacks on United Nations schools and headquarters and the use of unlawful weapons in urban areas, including the use of white phosphorus.

Human rights groups and a number of United Nations officials have called for an independent international inquiry into actions by both sides. Human Rights Watch said such an independent effort was essential because of “Israel’s poor record of investigating and prosecuting serious violations by its forces, and the absence of any such effort by Hamas or other Palestinian groups.”

Western politicians and other critics of Israel’s recent conduct in Gaza have also said that Hamas has violated the rules of war and committed war crimes with indiscriminate rocket attacks on Israeli civilians and the use of its own civilians as human shields.

Depending on what happens at the court, Hamas’s rocket attacks and other acts viewed by some as crimes could also become part of any criminal investigation. By accepting the jurisdiction of the International Criminal Court on its territory, the Palestinian Authority has also accepted jurisdiction over any war crimes by its own residents.

“That’s the way jurisdiction works,” said a court lawyer. “The Palestinians know that and have taken that risk.”


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