Olivia Ward
The Star
September 29, 2011 - 12:00am

In the fierce debate over the Palestinian bid for UN membership, one unseen presence has cast a long shadow.

It’s that of Luis Moreno-Ocampo, the prosecutor of the International Criminal Court — the body Israel has long feared would take up Palestinian allegations of war crimes if its statehood bid is successful.

A few blocks away from the UN this week, the man at the centre of the controversy said if Palestine becomes a member state, or a lower-ranked non-member observer state, it could be eligible to pursue claims against Israel.

“If the General Assembly says they are an observer state, in accordance with the all-state formula, this should allow them . . . to be part of the International Criminal Court,” he told the Star.

Moreno-Ocampo has scrutinized the issue of the Palestinians’ claims for two years, since they filed a declaration giving jurisdiction to the court for acts committed on their territory. But there has not yet been a conclusion.

“We have the declaration, and we have been analyzing if they are a state,” he said. “Now the issue is before the UN, and whatever they decide, we will react to.”

Israel’s former UN ambassador Dore Gold told the BBC that Palestinian President Mahmoud Abbas made the bid for statehood “to open a whole new door of going to the International Criminal Court.”

Israel opposes any move to hold it accountable in the court, saying it is a Palestinian attempt to delegitimize and isolate the Jewish state.

Moreno-Ocampo’s opinion that the court would be able to act if the Palestinians get observer-state status is significant because the bid for full UN membership is expected to fall short, which would leave them to ask the General Assembly to vote on including them as an observer state instead.

States can only become members with a recommendation from the 15-member Security Council, where the U.S. has vowed to cast a veto.

The council moved up the Palestinian application on its agenda Wednesday, announcing that its committee on new membership would consider the issue Friday.

Sources inside the 15-member council say it’s likely to be bogged down there, as the U.S. and other members of the Quartet mediating Middle East peace pressure the Palestinians to go back to the bargaining table with Israel.

Even if Palestine becomes a signatory to the court, Moreno-Ocampo said, it would take more than statehood to open an investigation.

“There must be crimes,” he said. “And there are many other issues involved.”

Investigations typically take months, if not years, before indictments are issued. Nor is it clear whether a newly admitted state could press claims on actions that happened before it gained its new status — such as the 2008-09 Gaza war in which more than 1,200 Palestinians and 13 Israelis died.

International law expert John Quigley, author of The Statehood of Palestine, said any case against Israel is unlikely to go forward while Moreno-Ocampo is prosecutor, as his term ends in nine months.

Even if he decided the Palestinians had suffered war crimes, Quigley said, “the most he could do is go to a panel of three judges for authorization of a fuller investigation.”

Dapper, determined and never at a loss for words, Argentine Moreno-Ocampo has fielded brickbats from all sides of the political spectrum, with accusations that he has impeded peace in Sudan by issuing an arrest warrant for President Omar al-Bashir, and that warrants for more than 20 other suspects have brought few results. He has been criticized for raising unrealistic expectations.

But in his eight years as chief prosecutor, he has seldom been in the eye of such a major storm as the one swirling around the UN bid for Palestinian statehood.

“The world isn’t yet used to legal limits,” he said. “Here, we are establishing the law. That may be controversial, but it’s normal. Whatever the controversies are, the court shows that it can deal with them.”

With just nine months to wind up his work, Moreno-Ocampo believes his legacy is in building the fledgling court.

“My successor will have an institution with clarity, policy, protocol, standards and training. There are new challenges, but the court works.”


American Task Force on Palestine - 1634 Eye St. NW, Suite 725, Washington DC 20006 - Telephone: 202-262-0017