APRIL 1, 2015
Palestinians Join International Criminal Court, but Tread Cautiously at First
By DIAA HADID and MARLISE SIMONS
RAMALLAH, West Bank -- The Palestinians became members of the International Criminal Court on Wednesday, cementing the most significant and contentious step so far in their new strategy of seeking statehood through international forums.
Palestinians hope to use the court to bring international pressure to bear on Israel and call it to account for policies and actions that the Palestinians maintain are war crimes and crimes against humanity, including the Israeli assault on Gaza last summer and the continuing construction of Jewish settlements in the occupied West Bank.
However, the Palestinian leadership refrained from immediately taking the more provocative step of requesting that the court look into specific cases that may implicate Israeli officials. Instead, the Palestinians said they would wait to see the progress of a preliminary examination that the court's prosecutor, Fatou Bensouda, began in January.
"Palestine remains one of the most important tests of the will and ability of the international community, and international institutions, to uphold universal values," Riad al-Malki, the Palestinian foreign minister, said during a 30-minute ceremony at the court in The Hague. "It is a test the world cannot afford to fail."
President Mahmoud Abbas of the Palestinian Authority signed papers on Dec. 31 to join the court as the State of Palestine, building on the observer status the Palestinians achieved at the United Nations General Assembly in 2012. Over the past year, the Palestinians have joined about 40 treaties and international conventions, in defiance of intense pressure from Israel and the United States, and the court is the most significant so far.
Just before they joined, the Palestinians requested that the court's jurisdiction extend retroactively to June 13, 2014, in hopes that Ms. Bensouda would investigate Israel's devastating 50-day summer war with Palestinian militants in the Gaza Strip. Hundreds of Palestinian civilians were killed in that conflict, the homes of tens of thousands were destroyed, and hospitals and other facilities were badly damaged by bombing and shelling.
Israel has strongly objected to the Palestinians' joining the court, saying that such unilateral bids for recognition are counterproductive to the peace process and that Palestinian statehood can be achieved only through direct negotiations with Israel. And it has strongly defended its actions in Gaza. Israel says its military takes great care to minimize civilian casualties and property damage while Hamas, the Islamist group that dominates the territory, and other militants deliberately put Palestinian civilians at risk by hiding among them and firing rockets and mortar shells toward Israel from residential areas.
Indeed, now that the Palestinians have joined the court, Hamas in particular may be exposed to war-crimes charges, accused of firing indiscriminately at Israeli communities.
The Israeli Foreign Ministry said in a statement Wednesday that joining the court was "a political, hypocritical and cynical maneuver." It called Hamas a "murderous terrorist organization that commits war crimes similar to those of the Islamic State" and said the Palestinian Authority was "the last party that should threaten" to complain to the court.
Saeb Erekat, the Palestinians' chief negotiator in the sputtering peace talks with Israel, had said that the Palestinians would file complaints about Gaza and about the settlements once their membership took effect. But Ashraf Khatib, a spokesman for the Palestine Liberation Organization, said on Tuesday that the leadership had decided to hold off for now.
It is up to the prosecutor, Ms. Bensouda, to recommend to the court's judges whether to proceed with full-scale criminal investigations. One criterion for making that decision is whether the Israeli or Palestinian judicial systems are able and willing to deal with the cases on their own.
The Israeli military is investigating several episodes from the Gaza conflict, and the Israeli state comptroller is pursuing an investigation as well. But human rights groups say that Israeli courts have failed to hold soldiers and commanders accountable for their actions in the past, hearing few cases and delivering even fewer convictions stemming from earlier conflicts. They say that for Palestinians in Gaza, in particular, redress is nearly impossible to obtain from the Israeli courts.
Hamas has dismissed allegations by Amnesty International and other groups that its fighters committed war crimes, and it refuses to investigate the episodes that the groups cite.
Palestinians hope that membership in the international court might, at the very least, make Israel less likely to resort to military force.
"Why were there three wars against Gaza in less than six years?" asked Issam Younis of the Al Mezan Center for Human Rights, a Gaza-based rights group. "It is simply because Israel is not accountable. This might act as a deterrent."
The International Criminal Court was created by the Rome Treaty in 1998 and now has 123 members. (The United States is not among them; neither is Israel.) The court did not begin examining cases until a decade ago, and after several early missteps and failures, it has been struggling to establish and retain credibility. Some supporters fear that being drawn into the tangled Middle East conflict could overwhelm the institution.
"It now has to engage in a situation that is extremely politicized, and the greatest risk is that this can tarnish the court," said Mark Ellis, the director of the International Bar Association, who follows the court's work.
For that reason, a number of leading Western countries that were founding members of the court, including Canada, Australia, Britain and Germany, objected to the Palestinians' membership. Publicly, they said it would undermine negotiations with Israel. Privately, though, some Europeans said their real concern was politicizing the court.
In January, Israel retaliated against the move to join the court by withholding some $127 million in monthly tax revenue that it collects on the Palestinians' behalf, leaving the Palestinian Authority unable to pay its thousands of employees their full salaries. On Friday, though, Prime Minister Benjamin Netanyahu of Israel said he would release the withheld funds, minus some utility payments, an issue that remains a sore point with the Palestinians.
Though they are now members of the court, the Palestinians will have only limited influence over what it does. Eugene Kontorovich, a law professor at Northwestern University, noted that the court's jurisdiction is "a torpedo they put in the water, which they can't remove." Still, he said that would work to the Palestinians' advantage, giving them some cover against diplomatic pressure: "It prevents them from being beat up to stop it," he said. "Now it is, in a sense, a new fact on the ground."
Some Palestinians welcomed the formal accession to the court. In eastern Gaza, Faraj al-Arir sat with his relatives in their bomb-damaged home on Tuesday and recounted a host of grievances against Israel: One man's father had died in an Israeli prison; another family member had to have his legs amputated after Israeli forces opened fire on him; Mr. Arir's own home, across the road, was in ruins from last summer's war.
"I want Palestinians to go to the International Criminal Court," Mr. Arir said, "and let the world see what they have committed against us and how we are displaced now."
Diaa Hadid reported from Ramallah, and Marlise Simons from Paris. Majd Al Waheidi contributed reporting from Gaza City, Somini Sengupta from the United Nations, and Said Ghazali from Jerusalem.