The Palestinian Authority (PA) on Thursday carried out its first act of cooperation with International Criminal Court (ICC) Prosecutor Fatou Bensouda, submitting a confidential file of several hundred pages in support of its complaints against Israel. Emerging from the court, PA Foreign Affairs Minister Ryad Al-Maliki said they were not trying to interfere in the preliminary examination opened by Bensouda in mid-January, but simply to “cooperate” in line with Palestine’s obligation since it became an ICC member on April 1 this year. He said Palestinians had “chosen to seek justice and not vengeance”.
The document, whose contents were revealed in substance by the Palestinians, covers “war crimes” and other crimes allegedly committed by “individuals in the Israeli authorities”. The Palestinian document targets especially Israel’s settlement policy, attacks on the Gaza Strip and on the civilian population, and says there has been a widespread and systematic attack continually perpetrated against the Palestinian people. A few days before becoming the 123rd member of the ICC, Ramallah asked the ICC Prosecutor to investigate crimes committed during the second Gaza War in summer 2014. The document submitted on Thursday by the PA’s National Council in charge of files for the ICC targets Israeli policy more widely.
This Council was set up by President Mahmoud Abbas on February 7. It is headed by Palestinian negotiator Saeb Erekat and is composed of 40 people, including ministers, members of various Palestinian factions and security forces. Palestinian civil society also contributed to the document. Several reports are attached as Annexes to the document, including that of the UN independent commission of inquiry on “Operation Protective Edge” published on June 22. The report points to possible war crimes committed by both Israel and armed Palestinian groups. But above all, it slams Israel for “prevailing impunity at all levels” and calls for this “lamentable record” to be overturned. It calls on Tel Aviv to see that its investigations are not confined to its soldiers but also include members of the political and military establishment including at the highest levels. These conclusions could affect the decision of the ICC Prosecutor who, in the course of her preliminary examination, must determine if the State in question is willing and able to prosecute. The ICC, according to its Statute, is a court of last resort.
For the moment, information has been submitted to the Prosecutor, to great media fanfare, but not a referral, which would carry more judicial weight. The Palestinians say they might take this step if the case gets bogged down. ICC texts do not set any deadlines, and other preliminary examinations such as Afghanistan were opened eight years ago, without any decision having yet been made on whether to carry it further. “If the Palestinians had submitted a referral, that would have been more worrying for Israel,” said Israeli lawyer Nick Kaufman, who has also pleaded cases before the ICC. “That would have obliged the Court to establish a pre-trial Chamber and give the Palestinians an address to complain to if they think the Prosecutor’s office is going too slowly.”
The next step is expected to be a visit to the region by a team from the Prosecutor’s office. This should provide an opportunity to see if all Palestinian factions, including Hamas, are prepared to cooperate, as Ramallah claims. The US, which is not a member of the ICC, said efforts to have Israel charged with war crimes at the International Criminal Court were “counterproductive” and would be opposed by Washington. Israel accused the Palestinians of wanting to “manipulate the ICC”. After Palestine became an ICC member, the government froze for some time transfer to the PA of some 106 million Euros per month of tax revenue collected on behalf of Palestinians.