UNITED NATIONS — The chief prosecutor of the International Criminal Court could start looking into allegations of war crimes and crimes against humanity on Palestinian lands even before Israelis go to the polls in March, according to the court.
That politically fraught decision is up to the prosecutor, Fatou Bensouda. The Palestinian leadership opened a path for her when it filed a declaration this week accepting the court’s authority over crimes committed on Palestinian lands since June 13. That declaration, in effect, authorizes the prosecutor to immediately open a preliminary examination, a prerequisite to any formal investigation.
Ms. Bensouda stipulated in a 2013 paper that as a matter of policy she would open a preliminary examination once a valid declaration was filed accepting the court’s jurisdiction.
Fadi El Abdallah, a spokesman for the court, said in an email message Friday that there was no need for the prosecutor to wait until April. “A preliminary examination is not an investigation,” he said, but rather an assessment of “whether there is a reasonable basis to proceed.” They do not always lead to full-scale investigations, he said.
The prosecutor went ahead with a preliminary examination in the same way after Ukraine asked the court last April to look into allegations of crimes committed in its territory over a three-month period, including the Russian annexation of Crimea.
Ms. Bensouda’s office has eight preliminary examinations underway now, including one into the conduct of American troops in Afghanistan.
Israel has promised to retaliate against the Palestinian Authority for joining the International Criminal Court, and the United States has warned that it could cut $400 million in aid to the Palestinians.
The Palestinian ambassador to the United Nations told reporters here this week that the prosecutor could start an examination into accusations of crimes right away. Legal experts have said the court could look into episodes in connection to the Gaza war last summer between Hamas militants and Israeli defense forces. Or it could involve the Israeli policy of settlement building. The court defines a war crime as “the transfer, directly or indirectly, by the occupying power, of parts of its own civilian population into the territory it occupies.”
The appeal to the court creates vulnerability for the Palestinians as well. It opens Hamas, in particular, to possible war-crimes charges for acts like firing rockets at Israeli civilian areas. Shurat HaDin, an Israeli legal group,has already filed complaints with the court against five Palestinian officials, including Khaled Meshal of Hamas and the Palestinian president, Mahmoud Abbas.
The prosecutor’s task will be to explore whether the court has jurisdiction, and a central issue will be whether Israeli courts are able to try their own nationals for the most serious possible war crimes and crimes against humanity. The court is intended to involve itself only in matters that cannot be handled adequately by a country’s own judiciary.
Israel is conducting 13 criminal investigations concerning its soldiers’ actions during the Gaza war. The United Nations is also investigating certain events, including attacks on the agency’s schools and clinics in Gaza.
The NewYork Times