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International Criminal Court to consider Gaza investigation

The Palestinian Authority and others want the court to investigate alleged war crimes committed during the recent battle with Israel.

February 05, 2009|Sebastian Rotella

MADRID — In a move that could inject a new international actor into the Israeli-Palestinian conflict, the International Criminal Court will examine requests to investigate alleged war crimes during the recent combat in the Gaza Strip, its chief prosecutor said Wednesday.

Luis Moreno-Ocampo, chief prosecutor of the Netherlands-based court, said he had decided to consider an investigation after the Palestinian Authority accepted the jurisdiction of the court last week.

Now his prosecutors must analyze three questions, he said: whether the Palestinian Authority has legal power to recognize the court's authority, whether war crimes occurred, and whether the governments involved conduct genuine investigations.

"Each legal area is complicated," Moreno-Ocampo said in a telephone interview from The Hague. "We move when we are completely sure. Our contribution is impartiality. We will consider this carefully and thoroughly."

The court has received 210 requests from organizations and individuals regarding the recent fighting between Israel and the Hamas militant group. Many claims accuse Israel of offenses such as violence against civilians and illegal use of phosphorus shells. But groups such as Human Rights Watch have also called for an investigation of Hamas' rocket attacks on Israeli towns and its alleged use of Palestinian civilians as human shields.

The prosecutor's review could take years and faces legal and political obstacles. The court can investigate only in nations that accept its mandate, and most international bodies do not consider the Palestinian Authority to be a sovereign state.

"The ICC charter is adhered to by sovereign states, and the Palestinian Authority has not yet been recognized as one, so it cannot be a member," said Yigal Palmor, a spokesman for the Israeli Foreign Ministry. "It doesn't mean anything except that it's a good propaganda stunt."

Nonetheless, the court's review could have symbolic and concrete repercussions.

Israel could try to head off the investigation with its own comprehensive probe, said Yuval Shany, a professor of international law at Hebrew University of Jerusalem. "It will create greater pressures inside Israel to conduct a serious investigation," Shany said. "The fact that it has not been dismissed offhand by the court could prove to be significant."

The 7-year-old court has been ratified by 108 countries. Moreno-Ocampo, who was appointed in 2003, prosecuted former dictators in his native Argentina in the 1980s and later taught at Harvard University. He has led ICC investigations of atrocities in Sudan's Darfur region and other trouble spots. Last week he launched the court's first trial; the defendant is a Congolese strongman charged with forced recruitment of child soldiers.

Like Israel, the United States has not accepted the court's authority, wary of exposing American troops and leaders to prosecution. After eight years in which Washington was regarded as hostile to the idea of the court, human rights advocates think the Obama administration will be more supportive.

In reviewing the issue, the court will have to address the explosive question of whether the Palestinian territories constitute the equivalent of a state, Shany said. Although on the surface it seems evident that the territories do not meet the criteria, he said, the ICC could favor a less rigid legal interpretation oriented toward protecting victims of crimes.

"We have the fundamentals of a state and we have met all conditions required from a state," Ali Khashan, the Palestinian Authority's justice minister, said in an interview Wednesday in the West Bank city of Ramallah.

"We have been demanding these rights for a long time, but no one has paid attention to us. Now we have decided to go to the ICC with this matter as a first step toward getting our rights through legal means," he said.

Khashan faxed a letter to the court Jan. 21 declaring that his government recognized the court's jurisdiction for the purpose of investigating and prosecuting "acts committed in the territory of Palestine since 1 July 2002."

But Israeli officials point out pitfalls. Hamas, which is labeled a terrorist group by Israel and many Western governments, took control of Gaza in 2007 after the collapse of a unity Palestinian Authority government and the violent ouster of rival faction Fatah, which retains power in the West Bank.

Israeli officials contend that Hamas rule would impede an objective investigation and casts doubt on the relevance of the Palestinian Authority's recognition of the international court.

"Hamas has appropriated Gaza and doesn't recognize PA authority," an Israeli official said, requesting anonymity because of the sensitivity of the topic.

"If the residents of Gaza do not recognize the jurisdiction of the PA, how can the PA bring a case of alleged war crimes committed in Gaza jurisdiction?" the official said.

West Bank Palestinians have won cases in the Israeli justice system, such as disputes with the Israeli Defense Ministry over the route of a barrier being built to separate Israel and Palestinian territory, Israeli officials said.

The Palestinian justice minister said that he had not ruled out returning to Israeli courts, but he questioned their objectivity.

"Since the Israeli government has given protection to its officers and soldiers against legal prosecution, we do not expect the courts, including the high court, to play an honest and objective role," Khashan said.

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rotella@latimes.com

Times staff writer Richard Boudreaux in Jerusalem, Batsheva Sobelman of The Times' Jerusalem Bureau and special correspondent Maher Abukhater in Ramallah contributed to this report.

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