Chief Prosecutor Fatou Bensouda declared that Palestine is a state and can join the ICC by signing the Rome Statute which would enable Palestinians President Mahmoud Abbas to sue Israeli leaders for war crimes as reported in ICC: Palestine is a state, can file war crimes complaints against Israel if chooses, as reported in the Jerusalem Post. Only individuals can be charged with war crimes or crimes against humanity in the ICC.
Confirming officially for the first time what has been implied, International Criminal Court Chief Prosecutor Fatou Bensouda, in a highly unusual op-ed on Friday in The Guardian, wrote that “Palestine” is now sufficiently a state to file war crimes complaints against Israelis if it chooses to join the ICC’s Rome Statute.
Ending speculation on the issue, Bensouda explained concisely that her office had concluded that following greater UN recognition in 2012, “Palestine could now join the Rome statute.”
Bensouda’s op-ed – in and of itself a most uncharacteristically public venue for her to articulate her office’s usually closely held official positions – appeared to be a response to an unprecedented barrage of criticism following the recent Gaza war from a range of parties that her office was artificially blocking the Palestinians from filing against Israelis.
Palestinian Authority Foreign Minister Riad al-Maliki met with the Chief Prosecutor on August 5 to explore the details of joining the court by President Abbas signing the Rome Statute which Abbas has hesitated to do so far.
The United States congress has threatened to cut off all funding to Palestine if he files war crimes charges against Israel. P.M. Minister Netanyahu has threaten to counter-sue alleging that rockets fired by Hamas militants into Israeli civilians areas constitute "double war" crimes, even though it is not a member of the court either. Israeli diplomats have also threatened Israel will annex the West Bank if Abbas signs the Rome Statute to join the ICC.
The UN Human Rights Council has already appointed three commissioners to investigate war crimes in Gaza, however, this council will only issue a report, expected in March of 2015. Only the ICC can indict individuals for war crimes, crimes against humanity, and/or genocide as spelled out in the Geneva Conventions and put them in jail.
Chief Prosecutor Bensouda also denied her inaction so far to initiated charges on her own were due to obstruction saying charges should either be filed by Palestine after signing the Rome Statue, or referred by the UN Security Council.
Hamas has now signed the Palestinian application to the Rome Statue, so the ball is in President Abbas' court. It appears he is using the threat of signing as a bargaining chip in negotiations with Israel. A report last week suggested that President Obama's administration has given Abbas a behind-the-scenes green light to threaten to take Israel to the ICC for war crimes as long as it does not actually do so.
His current position is that Palestine will take Israel to court unless Israel and the U.S. agree to a definite time frame for withdrawal of IDF forces from Palestinian territory.
It is a mistake for President Abbas to treat the International Criminal Court as a political football. What is at stake here is the international rule of law, the credibility and legitimacy of the Geneva Conventions, as well as the precedent that will be established for future superior military powers using disproportionate force against civilian populations.
If it is true that President Abbas is using the threat of going to the court only as a bargaining chip it would be demeaning to the legitimacy of the court and his own credibility and legitimacy as a leader of a people whom have experience war crimes.
President Abbas should file the charges immediately and let justice and international law takes its course. President Netanyahu has explicitly declared he will never allow an independent Palestinian state, so it is delusional to think negotiations from within the current situation will yield any substantial progress for the Palestinians.
It appears now that the best those of us who still favor a peace-two state solution for both Palestine and Israel can hope for is that that P.M. Netanyahu is indicted for war crimes and the world give us the incredible notion that Palestine must receive his blessing before it can be recognized as a state.
This is not an "anti-Israeli" position but a pro-Israel, pro-Palestine, and pro-peace viewpoint, IMO.