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Jerusalem Center for Public Affairs
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Hague court rejects Palestinian suit against Israel over Cast Lead

Filed under: Hamas the Gaza War and Accountability under International Law - June 18 2009
Publication: Dore Gold Articles


In a major, and rare, victory for Israel, the International Court of Justice in The Hague ruled on Monday that it could not judge cases involving the West Bank and Gaza Strip. The ruling was a blow to the Palestinian Authority, which had submitted a lawsuit against Israeli officials in 2009 over what it alleged were “war crimes” the Israel Defense Forces committed during its incursion into Gaza in Operation Cast Lead in 2008-9 against Hamas’ terror.

The decision came after a three-year debate in the court during which eight experts testified. The only Israeli to testify was Dr. Dore Gold, Israel’s former ambassador to the U.N., the head of the Jerusalem Center for Public Affairs and an Israel Hayom columnist. Gold, a close adviser to Prime Minister Benjamin Netanyahu, took up the matter since Israel is not a signatory to the international court’s founding treaty, the Rome Statute, and cannot provide testimony in the court in an official capacity.

According to the statute, only internationally recognized countries can become members of the court. The court’s statement to the Palestinians said that because the Palestinian Authority does not constitute a country recognized by U.N. organizations in New York, it cannot preside over the lawsuit the Palestinians submitted against Israel.

The Palestinian Authority unilaterally recognized the court’s jurisdiction in January 2009, and ICC prosecutors have been mulling ever since whether to accept that recognition — the first step in a process that could have finished with Israel being investigated for possible war crimes.

In a statement, the prosecutor said it is up to “relevant bodies at the United Nations” or the group of nations that makes up the court to determine whether Palestinians can sign up to the Rome Statute.

he court can only launch investigations if asked by the U.N. Security Council or an involved state that has recognized the court. Israel has never recognized its jurisdiction.

The bottom line is that the ICC has no jurisdiction. We knew that and we said as much since the beginning,” Foreign Ministry spokesman Yigal Palmor said.

If the (Palestinian Authority) has any grievance, the proper way to deal with it, is to talk to Israel and try to sort this out directly. Resorting to the ICC or to the UN or to any far away institution … that’s just a waste of time,” he said. Palmor congratulated the court on its decision and said, “Even though Israel welcomes the ruling concerning its lack of authority, it does not accept some of the findings and legal assumptions related in the prosecutor’s statement.”

Shawan Jabarin, director of al-Haq, a Palestinian rights group which has lobbied to prosecute Israeli officials abroad, expressed disappointment.

“There’s no domestic remedy for Palestinians to seek justice here. There’s nothing before Palestinians except to search for justice outside. The most important body for us was the ICC,” Jabarin said.

Former Ambassador Gold said: “The ruling by the International Court of Justice in The Hague proves that Israel does not have to surrender in advance every time the Palestinian Authority takes its grievances to an international body. We can defend Israel’s vital interests and even gain international support in the process. This was a blow to Palestinian policy, which chose the international court to fire its opening shot in their unilateral plan. The decision was important, because it showed that they failed. It would be best for the Palestinians to return to negotiations and abandon the unilateral moves they began back in 2009.”

Foreign Minister Avigdor Lieberman praised the Justice Ministry, military prosecution and Foreign Ministry, who, he said, all worked to achieve the positive results.

NGO Monitor, a non-governmental organization based in Jerusalem, released a statement on Tuesday describing the court’s ruling and the process leading up to it. “The fact that the case even proceeded this far was clear legal overreaching, but it shows the strength of NGOs that lead the delegitimization and demonization campaigns against Israel,” the statement said. “The OTP’s [Office of the Prosecutor’s] decision today is a strong rebuke to these NGOs, their political agenda, and their campaign to isolate Israel from the international community. International arenas are routinely hijacked for political purposes, but today’s decision was markedly different.”

Operation Cast Lead began when Israeli troops crossed the Gaza border in December 2008 to stop incessant rocket attacks on Israel. During the three-week offensive, 13 Israelis and more than 1,000 Palestinians died.

After the operation, pro-Palestinian organizations in Britain filed lawsuits against Israeli politicians and military leaders for what they claimed were war crimes. At the time, the British legal system permitted any British judge to issue an arrest warrant for a visiting official accused of war crimes, in accordance with the Universal Jurisdiction loophole in British law.

The first legal issue of this kind arose in 2005 when a group of local pro-Palestinian lawyers attempted to detain Maj. Gen. (res.) Doron Almog, who had been planning to visit several Jewish communities in the U.K. The lawyers filed a complaint accusing Almog of war crimes following his directive as Southern Command head in 2002 to demolish 50 Palestinian houses in Gaza. Almog, tipped off that British police officers were waiting to arrest him the minute he stepped off the plane, remained on board and left the country on the same aircraft.

After more than two years of promises from the U.K. that it would change the law and once again allow Israeli officials entry into the country without fear of being arrested for war crimes, Queen Elizabeth approved an amendment to the British law on Sept. 15. The amendment prevents arrest warrants from being issued against visiting Israeli officials without the approval of the attorney-general.