Israel may not be able to escape the reach of international law

Paul Woodward, Online Correspondent

• Last Updated: February 02. 2009 8:36AM UAE / February 2. 2009 4:36AM GMT

Although in 2002 Israel withdrew its signature from the Rome Statute of the International Criminal Court and as a consequence the court has no jurisdiction over possible war crimes committed on Israeli territory, the ICC is considering a request by the Palestinian Authority to investigate allegations of war crimes committed in the Gaza Strip, a senior court official told The New York Times.

Following Israel's 2005 withdrawal from Gaza, the PA assumed sovereign control of the territory and last month provided the ICC with an official letter confirming its jurisdiction there.

"If the court's chief prosecutor, Luis Moreno-Ocampo, and judges were to rule that the Palestinians do indeed have sovereignty in Gaza - a tricky legal issue given that Israel still controls Gaza's water and land borders - they could then theoretically try Israeli officials for any war crimes committed there.

" 'This is potentially huge,' said the ICC official, who declined to be identified because the investigation has barely begun. 'It's a Damocles sword hanging over Israel and some of its most senior figures.'

"It could be hanging there for some time, say observers like Kenneth Roth, president of Human Rights Watch, who was also in Davos this week."

A recent legal case indicates the measures Israel is willing to take to avoid members of its armed services having to face the legal and political risks involved in prosecution outside the Jewish state.

In what can be interpreted as a tacit admission of culpability in the death of the British cameraman, James Miller, the Israeli government recently awarded his family approximately £1.5 million (Dh8m) in compensation after he was killed in Rafah in May 2003.

The case was taken up by the Tel Aviv District Court after the British attorney general Lord Peter Goldsmith threatened in 2007 to initiate criminal proceedings in the UK against the soldiers said to have been involved in the incident.

"A British jury, whose members reviewed an earlier lawsuit by the Millers against the State of Israel, determined that the cameraman - who left behind a wife and two children - had been murdered," Haaretz reported. Mr Miller, an award-winning journalist, has been described as "one of the greatest documentary makers of his generation".

As the International Criminal Court considers whether possible war crimes committed in Gaza would come within its jurisdiction, Israel finds itself in a vulnerable position, both legally and politically.

"The case has wide-reaching ramifications for the Palestinian case for statehood," The Times said. "If the court rejects the case, it will highlight the legal black hole Palestinians find themselves in while they remain stateless. On the other hand it underlines some of Israel's worst fears about a Palestinian state on its borders. A Palestinian state that ratified the Rome treaty would then be able to refer alleged Israeli war crimes to the court without the current legal wrangling. The case could also lead to snowballing international recognition of a Palestinian state by countries eager to see Israel prosecuted."

Haaretz said: "Israel is preparing for a wave of lawsuits by pro-Palestinian organisations overseas against Israelis involved in the Gaza fighting, claiming they were responsible for war crimes due to the harsh results stemming from the IDF's actions against Palestinian civilians and their property.

"Senior Israeli ministers have expressed serious fears during the past few days about the possibility that Israel will be pressed to agree to an international investigation of the losses among non-combatants during Operation Cast Lead; or alternately, that Israelis will be faced with personal suits, such as happened to Israeli officers who were accused of war crimes in Britain for their actions during the second intifada.

" 'When the scale of the damage in Gaza becomes clear, I will no longer take a vacation in Amsterdam, only at the international court in The Hague,' said one minister. It was not clear whether he was trying to make a joke or not."

The syndicated columnist, Rami G Khouri wrote that the success of President Obama's new Middle East envoy, George Mitchell, hinges on the US's willingness to engage with a Palestinian national unity government that includes Hamas.

"Mitchell's and America's decision to avoid dealing with Hamas at any cost would be the death-knell of their mediating hopes. Hamas cannot be avoided any more than the United States could avoid the Viet Cong or the British could avoid the IRA. Hamas is legitimate because of its actions, but mostly because it raises the issues that concern all Palestinians: in the short run, insisting on living in peace, normalcy and dignity rather than in an Israeli-made prison; in the longer run, resolving the conflict with Israel by addressing its root cause in Arab eyes, the status and rights of the Palestinian refugees who were exiled by the 1948 war. This is where peace will be made - not in the diversionary world of tunnels that Israel wants us to enter and get lost in.

"Legitimacy demands diplomatic engagement and political inclusion, and there is simply no way around this. The path to mediating success therefore requires bringing into the negotiating process the national demands and national issues that Hamas represents. This can happen through the mechanism of a Palestinian National Authority unity government, or through the institutions of a revamped Palestine Liberation Organisation."

CBS News reported: "Palestinian reconciliation was dealt a new blow Sunday when Hamas rejected Palestinian President Mahmoud Abbas' condition that the militant group should first recognise the supremacy of the PLO before they hold new talks...

" 'Now we say ... no dialogue with those who reject the Palestine Liberation Organisation,' Abbas told a news conference. 'They must admit without equivocation or ambiguity that the organisation is the sole and only representative of the Palestinian people.

" 'Then there will be dialogue,' he added.

"In Syria, exiled Hamas officials were quick to answer back.

" 'We want to tell Abbas that we are not begging for dialogue and we are not running after it,' senior Hamas leader Mohammed Nazal told CBS News in Damascus."

Last week, the Hamas leader Khalid Meshaal said that the PLO had become obsolete and should be replaced by "a new, national authority".

In an open letter addressed to the Turkish prime minister in the wake of Mr Erdogan's dramatic departure from the World Economic Forum at Davos, Ahmed Yousef, the deputy foreign minister of the Hamas government, wrote: "Mr Prime Minister, you have stressed that Hamas is a reflection of the will of the people of Palestine; and we intend to serve our compatriots within the scope of our mandate. We will honour elections in 2010, when the people shall vote again; and we shall honour the outcome of their wishes.

"Yet despite the fact that January 2009 was to be the month of Palestinian presidential elections, Mahmoud Abbas continues to hold that position.

"The Israelis with the support of members of America's administration machinate to exclude the elected government not only from negotiations but even from receiving aid on behalf of our people, moves that we see as a shameful effort to divide Palestinians while paying lip service to their unity...

"In the weeks to come, we pray you will navigate the treacherous political waters to come; and we hope your voice shall once again be heard. We hope the international community, with your guidance, will finally realise that the exclusion of a democratically elected government from any discussions may satisfy some egos, but will not eliminate its presence on the ground."

Provincial elections in Iraq

After Iraq's provincial elections, where turnout was lower than anticipated, there now begins a long wait. It may be as long as three weeks before the official results are announced.

"Four years ago, during Iraq's last provincial elections, most Sunnis boycotted the vote, leaving the country's powerful provincial councils dominated by the ascendant Shiites and Kurds," the Los Angeles Times reported. "This time the Sunnis took part, but that won't necessarily hurt Maliki as he seeks to solidify his Islamic party's hold on power.

"Sectarianism remains an issue here, but in some voters' minds, it's trumped by the improved security that Maliki, rightly or wrongly, is credited with bringing to once-lawless parts of Iraq.

"Underscoring the security gains were the latest death tolls from war-related violence, released Friday: 189 civilians and Iraqi security forces were killed in January, the lowest total since April 2003, when the initial ground war of the US-led invasion ended."

Reidar Visser noted that the 2009 elections differed from the 2005 not only because of Sunni participation but because there was greater competition centred on issues and candidates. "Partners in Green Zone government since 2006, Da'wa and the Supreme Council have developed significant disagreements over the past year about the basic political system of Iraq. Emboldened by his improved standing in the eyes of many Iraqis after the military operations in Basra and 'Amara in 2008, Maliki, along with independent Shiite allies, is increasingly reverting to an Iraqi nationalist discourse that includes a tough stand on issues relating to Kurdistan, tentative moves away from sectarianism and hardline Islamism, and, most notably, centralism - the wish for a strong Baghdad government able to resist further devolution of the capital's powers to the periphery."

pwoodward@thenational.ae