ICC Membership May Hurt Palestinians, Hamas More Than Israel (+Video)

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Mahmoud Abbass successful bid to get Palestine non-member observer status at the United Nations takes Palestinians one step closer to becoming eligible to join the International Criminal Court in The Hague, which is empowered to investigate the worst international crimes. Although critics of Israel have long hoped to see Israeli leaders prosecuted by the Court, Israel has never ratified the ICC treaty, and the Palestinian territories, as a non- state, have thus far been unable to ratify, leaving their conflict off-limits.

The chance that Palestinians new UN recognition may change this has revived Israeli fears of one-sided prosecutions at the ICC. In light of those concerns, some western leaders have reportedly asked Palestinian officials to refrain from joining the court. In reality, however, ICC membership may prove more complicated for the Palestinians, forcing them, too, to take responsibility for their conduct. If anything, prosecutions of future Hamas crimes might proceed more easily than similar prosecutions of Israeli crimes.

Palestinian officials have long asked the court to initiate prosecutions for crimes committed by Israeli forces in Gaza during Israels 2008-2009 Operation Cast Lead; the most recent hostilities in Gaza may renew such calls. Until now, however, the courts prosecutor has declined to act because only states may ratify the ICC statute. If the ICC does gain jurisdiction over a newly recognized Palestinian state, the court would be able to look at crimes committed on Palestinian territory.

Because of the jurisdictional complications of the Palestinian situation, past actions, such as crimes committed by either side during Operation Cast Lead and the most recent violence in Gaza, most likely would not be prosecuted. But Israel may indeed find itself the focus of scrutiny for possible future crimes.

Yet the ICC is not the Nuremberg Tribunal, which convicted Germans but failed to consider Allied crimes. As much as some world leaders might prefer otherwise, ICC jurisdiction is not limited to one side in a conflict. When Uganda referred its own conflict to the ICC in 2004, its motivation was no doubt prosecution of leaders of the rebel Lords Resistance Army, but once the court took jurisdiction, the prosecutor was also able to investigate possible crimes by government forces. In other words, Hamas cannot expect a free pass in the future for indiscriminate shelling of Israeli civilians or use of Palestinian non-combatants as human shields.

In fact, ICC status may give the advantage to Israel on future prosecutions, while putting Hamas at a likely disadvantage. Because the ICC is considered a court of last resort that defers to national courts, it will not take on cases that states have made good-faith efforts to investigate or prosecute. …