The Palestinian Authority has so far prevented the launch of a formal investigation into the alleged war crimes committed by Israel and Palestinian factions during the 50-day Gaza war last July and August, according to officials at the International Criminal Court.
In a confidential letter obtained exclusively by Al Jazeera’s Investigative Unit, ICC’s top prosecutor Fatou Bensouda says she “did not receive a positive confirmation” from PA Foreign Minister Riad Malki that the request, submitted by the Palestinian justice minister for an international investigation, had the Palestinian government’s approval.
Both the PA and Hamas have publicly called for an investigation by the ICC into the alleged war crimes.
On July 25, PA Justice Minister Saleem al-Saqqa and Palestinian General Prosecutor Ismaeil Jabr submitted a letter to the ICC via a French law firm calling for an investigation. However, according to ICC regulations, “only the Head of State, Head of Government and Minister of Foreign Affairs” can grant the international body jurisdiction to investigate.
Twelve days later, FM Malki travelled to The Hague to meet top ICC officials: “We must do everything within our power to enable the International Criminal Court to bring to justice those responsible for committing war crimes,” Malki said.
The document obtained by Al Jazeera is in line with an article written by Bensouda in The Guardian on August 29, where the ICC prosecutor states that the Palestinian leadership has not granted her office jurisdiction to investigate alleged war crimes in its territory.
|Palestine and the ICC|
January, 2009: PA, under President Mahmoud Abbas, apply for ICC membership.
April, 2012: ICC rejects application, saying that they found it lacked standing.
November, 2012: PA recognised by UN General Assembly as “non-observer member state”. ICC says that the PA is now eligible to apply.
July 25, 2014: PA Justice Minister and Palestinian General Prosecutor send letter to ICC through French law firm calling for an investigation into war crimes committed during war in Gaza.
August 5, 2014: PA Foreign Minister Riad Malki travels to The Hague to meet with ICC prosecutors, and says that Palestinians “must do everything in our power to enable the ICC to bring to justice those responsible for war crimes”.
August 14, 2014: ICC prosecutor Fatou Bensouda sends confidential letter saying that FM Malki, who is in a position to allow the ICC to begin a probe, did not confirm that his government approved the July 25 letter. Bensouda says the ICC cannot begin an investigation without the consent of the head of government or foreign minister.
But according to Geoffrey Nice, who served as a prosecutor for seven years in The Hague, “This document shows that the Palestinian Authority either never authorised the original referral when it was brought on the 25th July by the Minister of Justice and the general Prosecutor, or that their decision has changed, or their decision has been changed for them or under pressure from someone else.”
“The decision to do nothing clearly emerges from the meeting … with the foreign minister,” Nice told Al Jazeera.
Palestinian Ambassador to the UN, Riad Mansour, said there was a consensus among the among the Palestinian people and the political groups about joining the ICC.
“The decision as to when that step will be taken by President Mahmoud Abbas and top Palestinian leadership is left for them,” he told Al Jazeera.
“I think people should give the Palestinian leadership the courtesy of selecting the appropriate time in doing so.”
United States officials have in the past convinced the PA leadership to refrain from “pursuing … international legal forums” during negotiations with the Israelis, especially after the United Nations special investigation into the 2008-2009 war in Gaza, the “Goldstone Report“, accused Israel of committing war crimes.
After the recent war in Gaza, in which more than 2,100 Palestinians, mostly civilians, and 70 Israelis, mostly soldiers, were killed, both PA and Hamas officials agreed to ask the ICC to launch a formal investigation into alleged war crimes committed by both sides during the conflict.
But on September 10, Israel announced that it would launch its own independent investigation into two major attacks committed during the war, one in which a UN school was bombed by Israeli forces, which critics claim is a bid to fend off international scrutiny.
According to international law expert Rodney Dixon, “[A]n ICC investigation could be delayed” as the ICC prosecutor’s attention is shifted from possibly launching an investigation to “whether an investigation by Israel is genuine, and covers the same persons and conduct of any potential ICC investigation”.
“If she is satisfied of these requirements, the Prosecutor may well lose jurisdiction to investigation,” Dixon wrote.
The question remains unanswered as to why Malki and the Palestinian leadership apparently did not grant the ICC jurisdiction to pursue an investigation.