Palestine should be careful what it wishes for. I think it is highly likely that, if the OTP investigated the situation in Gaza, Palestinians would end up in the dock long before Israelis. From a legal perspective, Fatou Bensouda would find it much easier to prosecute Hamas’s deliberate attacks on Israeli civilians than Israel’s disproportionate attacks, collective punishment of Palestinians, and transfer of its civilians into occupied territory. The latter crimes are fraught with ambiguity and difficult to prove. I know I wouldn’t start with them, were I the Prosecutor.
Well, could they be charged with violating the UN 181 decision? Where it reads: “…Appeals to all Governments and all peoples to refrain from taking any action which might hamper or delay the carrying out of these recommendations” or perhaps elements in the Cease-Fire agreements? Or are they liable only from, say, 1964 when the PLO was founded?
And comments there:
So, if the Rome Statute is ratified with retroactive jurisdiction adopted, could those people holding official positions within the Palestinian government be subject to prosecution for acts perpetrated years ago before the establishment / since of the governing authority? If this is the case, adopting retroactive jurisdiction of the ICC seems a rather foolish and dangerous move by the Palestinian government! (yes, assuming that the officials in question can be connected to the crimes via a traditional mode of participation, such as co-perpetration, aiding and abetting, or command responsibility.)