Israel probably committed war crimes in an episode in Gaza, but the International Criminal Court (ICC) has no jurisdiction over them - so said the Court's Prosecutor last week. In May 2010, Turkey sent a flotilla of chartered ships to deliver humanitarian supplies to Gaza. Three of the ships, which Israeli special forces violently intercepted, flew the flags of member countries of the Court: the Comoros, Cambodia and Greece. These memberships enabled the Prosecutor to begin a preliminary examination of the event. She concluded that the probable war crimes committed in the interdiction did not meet the ICC's statutory requirements that they "be on a large scale or pursuant to a plan or policy." The Court therefore had no jurisdiction over them.
The Prosecutor strongly rejected here claims that she had yielded to political pressure not to bring charges against Israel. She had done the same in an earlier statement that the enhanced status the UN General Assembly has given Palestine, now qualified it to become a member state of the ICC or to obtain its jurisdiction over a particular situation.
These two reports establish that Palestine can use either of these options to bring claims of alleged Israeli crimes to the Court which its Prosecutor will take seriously. However, should Palestine do that, the Court will have jurisdiction to entertain Israeli charges against Palestine. This is almost certainly why Palestine continues to hesitate to use the Court.
By these decisions, the Prosecutor strongly confirmed and demonstrated that she will stand off politicization and external influences on her work and decisions. Her guide and mandate will remain the Rome Statute. This staunch position will come under future heavy pressure if a case begins to develop at the Court, which powerful countries including the United States contend vigorously is interfering with Israel - Palestine peace negotiations.
Written by John Washburn