Palestinians Charge War Crimes

July 24, 2002 -- Israelis and Palestinians locked in a war of words over who's wrong in their long-running real war of attack and reprisal may now have somewhere to take their charges: to court.

It's a court that consists of eight people, all three weeks on the job, who are working out of a few small, sparse offices in The Hague, but it's the first permanent court aimed at resolving charges of international war crimes.

Called the International Criminal court, its first case could involve the Israel-Palestinian conflict, after Palestinian leaders on Tuesday accused Israel's generals of committing war crimes — a charge typically associated with genocide.

But the newly created court could let the Palestinians bring individual generals before a panel of international judges to be tried for acts more typical to the Mideast conflict — and vice versa, though Israel has yet to fully embrace the U.N.-sponsored agreement that created the body.

Starting July 1, every action taken during a war could — and, according to some experts, likely would — fall under the scrutiny of the International Criminal Court, which was four years in the making.

In the past, tribunals have dealt with ongoing abuses on a massive scale, said Diane Orentlicher, a professor of international law at American University, but the creation of the ICC could signal a shift.

"I would have been embarrassed to predict 10 years ago that such a court would exist today," Orentlicher said, explaining how farfetched an idea like the ICC used to seem.

International tribunals largely were dormant for 40 years after the Nuremberg trials. They came back into the vogue in the early 1990s with the conflict in Bosnia, and since then, have helped settled major conflicts in Rwanda, East Timor and Sierra Leone. The ICC is intended as a permanent fixture for what has been an ad-hoc process for the last decade.

Today the ICC is in its earliest stages and doesn't have the support of the United States, but it could be hearing cases as soon as a year from now and working toward its primary goal, which is to protect civilians during wartime.

First in Line

Palestinian leaders charge that a recent Israeli army attack constituted a crime against humanity that warrants ICC intervention. Israelis bombed the home of a Hamas leader in Gaza on Tuesday, killing him along with 14 others, including nine children.

A spokesman for Palestinian leader Yasser Arafat said he planned to sue the generals responsible for the attack. Their complaint could be the first brought before the ICC, but experts in international law say it could be a while before the complaint is heard.

Palestinians have a year to file the complaint, and it likely will take even longer to assemble a panel of judges and appoint a prosecutor. The court's 76 member nations will meet in September to establish a budget for the court, and they hope to appoint judges and a prosecutor by February 2003. Meanwhile, every event after July 1 is within the court's mandate, said U.N. spokesman Farhan Haq.

However, the whole process is mired in politics, which often causes delays, said Paul Williams, a former State Department adviser who helped negotiate peace in Bosnia. Williams said it took a year and a half, during a period of genocide, for the United Nations to appoint a prosecutor for the ongoing Yugoslav tribunal.

A Long Shot

Assembling a court is just one of several obstacles. Once judges and lawyers are assigned, the Palestinians first would have to find a charge fit for trial, and then some means of arresting their suspects.

The question of whether Israel's bombing on Tuesday constituted a war crime has no easy and immediate answer. Their case would come down to whether the Israeli army intentionally targeted civilians, a primary violation of the Geneva Conventions, which dictate legal actions in wartime.

White House spokesman Ari Fleischer scolded Israel for bombing a location its army knew contained non-combatants, but Williams said Salah Shehadeh, the Hamas military leader killed, was an acceptable target.

Fleischer said that intention and foreknowledge is what separated Israel's action from the accidental bombing of an Afghan wedding party by U.S. forces on July 1, an incident that killed 54 civilians.

"It's inaccurate to compare the two," Fleischer said. "The crucial difference here being that in this instance in Gaza, this was a deliberate attack against a building in which civilians were known to be located, and that does separate it from the activities taken."

And if Palestinians were able to bring charges against the generals before the ICC, Palestinian officials still would have to figure out how to arrest them.Israel signed the ICC resolution but didn't ratify it, meaning, according to Williams, that a wanted general wouldn't be arrested in Israel, but could be picked up by local authorities in any of the other member countries.

The United States is in a similar position: Former President Bill Clinton signed the resolution before leaving office, but President Bush has since disowned it and recently negotiated a temporary reprieve from the court's jurisdiction. Under the ICC rules, the U.S. soldiers on peacekeeping missions could be arrested on charges without the United States' approval.

And while Williams said he agrees with the U.S. government's decision, he did point to one bright side of the ICC.

"Countries would have to think twice before targeting someone," he said.