July 24, 2002
The Palestinian Authority has no chance of taking Israel to the International Criminal Court regarding Tuesday's missile attack on Gaza City, according to legal experts. The attack, which killed fifteen and injured more than a hundred, has been condemned internationally and labelled a war crime by Palestinians.
Among the dead were nine children, killed when an Israeli F-16 fighter fired a single missile at the home of Hamas military leader Salah Shehada. Mr Shehada, his wife, daughter, and bodyguard were slain. The high-explosive warhead brought down other houses in the crowded neighbourhood, and inflicted numerous shrapnel wounds. Neighbours were said to have no idea a Hamas leader lived in the area, such was the secrecy surrounding Mr Shehada's quarters.
Family Killings
Palestinian politician Ziyad abu Zihad says the ICC in The Hague must hear the case. "Israel has killed families. Most of the people killed, they were children, and old men and women . . . attacking an apartment building, after midnight, they should have taken into account there were families living there."
But, according to international law expert Avril McDonald of the Asser Institute, the ICC simply does not have jurisdiction over the case.
"Regardless of how you characterise the Israeli missile attack, Palestinians have no standing to take any case before the court. There is no way that any situation happening in Israel can come before the ICC."
This is because Israel did not sign the 1998 Rome Statute which established the court.
"It's clearly stated in the statute that the court can only exercise its jurisdiction if the crime is occurring on the territory of a state party, or involves an accused who is a national of a state party, and in this case neither of those would apply . . . neither is there any hope of [Israel becoming a signatory] in the short term."
Other Breaches
Because Palestine is not a country, it cannot pursue the matter independently. There is one possibility of ICC involvement, according to Ms McDonald; if the UN Security Council took up the matter. "I think it's highly unlikely that's going to happen, given the United States' position regarding Israel," she says. Ms McDonald also points out that not all the circumstances behind the attack are known, and that Israel has probably breached international humanitarian law more blatantly on other occasions.
"If you want to talk about war crimes, I think there are better examples of actions by the Israeli defence forces over the past year which might qualify as war crimes, rather than this attack. The situation regarding Jenin was much more dubious than this, in terms of its legality. It's easy to use the term ‘war crime' to politicise a situation that's already very volatile, I don't know if it helps or not."
Foreseen Consequences
She says the consequences of the missile strike in crowded Gaza City would have been known and considered before the attack.
"Politically it's absolutely like pouring oil on the flames. Israel must know what the reaction's going to be . . . if I wanted to be cynical I would say, that if [Israel] wanted to make a last grab for what they haven't already reoccupied – being Gaza – this is the perfect way to go about it. Of course there's going to be a huge reaction by suicide bombers and this will give Israel the excuse to go in and take over Gaza completely."
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