The beginning of the 2015 was not a good omen for Israeli Prime Minister Benjamin Netanyahu who, despite having regained the electorate's confidence, is witness to an "international" moment clearly not favorable to Israel.
Perhaps also for this reason the Israeli public has chosen him and the right of the Likud to protect themselves from the hostile winds that blow from the west. The United States of America has signed a pact with Iran on nuclear power, an agreement that has divided the Americans themselves and intimidates the Knesset for the possible consequences. A clearly anti-Sunni pact that denies years of American international politics and that unequally balances the balance of power in the Middle East.
The bad news never comes alone, this will have thought "Bibi" Netanyahu (photo below) when on the table of his study came the official news that since 1 ° April Palestine has made its official entry as a member of the International Criminal Court Hague. It is no surprise to Israel since the Palestinian Authority has long eluded the international community to enter several global committees. He had done so, unsuccessfully, in the 2011 with the United Nations, then in the 2012 entering the Unesco and now with the International Criminal Court in the Netherlands.
The accession of Palestine to the International Court creates a very dangerous precedent. In fact, there are other non-state realities engaged in long-standing unresolved conflicts - for example, Baschi, Chechens, Kurds, Tibetans - who can not appeal to the Hague court precisely because they are not considered states.
In the 2009, immediately after the Israeli incursion in Gaza (Cast Lead), the ICC had followed the same discrimination with the AP, denying Abbas his intervention precisely because Palestine was not recognized as an independent state. Since the end of the 2014 the wind of consensus has changed direction, and ICC vice-president Sidiri Kaba, contradicting the general rules, has officially welcomed the seats of the court to the Palestinian "state". In this way, the ICC is in a position that is not easy, risking much of its prestige because it is not up to its members to enter territorial issues, much less meddle in long-established political negotiations. According to the Americans, in fact, the presence of Palestine in the Hague tribunal would erode the work of diplomacy and the first consequences are already perceptible. Representatives from Australia, Canada, Great Britain and Germany expressed their disappointment by fearing a risky "politicization" of the international court.
Obviously, the Palestinians have made the most of this diplomatic victory. On the day of the proclamation, the chief negotiator of AP Saeb Erekat declared as "Today is a historic day in the struggle for justice, freedom and peace for our people and for all those who pursue justice in the world [...] this day reflects the accession of Palestine to the principles of peace and justice of international law and human rights. Our determination to protect our people against injustice and those responsible for war crimes ". Even without wanting it, the ICC has been dragged into a game that is perhaps too complex.
But what does this participation imply in terms of the conflict with Israel (non-ICC member state)? With the Palestinian acceptance of the Rome Statute, signed in December 2014, the ICC can widen its jurisdiction over the West Bank and the Gaza Strip which are illegitimately considered as a Palestinian State. The central issue is the alleged war crimes committed by the IDF during the military operations Cast Lead, but above all Protective Edge which occurred in the last summer 2014.
David Makovsky, director of the Middle East Peace Process project of the Washington Institute for Near East Policy, pointed out that at the signing of the Rome Statute, the leader Mahmoud Abbas attached a document that drew the court's attention to the crimes of war committed in Gaza by the 13 I come 2014, coinciding precisely with the Operation Protective Edge. What happened in that period is known to all: the kidnapping of three Israeli minors, their barbaric murder, the Hamas rockets and the consequent military reaction in Tel Aviv. The Israeli military response, as always, had been very incisive: it was vital to totally destroy the tunnel network used by terrorists to infiltrate the kibbutz near the border. It is known that the provocations of Hamas are made ad hoc to push Israeli troops into the Strip, where the chances of claiming victims among civilians are very high and, despite the obsessive attention of the General Staff of Zahal, the macabre count of victims are always in favor of terrorist propaganda.
In January of this year the ICC prosecutor, Mrs. Fatou Bensouda (left picture), started a preliminary investigation into the alleged war crimes committed by the Israelis during the attack on Gaza, thus welcoming the Palestinian demands. In her research, however, Mrs. Bensouda must take into account some non-secondary factors. In the first place - as Makovsky himself pointed out in a report to The Hague - Israel is not an African state ruled by an impromptu military dictator, but a democracy and the court has no jurisdiction where there are functioning democratic tribunals. Any war crimes committed by Israeli soldiers are already being examined by the military prosecution in Tel Aviv and those responsible will suffer heavy convictions from the IDF martial court. Any judgment expressed on these judgments would put the ICC in an unpleasant situation, since its interference in the procedural issues of a sovereign state would not be admissible. The second point is the responsibility of Hamas on what has happened in all these last years.
Jan Sekulow, a well-known American jurist, examined the issue of war crimes in his Rise of ISIS. A threat we can't ignore. The example he took was precisely that of Hamas and its leaders who, hypocritically, never miss an opportunity to point the finger at Israeli brutality.
If we read the 51 article in the Additional Protocol to the Geneva Convention this clearly states that "The presence or movements of the civilian population or civilians should not be used to put certain points or certain areas away from military operations, in particular to seek to put military targets away from attacks, or to cover, favor or hinder military operations ". Hamas systematically contradicts this dictate, and IDFs, however obsessive the assessments are on how and where to hit, cannot avoid "collateral damage". Hamas systematically violates the prescriptions, but many prefer to close their eyes.
The Israeli General Staff proved that the entrances to underground tunnels or warehouses were hidden in civilian homes, schools and even UN headquarters. Likewise, places of worship are used by the Izz al-Din al-Qassam brigades as a launching base for rockets to Israel. If the PA members intend to make accusations against the IDFs, however, they must not neglect that Hamas's work is entirely on their conscience, and the ICC must not forget it either. Thus, resorting to international justice could turn out to be a double-edged sword for the Palestinians.
If part of the Western world greets with joy, the entry of Palestine into the ICC will soon have to repent. The clash between Israelis and Palestinians can not be resolved in the halls of an international court because, as many jurists and diplomats have argued, only a few issues can fall within its competence, and not always clearly.
