Lawfare works in both directions: The Palestinians receive ICC observer status but object to Shurat HaDin’s lawsuit against them


As we saw in Wednesday’s incident, when a Palestinian Minister terrorist died of a heart attack during a protest near the security fence over the Green Line, the Palestinians were extremely quick off the mark to write a letter of complaint to the UN accusing Israel of murder, almost before Abu Ain’s body was cold.

This action by the Palestinian Ambassador to the UN is nothing unusual for them.  The Palestinians are past masters at exploiting international institutions, particularly the UN and its allied organizations, in order to defame and ultimately destroy Israel. So  it should come as no surprise that the Palestinians applied for, and have now been granted observer status at the International Criminal Court (ICC), although it is not clear they will achieve their nefarious aims, as the Jerusalem Post reports:

Palestinians want to sue Israel for war crimes before the ICC, but it is unclear if they can do so, because the ICC’s judicial body has not recognized them as a state. In addition, the Palestinians have not finalized their application to the court, but they have threatened to do so, should they fail in their pursuit for a UN Security Council resolution calling for an Israeli withdrawal to the pre-1967 lines.

On Monday, they received a moral boost from a small procedural decision to grant them the status of observer nation at the start of a meeting of the Assembly of the State Parties of the Rome Statute of the ICC to elect six judges, which took place at the United Nations headquarters in Manhattan.

If the Palestinians were to sign the court’s founding treaty, known as the Rome Statute – the ICC would have jurisdiction over crimes committed in the Palestinian territories.

Palestinian Authority President Mahmoud Abbas has long promised to join the tribunal in the event his efforts at the UN Security Council – to set a timetable for Israeli withdrawal to pre-1967 lines – should fail. Such a step could open up Israel to war crime probes over the seven-week war in Gaza.

As neither Israel nor the Palestinians are ICC members, the court currently lacks jurisdiction over Palestinian territories.

Israel belittled the upgrade of the Palestinians’ status, saying:

This does not advance Palestinian standing at the ICC’s judicial body at The Hague in the Netherlands, Israeli officials said.

But Foreign Ministry spokesman Emmanuel Nachshon called the celebration premature.

“We are not talking here about an upgrade,” he said. “This is a technical and administrative step, nothing more than that. There is no substance.”

One Israeli official dismissed the threat that the Palestinians would take Israel to the International Criminal Court as a “bluff.” According to the official, the Palestinians know that if they take Israel to the court, they too will be brought to the court on war crimes charges.

Indeed they are playing with fire:

“The Palestinians are playing with fire when they continue with their bid to join the ICC. They will be exposed to Israeli suits against the Authority’s involvement in terror attacks and its responsibility over rockets fired from the Palestinian territories.”

Mark Kersten at the Washington Post also warns the Palestinians “Be careful what you wish for”:

But an ICC intervention also poses a real threat to certain Palestinian groups. It is a common misconception that Palestinian authorities can “press charges” or refer Israel to the ICC for alleged crimes committed in their protracted, decades-long war. In reality, Palestine can only refer itself to the court and, if it did so, ICC investigators would be restricted to investigating crimes perpetrated on Palestinian territory – a territory that is, for purposes of criminal investigation, still unclear. Any alleged crimes perpetrated in Israel – including the construction of illegal settlements – would be inadmissible.

Indeed, those pressing for a referral of the ICC should be careful what they wish for. Some have suggested that there is a strong case to be made that Palestinian groups like Hamas and Fatah are responsible for international crimes under the Rome Statute and that the seemingly indiscriminate shelling of civilian areas by Palestinian militants in Israel would be prioritized for investigation by the prosecutor. As SOAS criminal law professor Kevin Jon Heller argues: It would be “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.”

As a matter of fact, one of the worst nightmares of the Palestinians is about to come true as the Palestinian Authority (PA) desperately fights off an impending lawsuit against them in New York by Israeli law organization Shurat HaDin for $1billion on terrorism charges:

After losing a landmark decision on November 20 allowing them to be tried for terrorism charges in a $1 billion case, the Palestinian Authority (PA) and Palestine Liberation Organization (PLO) have now filed a very rare appeal to the Second Circuit of courts trying to squash the case.

Shurat Hadin (Israel Law Center) is leading the legal charge against the PA and PLO. In a press release on Thursday they noted that the appeal, known as a motion for a writ of mandamus, “concerns personal jurisdiction and should have been filed months ago.”

“This is a desperate attempt by the Palestinian Authority to stall this long planned trial,” said Shurat Hadin Chairperson Nitsana Darshan-Leitner, whose organization is representing 11 American families of terror victims in the case.

Darshan-Leitner added “for over a decade the defendants have tried every tactic in the book to obstruct and avoid their inevitable date with a New York jury which will finally hear the shocking evidence of their involvement in the terror attacks that left so many Americans dead.”

“After more than a decade of litigation and the Palestinians filing motion after motion after motion, and dragging these American terror victims through this prolonged emotional experience they should not be allowed to avoid trial for even another moment. Those who lost their children in the Hebrew University cafeteria bombing and other PLO terrorist attacks deserve to finally have their day in court,” concluded Darshan-Leitner.

The decision found there was enough evidence to rule that PA employees conducted terrorist attacks against civilians in Israel, and that the PA and PLO provided weapons, money and other material support in violation of the Anti-Terror laws.

Additionally, the court found the jury could rule that the PA provided safe haven to the terrorists, and gave material support to the terrorist organizations Hamas and Al-Aqsa Martyrs’ Brigades, the “military wing” of PA Chairman Mahmoud Abbas’s Fatah faction.

It seems the Palestinians are very quick to dish it out to Israel but are not so good at taking it when the tables are turned against them by Israel.

Indeed they should be very careful what they wish for.

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3 Responses to Lawfare works in both directions: The Palestinians receive ICC observer status but object to Shurat HaDin’s lawsuit against them

  1. Reality says:

    and as I read this another attack has just taken place.A Palestinian threw acid into a car with parents and children injured.He tried to attack them and others with a screwdriver but was shot(unfortunately not fatally)by a passerby.The family are American.So add them to the list of those suing the PA.In mt opinion they should sue the UN too for enabling these attacks by doling out money,&employing these Palestinians.

    • anneinpt says:

      Amir, the Palestinians can want to return until they are blue in the face but it’s not going to happen for the simple reason that Palestine was never their homeland. The Palestinians were never a separate national entity separate from the larger Arab nation until 1964! That was when Yasser Arafat decided it wold be useful to create a separate identity for them in order to bash Israel and accuse it of ethnic cleansing.

      Furthermore, there are very valid reasons why there is no right of return for Palestinian refugees, and repeating that they have this right does not make it so.

      In this United Jerusalem article it says:

      The Palestinians use a definition of “refugee” that makes their “refugeehood” hereditary. Other refugees get resettled; Palestinian refugees get born. They may have never lived in Israel, but they are classified as “refugees” at birth, on grounds that their grandparents (or great grandparents) were refugees 65 years ago. This is why each year the number of Palestinian refugees increases, while the number of other refugees in the world decreases. The Palestinians have been repeatedly offered a state to which their refugees could “return,” but they repeatedly reject it, clinging to a specious “right” of “return” to Israel not because it is necessary for the “refugees,” but because it is a tool in the fight against the Jewish state.

      The Point of No Return blog has a very interesting post why right of return is a recipe for mayhem:

      A thorough-going study of the Palestinian Right of Return by Andrew Kent, an Associate Professor at Fordham Law School, appeared in the University of Pennsylvania Journal of International Law in 2012. Kent examines the legal bases of Return and finds them wanting. He concludes that even if one assumes one hundred percent Israeli guilt for the Palestinian exodus, no such ‘right of return’ existed at the time. Palestinians usually refer to a right enshrined in what Kent calls ‘soft law’, such as the non-binding UN General Assembly Resolution 194, or retroactively apply recent legislation.

      “Recent treaties, declarations, and state practice are used to derive a right of return for refugees displaced by war or other crises, and that right is then retroactively applied by fifty or sixty years to the conflict in 1947–49, when very different legal rules applied,” argues Kent.

      Kent’s study lists 159 cases of forced migration, mass expulsion and compulsory transfer. In the 20th century, population exchange was a favoured way of solving international disputes. Return has only been applied since the 1990s – in places like Rwanda, in Serbia, in Iraq. In almost all cases, repatriation occurred soon after the refugees had fled, not decades later. There were three exceptions to the rule: refugees were still claiming a right to return in Cyprus four decades later, Kashmir six decades later, and Palestine, six decades later.

      States have had their own reasons for repatriating refugees since the 1990s. There are three caveats: the returning population must have all been citizens of the country they left – which Palestinians were not. The returning population must not be so large as to create an unstable ethnic balance: the return of Palestinian refugees, together with four million descendants who have inherited refugee status, would soon destabilise Israel. Thirdly, Professor Kent points out, all instances of refugee return took place following the signing of peace agreements. (There were three exceptions – Myanmar, Togo and Mali – all under extenuating circumstances.)

      Read it all, and then tell your Palestinian friends that it’s about time they faced reality. They should tell their host countries to give them citizenship and full citizens’ rights, as Israel did with its Jewish refugee population. And then they should learn to live in peace both with their host countries – and not undermine them as the PLO tried to do in Jordan and Lebanon – and with Israel.

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