Will The ICC Recognize Gaza As A Palestinian State? (Updated)

When terrorists turn to the legal system, anything apparently goes:

Prosecutor looks at ways to put Israeli officers on trial for Gaza 'war crimes'

...When Palestinian groups petitioned the ICC [International Criminal Court] this month, its prosecutor said that it was unable to take the case because it had no jurisdiction over Israel, a nonsignatory to the court. Now, however, Luis Moreno-Ocampo, the ICC prosecutor, has told The Times that he is examining the case for Palestinian jurisdiction over alleged crimes committed in Gaza.

Palestinian groups have submitted arguments asserting that the Palestinian Authority is the de facto state in the territory where the crimes were allegedly committed.

“It is the territorial state that has to make a reference to the court. They are making an argument that the Palestinian Authority is, in reality, that state,” Mr Moreno-Ocampo told The Times at the World Economic Forum in Davos.

What the article does not make clear is how the Palestinian Authority could be said to be the de facto state in Gaza when the head of the PA, Abu Mazen, was chased out by Hamas. Is Moreno-Ocampo going to validate the Hamas coup?

Part of the irony is that to make their case, these groups are now claiming that Israel in fact is not occupying Gaza:

Part of the Palestinian argument rests on the Israeli insistence that it has no responsibility for Gaza under international law since it withdrew from the territory in 2006. “They are quoting jurisprudence,” Mr Moreno-Ocampo said. “It’s very complicated. It’s a different kind of analysis I am doing. It may take a long time but I will make a decision according to law.”

Mr Moreno-Ocampo said that his examination of the case did not necessarily reflect a belief that war crimes had been committed in Gaza. Determining jurisdiction was a first step, he said, and only after it had been decided could he launch an investigation.

Either Israel is still occupying Gaza or it is not--and if in fact Moreno-Ocampo finds that Israel is not an occupying force in Gaza, what are changes in Israel's relationship and responsibilities towards Gaza?

Ultimately, the matter rests upon whether the Palestinian Authority will be recognized as having the authority of an actual state--and that is where the potential for a field day for the enemies of Israel lies:

The case has wide-reaching ramifications for the Palestinian case for statehood. If the court rejects the case, it will highlight the legal black hole that Palestinians find themselves in while they remain stateless. However, it also underlines some of Israel’s worst fears about a Palestinian state on its borders. A Palestinian state that ratified the Rome treaty would then be able to refer alleged Israeli war crimes to the court without the current legal wrangling. The case could also lead to snowballing international recognition of a Palestinian state by countries eager to see Israel prosecuted.

It is worth noting that the article, in The Times Online, never brings up the issue of Palestinian terrorists being held equally responsible and liable to prosecution.

Meanwhile, news that Spanish Foreign Minister Miguel Ángel Moratinos had promised Livni that Spain would limit the Spanish court's jurisdiction of Israelis involved in the 2002 assassination of Hamas terrorist Salah Shehade is being contradicted:

Spanish Deputy Prime Minister María Teresa Fernández de la Vega was quoted by Army Radio as saying that "Spain is a country ruled by law and the justice system [here] enjoys absolute independence. This was made clear to Israel and we are sure they understand this."

Right now, Israel's enemies are exploiting the law to harass and embarrass Israel--as if they are unaware, or do not care, that this sort of legal tactic is a two-way street.

See: Behind the Headlines: The truth about Hamas crimes in Gaza

UPDATE: Others have also noticed the potential consequences for the Palestinian terrorists themselves:

"But then," pointed out [Hebrew University lecturer Robbie] Sabel, "every person who is a citizen of this Hamas "state" would be subject to the court's jurisdiction. "There's no way any Palestinian organization would subject its members to the jurisdiction of the court, for the same reason that our other neighbors, like Syria, would not. As much as they would like to belong in order to attack Israel through the court, they are concerned about the fact that any of their members who committed a crime would be able to be tried."

Technorati Tag: Israel and International Jurisdiction and Hamas and Operation Cast Lead and Gaza and Palestinian Authority.