The Jewish Herald • Friday, March 22, 2013 19 L AW


Israeli Lawyer Goes After Abbas, Hamas In ICC Files request to prosecute “Palestine,” as State; alleges crimes by Pals against Israelis


Yonah Jeremy Bob


announced its request to the Prosecutor of the International Criminal Court (ICC), Fatou Bensada, to open a criminal investigation into violations by Palestinian Authority Chairman Mahmoud Abbas and nine mem- bers of Hamas for war crimes, crimes against humanity and crimes of aggression. The allegations include al-


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leged war crimes against Is- raeli civilians and by the Pal- estinians against rival Pales- tinian groups, such as Fatah’s forces against Hamas’ sympa- thizers during rounds of Pales- tinian infighting. After years of public threats


by the P.A. to seek prosecution against Israeli soldiers and po- litical leaders at the ICC, an Is- raeli lawyer, Mordechai Tzivin, was the first to strike, filing a complaint and request for an investigation. The request is unprecedent-


ed — not only because it involves the Israeli-Palestinian conflict and because it is against Pales- tine as a State and its leaders — because it is filed by an in- dividual law firm and not by a State. Generally speaking, the ICC can only hear cases filed by States. However, as Attorney Tzivin


ERUSALEM — An Israeli law firm last Thursday formally


ready has a stack of complaints ready to file against Israel and that it is just waiting for the right moment. The case is also unusual be-


wrote in his request to Prosecu- tor Bensada, the ICC has a little known and rarely used power to open an investigation and file an indictment against individ- uals for international-law viola- tions on its own impetus. The power, referred to as the


prosecutor’s propio motu pow- er, is generally not used by the prosecutor because it requires special approvals from the ICC itself and leaves the prosecu- tor’s office exposed for using an extraordinary measure not re- quested by any State. The request is a notable first


as, in order to request an inves- tigation and indictment, it rec- ognizes a “Palestine State, for- merly known as the Palestin- ian National Authority,” recog- nition which Israel has fought against fiercely. Some would see such a move


as opening up a “Pandora’s box” as the forum could easily be used against Israel. Asked whether he had coor-


dinated his move with Israe- li officials, Tzivin said that he had spoken with top legal offi- cials in all of the key ministries as well as a top official in the se- curity establishment. Despite Israel’s official posi-


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tion that there is still no State of Palestine, Tzivin said he was either told he had their blessing or that at least no one told him to hold back. Tzivin added that his im-


pression is that there is signif- icant concern among top Israe- li legal officials that the P.A. al-


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cause, while the basis of the war-crimes allegations against Hamas appeared to be Israeli- government and human-rights- groups reports on Hamas rock- et and other attacks on Israeli civilians, the basis of the case against Abbas appeared to be reports of alleged war crimes his security forces committed against supporters and sym- pathizers of Hamas. At least, in theory, anyone


can bring information to the at- tention of the ICC prosecutor, even an Israeli lawyer report- ing on allegations by Palestin- ians against Palestinians. According to Tzivin’s request,


the November 29, 2012 U.N. General Assembly vote recog- nizing Palestine, along with a 2009 declaration in which Ab- bas has reaffirmed the ICC’s criteria for accepting jurisdic- tion, only works against States which have accepted its juris- diction. Israel has never officially ac-


cepted the ICC’s jurisdiction. The P.A. tried to accept ICC jurisdiction in April 2012 but its application was rejected in April 2012. Because of all of the unusu-


al aspects regarding Tzivin’s request, its chances of success are not high. However, Tzivin was unde-


terred and optimistic about his chances and said he was trav- eling soon to the ICC to meet with officials there with whom he had connections. Top legal officials in Israel’s


justice and foreign ministries have not responded to inquiries regarding this matter. —Jerusalem Post


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Court: P.A. Liable For Terror Attack By 15½-Year-Old Court holds P.A. liable for damages for murder of Amit Amos Monitin, because it conducted child weapons training camp


Yonah Jeremy Bob


Tel Aviv District Court earlier this month held the Palestinian Authority liable for 1.3 million shekels in damages for training and indirectly encouraging a 15½-year-old Palestinian to murder Amit Amos Monitin on June 26, 2003. Monitin was murdered by


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the minor while on the job as a technician for the Bezeq tele- phone company in the town of Beka al-Jabarya. The murdered was caught,


tried, convicted and is serving his sentence in Israel. Several other defendants,


including Bezeq, a security company, and Harel Insur- ance Company, were found con- tributorily liable for 600,000 shekels in damages for vari- ous roles in the killing. The lawsuit was filed by the


executor of Monitin’s estate as well as his mother Rainas. The court held the P.A. had


a concrete and unambiguous duty of care which it violated. Critically, the court also said


that a causal, circumstantial, factual and legal connection had been proven between the conduct of the P.A., by action and omission, and the attack committed by the attacker. The court did not find the


P.A. had initiated the specific attack in an active way, but did find that its readiness to teach a 15½-year-old to use a weap- on, in the context of the spike in Israeli-Palestinian fight- ing occurring at the time, cre- ated an understanding on the part of the minor that he was expected to use his weapons training to carry out an attack.


ERUSALEM — In an un- precedented decision, the


According to the court, the


minor translated his under- standing into action and did what was expected of him, just as he was taught in the P.A.’s training camp. At the crux of what makes the


decision so unusual is that the court found liability against the P.A., even though there was no affirmative proof that the P.A. instructed its “campers” to at- tack Israeli targets in any way. Rather, it found that the sim-


ple fact that the P.A. established a camp where it taught weap- ons training to youngsters was enough for liability because it was as if it was giving instruc- tions to carry out attacks. Monitin, and a security


guard named Asher Ben Naim, had arrived at the town to fix a telephone problem for a Bezeq customer. While Ben Naim was in a car


with Monitin most of the time that Monitin was performing his work, at one point Ben Naim left Monitin behind alone to ex- change a key to a car with a cus- tomer in the course of the work. While Monitin was wait-


ing and on the phone in the car, the murderer approached Monitin’s car and, when he was 15 feet away, shot Moni- tin five times through one of the closed windshields. Subsequently, Ben Naim


pursued, shot, wounded and captured the minor. Next, a Palestinian ambulance


arrived on the scene, but refused to assist Monitin, even remov- ing him from the ambulance af- ter he was initially put inside. Monitin was eventually


picked up by a Magen David Adom ambulance, but it was ultimately too late. —Jerusalem Post


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