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September 3, 2014 – Shurat Hadin announced on wednesday that it has formally requested that the International Criminal Court prosecutor open an investigation into alleged war crimes committed by Hamas leader Khaled Mashaal during Operation Protective Edge.
The original basis of the request, filed late on Tuesday, was the NGO saying it would use Mashaal’s Jordanian citizenship against him since Jordan, unlike Israel and “Palestine,” has been a member of the ICC since April 11, 2002, and recognizes its jurisdiction over its citizens.
Mashaal is “criminally liable for Hamas’s war crime of execution without due process” because he “formulated, directs and approves the executions and oversees Hamas’s governance of Gaza,” Shurat Hadin – Legal Action Center’s complaint, or communication, to the ICC prosecutor alleges. The NGO bases this accusation on Mashaal’s own reported statements that he has had absolute power over Hamas for at least the last four years.
In that vein, even though the Palestinians have not joined the ICC and Mashaal currently lives in Qatar, not the Gaza Strip, the NGO’s original argument is that the ICC could have jurisdiction over him since his orders directed the alleged Gaza war crimes and since it has jurisdiction over Jordanian citizens.
Ironically and likely for tactical reasons, the complaint is not directed at Hamas rocket attacks on Israel, but at alleged war crimes it perpetrated against the Gazan population.
The complaint alleges that on August 22, 2014, Hamas “executed 18 so-called ‘collaborators’ who had been convicted of no crime,” including that it “publicly executed seven of these ‘collaborators.’” Next, the NGO states that “journalists observed Hamas executing 11 more in an abandoned Gaza City police station.”
Moreover, the complaint says that on July 28, 2014, Hamas summarily executed 20 Gazan civilians for engaging in anti-war protests against its rule in Gaza.
In addition, the complaint says that those executed by Hamas “were civilians who were taking no active part in the hostilities,” code for the idea that they did not fall into an exceptional category of civilians whose role in hostilities can change their status to combatant, and thus a military target.
Those executed on August 22 were unlawfully detained in prison for two years prior to their execution, making it impossible that they could have participated in hostilities immediately before their execution, Shurat Hadin said.
It adds that the anti-war protesters whom Hamas executed on July 28 “were unarmed protesters, not combatants.”
The NGO anticipated objections to its complaint, such as that Hamas and Mashaal do not “effectively control” Gaza or that Hamas is part of a Palestinian Authority “national unity” government with Fatah and cannot be held responsible for atrocities committed there.
It said that the unity government is nonexistent in the real world on the ground and that Hamas effectively controlled the prisons of those prisoners executed and law enforcement observing the protesters, such that it, and therefore Mashaal, knew and was responsible for all circumstances related to the executions.
Next, the complaint quotes a top PA official affirming that the Hamas executions were “random,” without any judicial hearing or any due process, meaning Hamas could not argue that there was a legal basis for the executions.
In addition, the complaint quotes Moussa Abu Marzouk, Mashaal’s No. 2, as saying that the executions were essentially carried out to satisfy public anger over Israeli/Palestinian collaborator actions, without considering any standard legal proceedings.
Shurat Hadin’s tactic recalls threats and tactics by those trying to use “lawfare” against Israeli soldiers by trying to get the ICC to prosecute Israeli soldiers who are dual citizens, such as dual citizens of South Africa (which is a member of the ICC and often an Israel critic).
The NGO’s head, Nitzsana Darshan-Leitner, said, “Shurat Hadin will not allow Hamas’s summary executions of its own people, while [the Palestinians] hypocritically advocat[e] Palestinian membership in the ICC.“ Previously, the law office of Mordechai Tzivin has asked the ICC to indict PA President Mahmoud Abbas, but the request was rejected on the grounds that “Palestine” has not joined the ICC.