The one thing both Palestinians and Israelis agreed on earlier this week, in describing Palestinian President Mahmoud Abbas’s move to admit Palestine as a member of the International Criminal Court (ICC) as a “desperate” act, might be accurate. But the legitimacy, necessity and repercussions of the move are hotly contested between the two sides, even a week later.
It will take the international court 60 days to process and accept Palestine’s membership. This is perhaps the start of the ICC’s biggest challenge and a real test for its relevance as an arbitrator of international justice as the explosive case of the longest occupation in modern history arrives at its porch.
All the nine investigations opened by the ICC since its inception in 2002 have been limited to the least politically controversial situations in African civil wars and conflicts. It has been criticised for focusing on sub-Saharan Africa and black Africans only while turning a blind eye to allegations of war crimes elsewhere, including in the Middle East.
Because Palestine — whose territories are under Israeli occupation since 1967, as per the UN, and which has been negotiating the creation of its state with the Israelis for over 20 years, and failing in the process — was previously not officially recognised as a state, it couldn’t sign the ICC’s founding treaty, the Rome Statute.
But in 2012 Palestine was recognised by the UN as a non-member observer state, which gave it the opportunity to sign the Rome Statute. Despite two wars by Israel on the occupied Palestinian enclave of Gaza since, Palestinian Authority Chairman Abbas refused to take the historic step of joining the ICC due to intense pressure and threats by both Israel and the United States.
Abbas also hoped to use the threat of the ICC — and its possible subsequent indictment of Israeli officials — to pressure Israel into accepting a final agreement allowing the creation of a Palestinian state.
After failing to do so, he submitted a draft resolution to the UN Security Council last week for the Israeli withdrawal of the occupied territories by 2017, which did not pass. In just 48 hours, Abbas retaliated by signing the Rome Statue.
The PA later announced it would make a second attempt at its draft resolution to end the occupation, after the composition of the UNSC’s non-permanent members changed early this week.
Now that Abbas resorted to the “nuclear option” and “crossed the red line” the immediate reaction from Israel and the US has been to debate how to punish him and the PA. Israel said it would withhold the monthly $120 million of tax and customs revenues it collects on behalf of the Palestinians and gives to the PA, while the US, which advised against this measure, said it was considering revising its $440 million aid package to the PA.
But even in retaliating, Israel and the US have to weigh their options and the consequences of their threats.
“It was in the Israeli and American interest to make severe threats in order to deter the Palestinians from joining the ICC,” said Nathan Thrall, a Jerusalem-based analyst with the International Crisis Group, “But now that the Palestinians have actually done so, both Israel and the United States need to ask themselves what is in their interest.”
Both want to preserve the PA and the security cooperation with Israel that is the PA’s lifeblood. So any punishment Israel enacts against the PA, “will have to avoid threatening its existence or put Israel at risk of taking on the economic and security burden that the PA now carries, thanks in large part to the financial support of Europe, the US, and to a lesser extent the Arab states,” Thrall added.
Back home, Palestinian NGO’s who’ve been calling their leadership to join the ICC for years, are rallying behind Abbas’s move, regardless of his political motiviations which have become irrelevant at this stage.
But the next important step will have to be from the ICC itself. ICC prosecutor Fatou Bensouda, already indicated that the UN general assembly has resolved Palestine’s statehood issue. And a unified Hamas-Fatah government officially persists, both factors make it difficult for the ICC to decline Palestine’s accession.
It does not mean that prosecution over Israeli defendants by the ICC will necessarily follow.
Palestine's declaration to the ICC recognizes its jurisdiction in the the occupied Palestinian territory, including East Jerusalem, since June 13, 2014. This means it covers Israel’s 50-day war on Gaza -Operation Protective Edge- which began in July, said Susan Akram, Director of the International Human Rights Clinical Program in the Boston University School of Law.
“Prosecutor Bensouda could delay a response to Palestine's declaration, making it difficult to obtain and preserve evidence necessary for aggressive prosecution of what transpired during the most recent Gaza attacks,” Akram added, “or she could find that Israel has the ability and jurisdiction over prosecutions of its own nationals for any crimes during Protective Edge and the ICC should decline prosecution.”
Bensouda could, according to Akram, find ICC jurisdiction extends over both Palestinians and Israelis during the last war, “and the ensuing competition over claims could weaken or delay claims by Palestinians, while Israeli monopoly over resources to gather evidence could make the latter’s cases easier to put forward.”
A slew of analysis and editorials downplaying the impact of Palestine’s ICC membership has appeared in the Israeli and American press since Abbas’s move. Their common argument focuses on how Abbas, by seeking justice for his people through the most prestigious and important international court, damaged all prospects for a two-state solution. Secondly, every war crime and crime against humanity allegedly committed by the Israeli occupation forces has been spun as a largely “political” conflict and don’t fall within the mandate of the ICC. Thirdly, the ICC does not investigate cases retroactively, and therefore Israel’s war on Gaza last summer, for example, does not fall within its jurisdiction.
The court has jurisdiction with respect to crimes of genocide, crimes against humanity and war crimes.
While many legal aspects of the case of Palestine are debatable and open to various interpretations, eliminating the danger its ICC membership poses for Israeli officials while posing it as a threat to Hamas officials only (as the Israeli media has been doing) is misleading and politicised.
“If Palestine’s membership of the ICC means nothing, and Israel isn’t worried, what is this hysteria and the threats against the entire Palestinian leadership?” said Raji Sourani, a Gaza-based human rights lawyer and director of the Palestinian Centre for Human Rights.
According to Sourani, Israeli officials face several very serious cases. The first is illegal settlements on occupied Palestinian territory, “which constitute a war crime”. The second is the 730-kilometre long separation wall that almost entirely deviates from Israel’s 1967 borders, isolating Palestinian communities into cantons, enclaves and military zones. In July 2004 the International Court of Justice at The Hague ruled the structure illegal and ordered Israel tear it down, which it profusely refused to do.
And then there is the Israeli air, sea and land blockade of Gaza since 2007, resulting in an ongoing humanitarian disaster exacerbated by three Israeli assaults on the besieged Strip and its 1.8 million strong population. In 2009, a UN fact-finding mission on Gaza found, in what is known as the Goldstone Report, strong “evidence of war crimes, crimes against humanity committed during Israel’s war on the Strip between December 2008 and January 2009”.
“These are samples of war crimes, collective punishment of civilians, illegal settlements and the list goes on,” said Sourani.
“The gates of hell have been opened for Israel; that’s why its worried.”
*This article was first published in Ahram Weekly