A bold move toward statehood, or an ill-considered ploy doomed to backfire?
Even the experts can’t agree on the likely outcome of Palestinian Authority (PA) President Mahmoud Abbas’ New Year’s move to seek membership in the International Criminal Court (ICC) in The Hague.
But one thing is certain: Abbas’ desperate move has made the prospect of a negotiated two-state solution more remote than ever.
Since the collapse of the U.S.-brokered peace talks in April, the Palestinian leadership has opted for diplomatic warfare – seeking international recognition for a Palestinian state and gaining acceptance to international bodies.
When the PA failed in its attempt at the United Nations (UN) Security Council in December to pass a resolution for the creation of an independent Palestinian state, Abbas took a different tack and signed what is known as the Rome Statute, which begins the process of acceptance into the ICC.
Although the U.S. and others have questioned the Palestinian entity’s eligibility because it is not a true state, UN Secretary-General Ban Ki-moon has said that the “state of Palestine” (sic) will officially join the ICC on April 1.
However, the Palestinians’ acceptance of the jurisdiction of the ICC is retroactive to June 13, 2014, the day after the kidnapping and murders of Israeli teenagers Naftali Fraenkel, Gilad Shaar and Eyal Yifrach by terrorists associated with Hamas.
This suggests that the PA will try to bring charges stemming from Israel’s widespread arrests in the West Bank after the kidnappings, as well as all the actions of the Israel Defense Forces (IDF) in Gaza during the summer of 2014. It would not include previous Gaza wars of 2008-2009 and 2012.
But what does membership in the ICC mean, and what are its powers?
The ICC is an independent organization that is not part of the UN. More than 120 countries have ratified the Rome Statute that officially established the court in 2002. Neither the U.S. nor Israel is a member, but Canada is a founding member.
The court addresses four general areas: genocide, crimes against humanity, war crimes and crimes of aggression. It has jurisdiction to try individuals, not states.
So, the Palestinians would likely try to charge Israeli Prime Minister Benjamin Netanyahu, Defense Minister Moshe Ya’alon, senior IDF officials, and possibly commanders of IDF units with particularly high casualty counts in Gaza.
A complaint to the ICC does not automatically trigger an investigation or prosecution. That is up to the ICC prosecutor.
To date, the ICC has dealt mainly with conflicts in Africa, and has convicted only two people, Congolese warlords Thomas Lubanga Dyilo and Germain Katanga. It does not actually arrest or detain those charged or convicted, but having senior Israeli political and military leaders prosecuted in an international forum would further damage Israel’s international image and embolden the country’s many foes.
According to Shana Tabak, a practitioner-in-residence with the International Human Rights Law Clinic at American University, it could also make it difficult for those charged or convicted to travel in or through ICC member countries.
But Tabak argues the real danger is that joining the ICC and 17 other international treaties strengthens the PA’s position in the international community and the UN “which can only lead to greater international recognition of Palestine as a state.”
The fallout has begun. Israel has refused to release $127 million U.S. in tax revenue it collects for the PA and the U.S. is expected to freeze its $500 million in annual foreign aid to the PA.
But both moves are only temporary sanctions.
Netanyahu argues that the Fatah-Hamas government should be more concerned than Israel about being prosecuted for war crimes. Indeed, Shurat HaDin, an Israeli NGO that defends the legal rights of terror victims, is poised to charge senior PA leaders with war crimes at the International Court of Justice (ICJ), the primary judicial branch of the UN.
Shurat HaDin has already won several high-profile lawsuits in the U.S. against the PA and others involved in terrorism against Israelis.
Approaching 80, and with his popularity plummeting, Abbas is determined to achieve Palestinian statehood. He obviously hopes his UN actions will marginalize Israel and establish Palestinian statehood without concessions to Israel.
It would be a state without official borders, misruled by a partnership between the ineffectual Fatah and the terrorist organization Hamas; a state that cannot survive without co-operation from Israel and substantial handouts from the U.S. yet continues to spit in the face of both; a state that would rather reopen past wounds than make any effort to heal them.
He may live to regret his New Year’s resolution.