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Palestine and the ICC

A Crucial Test for the World

Palestine and the ICC

The year 2014 ended with a cliff-hanger for the Israeli-Palestinian question. Palestinian Authority President Mahmoud Abbas signed the Rome Statute on New Year’s eve. His move followed a vote against a Palestinian attempt to have the UN Security Council set a deadline for Israel to end its occupation of territories it captured in 1967. Ban Ki-moon, the secretary general of the UN, said Palestine would join the court on April 1st.

The state of Palestine’s strategy of joining the International Criminal Court (ICC) is a qualitatively new approach to the bilateral negotiations with Israel and the US brokerage of the “peace process.” However, this strategy doesn’t undermine the pursuit of a two-state solution, which is the title of the international consensus for a peaceful solution to the Palestinian-Israeli conflict. Rather, the strategy puts everyone before the test of choosing between the earnest implementation of the two-state solution, or putting the Israeli occupation and settlements on trial before international courts. This is a peaceful Palestinian intifada against the elastic negotiating process. Therefore, the new legal tools will alter the rules of the game between the two sides of the conflict as well as with the sponsors of the peace process, including the United States, the European Union, Russia and the United Nations who make up the so-called Quartet.

Funding the Palestinian Authority

The Palestinian Authority will seek to join international treaties and agencies one after the other, as it would be required to respond to retaliatory measures, both from Israel and the US. But the Palestinian Authority will pay dearly if the Arab countries do not fund the Authority as it seeks to achieve an independent Palestinian state by reshuffling the negotiating cards. If key European countries — like France — do not stand on the side of the Palestine, the latter will pay a lofty price. The move involves a risk and gamble, but what is new is that negotiations have now been shored up with international legitimacy, with the negotiating process being freed from the shackles of politics and/or military escalation.

The Palestinian side, which is traditionally considered weak and has been forced to submit to dictates, today has the right to go to the ICC to sue Israel for war crimes and other practices related to occupying another country, from building illegal settlements to forcibly deporting Palestinians. The new tools may strengthen the negotiating conditions for the Palestinians and force the Israelis to take a different, more serious approach to the two-state solution.

On the other hand, the Israeli extremist right could take advantage of what it considers Palestinian escalation and unacceptable provocation to achieve what it already has in mind, namely torpedoing the two-state solution that it opposes to begin with, and replacing this with forced deportation and mass expulsion of the Palestinians to resolve Israel’s demographic dilemma, rendering it a Jewish state. But what is new is that, under the Rome Statute, Palestine, after joining the court, is legally a state under occupation. This means that Israel — the occupying force — can be put on trial.

It will be said that the tools of international law as allies to the Palestinian Authority and a new reference point for it in negotiations and trials mean little, especially since complaints and trials take a long time. It might be said that the Palestinian people do not need international law as an ally and do not want to pay the price of retaliation from Israel and the United States.

Indeed, there are both advantages and disadvantages to this bold Palestinian move that has been considered as an option since 2012, the day the state of Palestine joined the United Nations as an observer non-member state.

The Two-state Solution

Palestine and the ICC 1At the time, the Palestinian Authority decided not to take advantage of that card immediately, and deliberately gave the US diplomacy a chance to prove its promises for the fulfilment of the two-state solution. A choice was given to both Israel and the United States between working seriously to end the occupation, and putting the occupation on trial. It made clear that its preferred goal was to end the occupation and achieve the two-state solution, rather than putting the occupation on trial and undermining the solution. The Authority folded the card of joining the ICC and put it in its pocket, but refused to discard it under US and British pressure.

Abbas hinted at tough options, including dissolving the Palestinian Authority, which would place the responsibility of occupying the West Bank back on the shoulders of the Israeli government after the PA quits its role as the guarantor of Israel’s security under existing pledges and bilateral agreements. That threat was not carried out, but it has been kept as an option.

Dissolving the Palestinian Authority may be a double-edged sword, but it definitely terrifies Israel. Israel is afraid of weakening the PA to the point of collapse, especially since the ready alternative is Hamas and other Palestinian factions that are sick of waiting for the promises of the peace process, or that are ready to topple the Palestinian Authority.

Palestinian divisions have put increased pressure on Abbas, at a time when popular mobilization against him has increased. The wars between Hamas and Israel weakened him further. The shuttle visits by Kerry embarrassed him more and more. The peace process has turned into a cover rejected by the people because of its flimsiness and elasticity.

Abbas decided that the time had come for an international commitment to a specific timetable for negotiations with Israel, linked to a timetable to end the occupation. Palestinian diplomacy moved in the United Nations through Ambassador Riyad Mansour in late 2014 in this direction in the UN Security Council, insisting on a resolution from the Council in this direction. The Palestinians were advised to wait until 2015 even by Arab delegations at the United Nations. But Palestinian diplomacy insisted on putting forward the draft resolution for a vote before the new year. The UNSC failed to adopt the resolution, sparing the US the need to bear responsibility for its drive to thwart the resolution through its veto power, as Nigeria backtracked on its pledge to the Palestinians to back the resolution. This led to its failure as it did not obtain the needed nine votes.

Bilateral Negotiations

Behind that strategy was the decision of the Palestinian Authority that it was time to stop bilateral negotiations with Israel in the elastic, floating peace process, to be replaced by negotiations through an international conference resembling the Madrid Conference.

The PA wants new sponsors for a new approach to rescue the negotiations. It is betting on a change in the European arena, both the official and popular one, after Sweden recognized the state of Palestine while important debates in the European parliaments reflected the disillusionment with Israeli stalling and anger against the continued construction of settlements. This is in addition to the Palestinian Authority’s scramble to build on a French move, which had promised a new approach to ending the occupation and expressed readiness to mobilize international support for a conference along the lines of the Madrid Conference to be held in Paris.

It may be worthwhile to build on official and popular European attitudes, and resorting to international law and international legitimacy as part of the reference frame for the negotiations. However, it is dangerous to wager on a French readiness to take over the negotiations’ brokerage from the US. Therefore, it is necessary for the PA not to rely excessively on a shift in French attitudes, no matter how honest France may be in its desire to help.

Secondly, as long as Europe is not willing to punish Israel for its actions with serious sanctions, wagering on Europe is risky. Therefore, the Palestinian Authority must go to the policy-drafting table with two things in mind: The European tools of influencing Israel through sanctions; and the Arab tools of influence through aid to Palestine in this delicate phase, to offset US and Israeli sanctions hitting Palestine and shackling the hands of the Palestinian Authority.

Enough is Enough

Thirdly, it is clear that the Palestinian message to the US and Israel is that “enough is enough.” It is clear that the Palestinian Authority has decided to stop following the agendas dictated by — US or Israeli — elections. The PA doesn’t care if the Israeli right will condemn it or if the Israeli left will reprimand it. It wants to break free from the shackles of the peace process, which has brought no results, and is very reproachful towards the Obama administration.

Yet, at the same time, there should be a serious assessment of the consequences of the US-Palestinian relationship deteriorating into a confrontation and the impact this would have on the ground beyond the message of protest. The Palestinians should have plans to pre-empt and contain the US and Israeli retaliation.

Fourth, there is another dimension that could come into being as a consequence of joining the ICC, related to the possibility of putting Hamas on trial for war crimes and crimes against humanity. Indeed, there were international investigation reports that accused both Israel and Hamas of such crimes. So what will the strategy of the Palestinian Authority be in light of such possible developments? Where does Hamas stand on the move made by the Palestinian Authority, since it realizes that it is exposed to being held accountable at the ICC like Israel?

Abbas must, no doubt, realize that Israel could turn the tables and affirm that those who want to accuse it of war crimes and sue it at the ICC are not a reliable partner in the peaceful negotiations. But he no longer cares. No matter what he does, Israel will not like it, and he will not be able to end the occupation nor achieve a Palestinian state side by side with Israel.

The choice between the two options is not a Palestinian decision exclusively. And while the consequences definitely affect Israel, they do not affect Israel exclusively either.

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