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Salma Karmi-Ayyoub

Palestinians must stop stalling and join the ICC

Malki (right) travelled to the Hague, but the PA is stalling on ICC membership (AFP)

Date of publication: 11 December, 2014

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ICC membership is not without its pitfalls. But continued foot-dragging over membership does not serve Palestinian interests: the threat of membership becomes less and less potent the more the PA stalls.

On Monday, Palestine was accepted as an observer at the annual meeting of the member countries of the International Criminal Court. Palestinian Authority officials have said this brings Palestine closer to joining the ICC. In reality, however, it changes nothing. Acquiring observer status is a separate process to becoming an ICC member, and only membership of the ICC can lead to a prosecution of Israeli war crimes committed on Palestinian territory.

On the contrary, the measure would appear to be just one in a series of delaying tactics the PA has employed ever since PA president Mahmoud Abbas announced on 30 June that Palestine would join the ICC. These tactics have included claiming to need legal advice and the written agreement of the Palestinian factions, as well as a rather

     The PA wants to use the threat of membership in order to extract Israeli concessions.

unnecessary visit to the Hague by PA foreign minister, Riyad Malki, to inquire about the procedure for joining the Court.

(It later transpired from leaked correspondence between the ICC prosecutor and French lawyers that during his visit. Malki had, in fact, disavowed an application the PA's justice minister and Gaza prosecutor had made in July relating to the assault on Gaza without the authorisation of the West Bank leadership).

This intentional stalling stems from the PA's treatment of ICC membership as a bargaining chip in negotiations with Israel. The PA wants to use the threat of membership in order to extract Israeli concessions. This explains why the PA has so frequently threatened to go to the ICC but never actually joined.

Is it worth it?

Indeed, Israel's hostility to Palestinian ICC membership suggests it believes it has something to lose if Palestine were to join the ICC. For instance in 2010, Israel warned it would view “as war” a Palestinian pursuit of Israel through the Court and has reportedly threatened unspecified retaliation against the PA if it were to go ahead with the move. Israel's Western allies have even threatened to cut off financial aid to the PA if it pursues the measure.

In this context it is understandable the PA would hesitate: rather than risk the possibility of Israeli-Western retaliation, the thinking goes, it is better to leverage the threat of membership for other gains.

But this controversy obscures an important question: is Palestinian membership in the ICC really as valuable as the PA's leveraging of it and Israel's hostility towards it, make it appear?

Certainly, ICC membership provides the only practical way of bringing a war crimes case against Israel at the international level; the other route, which is through a Security Council resolution, would be vetoed by the US. Furthermore, the long list of crimes contained in the Rome Statute (the treaty establishing the ICC in 1998) which includes war crimes, crimes against humanity and genocide, means that, in addition to the crimes of violence Israel committed during its summer assault on Gaza, the institutionalised practices that characterise Israel's occupation of the West Bank, such settlement activity, the pillaging of natural resources, and even apartheid, could be prosecuted. This would help to address the serious lack of legal redress Palestinians experience as a result of Israeli impunity.

But membership is not without its pitfalls. First, Palestinian crimes, such as the rockets sent from Gaza to Israel, would also come under the Court's remit, opening Palestinians up to the risk of prosecution. Second, jurisdictional issues over which lawyers are divided, like whether the ICC can investigate crimes only from 2012 onwards when Palestine achieved upgraded UN status or earlier, would have to be resolved.

Moreover, the ICC can only proceed with crimes that the Israeli national justice system is shown to be “unwilling or unable genuinely” to prosecute. Although Israel's failure to credibly investigate crimes committed against Palestinians is well documented – for example a UN committee of experts found in 2010 that Israel had carried out no investigations into the persons most culpable for Israel’s 2008-09 war against Gaza – Israel is good at taking steps that convey a false impression it is genuinely investigating claims. It opens probes that drag on for years, and occasionally prosecutes low-ranking soldiers for minor offences. Such tactics could delay an ICC case considerably.

A broader stategy

Finally, the ICC has a large caseload and is under-resourced. An investigation into the complex crimes that characterise Israel's occupation might progress very slowly, to say nothing of the political pressure Israel's Western allies would likely apply on the Court to drop the case.

All this raises a real concern that ICC membership will not result in a trial of Israeli leaders but will amount, merely, to symbolic action that creates no change for the Palestinians. This has led to a well-founded scepticism amongst some Palestinians about the usefulness of joining the ICC.

But another way of viewing ICC membership would be to see it, not as a magic bullet that will necessarily lead to a trial that solves Palestine's problems, but rather as one measure in a broader strategy, long advocated for by Palestinian civil society, in which the PA stops relying on negotiations with Israel and instead utilises mechanisms of pressure such as protests, boycotts and legal action to advance national aims.

Furthermore, the process of bringing a case against Israel at the ICC, irrespective of the outcome of the case, might create a momentum that pushes the PA to change its approach. Were the PA to sign the Rome Statute, it would have to actively refer crimes to the prosecutor and cooperate with investigations in order for a case to proceed, thereby taking the type of positive action against Israel many Palestinians want to see, and refraining from the more passive strategy, hitherto adopted, of hoping Israel will agree to Palestinian terms in negotiations or that the West will force Israel's hand.

Of course nothing is certain and much depends on political will. What is certain is that continued foot-dragging over ICC membership does not serve Palestinian interests: the threat of membership becomes less and less potent (if it ever was) the more the PA stalls whilst the opportunities that membership provides are not taken.

The time has therefore come for decisive action on the part of the PA. It has just taken the bold step of announcing it will stop security cooperation with Israel following the death of Ziad Abu Ein, a PA minister, apparently at the hands of Israeli soldiers. It must now also join the ICC and make a case against Israel.

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