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Despite US outrage ICC investigation could go forward Open in fullscreen

Said Arikat

Despite US outrage ICC investigation could go forward

Lindsay Graham, one of Israel's US congressional cheerleaders, meets Binyamin Netanyahu. (Anadolu)

Date of publication: 20 January, 2015

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Palestinians will face both the stick and the carrot, but are continuing preparing their own case at the ICC against Israel. Whether they hold firm remains to be seen.

On 16 January, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, opened a preliminary probe into the situation in Palestine. 

According to the ICC's press release, the decision follows the accession of the Palestinians to the Rome Statute and accepting the jurisdiction of the ICC over “alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014". That period, of course, includes the Israeli slaughter of Palestinians in Gaza last summer during its horrific war against the poverty stricken, overpopulated Palestinian enclave that for years has been under siege. 

     Palestinian leaders continue to build their own case against Israel for evidentiary presentation in the international court.

Almost immediately the United States government expressed its anger at the decision calling it deplorable and a "tragic irony" – whatever that means. Spokesman Jeff Rathke said: "Palestine is not a state and Israel should not be investigated because it has a right to defend itself from thousands of rockets." He added, "We strongly disagree with the ICC Prosecutor’s action today. As we have said repeatedly, we do not believe that Palestine is a state and therefore we do not believe that it is eligible to join the ICC. It is a tragic irony that Israel, which has withstood thousands of terrorist rockets fired at its civilians and its neighbourhoods, is now being scrutinized by the ICC; the place to resolve the differences between the parties is through direct negotiations, not unilateral actions by either side. We will continue to oppose actions against Israel at the ICC as counterproductive to the cause of peace."

Of course Rathke and his more senior colleagues at the State Department (both spokeswomen Jen Psaki and Marie Harf) have routinely balked at responding to this reporter's constant questions why on the one hand the US ceaselessly exalts the virtues and unblemished morality of the international standards as practiced through an internationally vetted body and held in high esteem a court as the ICC , and on the other hand would willingly and repeatedly face the embarrassment of having to flout these same values just to shield Israel from any accountability. 

Two things come to mind as we ward off America's barrage of anger: First, the United States is not a member of the ICC (123 nations are), and second, the court begs to differ as the ICC says that Palestine has standing at the ICC since its accession to the Rome Statute at the beginning of the year. Since Palestine was granted observer State status in the UN by the UNGA in 2012, it must be considered a" state" for the purposes of accession to the Rome Statute (in accordance with the "all States" formula).

US pressure

Of course the US is powerful and can force anyone to yield to pressure as we saw with Nigeria. The African giant was brought to heel under direct threats from the US permanent representative at the UN Samantha Power or even the Secretary of State John Kerry himself who apparently threatened Nigerian President Goodluck Jonathan on security matters at a time when Nigeria is facing a nightmarish security challenge in the struggle against Boko Haram. Nigeria was pushed to change its vote from a ‘yes’ to an abstention at the last second on 30 December at the UNSC vote to put a time limit on the nearly 48-year-old Israeli occupation.

The Palestinians are set to lose more. They were bluntly told they could lose annual US aid if they file a lawsuit against Israel at the ICC. On19 January, Lindsey Graham, a US senator from South Carolina, a Republican right-winger who fervently supports Israel, right or wrong, and wields much power doing it, and a part of a seven-member delegation of senators visiting Israel, Saudi Arabia and Qatar, said existing US legislation "would cut off aid to the Palestinians if they filed a complaint" against Israel.

At a news conference in Jerusalem, Graham known for wielding a good-ol’-boy southern vernacular called the Palestinian step "a bastardizing of the role of the ICC. I find it incredibly offensive." He added, "We will push back strongly to register our displeasure. It is already part of our law that would require us to stop funding if they actually bring a case," said Graham.

But while Barack Obama's Democratic administration has said it does not believe Palestine is a sovereign state and therefore does not qualify to be part of the ICC, is has also not explicitly threatened to withhold aid. In fact Jen Psaki told this reporter earlier this month that the US government believes there is a great deal of value to US aid to the Palestinians as "lower tensions brings about prosperity to the Palestinians" which is an effective incentive for achieving peace.

Of course any cut in US funding could make it hard for the Palestinian self-rule authority in the West Bank and Gaza to survive. The US supplies more than $400 million annually to the Palestinian Authority. Israel has frozen a monthly transfer of some $120 million in tax revenues it collects for the Palestinians leaving the Palestinians cash poor and unable to pay the monstrous bureaucracy they created to curry favour with a disgruntled public.

For now, barring any disruption of the process for technical reasons, or a Palestinian withdrawal of their own complaint under relentless American pressure (or buying into an American promise apparently formulated on 19 January, according to a solid source who told this reporter that Kerry will present the Palestinians at the January 22 – 24 Davos Economic Forum with a proposal to withdraw their ICC complaint in exchange for a settlement freeze) – barring all that, the Palestinian Authority’s entry to the ICC will happen in about ten weeks, on 1 April, after which date the Palestinians can present their own charges. 

Building a case

As for the initial ICC probe, it remains procedural. While the ICC will review the case, it will do so without commitment to taking any further action. Only last November, ICC Prosecutor Bensouda halted the investigation into the 2010 Gaza flotilla affair in which Israeli commandos killed civilians on the Turkish ship, the Mavi Marmara, which was en route to relieve the Gaza siege. She did so despite concluding that there were reasonable grounds to believe that war crimes had been committed on board. She argued the case was not of sufficient gravity to justify further action by the ICC.

However, the Prosecutor made several statements that are aimed at highlighting the risks Israel could face, especially after the Palestinians moved to join the court. For instance, she stipulated that, "even though Israel declares that it no longer controls Gaza, the prevalent view among the international community is that Israeli control over the territory (even after the 2005 disengagement) is tantamount to an occupation."

Still, it behoves us to remember that at these close examinations, if the ICC decides not to try Israel, or there no grounds for a successful prosecution, it will not do so. The Palestinians can legally file their own case, but they have to wait until after their entry into the court becomes effective on 1 April.

What can Palestinians realistically expect from ICC membership? Read more here


Meanwhile, we are told, Palestinian leaders continue to build their own case against Israel for evidentiary presentation in the international court after their membership becomes effective in the event the ICC backs down from pursuing Israeli war crimes on its own during the interim period.

Ashraf Khatib, a spokesman for PLO’s Negotiations Affairs Department told Mondoweiss, an online publication with focus on the Middle East, that "The files that we are in the process of preparing is every single thing related to the aggression in Gaza and the ongoing settlement expansion in West Bank and East Jerusalem."

According to Khatib, under the rubric of Israel’s assault on Gaza is a list of issues, including: "acts of deliberate attacks on civilians that also includes usage of illegal weapons targeting UN instillations, schools, hospitals – things that violated the Fourth Geneva Convention and international law..."

The Palestinians do not have a firm deadline for taking Israel to The Hague, Khatib further said, and they must wait for the publication of a United Nations Human Rights Commission report on alleged war crimes carried out by both Israel and the Palestinians. That data is expected to comprise the bulk of the research in the Palestinian petition. The commission will submit the report on 15 March and is currently hearing testimony by those affected.

The Palestinians also seem to have another trick up their sleeve. Before reaching the ICC, the Palestinians hope to re-file a United Nations Security Council resolution to end Israel’s occupation through negotiations. With new members including Venezuela and Spain, they feel confident they will get nine votes at the Security Council that will either pass the law or, more likely, force an American veto, a situation Washington has so assiduously sought to avoid with its ceaseless pressure on non-permanent UNSC. 

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