Shortly after the U.N. General Assembly last month overwhelmingly approved Palestine as a non-member observer state, President Mahmoud Abbas said he had no plans to immediately apply to join the Court, and was willing to resume negotiations straight away.
Since then, however, Israel’s actions - widely interpreted as punishment for the U.N. upgrade - “are pushing us to accelerate our recourse” to the ICC, said Mohammed Shtayyeh, the Palestinian Authority’s special envoy for the U.N. bid. Israel has responded to Abbas’s conciliatory tone with a series of slaps in the face, turning self-defeatism into an art form.
Besides withholding vital tax revenues from the PA, it has announced settlement expansion plans that have been strongly condemned by the international community - including the U.N. secretary general - and even by its staunchest allies (the U.S. State Department accused Israel of “a pattern of provocative action”).
Israel has approved construction of a new settlement in illegally annexed East Jerusalem - which Palestinians seek as their capital - as well as final approval for about 1,000 new homes in West Bank settlements (some deep inside the Israeli-occupied territory), and construction of 1,500 new homes in the East Jerusalem settlement of Ramat Shlomo.
This would lead to the complete isolation of East Jerusalem from the rest of the West Bank, and effectively cut the West Bank in two. Israeli settlements watchdog Peace Now has described it as “a game changer” that would significantly change possible borders.
Abbas aide Nabil Shaath is right to state that “Israel is forcing us to go to the ICC.” The PA would face a huge - and potentially insurmountable - domestic backlash if it did not do so soon, given the growing levels of public discontent over living conditions, as well as the PA’s failure to thwart the increasing entrenchment of the occupation, the longest in modern history. This should trump concerns over Western arm-twisting (in the run up to the U.N. vote, the U.S. and Britain tried to pressure the PA to renounce the right to join the Court).
“Pressure against ratification is essentially denying access to justice. And we see how important access to justice is, as both an act in itself and as a component of conflict resolution,” said Richard Dicker, director of the International Justice Program at Human Rights Watch. He added that his organisation is “deeply opposed to any pressure” on the PA “to influence them away from accession to the ICC, and we have seen some of that pressure.”
In April this year, the ICC prosecutor rejected a PA request - made in January 2009 after Israel’s invasion of Gaza - to recognise its jurisdiction, saying that Article 12 of the Rome Statute established that only a “state” could confer jurisdiction on the Court.
“In instances where it is controversial or unclear whether an applicant constitutes a ‘state’, it is the practice of the secretary general to follow or seek the General Assembly’s directives on the matter,” the prosecutor’s office said. “This is reflected in General Assembly resolutions, which provide indications of whether an applicant is a ‘state’.”
The recent resounding recognition of Palestine as a state by the General Assembly (138 in favor with only nine opposed) settles this issue, and paves the way for application to the ICC. As such, the biggest loser amidst these settlement plans may, ironically, turn out to be Israel.
Its colonies are a clear breach of international law under Article 49 of the 1949 Geneva Conventions, which forbids an occupying power from moving its civilian population onto occupied territory. This is reiterated by the U.N. Security Council, the International Committee of the Red Cross, the International Court of Justice, and the High Contracting Parties to the Geneva Conventions.
Furthermore, transferring a state’s own people onto occupied territory is explicitly a war crime under the Rome Statute, the treaty that established the ICC. No government other than Israel regards the settlements as legal, not even the U.S..
“The Israelis are nervous about legal action” because “taking on the Jewish settlements does not threaten Israel’s right to exist. It is not violent. It is not terrorism. And there’s not many governments going to rush to Israel’s defence,” says the Guardian’s Washington correspondent Chris McGreal, who was previously posted in Jerusalem.
“A legal fight at the ICC would lay bare the annexation and dispossession behind Israel’s settlement strategy - the theft of land from Palestinians, the practice which sees Jewish colonies enjoy unlimited cheap water, while nearby Arab villages are subject to rationing and higher charges, the policy that says a Jewish immigrant from Russia has a greater claim to the land than a Palestinian born on it. And that’s without even getting into the broader scheme to claim as much territory as possible for Israel and leave a rump Palestinian state.”
However, it would be a mistake for the PA to condition its application on whether Israel goes ahead with its latest settlement plans, as Abbas and Foreign Minister Riad Malki have indicated. The settlements issue - there are now several hundred thousand settlers on occupied Arab land - is not limited to Israel’s latest announcements, and the injustices inflicted on the Palestinians are not limited to settlements, as clear-cut as this topic is under international law.
Israel must not be allowed to get off the hook by postponing or halting these latest plans, as unlikely as that might be given Prime Minister Binyamin Netanyahu’s insistence on forging ahead, and his predicted success in forthcoming elections. This would make it harder for the PA to credibly make and carry out its threat again without looking like a petulant child, and would make it easier for Israel to ignore it.
The PA has raised the possibility of turning to the U.N. Security Council. However, this would be pointless given the knee-jerk U.S. wielding of its veto power in support of Israel, and the fact that following the latest settlement announcements, an immediate halt to new construction was demanded by the secretary general and all Council members...except the U.S.. The time for ICC application and legal action is now.
(Sharif Nashashibi, a London-based writer and Arab commentator, is a regular contributor to Al Arabiya. Twitter: @sharifnash)