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The ICC: time to hold the Palestinian Authority to account

Why is the PA continuing to negotiate with a party that has consistently favored process over peace?

Sharif Nashashibi

Published: Updated:

“Israel is forcing us to go to the International Criminal Court,” said Nabil Shaath, an aide to Mahmoud Abbas, president of the Palestinian Authority. Israel is “pushing us to accelerate our recourse” to the ICC, said Mohammed Shtayyeh, the PA’s special envoy for the successful bid to upgrade Palestine’s status at the United Nations in Nov. 2012.

These statements were made the following month, and there have since been numerous similar ones from other PA officials. Yet almost one and a half years since the U.N. upgrade to non-member observer state, which enabled Palestine to join the ICC, the PA has yet to apply. It was handed a potent weapon against Israel’s decades of illegal dispossession, occupation, colonization and oppression, but it has chosen not to wield it.

This is a shameful dereliction of the PA’s duty to realize Palestinians’ human rights and national aspirations. ICC accession was the biggest prize of the upgraded U.N. status, and the primary reason for the vociferous opposition to the bid from Israel and the United States. What, then, was the point of upgrading if the PA has not utilized its greatest benefit?

In February this year, I put this to chief Palestinian negotiator Saeb Erekat on the Al Jazeera English program “Head to Head,” during which he repeatedly expressed the need to “hold Israel to account” through “international mechanisms.” His reply surprised me: “You’re absolutely right. A mistake was made by us.”

A price not worth paying

Erekat - an architect of the deeply flawed and failed Oslo process - said he took personal responsibility for delaying ICC accession by nine months in return for the release by Israel of 104 prisoners. He then contradicted himself by saying the prisoners “deserve” the deal’s “heavy price” - hardly admitting that he made a mistake.

What Palestinian prisoners held by Israel deserve is to be free, not to be moved from one jail to a larger one called the occupied Palestinian territories. Besides, the means to address the freedom of millions of people from foreign military rule was held back for the release of a small fraction of the thousands of prisoners held by Israel, which then announced major settlement expansion. A “heavy price” indeed, but not one worth paying, particularly since Israel has subsequently arrested far more Palestinians than it released.

An ICC ruling against Israel would give a huge boost to the increasingly effective Boycott, Divestment and Sanctions campaign

Sharif Nashashibi

I then pressed Erekat to announce a date for ICC application, since he admitted it was a mistake not to have done so already. He dodged my questioning, but when later pushed by presenter Mehdi Hasan, Erekat replied April 29 this year, which marks the end of the timeframe for the current ‘peace’ talks. “We won’t extend the negotiations for one minute.”

I want to be believe him, but I am unconvinced. During the program, Erekat said his last of several resignations - in Nov. 2013 - was because Abbas “refused” to “sign on the accession.” So although Erekat takes responsibility, is he to blame or his boss? If Abbas refused in November, why should people believe that he will not in April, or that he will not perform yet another U-turn and agree to extend the talks?

The president has traditionally bent over backwards to negotiate and offer concessions despite flagrant Israeli provocations. He even abandoned his one - and perfectly reasonable - precondition for talks: that Israel freeze settlement construction first. And for what?

In the seven months since negotiations resumed on July 30, 2013, Israel has advanced 10,489 housing units in settlements (or over 52,000 new settlers), killed 44 Palestinians, conducted 3,360 military raids, arrested 2,702 Palestinians, and demolished 154 homes, according to the Palestine Liberation Organization’s Negotiations Affairs Department. In addition, settlers carried out 497 attacks.

Two days after publication of the NAD report on Feb. 25, Amnesty International highlighted “a harrowing pattern of unlawful killings and unwarranted injuries of Palestinian civilians by Israeli forces in the West Bank.” This was part of a “long-standing pattern of abuse.”

Amnesty added: “The frequency and persistence of arbitrary and abusive force against peaceful protesters in the West Bank by Israeli soldiers and police officers - and the impunity enjoyed by perpetrators - suggests that it is carried out as a matter of policy. The staggering numbers of wounded provide a sobering reminder of the relentless daily danger faced by Palestinians living in the occupied West Bank.”

Holding out for a bad deal

While the details of the ongoing negotiations have largely been kept secret, the information that is publicly available points to yet another resounding failure. This is hardly surprising given Israel’s traditional intransigence - not to mention its current extremist right-wing government - and the absurd maintenance of its staunchest ally, the United States, as the ‘honest broker.’
Hasan quoted U.S. Secretary of State John Kerry, who is mediating the talks, as saying: “I’ll never compromise America’s special relationship with Israel. I’ll never pressure Israel to make concessions that will compromise its security.” Despite this, Erekat had the gall to describe Kerry as an ‘honest broker.’

The secretary of state said he could “guarantee” that he was “committed to putting forward ideas that are fair and balanced.” However, he has proposed that the Palestinians accept Israel’s demand to be recognized as a Jewish state. This “represents a major coup for the Israeli leadership” and a “blow” to Abbas, wrote the Daily Telegraph’s Middle East correspondent Robert Tait.

Such recognition is unacceptable, as it violates the inalienable rights of millions of Palestinian refugees, and jeopardizes Israel’s 1.7 million Palestinians - 21% of the population - who are already second-class citizens. This demand was not made of Egypt or Jordan when they made peace.

The PLO, of which the PA is a part, recognized Israel as far back as 1988. Both institutions have reiterated this numerous times since. Furthermore, the Arab peace initiative offers Israel full recognition and relations with all 22 Arab states. Yet a country that has never recognized Palestine’s right to exist, and actively works to ensure it never does, believes this is not enough - neither does Kerry, apparently.

Furthermore, his proposal does not include East Jerusalem - illegally annexed by Israel - as the capital of Palestine, according to Abdullah Abdullah, deputy commissioner of international relations for Abbas’s Fatah movement. The secretary of state “is taking the arguments of Israel and trying to present them to the Palestinians,” said Abdullah.

This is the ‘honest broker’ in whom Erekat has so much faith. No wonder that Israel’s fanatic Foreign Minister Avigdor Lieberman recently described Kerry as a “true friend,” and that Palestinian officials have said his proposals are unacceptable.

Even the scope of the talks have been scaled back, from “a full-fledged end of conflict accord,” to a “framework agreement to enable further talks,” to merely “a document which the sides do not have to endorse as long as they do not reject,” wrote Independent correspondent Ben Lynfield.

The futility of negotiating

The very man who has been negotiating on the Palestinians’ behalf for two decades - described by the NAD as “twenty years of shattered hopes and unfulfilled obligations, of promises betrayed and an illegal colonization process” - has on numerous occasions expressed his frustration at the futility of such talks.

Although he told Hasan that he believes “absolutely” that there will be a Palestinian state in his lifetime, in 2009 Erekat said that “with the continuation of settlement activities, the two-state solution is no longer an option.” There are now tens of thousands more settlers than there were when he said this.

Similarly, on “Head to Head” Erekat repeated the need for talks, but 10 days earlier said Israel “rejects the two-state solution and international law.” On Dec. 30, he said Israel “wants to destroy the two-state solution through its daily practices.” Three days prior, he said it is “determined to destroy the negotiations. The Israeli prime minister has already chosen settlements rather than negotiation. He chose to dictate rather than pursue the peace process.”

This is true, so why is the PA continuing to negotiate with a party that has consistently favored process over peace? “The negotiations are over,” Erekat told Hasan. “We don’t need negotiations. It’s time for decisions now.” Yet he is still negotiating, and the application letter to the ICC is gathering more dust, with absolutely nothing to show for the delay.

“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,” wrote The Guardian’s Washington correspondent Chris McGreal, who was previously posted in Jerusalem.

How many more settlers must the Palestinians endure, how many homes need to be demolished, how many people must be killed, abused, imprisoned and impoverished before the PA says “enough”?

International law is clearly on the Palestinians’ side. Israel’s colonies are a clear breach of 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 United States.
An ICC ruling against Israel would give a huge boost to the increasingly effective Boycott, Divestment and Sanctions campaign, since companies and institutions - particularly in countries whose governments are allies of Tel Aviv - would feel much more secure in joining the movement.

Reasons for delaying ICC accession

There has been widespread speculation that the PA has not yet applied to the ICC because of pressure from the United States and Israel. That such arm-twisting exists is undeniable, but the primary reason may be self-preservation. Upon application to the Court, “I’m afraid the Authority will collapse,” Erekat told Hasan.

Can it be that a people’s human rights and national aspirations are being held back by its own leaders so they can keep their jobs, salaries and perks? This is perfectly plausible given the PA’s dismal internal record, and the fact that previous threats from its officials to dissolve the Authority have come to nothing.

A Human Rights Watch report into the PA’s record last year alone highlighted “police beatings and arbitrary arrests of demonstrators”, “excessive force”, “repressing critical news reporting and demonstrations”, “suppressing dissenting views,” and “serious rights abuses, including credible allegations of torture” for which “no security officials were convicted.” The Authority, which is supposed to safeguard Palestinian rights, is actively violating them for its own self-interest.

In 2004, the U.N. Development Program placed me as a media consultant in the Palestinian prime minister’s office. This was part of the UNDP’s Tokten program, which hires expatriate Palestinians to use their expertise to help build institutions in Palestine. I was witness to corruption, nepotism and ineptitude, to the extent that I was left totally disillusioned that the PA had the ability or even the willingness to serve its people properly.

I met other Tokten employees placed within the PA who felt the same way, whose eagerness to make a difference to their country had been dealt a blow by the Authority itself. When the UNDP wanted to extend my contract, I refused to be placed within the PA again, preferring instead to work for an NGO.

Erekat is right to state that Israel should be held accountable, but so should the Authority. Given its shameful squandering of Palestine’s upgraded U.N. status, Palestinians and their supporters should ensure that the PA sticks to Erekat’s promised deadline of April 29 to join the ICC, and not one day later.

If the Authority does not do so, it should be pressured by its allies and subjected to a Palestinian mass protest movement. If the PA will not say “enough is enough,” the people they have failed must do so instead, and make clear to their leaders that if they are not part of the solution, they are part of the problem.

This article was first published in the Middle East Magazine.

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Sharif Nashashibi, a regular contributor to Al Arabiya English, The Middle East magazine and the Guardian, is an award-winning journalist and frequent interviewee on Arab affairs. He is co-founder of Arab Media Watch, an independent, non-profit watchdog set up in 2000 to strive for objective coverage of Arab issues in the British media. With an MA in International Journalism from London's City University, Nashashibi has worked and trained at Dow Jones Newswires, Reuters, the U.N. Development Programme in Palestine, the Middle East Broadcasting Centre, the Middle East Economic Survey in Cyprus, and the Middle East Times, among others. In 2008, he received the International Media Council's "Breakaway Award," given to promising new journalists, "for both facilitating and producing consistently balanced reporting on the highly emotive and polarized arena that is the Middle East." He can be found on Twitter: @sharifnash

Disclaimer: Views expressed by writers in this section are their own and do not reflect Al Arabiya English's point-of-view.