Palestine’s accession to the ICC is a test for us all

Abbas’s legacy after joining the ICC will be one of a Palestinian leader who took the Israeli occupation to the criminal court

Raghida Dergham
Raghida Dergham
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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 U.S. brokerage of the “peace process.” This strategy does not 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, accompanying the strategic decision made by the Palestinian leadership represented by President Mahmoud Abbas, namely, to oppose the militarization of the intifada.

By disrupting international laws as the reference point, international law and international legitimacy became a part of the reference frame of the negotiations. Therefore, the new legal tools will alter the rules of the game between the two sides of the Palestinian-Israeli 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.

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 United States, some of which are being prepared while others are already being enforced to punish the Palestinian Authority for signing up to join the ICC. But the Palestinian Authority will pay dearly if the Arab countries do not make a serious decision to fund the Palestinian Authority as it seeks to achieve an independent Palestinian state by reshuffling the negotiating cards, with new tools in its pocket. If key European countries -- like France -- do not stand on the side of the Palestinian Authority, which wagered on their promises, 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.

What is new is that 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 in the hands of the Palestinian side, including the right to lodge complaints and bring legal cases, 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 considered 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 -- if they ever materialize at all. It might be said that the Palestinian people, who live under occupation, poverty, misery, political one-upmanship, and military escalation and sieges 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. At the time, the Palestinians had the option of signing up immediately to join the Rome Statute and the ICC.

At the time, the Palestinian Authority decided not to take advantage of that card immediately, and deliberately gave U.S. diplomacy the chance to prove its promises for the fulfillment of the two-state solution. The Palestinian Authority gave both Israel and the United States the choice between working seriously to end the occupation or putting the occupation on trial. The Palestinian Authority made it 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 Palestinian Authority folded the card of joining the ICC and put it in its pocket, but refused to discard it under U.S. and British pressure.

The Palestinian Authority gave Obama and Kerry every chance and all kinds of assistance to ensure the success of negotiations to achieve the two-state solution. It did all it could do while Israel continued to build illegal settlements, and to systematically circumvent the obligations of the solutions.

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 U.N. 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 U.N. Security Council failed to adopt the resolution, sparing the United States 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. It is also possible that the Palestinian diplomacy did the United States a service by insisting on proposing a draft resolution even though it knew it did not have guaranteed support from nine countries, sparing the United States from the consequences of using the veto.

More importantly, the Palestinian Authority wanted to test the international community in 2014 on the idea of specifying a timeframe for the negotiations and for ending the occupation, and took measures to begin 2015 by heading to the ICC in the event the international community let it down, especially in the Security Council. This is exactly what happened.

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 Palestinian Authority could return to the Security Council seeking a resolution specifying a timetable for ending the occupation, but it is clear that the Palestinian Authority does not trust that the Security Council has the ability to deliver this, and pins no hope on the so-called Quartet either.

The Palestinian Authority 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.

Abbas’s legacy after joining the ICC will be one of a Palestinian leader who took the Israeli occupation to the criminal court

Raghida Dergham

It may be worthwhile to build on official and popular European attitudes, especially using the tools of suing the occupation, 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 United States. There are bilateral considerations for France with both the United States and Israel. Furthermore, France’s weight in this equation is not big enough to replace the Quartet. Therefore, it is necessary for the Palestinian Authority 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 U.S. and Israeli sanctions hitting Palestine and shackling the hands of the Palestinian Authority. Both issues require a detailed, conscious, practical, and realistic working plan.

Enough is enough

Thirdly, it is clear that the Palestinian message to the United States and Israel is that “enough is enough.” It is clear that the Palestinian Authority has decided to stop following the agendas dictated by -- U.S. or Israeli -- elections, and that it is not interested in the fact that the Israeli elections will be held in 70 days from now. The Palestinian Authority does not 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 because it knows exactly that Mahmoud Abbas is against the militarization of the intifada, but that he is not able to accept a symbolic state and empty promises.

Yet at the same time, there should be a serious assessment of the consequences of the U.S.-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 preempt and contain the U.S. 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.

Abbas needs for history to remember him as more than the president who prevented the militarization of the intifada, fearing for his people who are weaker in the balance of power, and out of his belief in a negotiated settlement. All this does not amount to achieving statehood after all.

Abbas’s legacy after joining the ICC will be one of a Palestinian leader who took the Israeli occupation to the criminal court. This plan could be a deadly setback to the bid for Palestinian statehood, but it could also be the engine that will breathe new life in negotiations that need to be mended at their very core.

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.

This article was first published in al-Hayat on Jan. 9, 2015 and was translated by Karim Traboulsi.

Raghida Dergham is Columnist and Senior Diplomatic Correspondent for the London-based Al Hayat, the leading independent Arabic daily, since 1989. She writes a regular weekly strategic column on International Political Affairs. Dergham is also a Political Analyst for NBC, MSNBC and the Arab satellite LBC. She is a Contributing Editor for LA Times Syndicate Global Viewpoint and has contributed to: The New York Times, The Washington Post, The International Herald Tribune and Newsweek Magazine. She serves on the Board of the International Women's Media Foundation, and has served on the Advisory Council of Princeton University's Institute for Transregional Studies of the contemporary Middle East, North Africa and Central Asia. She was also a member of the Women's Foreign Policy Group. She addressed U.N. General Assembly on the World Press Freedom Day when President of The United Nations Correspondents Association for 1997 and was appointed to the Task Force on the Reorientation of Public Information by U.N. Secretary General Kofi Annan. She moderated a roundtable of 8 Presidents and Prime Ministers for UNCTAD at Bangkok in 1991. Dergham served as Chairman of the Dag Hammarskjold Fund Board in 2005. She tweets @RaghidaDergham.

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