President Abbas has applied for
Palestine’s membership in the International Criminal Court, paving the way for
trials of Israeli officials on war crimes. Whether this will ever happen is an
open question, writes
Amira Howeidy

one thing both Palestinians and Israelis agreed on earlier this week,
in describing Palestinian President Mahmoud Abbas’s move to admit
Palestine as a member of the International Criminal Court (ICC) as a
“desperate” act, might be accurate. But the legitimacy, necessity and
repercussions of the move are hotly contested between the two sides,
even a week later.

will take the international court 60 days to process and accept
Palestine’s membership. This is perhaps the start of the ICC’s biggest
challenge and a real test for its relevance as an arbitrator of
international justice as the explosive case of the longest occupation in
modern history arrives at its porch. 

All the nine investigations opened by the ICC since its inception in 2002 have
been limited to the least politically controversial situations in
African civil wars and conflicts. It has been criticised for focusing on
sub-Saharan Africa and black Africans only while turning a blind eye to
allegations of war crimes elsewhere, including in the Middle East.

Palestine — whose territories are under Israeli occupation since 1967,
as per the UN, and which has been negotiating the creation of its state
with the Israelis for over 20 years, and failing in the process — was
previously not officially recognised as a state, it couldn’t sign the
ICC’s founding treaty, the Rome Statute.

in 2012 Palestine was recognised by the UN as a non-member observer
state, which gave it the opportunity to sign the Rome Statute. Despite
two wars by Israel on the occupied Palestinian enclave of Gaza since,
Palestinian Authority Chairman Abbas refused to take the historic step
of joining the ICC due to intense pressure and threats by both Israel
and the United States.

also hoped to use the threat of the ICC — and its possible subsequent
indictment of Israeli officials — to pressure Israel into accepting a
final agreement allowing the creation of a Palestinian state.

failing to do so, he submitted a draft resolution to the UN Security
Council last week for the Israeli withdrawal of the occupied territories
by 2017, which did not pass. In just 48 hours, Abbas retaliated by
signing the Rome Statue. 

PA later announced it would make a second attempt at its draft
resolution to end the occupation, after the composition of the UNSC’s
non-permanent members changed early this week.

that Abbas resorted to the “nuclear option” and “crossed the red line”
the immediate reaction from Israel and the US has been to debate how to
punish him and the PA. Israel said it would withhold the monthly $120
million of tax and customs revenues it collects on behalf of the
Palestinians and gives to the PA, while the US, which advised against
this measure, said it was considering revising its $440 million aid
package to the PA.

But even in retaliating, Israel and the US have to weigh their options and the consequences of their threats.

was in the Israeli and American interest to make severe threats in
order to deter the Palestinians from joining the ICC,” said Nathan
Thrall, a Jerusalem-based analyst with the International Crisis Group,
“But now that the Palestinians have actually done so, both Israel and
the United States need to ask themselves what is in their interest.”

want to preserve the PA and the security cooperation with Israel that
is the PA’s lifeblood. So any punishment Israel enacts against the PA,
“will have to avoid threatening its existence or put Israel at risk of
taking on the economic and security burden that the PA now carries,
thanks in large part to the financial support of Europe, the US, and to a
lesser extent the Arab states,” Thrall added.

home, Palestinian NGO’s who have been calling their leadership to join
the ICC for years, are rallying behind Abbas’s move, regardless of his
political motiviations which have become irrelevant at this stage.

the next important step will have to be from the ICC itself. ICC
prosecutor Fatou Bensouda, already indicated that the UN general
assembly has resolved Palestine’s statehood issue. And a unified
Hamas-Fatah government officially persists, both factors make it
difficult for the ICC to decline Palestine’s accession. 

It does not mean that prosecution over Israeli defendants by the ICC will necessarily follow.

declaration to the ICC recognizes its jurisdiction in the the occupied
Palestinian territory, including East Jerusalem, since June 13, 2014.
This means it covers Israel’s 50-day war on Gaza -Operation Protective
Edge- which began in July, said Professor Susan Akram, Director of the
International Human Rights Clinical Program in the Boston University
School of Law.

Bensouda could delay a response to Palestine’s declaration, making it
difficult to obtain and preserve evidence necessary for aggressive
prosecution of what transpired during the most recent Gaza attacks,”
Akram added, “or she could find that Israel has the ability and
jurisdiction over prosecutions of its own nationals for any crimes
during Protective Edge and the ICC should decline prosecution.”

could, according to Akram, find ICC jurisdiction extends over both
Palestinians and Israelis during the last war, “and the ensuing
competition over claims could weaken or delay claims by Palestinians,
while Israeli monopoly over resources to gather evidence could make the
latter’s cases easier to put forward.”

slew of analysis and editorials downplaying the impact of Palestine’s
ICC membership has appeared in the Israeli and American press since
Abbas’s move. Their common argument focuses on how Abbas, by seeking
justice for his people through the most prestigious and important
international court, damaged all prospects for a two-state solution.
Secondly, every war crime and crime against humanity allegedly committed
by the Israeli occupation forces has been spun as a largely “political”
conflict and don’t fall within the mandate of the ICC. Thirdly, the ICC
does not investigate cases retroactively, and therefore Israel’s war on
Gaza last summer, for example, does not fall within its jurisdiction.

The court has jurisdiction with respect to crimes of genocide, crimes against humanity and war crimes.

many legal aspects of the case of Palestine are debatable and open to
various interpretations, eliminating the danger its ICC membership poses
for Israeli officials while posing it as a threat to Hamas officials
only (as the Israeli media has been doing) is misleading and

Palestine’s membership of the ICC means nothing, and Israel isn’t
worried, what is this hysteria and the threats against the entire
Palestinian leadership?” said Raji Sourani, a Gaza-based human rights
lawyer and director of the Palestinian Centre for Human Rights.

to Sourani, Israeli officials face several very serious cases. The
first is illegal settlements on occupied Palestinian territory, “which
constitute a war crime”. The second is the 730-kilometre long separation
wall that almost entirely deviates from Israel’s 1967 borders,
isolating Palestinian communities into cantons, enclaves and military
zones. In July 2004 the International Court of Justice at The Hague
ruled the structure illegal and ordered Israel tear it down, which it
profusely refused to do.

then there is the Israeli air, sea and land blockade of Gaza since
2007, resulting in an ongoing humanitarian disaster exacerbated by three
Israeli assaults on the besieged Strip and its 1.8 million strong
population. In 2009, a UN fact-finding mission on Gaza found, in what is
known as the Goldstone Report, strong “evidence of war crimes, crimes
against humanity committed during Israel’s war on the Strip between
December 2008 and January 2009”.

“These are samples of war crimes, collective punishment of civilians, illegal settlements and the list goes on,” said Sourani.

“The gates of hell have been opened for Israel; that’s why its worried.”