Institute for Palestine Studies Senior Fellows Mouin Rabbani and George Bisharat discuss Palestine's membership in the International Criminal Court (ICC) alongside Diana Buttu, Ramallah-based analyst, former advisor to Palestine Liberation Organization Chairman Mahmoud Abbas and Palestinian negotiators, and Policy Advisor to Al-Shabaka: The Palestinian Policy Network; Ali Abunimah, Co-founder and Executive Director of the Electronic Intifada, and author of One Country: A Bold Proposal to End the Israeli-Palestinian Impasse (2006), and The Battle for Justice in Palestine (March 2014); Raji Sourani, Founder and Director of the Palestinian Center for Human Rights and former Director of the Gaza Center for Rights and Law; and Issam Younis, Director General of the Al Mezan Center for Human Rights.
The following Q&A was published on Institute for Middle East Understanding (IMEU) on 14 January 2015.
PHOTO: Getty Images
Q - Why do you think Mahmoud Abbas decided to pursue ICC membership now and how do you view the move?
GB - “Abbas not only pursued ICC membership, he also signed 17 other international treaties on behalf of the state of Palestine. On the one hand, then, ICC accession is part of a broader strategy to gradually solidify Palestine as a genuine, not merely imaginary, state in the international system. On the other hand, there are indications that Abbas hopes to use the threat of international criminal prosecutions to spur Israel back to the negotiating table. If that, indeed, is his strategy, I view this as the right move for the wrong reasons. ICC accession for Palestine should represent a principled stand against ongoing Israeli violations of international law, for the sake of the Palestinian people and for the sake of the international community as a whole, not a ploy to revive unproductive negotiations.”
MR - “The Palestinian application was an automatic response to the UN Security Council's rejection of the December 2014 resolution on Palestine, in the sense that Abbas forced his own hand by repeatedly proclaiming he would sign the Rome Statute if the UNSC resolution was not adopted. The more pertinent question is why Abbas decided to submit that particular draft resolution, at that particular time, to that particular Security Council. If the response is that it was a sign of desperation or an attempt to change the prevailing dynamic, it was shockingly incompetent. The Palestinian initiative at the Security Council was a fiasco from A to Z. There is no reason to believe the ICC initiative will be any different.”
DB - “Abbas decided to pursue ICC membership after seeing that the US and other members of the international community were unwilling to sign onto a watered down UN resolution specifying a date for an end to Israel's military rule. Despite the fact that this resolution was the embodiment of stated US policy and despite the lack of any real enforcement mechanisms or penalties in the event that Israel failed to abide by this deadline, the US and other beholden members of the international community decided to vote against this resolution. This signaled to Palestinians, including Abbas and his Fatah party, that Israel is not interested in ending its military rule and that the US and other members of the international community are unwilling to pressure Israel to end its military rule. Accordingly, Abbas turned to other mechanisms to hold Israel accountable – namely signing onto the Rome Statute of the International Criminal Court.
“This step should be viewed positively: It holds Israel accountable to international law and may prevent the commission of future war crimes by Israel (for which the international community ends up footing the bill). This can also be interpreted as a means of Abbas moving away from believing that the US is an 'honest broker’ to recognizing that the US will continue to enable Israel's illegal behavior.
“Abbas also needed to sign onto the ICC in order to demonstrate that he is being responsive to Palestinian demands to hold Israel accountable. Remember, this is a man whose term expired six years ago and who has ruled without the necessary oversight from the Palestinian Legislative Council. Signing onto the ICC is a step to demonstrate that he is listening to Palestinians. Whether he will press for an investigation is another matter.”
AA - “Abbas had no choice. The whole of Palestinian society is already astonished at Abbas's delays and sabotage of efforts to hold Israel accountable on numerous occasions. His last shred of legitimacy depended on him taking this move. After the debacle of the UN Security Council resolution, this was Abbas's last option. It is important to recall that Abbas heads an unelected Palestinian Authority (PA) that continues its scheming against Hamas and continues its tacit support for the siege of Gaza. Hence signing the ICC treaty and the attendant ceremonies give him the chance to assert his political primacy and bolster recognition from the so-called ‘international community.’ It is critical to understand, however, that Abbas cannot be trusted with this matter. All along, the PA has treated it as a tactical bargaining chip as opposed to a fundamental issue of justice. Should the US offer some worthless trinket, like a fake settlement freeze and resumption of ‘negotiations,’ Abbas can be counted on to pull back. And, of course, as long as Abbas continues collaboration with the occupation – euphemistically termed ‘security coordination’ – it's impossible to see him moving against Israel in the legal arena as he is, in effect, complicit in its occupation crimes.”
RS - “The bilateral negotiations which formed the core of the long-term peace process have failed in achieving any significant accomplishments towards peace and security. The US proved to be a dishonest broker in the peace process since none of the promises offered have been met. Reality bears witness to the unfortunate fact that there are no prospects for political solutions for the Israeli/Palestinian conflict. Crucial demands and pressures were exerted on the Palestinian leadership to set forth solid steps towards positive change of the deteriorating situation, especially after the General Assembly had accorded Palestine non-Member Observer State status in the United Nations.
“The Palestinian Center for Human Rights (PCHR) welcomes President Mahmoud Abbas’s ratification of the Rome Statute which governs the International Criminal Court (ICC). PCHR considers this significant move a milestone in the legal battle against the culture of impunity practiced by the Israeli authorities and an opportunity to open the door for pursuing Israeli war criminals before the ICC.
“Joining the ICC has been a crucial demand of Palestinian human rights organizations since Palestine was accorded non-Member Observer State status in the United Nations on 29 November 2012. Since that date, Palestine has joined several international conventions including human rights conventions.
“Ratifying the Rome Statute represents a vital development in the legal battle against Israeli violations and crimes against Palestinian civilians and properties in the West Bank and the Gaza Strip, including the expansion of settlements and confiscation of lands, establishment of the annexation wall, assassinations, the inhumane and illegal blockade of the Gaza Strip, and Israel’s collective punishment policy.
“This step will enable us to prosecute war criminals before the ICC, fight the culture of impunity, and endorse the rule of law. PCHR argues that the proliferation of the culture of impunity has encouraged the Israeli occupation throughout the past decades to commit collective war crimes against Palestinian civilians, an overwhelming example of which is the three Israeli offensives launched against the besieged Gaza Strip in under six years.”
IY - “Frustration with the negotiations and despair over the lack of support by the international community are certainly significant factors in the decision to accede to the ICC by Mr. Abbas. He adopted a negotiations-only approach and has been treated in a humiliating way by the Israelis and international community. As a leader of the PLO and the PA, he is seeing Israel totally not interested in a settlement that is just, while the US and Europe are unwilling to do anything meaningful about it.
“Mr. Abbas is a politician. Naturally, he must also respond to internal pressure and represent the interests of his people.
“We can look at the ICC accession as serving two interests for Mr. Abbas and Palestinians: 1) the only way to put the brake on settlement expansion and annexation. Settlements have been described as a war crime. They potentially violate the most important peremptory rule of international law, self-determination, and possibly have an accumulated impact that amounts to crimes against humanity. If the world will not step in to stop the expansion of settlements and the undermining of Palestine, then the ICC must get involved. And 2) the Israeli practices during the last military operation in Gaza are of huge concern. We saw the most serious violations of international law conducted in Gaza by the Israeli military and Abbas must act on this on the diplomatic and legal fronts; especially through the UN Commission of Inquiry and the ICC. Otherwise, he will be viewed as incapable of taking action, even on these soft fronts. There are tens of thousands of victims in Gaza who have been waiting for any form of redress and justice, but it is clear Israel is unwilling to deliver and, therefore, international mechanisms have become a must.”
Q - What message does the US rejection of Palestine's ICC membership send to Palestinians?
GB - “US rejection of Palestine's ICC membership is legally meaningless, of course, as we have no power to halt another party from signing an international treaty. But our hostility to this peaceful and lawful move tells the Palestinians that we continue to act as ‘Israel's lawyer,’ to quote Aaron David Miller's inimitable phrase. To the extent we join in foreclosing peaceful and legal options for Palestinians to achieve their rights, we also risk implicitly communicating that the only remaining avenue to freedom is through force. That is hardly the message we should be sending at this time.”
MR: “Nothing that Washington hasn't already said to Palestinians ad infinitum over many decades: This is that on the Question of Palestine US support for Israel and its occupation, and US opposition to Palestinian self-determination, is a matter of principle. That US support for Israel will become only more uncritical and more unconditional with every passing year, and that any difficulties in the Israeli-American relationship are irrelevant to this reality. If Palestinian leaders genuinely believed they could under present circumstances compel Washington into abstaining at the Security Council or turning a blind eye to the ICC application they are even more detached and ignorant than feared. There are real possibilities for effecting a change in US policy, but none of these alternatives seem to register on the agenda of the present Palestinian leadership.”
DB: “US rejection says to Palestinians that Israel can continue to behave above the law and treat Palestinians beneath the law, with impunity. This rejection demands that Palestinians continue to be colonized, occupied and massacred – and remain silent.”
AA - “The Obama administration's rejection of Palestine's ICC bid should put to rest for eternity illusions that either Obama or any other US administration will act as a benevolent and principled ‘honest broker.’ Recall that Obama has never been a mediator between Israelis and Palestinians, but from his first day a willing accomplice in Israel's crimes against Palestinians. He came into office endorsing Israel's 2008-2009 massacre in Gaza, as he had endorsed its butchery in Lebanon as a Senator in 2006. Obama's unbending enthusiasm for Israel's bloodletting was manifest during Israel's pogrom in Gaza last summer, which enjoyed his full backing to the extent that when Israel was running out of grenades and shells with which to wipe out families in Gaza, his administration made sure to resupply them. Despite such incontestable facts, some have tenaciously deluded themselves that Obama has a secret pro-Palestinian agenda.”
RS - “US rejection was actually expected because the US has always aligned with the occupying power and proved to be a dishonest broker in the peace process. During the early days of Obama’s first term, many thought that his historic speech in Cairo University represented a crossroad towards positive change and even-handed policy towards the Palestinians. Yet it was untrue. The US aligned itself with the oppressors against the victim. The rule of law has been compromised and hence peace and security in the region have been compromised. Twenty years of negotiations have offered no real advancement towards peace and security. The rule of law has been damaged and hundreds of thousands of victims were sacrificed. Therefore, the US rejection of Palestine’s ICC membership is not surprising. The simple message is that the US will not stop its disregard of the international rule of law.”
IY - “The past few weeks witnessed the US taking two actions, both of which were against the Palestinians. First, the vote against the draft resolution at the Security Council despite the concessions Abbas agreed to in terms of its wording. Then came the imprudent US rejection of Palestine's accession to the ICC. The US is sending clear messages to the Palestinians: There will not be any pressure on Israel to stop settlements, end the occupation, or change the situation in Gaza. The Obama administration is implying that it is both unwilling as well as incapable of taking any meaningful action. And since the US is not offering any alternatives, it seems to be indifferent to the fact that time is no longer a luxury and that Israel is changing the landscape in Palestine every day. The message as we read it is that the US is willing to live with a new system of apartheid in Palestine.”
Q - With Palestine set to join the ICC on April 1, what do you think Abbas's next move should be?
GB - “This question is hard to answer because it appears to assume the continuity of Abbas's leadership. As an empirical matter, that is probably justifiable. But we cannot ignore the fact that Abbas, whose term as Palestinian Authority president expired in 2009, lacks any democratic mandate from the Palestinian people to conduct any of the moves he has been making in their name. While there is never a good time to place affairs of state on hold, that is precisely what needs to be done, so that Palestinians can deliberate over their future and come to agreement over their collective end goals, the means or strategies to achieve them, and the leaders they trust to take them there. Absent such deliberation, nothing that Abbas does will enjoy legitimacy among the people he purports to represent.”
MR - “There is no Palestinian strategy – not even a bad one – to reap the advantages of a very haphazard and poorly conceived approach to international organizations. A Palestinian leadership that has demonstrated itself incapable of utilizing existing achievements like the 2004 ICJ Advisory Opinion on The Wall will fare no better at the ICC. If Abbas and other Palestinian leaders are serious about ending the current predicament of their people they first need to put the horse before the cart: implement meaningful national reconciliation, revive the national movement, and develop a credible and coherent national strategy. Unless and until this is done it is difficult to take any of this posturing in the international arena seriously.”
DB - “Abbas's next move should be to hold elections. He has been in office for 10 years now, even though he was elected only for a four-year term. Abbas or his elected successor should also push for the prosecutor to initiate an investigation into Israel's ongoing colonization and for the crimes Israel committed in Gaza. While it is unclear whether the prosecutor will agree to initiate an investigation into Israel's war crimes in Gaza, given its ongoing illegal siege of Gaza and the illegal colonization, the prosecutor should be pressed to do so.”
AA - “He should vacate forthwith the position that he occupies without legitimacy or mandate.”
RS - “We have ongoing discussions with the leadership. We believe that the work has been done by the president. The Rome Statute has been ratified and now it is our role as human rights organizations with professional legal teams to build legal files and exhaust the Israeli judiciary system. It is our role to seize this opportunity and start our legal battle against Israel.”
IY - “Abbas has three options. First, he can wait without taking any additional move. This means that Palestine's accession is final and that any action by the ICC will depend on how various actors, including the ICC prosecutor, will respond. Second, Abbas can take further action and move the files of the settlements/Wall and the Gaza wars at the ICC, asking it to act. And, third, he can freeze the accession.
“Unless a major development happens at the level of negotiations and settlement construction, the third option can be easily dismissed. It is unlikely that Abbas wants to take the second option. We expect him to wait. However, if Israel takes new major steps at the level of settlements or a major military operation starts, he will have to take further action and push the ICC to act.”
Q - What effect, if any, do you think the ICC move will have on the Israeli elections in March?
GB - “Speculation is rife that Palestine's ICC accession will drive Israeli politics even further to the right, resulting in an even more intransigent Israeli government in March. That is certainly a possibility, as Israel has enjoyed multiple decades of effective impunity from international law, and the specter of accountability must be unnerving to its leaders, some of whom may face personal criminal liability. This, however, should not deter the Palestinians, as bringing Israel back into compliance with international law is a necessary precedent to a just and therefore durable Middle East peace, and will be resisted by Israel no matter when it occurs.”
MR - “I suspect Netanyahu will escalate retaliatory measures, and seek to mobilize the US and EU to do the same, in order to retain his credibility with an increasingly fanatic Israeli electorate. This could unleash interesting dynamics that may – perhaps inadvertently – undermine the basis of the Israeli-Palestinian partnership established by the Oslo agreements. It will be difficult for Netanyahu to desist after the elections, particularly after having additionally unleashed the full force of US Congressional sanctions against the Palestinian Authority. Oslo has proven exceptionally resilient over the past two decades, but may yet fail to overcome this crisis. Alternatively, if the election is won by the Labor-Livni coalition, they will most likely seek to offer Abbas some restitution of some PA powers revoked by Israel since 2000, and the prospects of renewed diplomatic engagement, in exchange for a moratorium on internationalization. Abbas is not in familiar territory and would much rather be somewhere else. Any attempt he makes to turn the clock back to accommodate Israeli pressure or enticements could however prove his undoing.”
DB - “None. Given that the US has never held Israel accountable for any of its illegal actions, there are no incentives for Israelis to vote in any manner other than for right-wing, racist parties, some of which call for the ethnic cleansing of Palestinians from their homeland. With the US undertaking measures to punish Palestinians for attempting to stop war crimes, this sends the message to Israel that it is ‘business as usual.’”
AA - “Israel is a settler-colonial society which displays the features of such societies that appeared among whites in South Africa and unionists in Ireland; even though they wield disproportionate power and use it to oppress and kill a subordinate group, they are convinced that they are the true misunderstood victims. So in Israeli politics it will play as just another unfair ‘singling out’ of an innocent Israel. Whether it benefits the ‘right’ or not is of little significance since the differences among the mainstream Zionist parties are marginal from a Palestinian perspective. But Israeli politicians and generals are savvy enough to know that they could face arrest. They will be in an unprecedented situation. And that's a good thing, because they might think twice before slaughtering more Palestinians and that could potentially save lives.”
RS - “We do not anticipate any significant impact of the ICC move on the Israeli elections. For the last decade, the Israeli society has become more radicalized, as the support of the Israeli Radical Right grew more profound. It is not clear whether the effort to join the ICC would make any changes any time soon. We have invested in legal battles in terms of universal jurisdiction, filing cases in Europe and other countries, and attempting to prosecute war criminals in the past. This represented a serious issue for Israel since it sometimes paid off and movement restrictions were imposed on some military figures trying to travel abroad. However, these procedures proved to be hardly enough in restraining the Israeli oppression. The last Israeli offensive against the Gaza Strip showed that our efforts did not stop Israeli forces from launching rockets at Palestinian civilians. A lot of effort should be invested so that the ICC move will have a serious impact. The challenge is to use these tools against the most strategic issue in the conflict: the expansion of settlements.”
IY - “We do not expect that the accession in itself will have any influence on the Israeli elections. The ICC accession is still an abstract step. There will not be serious investigations or naming Israeli commanders or politicians for investigation and/or possible prosecution by March. The right wing will try to make the most of it, basically claiming it is part of the so-called 'lawfare' and that Abbas is not as friendly as the world insists. Yet, unless there are investigations and potential targets for prosecution, the effects will be minimal.”