Palestinian Considerations for Accession to the Rome Statute
Institute for Palestine Studies Senior Fellow George Bisharat spoke with Jadaliyya's Status Audio Journal on 20 October 2014.
Good afternoon everybody. Thank you, Noura, for the introduction. Also, I would like to say that it has been an honor for the Trans-Arab Research Institute (TARI) to be involved in co-sponsoring the event this afternoon. TARI is a US-based nonprofit that sponsors forums like this, conferences, research, publications, and the like about the Arab world and about US-Arab relations. So this is definitely a fitting topic for TARI involvement.
My piece to the discussion this afternoon is to offer a perspective on the Palestinian approach to the question of ICC prosecution. How is the Palestinian leadership thinking about the implications of accession? When I say “the Palestinian leadership,” I want to be clear that I am talking here principally about the Palestine Liberation Organization (PLO), which has—since the seventies—been internationally recognized as the legitimate spokesperson or body to speak for the Palestinian people. There are, of course, other important Palestinian political actors. The most influential and best known of them is Hamas, which is not a part of the PLO. So I want to be clear that when I refer to the leadership, it is to the PLO leadership primarily. What I want to explain in particular is the already commented-on reticence of the PLO leadership to proceed with ICC prosecution despite strong, popular Palestinian support for this step. I also want to talk a little bit about the reasons for the disjuncture between the actions or perspectives of the leadership and popular opinion.
First though, I want to back up a little bit and offer some perspective on Palestinian historical uses of international law to achieve their rights because I think this perspective helps us better understand the current stance of the Palestinian leadership. To put the conclusion first, the bottom line is: the observed reticence of the Palestinian leadership is explained best not as some inherent anti-legalism, disregard for the power of international law, or even a calculation that the risks to Palestinians outweigh the benefits at least in terms of likely ICC outcomes. Rather, it [leadership reticence] is a response to external and largely non-legal factors. Primarily, the threat of US and Israeli political, economic, and penal military retaliation coupled with a lingering infatuation with the possibility of a negotiated outcome to the larger Israeli-Palestinian conflict in the short to medium term. If the term “infatuation” implies an irrational fixation on one thing, a person, or a love interest to the exclusion of other options, then that is exactly the meaning I intend. In this context, the ICC—or more properly the threat of resorting to it—is a lever to prise back open the door to negotiations rather than a genuine mechanism to achieve justice for Palestinians. To close observers, I will admit this probably restates the obvious, but I think the exercise is worthwhile if only to disconfirm other explanations for the Palestinian leadership’s position.
Historically there has long been a sense among Palestinians and their supporters that international law is an important adjunct to their struggle, and this goes back at least as far as the 1947-1948 UN deliberations over Palestine’s fate. Palestine, of course, was not a free state at that time and could not speak directly for itself. But when the UN General Assembly voted to recommend the partition of Palestine in 1947, a number of the Arab delegations in particular and others too pushed for ICJ adjudication of the legal status of that resolution. There was a strong argument that the resolution both violated Palestinian rights of self-determination and exceeded the authorities of the GA. Those efforts were foiled by supporters of partition, including—in what later became a familiar pattern—the United States.
However, the real heyday of Palestinians’ resort to international law—or perhaps more accurately the term “international legitimacy” is often used—essentially began in the seventies when the PLO was recognized as the legitimate representative of the Palestinians. There was a series of UN resolutions that dealt with the status of Jerusalem, with the illegality of Israeli settlements, and with Palestinian rights to self-determination, which reaffirmed earlier resolutions articulating a right of return for Palestinian refugees who were forced to flee or fled in fear in 1947-1948. This was not all law as such, but there was a broad international consensus in favor of an end to Israeli occupation, the creation of a Palestinian state, and a just resolution of refugee claims, some of which was rooted in international law.
The shift away from international law and legitimacy began with the negotiations in Oslo, which eventually led to the public signing of the 1993 Oslo Accords on the White House lawn. These negotiations were led by several including Mahmoud Abbas who, if you overlook the fact that his term ran out in 2009, is the current PLO chair and Palestinian Authority president. Unlike the public negotiating process, which had begun earlier in 1991 in Madrid, and in which Palestinians were guided by legal counsel—including such members of the negotiating team as the well-known Palestinian lawyer Raja Shehadeh—there were no lawyers on the Palestinian side to the Oslo negotiations. Israelis were represented and had counsel present in Joel Singer. The Oslo Accords lacked any legal terms of reference, and the negotiations were essentially unbounded by legal principles.
Contemporaneously or roughly so, there was a shift in US positions regarding international legalities in the conflict toward what might be called “de-legalization” and a position that everything can and should be resolved by negotiations. Under President Clinton for the first time in the early 1990s, the United States stopped voting in support of the annual affirmation of Palestinian refugees’ right to return, and settlements in US parlance were no longer illegal. The formal legal opinion given by Jimmy Carter’s White House Counsel Herbert Hansell in 1978 was never formally repudiated—which concluded that the settlements were illegal—but the language changed to settlements being a hindrance to peace, an obstacle to peace, or unhelpful rather than illegal.
For their part, the Palestinians—and again I am referring specifically to the leadership—did not initially accept the proposition that it was either law or negotiations as if the two were mutually exclusive. As late as 2003, following the US veto of a draft UNSC resolution condemning Israel’s separation wall, Palestinian diplomats and lawyers steered the issue of the wall through the GA to the ICJ for an advisory opinion and gained a rather sweeping legal victory in terms of its content. That was sort of the last significant Palestinian legal initiative.
Since then, however, there seems to have been a diminishing appetite for legal initiatives on the part of Palestinian officialdom. There was the half-hearted attempt in 2009 to invoke ICC jurisdiction that Kevin referred to following Operation Cast Lead. There was the waffling of the PLO official leadership toward the Goldstone Report, which was a report to the HRC again about Operation Cast Lead that had some potential but was not really pursued actively by the Palestinian leadership. After the most recent fighting in the Gaza Strip, there was also the attempt by the minister of justice and the Gaza public prosecutor [to reconsider the 2009 invitation for ad hoc jurisdiction], which apparently was not sanctioned by the top Palestinian leadership. The one major exception was the drive to achieve member status in the UN by the Palestinian leadership. It fell short of gaining full membership status largely due to US opposition in the UNSC, but the GA voted in favor of non-member, observer state status or Palestine.
Palestinian civil society—that means activists, human rights organizations, and the like—responded to de-legalization with an emphasis on rights, international law and what they called “rights-based approaches.” This was evident in the call for Boycott, Divestment and Sanctions (BDS), which was issued on the one-year anniversary on the ICJ opinion on the separation wall. Palestinian civil society organizations—one hundred seventy of them—got together and said, “What gives? A year has passed since this ICJ opinion said that the wall is illegal, but nobody has done anything, no states have taken any action, so we have to take action ourselves, and therefore, we are calling for BDS in support of this opinion and in support of other Palestinian rights.”
So we have an increasing divergence between the positions of Palestinian officials on the one hand weakly supporting international law initiatives if at all and civil society on the other taking a much more proactive role in pushing the role of law more significantly. There were a number of these civil society initiatives that actually had some significant impact. It was the consequence of civil society initiatives rather than PLO leadership that led to prosecutions or attempted prosecutions of Israeli officials in several European states, including the United Kingdom and Spain. Thus, the ball was picked up by civil society.
Now let us focus on the contemporary scene keeping in mind that we have this divergence between Palestinian leadership and Palestinian popular opinion. There was a poll conducted from 5 June 2014 to 7 June 2014—actually before the three Israeli youths were abducted and murdered before Israel’s crackdown on Hamas and the West Bank that eventually led to the fighting in the Gaza Strip—and seventy-six percent of Palestinians who were polled favored ICC accession even if the United States and Israel would impose financial sanctions in response. I am not aware of any subsequent polls, but it is only logical to assume that since the fighting, support for ICC accession among Palestinians is virtually universal. There were also anecdotal reports that during the fighting this summer, crowds in Ramallah were chanting, “Sign or resign.” In other words, the Palestinian leaders should either sign the ICC papers or get out.
However, we observe the continuing reticence. The leadership signed onto fifteen other treaties following the collapse of the peace negotiations this past April  but not the Rome Statute. After the initiative taken by the Gaza public prosecutor and the justice minister, there was a meeting of the Palestinian foreign minister with the prosecutor of the ICC, in which she essentially told him what Palestine had to do, and he did not take the action that he was told was required.
Just a couple of days ago on 15 October 2014, Nabil Abuznaid—the PLO ambassador to the Netherlands and The Hague—was quoted in an article from Haaretz entitled “Ramallah’s Man in The Hague Hopes to Avoid taking Israel to the ICC.” He said, “This is not the Palestinian preferred choice because going to the ICC is the final divorce, one-way move, no way back. I don’t think Palestinians and Israelis are ready for a final divorce.” You heard my earlier reference to infatuation. I am not the only one using romantic metaphors. Later in this article he says, “. . . Because if we realize the ICC option, what then? How would we go forward with the peace process? The day we sign, things will be different between us and the Israelis.” So it is plain as day: the Palestinian diplomats do not want to accede to the ICC for fear it will end the so-called “peace process.” Who is right, Palestinian officialdom or Palestinian popular opinion? Also, what accounts for this divergence of views?
Because I am running out of time here, I am going to super summarize what I was planning to say next. I see the reservations. I see the problems that Kevin brought to our attention. My view is a little more optimistic. I think that there is more to gain for the Palestinians than Kevin perhaps believes. This is partly because I think that what counts is not only what occurs inside the court room but what occurs outside the court room. Of course, this depends to a great extent on people who are outside the court room taking full advantage of what even ICC consideration of prosecution or investigation makes possible in terms of public discussion, publication, legal scholarship, and the like. I will say that in my personal view, the upside of accession is greater than the risks. What I think the leadership fears most is what is likely to happen outside of the court room, not inside the court room. What pressures are going to be brought directly on the Palestinian leadership itself?
Israel’s military advocate general in 2010 ominously declared that the PA’s pursuit of Israel through the ICC would be viewed as war by the government of Israel. It is thoroughly predictable that the United States and the European Union would at least threaten to cut off aid—including for the rebuilding of Gaza—and possibly follow through on that threat if the Palestinians joined the ICC. Will these threatened actions be carried out? It is hard to say. There is some reason to believe that the bark is worse than the bite. In 2009, Israel similarly threatened to deny radio frequencies to a new Palestinian cell phone provider, which would have damaged the Palestinian economy to the tune of hundreds of millions of dollars, if the vote on the Goldstone Report had proceeded in the HRC. Eventually it went ahead after some delay, and Israel never followed through on its threat. I think similar considerations might temper US actions, but we do not know that for certain.
Let me just say a couple of things in closing about the gap in perception between the Palestinian leadership and Palestinian people. It is thoroughly possible that the Palestinian people are oblivious to the risks, although I will remind you of that June  poll, which expressed support for accession even in the face of sanctions. It may simply boil down to the question of divergent experiences and interests. The leadership’s legitimacy is totally invested in negotiations, and while many other Palestinians have been impoverished, the leadership has profited politically and materially from the so-called “peace process.” Clearly for those with little to lose, the path of a more confrontational strategy bears much greater attraction. Still, fragmentation is taking its toll. Palestinians are facing unprecedented levels of division and territorial fragmentation, and this fragmentation is having its ramifications in identity, national commitment, and the like.
There is also a significant slice of Palestinian elites who have been anesthetized by the good life brought on with neoliberal policies as well as mechanisms of representation and accountability to the extent that any notion of their existence within the Palestinian political community is now essentially broken. The result is that the Palestinian leadership is more responsive to the will of outside donors than it is to the will of its own people. The real question—even beyond the immediate one of ICC accession—is when will the Palestinian people either find a way to restore accountability such that its leaders reflect their actual will or rid itself an unrepresentative, captured leadership in order to install leaders who unapologetically but also imaginatively and legally represent their interests. Thanks.