The Palestinian application to the ICC has set in motion a series of events with potentially dramatic consequences for both Israel and the Palestinians
Al-Araby – 7 January 2015
At the weekend, Fatah posted an image on its Facebook page of Israeli prime minister Binyamin Netanyahu next to a hangman’s noose, alongside the words ‘coming soon’ and the scales-of-justice logo of the International Criminal Court in the Hague.
This is certainly how many Palestinians would like to view Netanyahu’s fate over the coming months.
Last week, Mahmoud Abbas, the Palestinian president, reluctantly signed on to the Rome Statute, paving the way for ICC membership, after he failed to win a vote at the UN Security Council on a resolution to end the occupation by 2017.
The loyalists of Abbas’ Fatah party are likely to be disappointed, however. There are many obstacles to be cleared before anyone in Israel, let alone the prime minister, reaches the dock in the Hague accused of war crimes.
The first test will be whether Abbas’ nerve holds. It will be 60 days before the application to join the ICC takes effect. In the meantime, Israel and the US – neither of which has ratified the Rome Statute – will exert as much pressure on him as possible to change course.
At Sunday’s cabinet meeting, Netanyahu announced that Israel would withhold the monthly tax revenues it collects on behalf of Abbas’ Palestinian Authority (PA) and which it is obligated to pass on.
Given the PA’s precarious finances, that is a blow that will be quickly felt. Abbas dismissed the move, dressing up his diplomatic desperation as cavalier disregard. “Now there are sanctions – that’s fine. There’s an escalation – that’s fine … but we’re pushing forward,” he said.
Israel is threatening to pile on additional punishments this week. Or as a senior foreign ministry official put it: “Israel is about to switch from defense to attack mode.”
Included is a plan to recruit Israel’s powerful lobbies in Washington to ensure the enforcement of legislation requiring the US Congress to halt some $400 million in annual aid to the PA in the event that the Palestinians actually initiate any actions at the Hague to investigate Israelis for war crimes.
Further, Israel is threatening to use its own undoubtedly formidable intelligence-gathering against Abbas and his PA officials, implicating them in war crimes too.
Israel could try to pursue Palestinian officials, including Abbas, through the US courts, which have in the past shown a willingness to back terror-related claims against Palestinians.
In September a New York jury found against the Jordan-based Arab Bank for channelling charitable money into the occupied territories to help poor families, agreeing that this had helped support “terror”.
At the weekly Israeli cabinet meeting, Netanyahu warned: “Those who need to answer before a criminal court are the heads of the Palestinian Authority, who have forged an alliance with the war criminals of Hamas.” One of his officials similarly noted that they had “quite a bit of ammunition” to use against Abbas.
An Israeli analyst, Barak Ravid, suggested that the goal might be to “create a balance of terror”, reviving the Cold War principle of mutually assured destruction: “Each side would bombard the other with complaints until they can no longer breathe.”
One course of action Netanyahu is reported to be loath to pursue on this occasion is a glut of settlement building. This was Israel’s response back in 2012 when the Palestinians won a vote at the UN upgrading their status.
But the diplomatic fall-out then is said to have taught Israel a lesson, and it will not specifically characterise settlement expansion as part of its retaliation.
Persuading the ICC
The next obstacle will be persuading the ICC to investigate Israel. So far the Palestinians have had little success with the ICC, but previous justifications from the court for inaction are no longer valid.
In early 2012, the ICC dropped an investigation into Palestinian claims of war crimes committed during Israel’s attack on Gaza in 2008-09 on the grounds that Palestine was not a recognised state. That changed with the Palestinians’ change of UN status later the same year.
And in November the ICC’s prosecutor, Fatou Bensouda, halted an investigation into an Israeli commando operation against the Mavi Marmara aid ship in 2010 that killed nine humanitarian activists. The case had been made possible only because the ship was registered in Comoros, which had signed the Rome Statute.
Bensouda argued that the deaths of the activists were not of “sufficient gravity” to justify the ICC’s intervention.
But now – with a much wider range of examples to choose from as a member of the ICC, including the attack on Gaza last summer that left more than 500 children dead – the Palestinians should be able to find cases that better qualify.
Nevertheless, such investigations, if they take place, will be laborious and time-consuming, especially as Israel will be actively uncooperative, just as it has been in blocking access to Gaza for UN inquiries into war crimes.
In the meantime, the US will be certain to put pressure behind the scenes on the Hague court to reject cases brought by the Palestinians. It can be expected to threaten the finances of the ICC and arm-twist it in other ways, just as it did Security Council members last week to ensure that a Palestinian resolution to end the occupation failed to win the necessary majority.
The politicised nature of the ICC should not be under-estimated. Its cases so far have targeted only African leaders, and ones that are seen as enemies of the US and the west.
International law experts note that it will be extremely difficult for the ICC to press cases against the leaders of a state widely seen in the US and Europe as a western-style democracy.
That might, for example, encourage uncomfortable comparisons between Israel’s behaviour and that of the US and Britain in the Middle East. If Netanyahu or Tzipi Livni are to stand trial, why not Barack Obama or his predecessor, George W Bush? US leaders are just as culpable for their part in Washington’s extra-judicial executions by drones over Yemen and Pakistan or its rendition and torture programmes.
Immunity from prosecution
Nonetheless, Israel has good reason to be worried.
Whether or not cases are ultimately brought against Israelis, the threat of war crimes charges is likely to act as a restraint, creating an atmosphere of doubt, caution and fear on the ground among the Israeli security forces.
That is not something Israel, driven by a military tradition of creating deterrence by terrifying its Arab neighbours into submission, can afford to be complacent about.
As Tel Aviv law professor Aeyal Gross observed, the ICC threat hangs more heavily over Israelis than Palestinians. Palestinian fighters are unlikely to fear an ICC prosecution given that “they are already at risk of assassination by Israel or long prison terms if caught. In contrast, Israelis have enjoyed de facto immunity from prosecution for Israel’s actions.”
Adding to this problem, Israel will have to demonstrate – if it is to be sure of pre-empting an ICC investigation – that it has carried out its own credible investigations and is prepared to prosecute its own soldiers, including commanders, with serious charges.
Until now, even lowly Israeli soldiers have enjoyed almost complete immunity for their actions, and Israel has refused to cooperate with independent investigations.
When Israel announced a handful of criminal inquiries into its attack on Gaza last summer, which left more than 2,000 Palestinians dead, most of them civilians, it was harshly criticised by local human rights NGOs. The two most respected, B’Tselem and Yesh Din, refused to cooperate, arguing that the investigations were a “whitewash”.
Israeli authorities have so far approved 13 investigations into the summer’s events but most relate to minor or isolated incidents, usually committed by junior soldiers. Five of the investigations are into allegations of looting: soldiers stealing money or items from Palestinian homes.
That will now need to change, even if only for appearances’ sake.
Similarly, the threats Netanyahu and others Israeli officials have been making against Abbas are a double-edged sword. While Israeli officials have warned that the Palestinian application to join the ICC opens up a “Pandora’s box”, it may be that any damage to Abbas and the PA ultimately rebounds on Israel.
There have long been suggestions that Abbas has been actively conspiring with Israel against Hamas – including rumours that he was closely consulted on Israel’s attack on Gaza in 2008-09. Exposing such collaboration could simply deepen Israel’s troubles.
In any case, weakening the PA – whether by implicating it in war crimes or pulling the plug on its finances – risks its collapse and Israel’s being forced once again to bear the full military and financial costs of the occupation.
That was why the US State Department on Monday expressed its opposition to Israel’s refusal to transfer tax revenues to the Palestinians, saying it threatened “stability” in the region.
The Palestinians joining the Hague court might also serve as a fillip to groups trying to use the principle of universal jurisdiction in their own countries, including several major European ones that have already incorporated such legislation. That would be even more likely were the ICC to appear to be submitting to pressure to avoid prosecuting Israeli officials.
It would leave senior Israelis even more fearful of visiting such states for fear of arrest.
And maybe not least, the Palestinians’ move to the Hague will exhaust yet more US goodwill as it is forced publicly to rescue Israel from the consequences of its own worst military excesses.