Will the ICC inquiry meet the challenge of the Palestine question?
The entirely predictable and expected reaction has happened. After the Palestinians finally put in an application to the International Criminal Court – after pondering the issue for several years – the US and Israel have practically been script-reading the consequences. Following the announcement of the decision, asking the court to investigate alleged Israeli war crimes, Israel immediately froze the Palestinian Authority’s tax revenues – some $120m per month, which it collects on the Palestinians’ behalf and is supposed to pass on.
Then last week, the ICC said it would be opening preliminary inquiries – to establish whether or not there’s a case to investigate further. In other words, the court announced that it would be doing its job, in the usual way – but that was greeted with a further flurry of condemnation.
The US – which, like Israel, does not belong to the ICC – described the decision as a “tragic irony” and warned Palestinians over implications for their senate-approved aid budget. Israel’s foreign minister Avigdor Lieberman denounced the ICC process as “scandalous“, while Prime Minister Benjamin Netanyahu had this to say: “Palestinians are cynically manipulating the ICC to deny the Jewish state the right to defend itself against war crimes, the very terror that the court was established to prevent.”
Potential war crimes
One of the many reasons this claim doesn’t make sense is that Palestinian officials have, in applying to the ICC, just exposed themselves to the very same risk: the court will have to investigate potential war crimes committed by Hamas as much as it will examine alleged Israeli crimes.
Israel’s announcement that it is going to lobby ICC member states to cut funding for the tribunal is bordering on hysterical – these are, after all, nations that campaigned to set up this international body in the first place.
Meanwhile, the US view that Palestine doesn’t qualify to be a member of the ICC is similarly spurious: the legal community seems agreed that membership to international institutions – which Palestine gained via the UN in 2012 – equals being qualified to join the international court.
And Israel’s announcement that it is going to lobby ICC member states to cut funding for the tribunal is bordering on hysterical – these are, after all, nations that campaigned to set up this international body in the first place.
But all these responses were anticipated by the Palestinian Authority, whose prevarication over signing up to the ICC has in part been informed by warnings and outright threats from Israel and the international community – whether Palestine could withstand the “punishment” meted out to it as a consequence of pursuing its legal right has been a serious factor in the discussion.
It’s easy enough to comprehend the reaction emanating from Israel and its US ally – and it is worth noting that the mechanism that allows Palestine to join the ICC, via the UN General Assembly deeming it a state, is effectively a rare, US-veto-free domain.
Far less understandable, though, are the reported threats that came from Europe, from nations that are signatories to the ICC and thereby supposed to encourage other states to do the same – not actively try to deter them from doing so. The countries that Palestinian officials have cited most in this context are Germany and the UK – but many more European nations adopted the line that Palestine going to the ICC would be an obstacle to the peace process and scupper negotiations.
In bad faith
The trouble is that – as those same European countries have themselves conceded – decades of asymmetric peace talks have gone nowhere and Israel is the side that, to put it mildly, has evidently approached them in bad faith. Indeed, the collapse of the last round of talks, in April 2014, was deemed even by the US to be mostly down to Israel’s continued settlements expansion.
Since the start of the peace process in 1993, illegal Israeli settlements in the occupied West Bank have doubled, so that there are now 520,000 Jewish settlers in the area, while settlements and infrastructure take up 42 per cent of Palestinian land.
Palestinians have asked the ICC to start its investigation from June 13, 2014 – which would take in the 50-day Gaza war that raged that summer. Over 2,100 Palestinians, including 513 children, were killed during that period; Palestinian and international rights groups have urged that Israel’s actions during that assault be investigated. But the court also has the power to investigate the potentially easier to prove, continuing crime of Israeli settlements – since those fly in the face of the Geneva Accords, which is quite specific about the war crime of civilian population transfer by occupying powers into captured territory.
Finally, after decades of being immune to and not bound by international law, Israel’s actions are being exposed to legal scrutiny. And so, for that matter, will the action of Hamas in the Gaza strip. Where attempts at political solutions have manifestly failed, taking to the international courts now seems like the only sensible scenario – and not just for Palestinians, but for Israelis too.
Rachel Shabi is a journalist and author of Not the Enemy: Israel’s Jews from Arab Lands.