The Palestinian leader’s threats to go to the ICC are misguided, self-deluding and fraught with non-sequiturs.
By ALAN BAKERICC(photo credit: REUTERS)
THE PALESTINIAN Authority leadership’s fixation on “internationalizing the conflict” by “going back to the UN,” joining various international conventions and taking Israeli political and military leaders to the International Criminal Court sounds dramatic and even threatening. But it involves a large degree of self-delusion.It is much like the annual “Israel- bashing” ritual through non-binding UN General Assembly resolutions that may well pamper the egos of the Arab and Muslim states that advance them, but have little or no effect on international law, the international community or Middle East peace.The principle is the same: The more you repeat something, even if it has no basis in fact or law, and however inane and unrealistic it may be, the more you’ll be believed by gullible people, especially Israeli leaders and senior officials, and even the Israeli media.The latest ploy by Palestinian Authority President Mahmoud Abbas for frightening the Israelis – going to the UN Security Council with a resolution demanding withdrawal by Israel from “Palestinian territory” to “the 1967 borders” within three years and threatening to go to the International Criminal Court if it isn’t passed – would appear to be no less misguided legally, no less self-deluding and fraught with non-sequiturs than previous abortive Palestinian UN forays.Despite all the annual politically generated UN resolutions, which do nothing more than represent the political opinions of the states voting for them, the territories of Judea and Samaria and the Gaza Strip have never legally or historically been declared to be “Palestinian.” There has never been a sovereign Palestinian state, and no treaty, agreement, or binding resolution has ever determined that the territories belong to the Palestinians.To the contrary, even the Palestinians themselves agreed in the 1993-1995 Oslo Accords, guaranteed by the US, the EU, Russia, Norway, Egypt and Jordan and endorsed by the UN, that the permanent status of the territories would be determined in negotiations. To determine in advance that these territories are Palestinian is to prejudge an agreed-upon negotiating issue.Similarly, there is no such thing as the “1967 borders.” The parties have agreed to negotiate “secure and recognized boundaries,” as demanded by UN Security Council Resolution 242, and the question of “borders” is also an agreed negotiating issue pursuant to the Oslo Accords.Referring to the “1967” borders is simply another attempt at prejudgment.Acceding to international conventions is an action generally done by genuine states, pursuant to the requirements of each specific convention. Since there is no genuine Palestinian state, theoretically any such action should be rejected by the states or international organizations that serve as depositories of these treaties. Moreover, the Palestinian Authority is legally bound by the Oslo Accords to refrain from joining international treaties or conducting international relations, pending the outcome of permanent status negotiations.However, the legalities notwithstanding, the predisposition of the international community has been to pamper Abbas with a view to bolstering his stature as the leader of the Palestinians, as opposed to other more extremist contenders, such as Hamas. Hence, the UN, the International Red Cross and the Netherlands government, as depositories of international treaties, have accepted Palestinian accession requests.Israel could view these and any future such actions as violations of the Oslo Accords. Moreover, Abbas’s ostensibly serious ammunition – his threat to go to the International Criminal Court (ICC) and have Israeli leaders and military officers tried for war crimes in the event that his Security Council ploy fails – appears almost certain to backfire.EVEN IF the ICC prosecutor, as she has promised, accepts a Palestinian request for standing in the Court – whether on the strength of political pressure or guided by her interpretation of the 2012 General Assembly resolution upgrading the Palestinians’ status to that of “non- member state observer” – that, in and of itself, cannot guarantee that Abbas and his associates will be able to advance any serious criminal claims against Israeli political or military leaders.This is because of the Court’s complex evidentiary rules, specifically the rule of “complementarity,” which prevents the Court’s exercising its jurisdiction if the case in question is already subject to investigation and potential juridical process by the nation state of the accused. Furthermore, Abbas is evidently misjudging the weight of Israeli material, visual and other evidence, justifying the recent military actions in the Gaza Strip.Thus it is highly unlikely that any such attempt to bring Israeli leaders to trial would succeed.Even more noteworthy is the likelihood that the Palestinian leadership, in giving the Court jurisdiction over the territories, including the Gaza Strip, would be placing itself – as well as senior Hamas commanders and tacticians – at the mercy of anyone who chooses to initiate claims against them for serious war crimes and terrorism.These crimes, of which they openly boast, include willful and large-scale targeting of Israeli civilians, towns and villages, and the willful and systematic use of their own civilians and civilian structures, including homes, schools, hospitals, mosques, clinics and UN properties, as civilian and human shields – all serious war crimes.Given this state of affairs, one may ask why Abbas is again making this type of threat and whether he is really serious. The logical conclusion appears to be that this is nothing more than an attempt to maintain some semblance of domestic credibility by exploiting the only sphere in which he still has some clout, the international community – without really going all the way.There is also another non-Palestinian consideration militating against Abbas’s ICC gambit. The International Criminal Court has hardly got off the ground as a viable international juridical body. The last thing it needs is to be labeled one more UN-style “Israel-bashing” institution, manipulated by the Palestinians.The US, Russia, China, Iran, Syria, Egypt, Saudi Arabia, Vietnam, Israel and other international players are still not parties to the Court’s 1998 Rome Statute, and the ICC knows full well that permitting itself to be manipulated into “hounding” Israeli leaders and military officers could permanently prejudice its credibility, integrity and juridical independence.Irony and cynicism aside, while Abbas is certainly no “paragon of Zionist virtue,” and despite his evident loss of support among the Palestinian public, he is probably the closest Israel can get to a moderate and viable Palestinian negotiating partner.So, assuming that he entertains a genuine desire to seriously deal with Israel’s leaders and make peace with them, he should be advised by his friends in international high places that he can’t do this while simultaneously chasing them with writs to appear before the International Criminal Court. He can’t have his peacemaking cake and eat it! Alan Baker, a former Foreign Ministry legal advisor and ambassador to Canada, is director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs and director of the International Action Division of the Legal Forum for Israel.
