On Wednesday, April 1, the “State of Palestine” officially becomes a member of the International Criminal Court in The Hague. While some may hail this as a historic event, it changes almost nothing in the contentious relationship between Ramallah and Jerusalem.
The headlines that this purely technical step is sure to produce might trigger a round of Israeli-Palestinian tit-for-tat, which could, in a worst-case scenario, even devolve into a new wave of violence. Yet neither side is currently keen on an escalation. Rather, we can expect to see recriminations and threats, and perhaps even temporary and reversible steps such as Israel re-freezing Palestinian tax revenues and the Palestinians threatening to cancel security coordination.
The real game changer occurred exactly four months ago, on December 31, 2014, when PA President Mahmoud Abbas signed a document declaring that his government accepts the ICC’s jurisdiction “for the purpose of identifying, prosecuting and judging” the perpetrators of “war crimes” committed on the territory of occupied Palestine.
A week later, the ICC formally recognized the Palestinians’ accession to the Rome Statute, the court’s founding document, which paved the way for the prosecution of Israelis in The Hague.
Another week later, on January 16, the ICC’s prosecutor, Fatou Bensouda, opened a preliminary examination “into the situation in Palestine,” not necessarily because she thought it would lead to a full-fledged investigation and eventual convictions, but rather “as a matter of principle,” she explained. Experts argue whether the case against Israel has any chance of leading to a conviction. But everyone agrees that the preliminary examination will likely take several years, and that a full investigation, if opened, would take even longer.
So what is actually changing on April 1? For one, Palestine will become a voting member of the Assembly of State Parties, which decides on many aspects of the court. But as one of 124 member states, its influence will be marginal.
More importantly, Palestine will be able to file so-called state referrals, which carry more weight than referrals by nonmember entities. In practice, that means that when Palestine the member state complains about crimes committed on its soil, the court will have to take the referral more seriously than it previously did.
And yet, the actual difference between pre- and post-membership complaints is not dramatic, several Israeli officials said, all speaking on condition of anonymity due to the sensitive nature of the issue.
“It changes the procedure down the line, but it’s a pretty minor procedural step that has little impact,” one official said.
For instance, a state referral requires the immediate opening of a preliminary examination into the referred case. But the prosecutor already initiated an examination “into the situation in Palestine” three and a half months ago. Still, if she decides to close the inquiry, Palestine the member state can object and bring the case before a so-called trial chamber, which consists of three judges, who will review the matter.
(A review of a closed preliminary examination is currently ongoing in the Mavi Marmara case, which Comoros had referred to the court. In November, the prosecutor closed the case, arguing that the 2010 incident — which saw Israeli naval commandos kill nine Turkish citizens as they came under attack on a Gaza-bound vessel registered in Comoros — lacked “sufficient gravity.” Lawyers representing the tiny island nation, which is a member of the ICC, asked her to reconsider in January.)
Hence, the significance of Palestine’s ICC membership taking effect on Wednesday largely depends on the next steps by the political leaderships in Jerusalem and Ramallah. If Palestine were to file a state referral immediately after becoming a member of the court, formally accusing Israelis of war crimes, the two parties would be headed toward confrontation.
The Israeli government would likely retaliate by freezing the tax revenues it collects for the PA, which, in turn, might lead the Palestinians to consider — again — putting an end to security cooperation with Israel.
Israel started withholding Palestinian tax money three months ago to punish the Palestinians for their move to join the ICC. On Friday, Prime Minister Benjamin Netanyahu ordered the accumulated funds released, “based on humanitarian concerns and in overall consideration of Israel’s interests at this time,” according to a press release from his office.
The Palestinian Authority foreign minister, Riyad Maliki, is scheduled to mark Palestine’s ascension to the ICC with a trip to The Hague. Palestinian officials have repeatedly threatened to file complaints over alleged Israeli crimes as soon as possible. But it is doubtful whether Maliki will make immediate use of Palestine’s newly gained right. Indeed, Israeli sources say a secret deal has been struck between Jerusalem and Ramallah that linked Israel’s release of the frozen tax money with a Palestinian promise to not cancel security cooperation and to refrain from filing any complaints in The Hague.
This scenario would suit both sides, more or less: The Palestinians have their money and the knowledge that a preliminary investigation into alleged Israeli crimes is ongoing even if they don’t file a complaint right now. They’re well aware that as a member state they can up the ante and file state referrals to cement their case at any moment.
The Israelis, sorely aware that they cannot undo the Palestinian demarche at the ICC, are at least able to avoid direct confrontation over this issue, deflecting mounting pressure from the international community, and especially the US administration of late, over the way Israel treats the Palestinians.
However, Palestinian sources denied the existence of any such non-aggression pact. The assumption that Palestine won’t turn to the ICC “in return for the stolen Palestinian Tax revenues is baseless,” a Twitter feed associated with Palestine Liberation Organization stated Sunday.
Report that #Palestine won't pursue action against Israeli settlements in return for the stolen Palestinian Tax revenues is baseless.
— Palestine PLO – NAD (@nadplo) March 29, 2015
Nevertheless, in the days since reports of this secret deal emerged, Ramallah hasn’t repeated its threat to rush to complain over Israel’s actions at the ICC. An aide to Maliki told The Times of Israel that she was unable to provide any information on his trip to The Hague, refusing to deny or confirm his intention to file a state referral before he returns Thursday.
Several Palestinian officials refused to be interviewed for this article, so it’s hard to predict what will happen in the immediate aftermath of April 1. For tactical reasons, Ramallah might wait before making any state referrals to the court — it might look like political opportunism rather than genuine concern over Israeli war crimes if the Palestinians complained on their first days as members. If they waited until Israel announced further settlement expansion, or renewed exchanges of fire with Gaza’s armed factions, for instance, their case would likely gain more international approval.
If, however, the Palestinians opt to seek court action against Israel right away, Jerusalem will be forced to react — probably by freezing, once more, the tax revenues it collects on behalf of the PA. Jerusalem agreed to release the funds it had withheld until now, but has not promised to keep on transferring it in the future, a senior Israeli official told The Times of Israel on Monday.
Such diplomatic hostilities could quickly escalate and lead to violence. But this is currently in nobody’s interest, and Ramallah knows that, sooner or later, Israel will be pressured into releasing the withheld funds. Jerusalem, meanwhile, knows that it is too late to prevent the ICC from examining the Israeli-Palestinian conflict and that it doesn’t really matter if — or rather, when — Palestine formally complains.