Israel won the battle at the ICC, but not the war
News analysis

Israel won the battle at the ICC, but not the war

Between the lines, the criminal court signaled to Abbas that it would get involved in 'Palestine' if Abbas secures nonmember state status via the UN General Assembly. Will he now go down that road?

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

The International Criminal Court in The Hague (photo credit: CC-BY-SA Hanhil, Nederlandstalige Wikipedia)
The International Criminal Court in The Hague (photo credit: CC-BY-SA Hanhil, Nederlandstalige Wikipedia)

When the International Criminal Court on Tuesday rejected the Palestinians’ request to investigate alleged Israeli war crimes during Operation Cast Lead, citing as its reason the fact that Palestine was not a full member state of the United Nations, pro-Israel pundits spoke of a “massive defeat” for the Palestinians’ campaign to delegitimize Israel.

But the Israeli government — which says it worked hard to convince the court to admit that it has no jurisdiction in this case — sounded more reserved when it responded to Tuesday’s decision.

“While Israel welcomes the decision on the lack of ICC jurisdiction, it has reservations regarding some of the legal pronouncements and assumptions in the Prosecutor’s statement,” a statement by the Foreign Ministry read.

Indeed, a closer look at the wording of the decision announced by ICC prosecutor Luis Moreno-Ocampo reveals that Jerusalem scored a Pyrrhic victory at best.

Moreno-Ocampo writes that despite the fact that “more than 130 governments” and several UN bodies recognize Palestine as a state, the UN General Assembly currently grants Palestine only observer status, as opposed to considering it a nonmember state. The 1998 Rome Statue, which governs the ICC, only extends the court’s jurisdiction to “states.”

However, the prosecutor announced on Tuesday that he “could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue” of whether Palestine was a state or not.

Abbas will send a letter to Netanyahu in the coming days (photo credit: Kobi Gideon/Flash90)
Abbas will send a letter to Netanyahu in the coming days (photo credit: Kobi Gideon/Flash90)

Reading between the lines, that means that if PA President Mahmoud Abbas were to apply for UN membership at the General Assembly — which would certainly vote overwhelmingly in favor — Palestine could receive the status of a nonmember state. And the ICC would then be able to probe Israel over alleged war crimes in the West Bank and Gaza.

It is clear that Jerusalem is not happy about that prospect. In Israeli diplomatic and political circles, people are less worried about charges of war crimes because, they say, that since Cast Lead and the Goldstone Report a lot has been done to make sure such accusations won’t get very far. Israel, in this view, can credibly assert, for instance, that its judiciary handles alleged infractions by troops, and that hence there is no need for the ICC’s intervention. However, the fear is that the ICC will be asked to look into what’s happening in the settlements — indeed, at the entire issue of West Bank settlement — where a similar assertion that the Israeli judiciary effectively deals with the matter would be less credible.

The ICC, which is based in The Hague, declaredly seeks to “help end impunity for the perpetrators of the most serious crimes of concern to the international community.” And Israel’s settlement enterprise is anathema to much of the Western world, as the UN Human Rights Council’s announced plan to investigate it underlined again just a few days ago.

On the other hand, it is not clear whether Abbas actually wants to go down that road. He handed a membership application to the United Nations last September 23, but the Security Council has yet to make a decision about it. Either way, the US made it clear that it would make use of its right to veto, so there is no chance of Palestine becoming a UN member state any time soon. Yes, Abbas could submit a resolution to the General Assembly, which has the power to promote Palestine to a “nonmember state observer.” There is no veto in the General Assembly — where Abbas’ resolution would find a large majority — but he would have to settle for a second-class status, which would be similar to that of the Vatican.

Abbas has much to gain from taking his membership bid to the General Assembly. He promised his people statehood and needs to show results. On the other hand, taking this step might provoke angry reprisals by Israel, which insists that a Palestinian state can only be achieved via the signing of a negotiated agreement and not through unilateral diplomatic gambits.

Efforts to revive peace negotiations

In recent days, efforts are being made to revive the stalled peace process. While some Israeli officials believed that the US would not attempt to pressure Israelis and Palestinians to get back to the negotiating table before the presidential elections in November, things seem to be starting to move again.

According to Haaretz, a secret meeting was held last week between Palestinian chief negotiator Saeb Erekat and Prime Minister Benjamin Netanyahu’s emissary, Yitzhak Molcho, in which they reportedly discussed a letter Abbas intends to send to Netanyahu. Due to US pressure, the letter’s wording is less aggressive and does not include threats to dismantle the PA, as some had feared, the paper writes. Preliminary peace talks conducted by Erekat and Molcho collapsed in January after no significant progress was made.

Haaretz on Wednesday reported that a delegation of senior Palestinian officials, headed by Prime Minister Salam Fayyad, will meet with Benjamin Netanyahu next week in Jerusalem to discuss the peace process and hand over Abbas’s letter.

Also, US Special Envoy for Middle East Peace David Hale arrived in the Middle East this week, where he is expected to meet Abbas and Netanyahu. According to Ynet, Erekat said Hale’s visit is part of an American effort to revitalize the peace talks. The Middle East Quartet — a consortium comprising the US, the UN, the European Union and Russia — is expected to meet later this month to discuss the stalemate in talks. The US and Israel would much prefer for that meeting to take place against a background of new efforts at talks rather than amid ongoing deadlock. Otherwise, there is a danger that some Quartet members might be tempted to launch their own initiatives to fill the vacuum.

Abbas needs to decide whether he wants to further alienate Israel and the US by pushing the statehood bid through the General Assembly during the UN’s annual summit this fall. He could win the privilege of being considered a state by the ICC, thus being able to embarrass Israel by sending a war crimes investigation its way. But such a probe will change very little on the ground, while it would anger Washington and Jerusalem and cause further delay of substantial final-status talks, which both Israel and the US see as the only way for a state of Palestine to become a reality.


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