The Palestinian Nuclear Option: the Road to ICC Membership
By Ali YounesAli Younes
As soon as the war on Gaza that started on July 8 and lasted for 51 days ended the pressure started mounting on Palestinian president Mahmoud Abbas to file an application with the International Criminal Court ( ICC) as a way to punish Israel for its alleged war crimes against Palestinian civilians.
The war has killed over 2100 Palestinians the vast majority of which were civilians and wounded over 10,000 people, and killed 65 Israeli soldiers and 3 civilians.
Throughout the war Abbas has been accused of dragging his feet on the matter and several Palestinian Authority ( PA) officials have told me from Ramallah on the condition of anonymity back in July that “ the only reason Abbas has not signed the Rome Statute was because he was waiting for all Palestinian factions to sign a document agreeing to join the ICC regardless of the consequences to them.
But Abbas maybe saving this option for later, as one Palestinian leader in Ramallah told me last week. He said that Abbas is planning to give the United States government and Israel a final chance or warning to end the occupation, end the conflict and establish a Palestinian state in the West Bank, Gaza and East Jerusalem or he would just dissolve his PA and let Israel manage its new 2 million Palestinians citizens in the West Bank.
As far as the ICC route, all of the Palestinian factions have signed the document Abbas insisted on having including Hamas, yet there seems to be no strategy on part of the PA to go to the ICC.
The reason this step is considered the weapon of last resort or the poor man’s nuclear option for the Palestinians is due to the inherent weakness of the Palestinian political positions and lack of leverage as well options to force Israel to negotiate a peace deal with them on better terms.
But a” nuclear” impact as it maybe for the Israelis, It will also have dire “nuclear” consequences on the Palestinians too. Aside from the fact that Hamas and other factions will be exposed to war crimes investigations just as the Israelis leaders would, Palestinians especially Abbas is risking angering his financial backers in Washington and Europe who would cut off the funding for his nominal Palestinian state,an eventuality Abbas in his new strategy does not appear to mind at all as he prepares to declare his PA defunct, null and void.
But what would it does, once they join, however, is to serve the Palestinian leadership in a kind both deterrent and a weapon to hold while negotiating with Israel.
Despite the fact that the Palestinians could have argued, possibly successfully, for ICC membership well before they became a State, in 2012, based on precedence in international laws and treaties. India for example became a member of the League of Nations in 1918 almost 30 years before it became an independent country.
So Palestinians could have pushed for membership had the political leadership actually wanted that. But Abbas is still thinking that with negotiations alone and without any kind of leverage in his hands, he can force the Israelis to honor their previous commitments and past agreements on withdrawing from all of the occupied territories. It is highly unlikely that Israelis will be sympathetic to Palestinians demands.
Going forward, Mahmoud Abbas has two approaches he must chose from to accede to the Rome Statute.
1: Palestine can just accept the ICC jurisdiction over its territories, Gaza included in an ad hoc basis pursuant to Article 11(2) . This can be done by filing this acceptance with the Registrar of the court and Palestine could, but not required to, to accept the ICC jurisdiction retroactively.
A precedent case is Cote d’lvoire in 2011 would serve as a basis for this approach. In this approach the ICC can investigate the claims even before Palestine became officially a state.
2: Palestine can ratify the Rome Statute and thus accept the ICC jurisdiction over its territories and this also can be done retroactively.
The difference, however, between the two approaches-though both would grant ICC jurisdiction- is critical because it is not just a procedural difference between them but also because the choice of the approach might give a clue as to what results the Palestinians want from this.
This means that either Abbas will be pushing for an actual prosecution of Israeli leaders which appears to be highly unlikely at this point, or use it as leverage with Israel in future negotiations or use it to satisfy popular Palestinian demands and pressure to join the ICC .
On option one: Palestine as stipulated by Article 11(2) of the Rome Statute can file a declaration with the Registrar of the court to accept the ICC jurisdiction retroactively and in this case, procedurally speaking the case will go to the Office of the Prosecutor, OTP, who will then refer the case the Pre-Trial Chamber which will then decides or not to authorize the prosecutor to investigate the claims.
On option two: Once Palestine ratify the Rome statute, assuming it will do so retroactively as well, the OTP here will investigate the claims on its own impulse or discretion (Proprio motu ) without a referral from the Pre-Trial Chamber, rather by state referral .
Many in the Palestinian camp however, doubt Abbas seriousness in joining the ICC because of the intense pressure he will subject himself to from the United States and Israel, and even if he joins, it does not appear that he will follow through and ask the court to investigate Israeli war crimes in Gaza and the West Bank.
Ali Younes is the Editor of the Arab Daily News. He can be reached at: Aliyounes@thearabdailynews.com, and on Twitter @clearali
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