For someone nearing 80, President Mahmoud Abbas still knows how to shake things up. But his decision last week to join the International Criminal Court is a high-risk move that may set back the ultimate goal: an independent Palestinian state.
Frustrated by the lack of progress in negotiations with Israel – the last, fruitless talks broke down in April – and the failure of his New Year’s Eve statehood bid at the United Nations, Abbas followed through on a long-promised threat to join the ICC, filing the relevant documents on Jan. 2.
The decision, to be formalized in the next 2-3 months, opens the way for war crimes charges to be brought against Israel, whether relating to last summer’s conflict in Gaza or the impact of Israel’s 47-year-long occupation of Palestinian territory.
Equally, it opens the Palestinians up to war crimes charges, and Israeli officials have said they plan to make such moves via courts in the United States or elsewhere.
But the biggest immediate hurdle for Abbas is getting the ICC, set up in The Hague 12 years ago, to take on any case it brings. Joining the court is one thing, but convincing the chief prosecutor that you have a winnable set of evidence is another.
Since its inception, the court has formally opened just nine investigations, all of them relating to genocide, war crimes or crimes against humanity committed in Africa.
A shift of focus to the Middle East would be welcomed by those who accuse the court of a post-colonial, Western bias, but it’s no guarantee of success after the failure of several high-profile cases and only two convictions.
Carsten Stahn, a professor of international criminal law and global justice at Leiden University in the Netherlands, believes the Palestinians may have a case to make on war crimes grounds, but it is far from cut-or-dried or simple to make.
At every stage of the process – from the assessment of the case to investigation, prosecutor’s summonses, the pre-trial phase and, if warranted, a full trial – Israel could challenge the ICC’s jurisdiction and the admissibility of evidence.
“If you include all of that and appeals and challenges, a case could take close to a decade at least,” said Stahn.
“SWIMMING NOT SINKING”
For Abbas, who has been in power since 2005 and turns 80 in March, a decade is a long time, and in any case the expectation was always that an independent state would happen before then.
As a result, joining the ICC looks designed more to rattle Israel, show the United States and others that the Palestinians will not wait forever, and to use whatever legal means available to achieve the long-desired political outcome.
It also amounts to Abbas trying to show that he is still relevant as his popularity wanes and support for Hamas rises, said Grant Rumley, an expert in Palestinian politics at the Foundation for Defense of Democracies in Washington.
“Abbas understands that if he isn’t swimming, he’s sinking,” said Rumley, calling ICC membership the next-best-thing after the UN statehood bid to show Palestinians there is movement.
“The question is whether the ICC works better as a threat against Israel, and whether they have a plan once they’re members. I think ‘yes’ to the former, and ‘probably not’ to the latter.”
Israel has already responded to the threat by saying it will withhold $120 million of tax and customs receipts it collects on behalf of the Palestinians each month. Other more damaging steps, such as further settlement expansion and tighter controls on Palestinian movement and access, could follow.
That moves the Palestinians further away from an independent state rather than closer to it. And while the recognition of Palestine by Sweden was welcome, along with non-binding votes in the British, Irish, Spanish, French and European parliaments, none of those steps have changed the situation on the ground.
The United States and EU agree with Israel that an independent Palestinian state should only come about via negotiations. In that regard, the UN bid and ICC membership are problematic. A return to talks with Israel is even less likely.
And if and when those talks do resume, Israel’s position is only likely to have hardened, with the current right-wing leadership even more unwilling to relinquish its grip on Palestinian land and allow an independent state to emerge.