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Palestine and the ICC


Will joining the International Criminal Court further Palestine’s cause?

HE “nuclear option” was how American and Palestinian officials described the application by Mahmoud Abbas, Palestine’s president, to join the International Criminal Court (ICC) in The Hague. His move follows a vote against a Palestinian attempt to have the UN Security Council set a deadline for Israel to end its occupation of territories it captured in 1967. It might open Israel—or Palestine—to charges of committing war crimes. Ban Ki-moon, the secretary general of the UN, said Palestine would join the court on April 1st.

Before Mahmoud Abbas applied on January 1st to join the ICC, Israeli officials promised it would result in an appropriate “Zionist response”: the expansion of settlements that would in effect bisect the West Bank near Jerusalem. Moreover, said officials, an application would also effectively spell the end of talks to establish an independent Palestinian state: never again, they said, would Israel negotiate with Palestinians over the future of Jerusalem, an issue that would have to be the cornerstone of any agreement since both sides claim it as their capital.

Given such hyperbole, the response of Israel’s prime minister, Binyamin Netanyahu, looks fairly mild. For now he has acted as in past rows, by withholding customs revenues that Israel collects on behalf of the PA on Palestinian imports, a sum of $127 million that comprises two-thirds of Mr Abbas’s monthly budget. Even that act earned Mr Netanyahu copious reprimands. A spokesman for the Obama administration ticked him off. So did Israel’s president, Reuven Rivlin, the veteran if maverick hardliner from Mr Netanyahu’s own party, Likud, who has turned into Israel’s leading advocate of Israeli-Palestinian coexistence. Threatening Mr Abbas with bankruptcy and the Palestinian Authority (PA) with collapse, Mr Rivlin said, was bad not just for Palestinians, but for Israel too.

He has a point. Israel’s retention of tax revenues has left Mr Abbas unable to cover this month’s salaries for 160,000 state employees. The president’s men insist that Mr Abbas’ critics, who always thought the old man was bluffing about joining the ICC, will now cheer rather than stir up the street. But unions representing PA employees are smarting from previous pay cuts. Banks might have the reserves to cover their salaries for only a couple of months.

A Palestinian businessman asks: once the money dries up, for how long will PA security forces remain quiet before they start selling their guns to make ends meet? On a previous occasion when that happened in 2006, Hamas’s military wing was a willing buyer of weapons. Shortly thereafter it took over Gaza. Israel’s freeze on tax receipts, therefore, seems likely to be thawed just as previous ones were.

Israel is appealing to a sympathetic Congress to withhold the $400m it gives the PA each year when Palestine brings its first petition to the ICC. But Palestinians hope that will not happen. “Will the Americans really topple one of the last secular rulers,” asks a Palestinian official, “while IS is itching to take over next door?” In any case, Saudi Arabia, which has chipped in cash before, sounds more sympathetic than normal.

Now that Mr Abbas has followed through, the question is whether the ICC will do much. Israeli officials fret that soldiers travelling abroad may be subject to arrest. Qatar and Saudi Arabia are already said to be paying lawyers in western capitals to prepare the writs. Palestinians and their supporters abroad, meanwhile, hope to seek the prosecution for war crimes of any Israeli accused of occupying Palestinian territories. Among those that could be targeted is Uri Ariel, the settler housing minister who is driving the expansion of settlements on the West Bank.

Yet both sides seem to invest the ICC with powers that it has never hitherto shown itself to have. And it could take many years for an investigation to reach conclusion. “Look at Africa,” says a sober Israeli official, in reference to investigations that have stalled in Kenya and Sudan.

Just a few days after the Palestinian application, Israel’s Supreme Court (which prides itself on keeping on the right side of international law) prevented the government from building its separation barrier through Battir, a delightful West Bank village set on a gorge through which the old Ottoman railway line to Jerusalem passes.

The monks of Cremisan, whose monastery is also threatened by the barrier, wonder whether Israel’s judges will similarly spare their property. If not, they could turn out to be among the first applicants to head for the international court.



US: ‘Palestine’ Not a State, So Not Eligible to Join ICC

Mahmoud Abbas is determined to join the ICC

Mahmoud Abbas is determined to join the ICC

The Palestinian Authority is not eligible to join the International Criminal Court, a senior US official said Wednesday after the UN accepted a Palestinian request to adhere to the tribunal.

“The United States does not believe that the state of Palestine qualifies as a sovereign state and does not recognize it as such and does not believe that it is eligible to accede to the Rome statute” under which the ICC was set up, said State Department spokeswoman Jen Psaki.

She also stressed that the US administration would comply with the law on funding the Palestinians, amid new moves in Congress to freeze about $440 million in annual aid if the Palestinian Authority seeks to join the court.

The United States, however, is not a member of the International Criminal Court, and it remains unclear what power it has to block the move after UN chief Ban Ki-moon accepted the PA’s request late Tuesday.

Psaki said the administration was in close consultations with Congress, and State Department lawyers were still looking at the implications of existing legislation.

Under the US budget for fiscal year 2015 passed in late December, aid to the Palestinians would be cut off if it tries to haul Israel before the court on war crimes charges following the 50-day war in Gaza.

But Senator Rand Paul late Tuesday introduced a draft bill which would freeze all monies to the Palestinians even for seeking recognition at the ICC.

Psaki’s statement comes a day after the PA formally recognized the court’s jurisdiction, as a first step towards carrying out threats to charge Israel with “war crimes.”

Acceptance of the ICC’s jurisdiction differs from accession to the Rome Statute, the Court’s founding treaty. The UN is still reviewing documents submitted by the Palestinian Authority to join the Court.

The decision by the PA to turn to the ICC – after years of threatening to do so – is controversial not just because it breaches previous treaties with Israel, in which both sides committed not to take such “unilateral action,” but because it could potentially backfire.

By accepting the ICC’s jurisdiction the PA also makes it possible for claimants to lodge charges against it and other Palestinian factions for alleged war crimes committed against Israelis.

Indeed, on Monday, legal rights group Shurat Hadin filed three more war crimes charges against the Palestine Liberation Organization (PLO), the organization headed by Mahmoud Abbas which runs the PA, in the ICC. The PLO already faces criminal charges being levied against it in the US court system for terror attacks it committed during the early 2000s.

The ICC application could also have other political ramifications.

After the Palestinian Authority formally presented its request to the United Nations to join the ICC on Friday, Israel announced it was delaying the transfer of $127 million to the PA in retaliation.

Similarly, Washington – the PA’s largest donor – said it is “reviewing” its $440 million aid package to the PA over the move. Technically, however, only if the PA actually files war crimes charges against Israel would it be open to such a penalty under American law.


The U.S., which has supported ICC jurisdiction in places such as Libya, Sudan, and now Syria, should support it in Palestine. International justice should not be a political game. Justice is an important end in its own right, and a credible ICC prosecution threat could help to advance the cause of peace.

US should support ICC jurisdiction in Palestine

By Bill Van EsveldSecretary of State John Kerry called the collapse of the latest round of Israeli-Palestinian peace talks “reality-check time” for the peace process. That reassessment should include the self-defeating U.S. policy of opposing steps toward justice and accountability in the name of negotiations.

U.S. officials claim that the International Criminal Court (ICC) poses a danger to peace talks and are pressuring Palestinians to forego asking the ICC to take jurisdiction over serious crimes by all parties committed in or from Palestinian territory. But those who support negotiations should realize that the greater danger to peace is impunity for serious crimes.

The U.S. position bolsters those who dismiss the ICC as “an empty gun” – as the pro-settlement Israeli economy minister, Naftali Bennett, wrote in an opinion piece last month. The Palestinians, he wrote, will never succeed in stopping Israeli settlements – which the U.S. opposes, and which violate the ICC statute as well as the Fourth Geneva Convention – even if they “go to The Hague.”  Bennett is confident that “the international community” will oppose such a move, which would open “a political Pandora’s box,” and that the Palestinians will ultimately back down out of fear that the ICC would examine crimes committed by their side, such as rocket launches by armed groups in Gaza that harmed Israeli civilians.In fact, as 17 Palestinian and international rights groups pointed out in a recent letter to the Palestinian president, Mahmoud Abbas, Palestine should go to The Hague precisely because the ICC could impartially mete out justice for serious crimes by all parties – whether settlements, illegal attacks on civilians, or torture – and  potentially deter more of them.

Yet last month, the U.S. even opposed Palestine’s accession to human rights treaties that would increase pressure to end torture by Palestinians – because it was a move taken outside the negotiations framework. In 2013, the official Palestinian rights ombudsman’s office registered 497 allegations of torture by Palestinian security forces – up from 294 in 2012. There were no criminal prosecutions.

Similarly, the U.S. opposition to the settlements as an “obstacle to peace” should lead it to support Palestinian access to the ICC, whose statute, reflecting the Geneva Conventions which Israel has ratified, forbids the transfer of civilians by an occupying power into occupied territory. On settlements, the U.S. negotiations-only policy has clearly failed.

In January 1988, when there were 180,000 settlers, the U.S. vetoed a Security Council resolution calling on Israel to abide by the Geneva Conventions. The U.S. said the resolution touched on “issues which are, at this time, best dealt with through diplomatic channels.” In veto after veto after veto, the U.S. argued that resolutions criticizing settlements “could encourage the parties to stay out of negotiations.” Today the settler population stands at more than 540,000.

Israel’s settlements policy is not an abstract problem, endlessly open to resolution in the future.  Settlers have gone unprosecuted for thousands of attacks on Palestinians and their property and taken over Palestinian homes,farmland, and water springs. They enjoy subsidies, special infrastructure, and almost six times as much water per capita as Palestinians. At the same time, Israel restricts Palestinian access to farmland, and virtually prohibits Palestinian housing construction, in the 62 percent of the West Bank under its exclusive control, known as “Area C.”

Discriminatory Israeli restrictions mean that at night, some Palestinians light candles while watching people turn on the lights in settlements next door. Palestinians who want to marry and raise families have had to move away from their villages because the Israeli military will not give them permits to build or expand homes.

These bitter experiences don’t make peace negotiations any easier. Yet during the latest round of peace talks, which began last July, the U.S. pressured Abbas to delay seeking ICC jurisdiction for nine months. In that time, Israel promoted plans and tenders for at least 13,851 new settlement housing units, the Israeli group Peace Now reported, and demolished the homes of 878 Palestinians, according to  data collected by the UN. A report by European diplomats on developments in East Jerusalem in 2013 noted “an unprecedented surge in settlement activity” since “the resumption of the peace negotiations.” A U.S. official told The New York Times that “at every juncture” of the recent negotiations, “there was a settlement announcement. It was the thing that kept throwing a wrench in the gears.”

By blocking accountability in the name of advancing the peace process, the U.S. has facilitated the settlements and other war crimes that are undermining the prospects for peace.

The U.S., which has supported ICC jurisdiction in places such as Libya, Sudan, and now Syria, should support it in Palestine. International justice should not be a political game. Justice is an important end in its own right, and a credible ICC prosecution threat could help to advance the cause of peace.

Van Esveld is a Middle East researcher at Human Rights Watch based in Jerusalem.

Read more: http://thehill.com/blogs/congress-blog/foreign-policy/207445-us-should-support-icc-jurisdiction-in-palestine#ixzz35MAfKqxM
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