by Gedalyah Reback
With tensions at a purportedly unprecedented level between Jerusalem and Washington, Mahmoud Abbas might think he will get a silent or even overt go-ahead from the United States to pursue its recognition campaign. But the gambit to join the International Criminal Court (ICC) might be the PA's Achilles' heel.
"The ICC is a special situation because the US itself doesn't believe in the court and doesn't want the court to determine Palestinian statehood," says Nitsana Darshan-Leitner, Director of Shurat HaDin – Israel Law Center. "They don't want to strengthen the court."
The Palestinians' major threat diplomatically is bringing Israel to court with charges of war crimes. In order to join the court, 'Palestine' has to first be recognized as a state. But the ends do not justify the means for the United States, which itself has also avoided joining the court to avoid public prosecution - and scrutiny - for its own military operations around the world.
Darshan-Leitner sees the court threats as a way to force Israel to acquiesce to certain demands that the Palestinian Authority cannot get through negotiations. Asked by Arutz Sheva if an Israeli response to the court or a submission of affidavits to defend itself might imply Israeli recognition of the court's jurisdiction, she said there were still hurdles Israel would not be clearing to make that a reality.
"Israel has very good arguments against the membership of the Palestinian Authority to the court, arguing the PA is not entitled to be a member and thus not entitled to bring any claims against anyone. I think Israel would like to show those claims before the court. Whether or not this act would recognize the jurisdiction of the court, I can't say because it Israel would still not be a (formal) state member to the court."
However, organizations like Shurat HaDin function to allow Israelis to bring private complaints to the court without troubling their government on recognizing that court's jurisdiction. Darshan-Leitner says that her organization has already filed several complaints against the Palestinians; both in Gaza and Judea & Samaria; both against Hamas and against Fatah.
She is pessimistic Israel could win the argument on "Palestine’s" statehood bid because of a bias against the Jewish State at the court. Another concern is that the ICC might try to make a statement for its own benefit by taking the case.
“The court wants to get involved in the Middle East conflict because they are petitioned all the time about it and are tired of being criticized for only taking cases involving African tribes fighting each other.”
However, she sees the signs that Israel is well-prepared for that scenario in any event.
"I think Israel is planning or preparing to participate (in a case). They are (likely) preparing a good defense against the Palestinian delegation to ensure they are not seen as violating proportionality or endangering civilians. You can see it now in the IDF opening up new investigations of incidents during the war."
Darshan-Leitner emphasizes that the ICC will not try to claim jurisdiction, much less investigate, any cases which have been "sincerely and properly investigated" by the relevant parties to the case.
When asked if she saw the current tussle over withheld tax funds as harming Israel's standing while the court decides on Palestinian statehood (favoring the Palestinians' application), Darshan-Leitner said it would have no effect.
"The court is not a moral guide. Its goal is only to prevent war crimes and to bring committers of world crimes to justice who would otherwise not be brought to court. Whether or not the ICC is angry with either side won't matter. Membership is based on recognition of statehood under the Rome Statute."
The Palestinians also have issues of ambiguity the court would have to overlook to grant them the status of a state. While there is a technical alliance between Hamas and Fatah (and while both parties have been accused of war crimes during Protective Edge by Shurat HaDin), they still operate two de facto separate entities. While Darshan-Leitner does not think by any means that the court would rule they were both states, it complicates the scenario for the Palestinians.
Darshan-Leitner is confident though that it will be very difficult for the Palestinians to follow through with their threats to join the court, especially with so many complaints already waiting for their leadership the day that their membership took effect.
"It's a way to deter the PA and to warn them of the risks waiting for them. Because what they have done - indiscriminate attacks on civilians - are definitely a crime against humanity."
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