International Law

The Palestinian Authority’s Lose-Lose-Lose Move on ICC

By Matthew Waxman
Monday, January 5, 2015, 7:00 AM

Just before the end of the year, the Palestinian Authority took steps to become party to the Rome Statute and thereby join the International Criminal Court (ICC). This is a lose-lose-lose move: it is bad for Israel, bad for the Palestinian Authority, and bad for the ICC.

Perhaps because the Palestinian Authority believes that Israel has the most to lose, in the sad zero-sum logic of Palestinian strategy this seems to the Palestinian leadership and its public like a positive step. For months the Palestinian Authority has been threatening to join the ICC, thereby exposing Israeli officials to investigation and prosecution for war crimes committed in Palestinian (or disputed Palestinian) territory. Despite stern warnings from U.S. Secretary of State Kerry, the Palestinian leadership finally appears to be making good on that threat, following the defeat in the UN Security Council of a draft resolution that would have imposed a tight deadline on Palestinian statehood based on 1967 borders.

Israel, along with the United States, has always regarded Palestinian accession to the ICC as a game-changing escalatory step. Israel already faces intense international pressure over alleged war crimes committed in its summer war against the terrorist organization Hamas in Gaza (ostensibly part of single set of Palestinian territories, even though rival Hamas continues to wrest control from the Palestinian Authority in Gaza). The consistently biased scrutiny directed against Israeli military operations in UN bodies has led to deep distrust among Israeli and American leaders about how Israel would be treated by the ICC. Israeli officials are especially concerned that the ICC might declare controversial Israeli settlement activities in the West Bank to be war crimes, not only exposing Israeli leaders to criminal prosecution but also undermining Israel’s position in any negotiations over a two-state solution to the Palestinian conflict.

It’s true that the Palestinian Authority leadership would itself be exposed to war crimes charges in the ICC, too. But investigations and prosecutions on both sides would hurt Israel – and Hamas – more. Again, in a mindset in which gains are measured in terms of relative losses, this may seem like a win.

If those effects are part of a Palestinian strategy to build international pressure on Israel, they come at a steep price to the Palestinian Authority and its people. Joining the ICC and any subsequent moves to bring claims in it against Israel will result in U.S. aid cutoffs to a cash-starved Palestinian Authority and to its further economic squeezing by Israel. The fact that the Palestinian Authority leadership pulled this trigger shows how desperate they are, essentially giving up any remaining confidence in American peace efforts and hope of negotiated settlement in the foreseeable future. Joining the ICC may produce a quick domestic political boost for embattled Palestinian President Mahmoud Abbas, but it will further ruin the Palestinian economy and empower political forces in Israel most opposed to compromises on Palestinian ambitions.

The Palestinian move to join the ICC is also very bad for the ICC. That Court, which faces major resource and management challenges, is already reeling from the collapse of its case against the Kenyan President and from lack of support among states to enforce its arrest warrants against Sudanese leaders. Palestinian membership will make the United States more hesitant to support the ICC generally, and may push the United States back to actively undermining it. More significantly, it thrusts the ICC into the fiery politics of the world’s most intractable diplomatic problem. There is nothing the ICC can do that will not bring upon itself tremendous criticism, from one side or the other: pursuing cases against Israel will end any U.S. support for the Court and produce another tense situation in which the court’s authority is powerfully resisted, while declining cases will lead to charges that the court is feckless.

Beyond short-term factional politics on both the Palestinian and Israeli sides, the effect of which is to drive them farther apart in seeking long-term solutions, there are no winners in this move.