Less than 24 hours after the Palestinian Authority failed to bring about a UN vote to end the Israeli occupation, President Mahmoud Abbas started proceedings to join the International Criminal Court, in which he could charge Israel with war crimes. This new approach, while it could lead to the prosecution of Israeli officials for war crimes, also risks severe sanctions from Washington and Tel Aviv. Still, the move might be worth the risk. The ICC can prosecute and punish those responsible for serious crimes. The court can erase the immunity Israel has afforded its soldiers and officers. There is no doubt this will fundamentally change the way Israel carries out its occupation.
But the step could have major repercussions, not least because Israel can also charge Palestinian officials. And also because Israel and the United States have promised to respond harshly to the move.
Israel is scheduled to hold elections March 17, and Prime Minister Benjamin Netanyahu and other politicians might be eager to show a strong response to what they have long said would be an aggressive unilateral act. Netanyahu may feel the need to respond sharply to Abbas' move either with plans for new settlement construction or possibly the suspension of transfers of the tax revenues Israel collects for the PA that are essential for its economic viability. But Abbas, too, is a politician; as he looks out for Palestinian interests, he must also look out for his own. His popularity plummeted after the battle between Israel and Hamas over the summer, and he has been pressed by other Palestinian leaders and by public opinion to sign the statute and then use the court to pursue cases against Israel's settlement policy and its military operations. In all likelihood, Abbas wants to stay ahead of Palestinian public opinion. Becoming an ICC member is a way of doing that. Accession to the ICC is not automatic and it could take months for the application to be processed.
Since the Palestinians cannot take action under the agreements for up to 90 days, Washington is counting on a window of time to calm the situation. But why accept American strategy? Bilateral talks have made little progress after decades of failed US-brokered negotiations with Israel. The last attempt at peace negotiations, led by the US Secretary of State John Kerry, collapsed last year, having achieved almost nothing. Palestinian chances of joining the ICC were improved in 2012 after the UN General Assembly voted to upgrade their status to that of a non-member observer state. Supporters of Palestine may legitimately wonder why the Palestinian leadership bothered to go to the General Assembly if it did not intend to follow up and build on its triumph in any useful way, most obviously by seeking to balance its huge disadvantages in power politics and brute force with its huge advantages under international law. Possession of ICC membership does not necessarily entail seeking prosecutions any more than possession of nuclear weapons necessarily entails using them. In both cases, the primary motivation and virtue of club membership is deterrence. If the ICC has jurisdiction over war crimes, who other than Israel could argue against Palestinian membership? Even the US would then find it embarrassing to oppose Palestinian membership, since doing so would effectively require arguing that Israel should be free to commit war crimes without any concern as to potential accountability.
