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Be careful what you wish for

The Palestinian move to join the International Criminal Court is one more step away from resolving the conflict

Recent decisions by Palestinian President Mahmoud Abbas have me scratching my head. In 2014 Abbas inexplicably shut down peace talks with Israel, then pursued an odd, harmful partnership with Hamas—inviting the terrorist organization into his government—and finally he pushed ahead with efforts to force a one-sided UN Security Council resolution, rather than working toward the hard compromises necessary for a lasting peace.

But in the last two days of the dying year, Abbas has seemed especially determined to act directly counter to Palestinian national self-interest. Abbas insisted that his resolution be voted on before the end of the year, on December 30, rather than waiting two days for a more favorable Security Council composition—one which would probably have adopted it, forcing a U.S. veto. The very next day, on December 31, Abbas signed papers to join 18 international treaties and organizations, including the Rome Statute, the founding document of the International Criminal Court. At the ICC, Abbas hopes to charge Israeli officials with war crimes. Here’s what you need to know about the ICC and what’s likely to happen.

Jurisdiction comes from membership

Sixty days after joining the ICC, the Palestinians will be able to bring charges against individuals who they claim have committed war crimes or crimes against humanity. In order for the Court to have jurisdiction in a certain part of the world, that country must be a member of the Court. As Israel has not joined, its citizens, and their actions in Israel, are immune from prosecution. However, as the Court will likely view the West Bank and Gaza as the territory of “Palestine,” any alleged crimes committed there could be subject to the Court’s jurisdiction.

Should the Palestinian Authority seek to bring spurious war crimes charges against Israeli Prime Minister Benjamin Netanyahu, for example, the Court could indict him. Netanyahu would then be subject to arrest and extradition in any of the 120+ countries that have joined the ICC. While it’s unlikely that most countries would arrest the Prime Minister of Israel—though they might indeed take action against lower-level government officials or military leaders—the possibility still exists, and could make it exceedingly hard for him to serve in his role as a world leader.

Leaders, soldiers, and settlers

While many are saying that membership in the ICC will enable the Palestinians to bring war crimes charges against Israel, this is not, strictly speaking, accurate. The ICC takes up cases against individuals, when the state concerned is unable or unwilling to have its own investigation and punishment. Which individuals would the Palestinians target? They might bring charges against top government and military officials, as well as leaders of settler groups in the West Bank. In short, anyone who they believe is responsible for perpetuating their definition of occupation.

Diplomatic retaliations

While the United States has long been able to supply diplomatic cover for Israel with its UN Security Council veto, it will be unable to do so at the ICC. Not only does the U.S. not have a veto, it isn’t even party to the Court’s statute. However, this move by Abbas is still likely to invite repercussions from the U.S. It’s worth noting that Congressional leaders of both parties have previously expressed their opposition to the unilateral Palestinian moves, and might seek to withhold foreign aid to the Palestinian Authority as a punishment for this step. Israel would also be expected to retaliate diplomatically, though the form of those retaliatory steps remains to be seen.

What will come of this?

The ICC has long been criticized for a bias, but not the anti-Israel one often associated with international organizations. In fact, the ICC has only ever conducted full-scale investigations in Africa, leading to accusations of Western imperialism against African states. By extending ICC jurisdiction to the West Bank and Gaza, the Palestinians have made a very risky gamble. Though often castigated in the press, Israel’s military is routinely lauded by officials of other militaries as one of the most moral in the world. As such, it is difficult to imagine a successful conviction on war crimes charges against Israeli leaders. On the other hand, if the PA successfully extends ICC jurisdiction to the West Bank and the Gaza Strip, we may finally see Hamas stand trial for its terrorism and egregious human rights violations.

After years of inciting his population, President Abbas is reaping what he sowed. This series of decidedly unpragmatic moves, each one a step further from a final status solution to the Israel-Palestinian Conflict, does not bode well for the future. If this ill-considered, unilateral decision is the opening of a new, tragic chapter of intransigence, President Abbas will have no one to blame but himself.

About the Author
Seffi Kogen is Global Director of Young Leadership for AJC, coordinating the organization’s activities for the rising generations of American Jews. He is also the host of People of the Pod, AJC and the Times of Israel's weekly podcast, which can be found at and on your phone’s podcast app.
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