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How ICC membership could revive Palestinian statehood at the UN

Could a shift in U.S.-Israeli relations lay the groundwork for bolder legal and diplomatic moves in the international arena against Israel and the occupation?

By Lolita Brayman

The representative of Palestine speaks to the UN Security Council. (UN Photo/Loey Felipe)

The representative of Palestine speaks to the UN Security Council during the previous attempt to pass a resolution advancing the two-state solution. (UN Photo/Loey Felipe)

Prime Minister Benjamin Netanyahu’s election success is being portrayed by some as a victory for the international aspects of the Palestinian cause. For months, Palestinians have been trying to leverage Europe’s frustration with Israeli actions and now the United States might be having second thoughts about wielding its almighty UN Security Council veto.

There is a global consensus for a two-state solution today. So when Netanyahu publicly abandoned his commitment to negotiating the creation of a Palestinian state—the basis of more than 20 years of U.S. peace efforts—Washington began hinting that there might be a change of diplomatic course. On Monday, Obama’s Chief of Staff Denis McDonough told J-Street conference participants that, “an occupation that has lasted for almost 50 years must end. Israeli cannot maintain military control of another people indefinitely.” The terminology certainly signals a shift, but is harsher rhetoric really a sign that the U.S. is intentionally opening a breach in the U.S.-Israel relationship?

The Palestinians will officially join the International Criminal Court (ICC) on April 1, at which time they will be able to refer actions by Israel in the West Bank and Gaza to the ex-parte tribunal. Court Prosecutor Fatou Bensouda will then have the ability to decide whether there is cause to launch a full inquiry — a step beyond the preliminary investigation she announced on January 16 following the State of Palestine’s request to accede to the Rome Statute.

Alongside whatever proceedings may take place in the Hauge, the international response to Netanyahu’s fourth term may also play out in New York: the “lawfare” battle could be indefinitely delayed by the UN Security Council. Last week, a Foreign Policy report indicated that the U.S. “might be inclined to support a UN Security Council resolution backing a two-state solution as an alternative to the Palestinian effort to hold Israel accountable at the ICC.”

The ICC and international law as leverage

The United Nations Security Council, December 30, 2014. (UN Photo/Loey Felipe)

The United Nations Security Council, December 30, 2014. (UN Photo/Loey Felipe)

Article 16 of the Rome Statute gives the Security Council the power to defer any ICC investigation for up to a year, which can be renewed once a year. In order to exercise that authority, the UNSC would need to demonstrate that further ICC involvement would impede rather than facilitate diplomatic progress. The Council has never used its Article 16 power but the political stakes in Palestine are much higher than in any previous situation, wrote David Bosco.

An act of this magnitude would hinge on whether an ICC investigation would really be an obstacle to the peace process. But Netanyahu effectively put a nail in that coffin with his election campaign. The U.S. — and much of the world — is now asking “what peace process?”

Within this context, the U.S. could initiate an Article 16 deferral and use the ICC as leverage to convince other Security Council members to support a resolution for a final status agreement via negotiations within a specified timeframe. Such a justice-for-peace trade-off could have many advantages but any P5 member can veto the deferral:  Russia might very well block any U.S. initiative to boost its own international, strong-arm reputation, while Britain and France—both signatories to the Rome Statute—might consider supporting deferral in order to protect the vulnerable and young ICC from a potentially volatile intermingling of politics and international criminal law.

The Palestinians are likely to support a UN resolution backed by the U.S. considering last year, their own resolution was only one Security Council vote short of passing. Further, if President Mahmoud Abbas can exchange an ICC investigation for concessions toward conclusive negotiations, it would be in his favor to do so; since an ICC investigation into Israel could cut-off U.S. aid to Palestine — even more likely to be triggered if any investigatory action is initiated after April 1.

Israel prepares for ‘lawfare’ battle

Construction of illegal settlement units at 'Elkana,' on the lands of the West Bank village of Masha, near Salfit, July 06, 2013. (Photo: Ahmad Al-Bazz/Activestills.org)

Construction of illegal settlement units at ‘Elkana,’ on the lands of the West Bank village of Masha, near Salfit, July 06, 2013. (Photo: Ahmad Al-Bazz/Activestills.org)

Israel is expected to object to an official ICC investigation, but the strength of its defense depends on the inquiry’s focus. If it were limited to alleged crimes committed in the recent Gaza hostilities, the ICC would have to defer to Israel’s own investigations of itself—recently on the upswing. On March 19, the IDF announced that its military police opened six additional criminal investigations into incidents during Operation Protective Edge, including an attack on an UNRWA school in Jabalya, where 20 people were killed on July 30, 2014. Other investigations were already opened into incidents including the killing of four children by Israel Air Force fire on a Gaza beach and the strike on another UNRWA school in Beit Hanoun, which killed 15 Palestinians.

On the other hand, if the forthcoming ICC investigation relates to settlement building in occupied territories, Israel would have a much more difficult time of deflecting the investigation and possible prosecution of its officials. Here, Israel has no complementarity defense since its only argument is that the settlements are legal—not enough to defer an investigation in any court.

Even if Israel approves of an UN resolution, Security Council deferrals of ICC probes are not permanent. The UNSC could continue to use the ICC as leverage and hold the threat of prosecutions over Israel’s head in a year if there is no movement with negotiations.

But everything centers on how serious Washington is on destabilizing a long-standing policy with its Middle East ally — actions speak louder than words. The U.S. stood alongside Israel at the United Nations Human Rights Council’s annual debate on Monday, where EU and Arab delegations called on Israel to permit a UN human rights investigator to visit Gaza. Neither state party attended the debate, pursuant to a 2013 agreement. The silence was planned beforehand and not related to any existing tensions. What it does show is that so far, despite the rhetoric, the U.S. isn’t making any hasty moves.

Lolita Brayman is a lawyer and former editor at Haaretz.com with an M.A. in conflict resolution and mediation from Tel Aviv University. Follow her on Twitter at @lolzlita.

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    1. Weiss

      Warsaw Ghetto version 2.0

      That is why they resist…

      Just as the Jews did in the Warsaw Ghetto.

      THIS Jew will NOT be SILENT!!!

      Reply to Comment
      • susy

        Pity, Weiss.

        Reply to Comment
    2. Bruce Gould

      The moment I read that Ayman Odeh was a fan of MLK Jr I thought: the Selma moment is coming.


      Odeh’s group is organizing a mass march. Unrecognized villagers will camp and walk their way to Israel’s seat of government…

      Reply to Comment
      • Weiss

        And the burning question is :

        Will they be beaten once again when they cross that bridge…by the local Fascist brown-shirt thugs, the Israeli Police and IDF once again?

        This March is a great idea, and MLK certainly would have supported it.

        Rabid Racist Backlash by the Fascists in 3, 2, 1…

        Reply to Comment
      • Brian

        This Odeh is really interesting. I like him.

        Reply to Comment
        • Jello

          Me too. I think Odeh is great. We have prayed for Arab politicians like him for years now.

          Reply to Comment
    3. Bryan

      Fully agree that a complaint centred on settlements would seem to be far more cut and dried than focusing on the attacks on Gaza where the legal minefields entail the difficult definition of proportionality, distinction and the adequacy of Israel’s own “investigations”. The Separation barrier should also feature in the complaint not only because of the very favourable legal ruling of the International Court of Justice in 2004, but also because since that date Israeli justifications in terms of stopping suicide bombers are clearly disprovable and because the environment and social impacts of building the barrier are so much more apparent.

      Reply to Comment
      • Yeah, Right

        Exactly. The illegality of the settlements should be THE issue for the court.

        After all, it ticks all the boxes:
        1) Israel most definitely will not launch its own investigation into the criminality of these settlements. Indeed, it denies that this is even a crime.
        2) The offense itself is explicitly defined as a war crime under the Rome Statute.
        3) The seriousness of the crime is not in dispute, since the very purpose of these settlements is to prevent the Palestinian state from being viable
        4) The perpetrators of this crime are all identifiable, starting with the Israeli PM and his cabinet.

        It really is this simple: if that crime can before the court then Netanyahu is toast, as is every Israeli PM who came before him.

        So why not start with the Big Fish.
        The small fry can wait.

        Reply to Comment
        • Bryan

          I’m sure you are aware, Yeah Right, of the great presentation that British MP and ex-minister Alan Duncan gave on the illegality of settlements, but if not see: https://www.rusi.org/events/ref:E5409871BBC25A#.VRaAiOFNrKA

          Whilst the international community has been virtually unanimous regarding the illegality of the settlement project no concrete action has been taken whilst we have had the ongoing pantomime of a peace process, despite the fact that settlements are intended to make a two state solution impossible. Now that that fig-leaf has gone, and Netanyahu has clarified his opposition, the vital step is for the USA and the EU and the UN to restate that this is clearly illegal and that aiding and abetting the enterprise is criminal. This can be done with or without the participation of the World Court. Once this is in place the US Internal Revenue Service, the British Charity Commission and others can remove the tax-exempt status of the huge foreign donations that fund settlement, and indeed prosecute the transfer of such funds altogether. Once funds dry up for illegal criminal activity sanity can start to return to the region, a host of associated steps are also possible, as outlined in this superb article: https://consortiumnews.com/2015/03/26/the-tangle-of-us-israeli-double-standards/

          Reply to Comment