Abbas Moves Toward ICC After UN Failure

The Palestinian Authority (PA) has now moved a step closer to making good on its threat to go to the International

Criminal Court (ICC) and bring charges against Israel. There is little doubt that this was a move Palestinian President Mahmoud Abbas tried desperately to avoid. In the end, he was forced to do it by a combination of U.S.-Israeli rejectionism, Palestinian desperation to do something to try to end Israel’s occupation, and his own many missteps.

Abbas signed on to 18 international agreements after the quixotic attempt to pass a resolution at the United Nations Security Council (UNSC) predictably failed. Among them was the 1998 Rome Statute, which established the ICC and took formal effect in 2002. This is the step that the U.S. and Israel have warned Abbas against most strongly. Among all the “unilateral steps” the Palestinians could take (which, one should note, is no more “unilateral” than any number of actions taken by Israel on a routine basis), this is the one Israel worries about most.

The reason, of course, is obvious. Israel knows it has committed war and other international crimes—some very serious—in the course of its occupation. While Israel generally scoffs and waxes indignant at critical world opinion, it is concerned that being hauled before the ICC could further negatively impact public and elite opinion in Europe, Israel’s main trading partner, where patience with Israeli policies has grown ever thinner.

Abbas knows only too well that he risks losing what little power he has in the West Bank. There are many ways this move can blow up in his face, and most of the roads to success are going to take more time than he has. That he has taken this step testifies to his desperation.

When, on behalf of the Palestinians, Jordan submitted its resolution to the UNSC last month, it did so under tremendous pressure from other Arab states. Abbas and Jordan’s King Abdullah had preferred to wait until France was ready with its own resolution, which the United States had strongly hinted it would support, or at least not oppose. Abbas knew full well that, even if the Palestinian resolution had mustered the nine votes needed to pass the UNSC, Washington would have vetoed it. Approval of the French version, while toothless and lacking a fixed deadline to end Israel’s occupation, would at least have had virtue of demonstrating the international community’s insistence on a two-state solution.

But internal pressure to submit the Palestinian version, as well as the external pressure that turned out to be decisive, seems to have pushed the French version to the back burner, at least for the time being. With the expected failure of the Palestinian resolution at the UNSC, Abbas was forced to carry through with his threat to sign the Rome Statute, a move that many Palestinians, including many in his own Fatah faction, had been clamoring for ever since the 2012 U.N. General Assembly vote that granted Palestine non-member observer state status, thus enabling it to join international agreements and UN specialized agencies.

In the long run, this is a move that could pay off for the Palestinians, but it carries enormous risks, especially to the PA. The most obvious and immediate threats lie with the responses that can be expected from Israel and its most important foreign backer, the new Republican-led U.S. Congress. Many in Congress have made it clear that they intend to push for suspension of aid to the PA if it signs the Rome Statute. And Israel will surely ramp up its settlement expansion and likely once again withhold taxes it collects on the PA’s behalf. The resulting economic impact could very well lead to the PA’s collapse.

That outcome has been forestalled in the past by Israel’s recognition that the security and economic costs it would inherit would be exorbitant. Israeli officials not only allowed their own cooler heads to prevail, but also urged restraint on their friends in Congress. Despite the recent splash the Labor Party made by joining forces with peace process veteran Tzipi Livni, Bibi Netanyahu’s main challenge still comes from his right in the elections scheduled for mid-March, and he can’t afford to look soft on the Palestinians.

That certainly won’t help Abbas. He knows the dangers that confront him. Moreover, the approach to the ICC carries another risk. Even if Abbas survives the Israeli-U.S. response, it is very possible that Hamas will also face charges at the ICC. The case against Hamas, while covering crimes involving far less destruction and loss of life, is also more clear-cut than one likely to be brought by the PA against Israel, whose acts in Gaza and in the day-to-day occupation of the West Bank will require lengthy investigation. Should Hamas find itself on the losing end of the law before Israel does, Abbas’s position is likely to weaken further.

Despite his moves toward internationalization, Abbas still much prefers to work with Washington. U.S. fecklessness in the face of persistent Israeli opposition to any diplomatic initiative, however, has essentially brought him to this Rubicon. And his own clear reluctance to cross it will itself likely diminish the chance of success.

Under the Rome Statute, the Palestinians will not be able to formally file any cases with the ICC prosecutor for 60 days from the date of signing. That time will certainly be used by the Obama Administration, which will no doubt argue that such a filing could bolster the Israeli Right in the critical final days of the election campaign, to pressure the Palestinians against going forward. Still, the repeated failure of the Security Council to address the occupation in any substantive way, coupled with the failed history of the U.S.-brokered peace process, has sent the Palestinian people the message, however unintentionally, that diplomacy and cooperation are dead-end strategies. That is going to lead to more Palestinians embracing the violent paths called for by Hamas and other, considerably more militant, factions.

At the same time, Palestinians have seen the futility of armed struggle over the decades. Failure at the UNSC and joining the ICC — but then forgoing charges against Israel – will only increase Palestinian despair and desperation. That will no doubt lead to more of the kind of “lone wolf” attacks that Israelis endured in 2014.

The one party that could make a difference is the European Union (EU). It can exert serious pressure on Israel of a kind even the United States cannot match. The EU accounts for nearly one-third of Israel’s export business. (By comparison, the U.S. accounts for just under one-quarter). Labeling settlement products (as some EU countries currently require, but don’t generally enforce) could be a first step. And if it is couched as a warning that sterner measures are in the offing, the impact on Israeli thinking could be significant, perhaps even a game-changer.

Indeed, ultimately, that sort of European action is what Israel fears. If the Obama administration wants to see a reversal of the downward spiral its own peace-making efforts have helped create in Israel-Palestine, it could quietly encourage the EU in that direction.

Such a course would be wise. Abbas’s strategy of relying entirely on U.S. help to pull him through has clearly failed, and his reign, whether due to a P.A. collapse or just his own advancing age, will not last much longer. He has no clear heir apparent, so what comes after is a mystery. The United States won’t exert significant pressure on Israel in the near future, and, absent some unanticipated shock, Obama’s successors in the White House are unlikely to spend as much political capital as he has on resolving the conflict. The pressure must come from Europe and from the Palestinians using whatever international tools are at their disposal.

This is, after all, just what was always demanded of the Palestinians—that they pursue their goals without recourse to violence. If a peaceful path to statehood is denied them, ongoing and escalating violence is all we can expect to see.