ICC Threats Conjure Worst-Case Scenario for Israel

January 1, 2015  

The Palestinian Authority’s application for membership in the International Criminal Court (ICC) and threats to press charges against Israel there is its diplomatic equivalent of “an atom bomb” against the Jewish state, a legal expert has said – but the move could seriously backfire as well.

Since the United Nations granted “Palestine” the status of a non-member observer state in November 2012, the PA has been technically able to sign the Rome Statute and join the ICC. International pressure – particularly from the PA’s biggest donor, the United States – prevented them from doing so until now, but after Tuesday’s failed bid for statehood at the UN Security Council, Abbas pledged to join the ICC and lodge charges against Israel there. On Wednesday evening he took the first step, signing the request along with applications to join 20 other international conventions during a meeting broadcast live on PA television, despite US criticism.

Speaking to Arutz Sheva, Shurat Hadin legal center’s director Nitsana Darshan-Leitner said that if Abbas follows through on his threats, the PA’s case would likely center around alleged war crimes committed by the IDF during the past summer’s war with Gazan terrorists, as well as “settlement-building” – a euphemism for any Jewish communities built in Judea, Samaria, and large parts of Jerusalem.

The veteran attorney and legal campaigner warns that if such a case is launched the prospects for Israel are bleak.

“Israel will of course try to defend itself, but chances are they will lose. And if they lose and they’re convicted for war crimes, it would be a game-changer. It would drop Israel to the bottom tier internationally,” she said.

Darshan-Leitner emphasizes that her pessimistic prediction is not borne out of a lack of confidence in Israel’s legal position. On the contrary, she believes Israel can – and would – make a very strong defense case on either issue were it forced to do so. The problem, she says, is a political one.

The ICC has faced serious criticism over the years for only focusing on “third-world” countries, and particularly the African continent, (since its founding in 1998 all eight cases handled by the ICC have been in African states,) and there is heavy pressure for the court to also try a “western” or allied country as well to dispel those allegations.

“They need to take a different type of case, and they would gladly take upon themselves the Arab-Israeli conflict… it’s a more interesting and sexier issue to be involved with, and there is tremendous pressure from countries all over the world for the court to get involved.”

Despite that pressure, until now the ICC has been unable to get involved due to a lack of jurisdiction.

Following Operation Cast Lead in 2008-2009, the Palestinian Authority did ask the ICC’s prosecutor’s office to investigate accusations of war crimes it leveled against the IDF. However, the prosecutor’s office said the PA’s status at the United Nations meant that it could not sign up to the Rome Statute, leaving it to the “competent organs of the UN” to decide on the PA’s future status as a state. With the 2012 decision to grant it “non-member observer state” status, that has all changed.

But could the move be a blessing in disguise, providing Israel with an opportunity to decisively knock down the many allegations against it in the international arena – including both the legality of “settlements” and alleged war crimes – once and for all?

“No, this is a biased court,” Darshan-Leitner answers bluntly.

“Of course Israel will bring international legal experts and explain why the territories (Judea-Samaria) are only disputed, not occupied, and how Jordan never had a right to them in the first place, for example – but Europe, and many other countries, have a different perspective,” and it’s from that political perspective that the ICC will analyse the case.

“Once Israel is charged with war crimes it’s the ‘end of the game’ – that’s why Israel should do whatever it can not to be charged.”

If found guilty, “Israel would have to extradite to the court those individuals or officials, IDF commanders, etc, who will be individually charged for war crimes. Israel will obviously refuse to do so – Israel is not insane, so it’s not going to extradite its own people to be blamed for war crimes – and then as a result Israel will be sanctioned… then there will be a real boycott against Israel from the court’s member states.

“In addition, the court will issue arrest warrants against those individuals; Interpol will make it international and those people won’t be able to leave the country – it will snowball.”

There is hope, however. If the ICC is Abbas’s “doomsday weapon”, Israel’s hope lies in deterrence. “That’s what were working on.”

Joining the Rome Statute is a calculated risk for the PA, since by accepting its jurisdiction it will make itself vulnerable to war crimes charges as well. Already, legal experts including the PA’s own UN human rights envoy and a former ICC chief prosecutor have cautioned that the move could backfire in a big way, leading to counter-prosecutions of officials from all the Palestinian factions over war crimes committed against Israelis.

Indeed, Shurat HaDin has already threatened a “tsunami” of prosecutions if the PA chooses to file charges against Israel at the ICC.

The NGO has already made good on its threats following unilateral actions by the PA in recent months, launching charges against Mahmoud Abbas himself as well as Hamas’s Qatar-based terror chief Khaled Meshaal – both of whom are Jordanian citizens and thus already covered by the ICC’s jurisdiction.

Should the PA succeed in joining the Court, Shurat HaDin is already preparing a long list of other Palestinian leaders to target with a wide range of charges.

“It could be crimes committed during the Intifada against Israelis – all the suicide bombings, all the drive-by shooting attacks. All the heads of the different armed factions have superior liability over what was done by their forces,” Darshan-Leitner explains.

“And there are also crimes committed against the Palestinian people themselves,” from torture to public executions and the use of human shields, she adds.

But won’t the ICC just dismiss such cases for the same political reasons she cited?

“Nobody knows for sure – and that’s why it’s a deterrent for the Palestinians, because they don’t know how the court will take these cases. I find it hard to believe though that the court would agree to prosecute Israel and not the Palestinians.”

But she cautions that, even though Palestinian leaders will also likely end up in the dock, it wouldn’t undo the damage done to Israel.

Short of coaxing the Palestinian Authority back to the negotiating table, the only way to stave off an ICC prosecution would be via a combination of threats of counter-prosecution, and concerted political pressure.

“The US has threatened to cut all funding to the PA and even UNRWA if they go through with such a move, and obviously Israel will cut off all funding as well,” she notes. “And the Palestinian Authority relies almost entirely on American and Israeli funding.”

The many vocal backers of the PA such as Arab states and the European Union have a poor track record of coughing up the goods, “so if that happens it will essentially collapse.”

With those considerations in mind, an ICC prosecution is Abbas’s “weapon of last resort.”

And it appears the only real deterrent Israel currently holds in the threat of mutually-assured destruction.

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