Analysis

The Hague: The Reason the Palestinians Are Jubilant and Israel Is Spooked

The fresh support from the Security Council could cause the prosecution in International Criminal Court to dare to move ahead from a preliminary examination to an investigation on the settlements.

A Palestinian protester, dressed as Santa Claus, during a protest against the Israeli barrier, in the West Bank village of Bilin, December 23, 2016.
MOHAMAD TOROKMAN/REUTERS

On Thursday, after Egypt postponed the submission of its proposal for the resolution on the matter of the settlements, Palestinian President Mahmoud Abbas called Egyptian President Abdel-Fattah al-Sissi and said to him: “We will forge ahead even without you,” a PLO official told Haaretz.

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And indeed, the Palestinian delegation to the United Nations headed by Riyad Mansour did not let the shock of the Egyptian about-face paralyze it but rather immediately began to act with the other member nations who signed the proposal and their foreign ministries to ensure its swift submission for a vote in the Security Council.

>> Behind the scenes: How Palestinians got the UN Security Council to vote on settlements <<

The last time the Security Council passed a resolution condemning the Israeli settlements (in all the territories occupied in 1967 including the Syrian Golan Heights) and unanimously, with the U.S., was in March of 1980, Resolution 465. Then it was still calling for dismantling the settlements and exhorted both the government of Israel and the people of Israel to rescind the measures being taken for the establishment of new settlements. In Friday’s Resolution 2334 the demand to dismantle the settlements does not appear and the people of Israel are not addressed – only the government.

In the 1980 resolution there is reference to a “serious depletion of natural resources, particularly the water resources in the occupied territories." The current resolution does not mention this phenomenon, which has only worsened. It does mention “the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law.”

The 36 years that have elapsed and the differences between the two resolutions stress what is well-known: Especially in the Israeli context, these resolutions have no teeth but nevertheless the Palestinians are gleeful and Israel is seething.

Read more on the Security Council resolution:  It's the settlements, stupid: UN failure is entirely Netanyahu's / Analysis | Obama, where have you been for 8 wasted years? / Analysis | Why the Palestinians are jubilant and Israel is spooked / Analysis | Security Council punch knocks Netanyahu down from hubris to humiliation

The entrance of the International Criminal Court (ICC) is seen in The Hague, Netherlands, March 3, 2011.
REUTERS FILE PHOTO/REUTERS
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The reason for the satisfaction on the one side and the fury on the other is the same: the International Criminal Court in The Hague. Two years ago, on January 1, 2015, Abbas signed a declaration on behalf of “the State of Palestine” saying that it accepts the court’s jurisdiction on activities carried out in its territories since June 13, 2014 (that is – it was applying to the court to examine suspicions that war crimes had been committed in its territories). On the day before, December 31, 2014, Abbas signed a request to join the Rome Statute (on the basis of which the court was established).

He did this largely under Palestinian public pressure from below because he could no longer deny the pan-Palestinian conclusion that Israel did not want peace. In the documents submitted to the court in The Hague there is information about suspicions of war crimes Israel committed in Gaza in the summer of 2014 and in the settlements. The prosecution in The Hague is still conducting an initial examination to decide whether to investigate suspicions of war crimes beginning on June 13, 2014.

Not only the Palestinian Authority (“the State of Palestine”), which by its very nature moves slowly, can propose the examination of suspicions of war crimes in its territory. Non-governmental organizations can also do this, as four Palestinian human rights organizations did on November 22 when they submitted to the prosecution in The Hague a 145-page document that details the factual and legal basis for examination of the suspicion that the blockade on the Gaza Strip is a war crime.

All this notwithstanding, international law specialists and others are recommending to the Palestinians that they focus on the settlements and submit to The Hague information about war crimes committed with their establishment and expansion. In contrast to the war in Gaza, there is no fear that the investigation and perhaps the indictment will also be directed at Palestinians. From the emotional perspective, it is hard for the Palestinians to relinquish the demand to declare the attack on Gaza a war crime and a crime against humanity.

However, officials in the Palestinian Authority are indeed focusing on the settlements – about which open information that is not given to interpretations and debate is abundantly available. The fresh support from 14 Security Council member states for the decision explicitly stating that the settlements (and the acts of demolition and displacement connected to them) are in violation of international humanitarian law – and the Americans’ explanations for their abstention – could cause the prosecution in The Hague to dare to decide to move ahead from a preliminary examination to an investigation.

The resolution is definitely encouraging Palestinian officials to continue to provide the prosecution in The Hague with detailed (and very available) information and legal evidence concerning the continued building in the settlements. Unlike the Israeli High Court of Justice, international humanitarian law and the Rome Statute make no distinction between building settlements on private land and building them on public land: The first considers them a violation, the latter – a war crime.

Abbas needed the decision not only for Palestine but also for internal political reasons. Just a day earlier, it seemed that Abbas was at rock bottom (in a public opinion survey, with two-thirds of the respondents wanting him to resign) and his strategy bankrupt. And indeed, from the joyful reactions, it is possible to conclude that at the moment the situation has been reversed.

Abbas’ strategic adviser Husam Zomlut told the Palestinian news agency Ma’an that the resolution is a victory for the Palestinian president’s policy. Among those offering congratulations for the outcome of the vote were spokespersons on behalf of the Hamas movement and the Popular Front, even though the resolution condemns terror and calls for the continuation of the security cooperation between the PA and Israel. In a roundabout way, the Popular Front is translating the terror provision differently, saying in its congratulatory remarks that it is the Palestinians who are the victims of terror and that their struggle against the occupation is based on international law. However, the congratulations expressed by Abbas' rivals – and the satisfaction of human rights organizations that are very critical of his dictatorial rule – are also a way to acknowledge the logic behind his diplomacy tactics.