Analysis |

ICC Decision Makes the Israeli-Palestinian 1967 Lines Relevant Once Again

The prosecutor’s decision to launch an investigation into possible war crimes by Israel was made possible by the UN decision to grant the Palestinians state status in 2012

Amira Hass
Amira Hass
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Palestinian President Mahmoud Abbas speaking at the UN Security Council in New York last year.
Palestinian President Mahmoud Abbas speaking at the UN Security Council in New York last year.Credit: Seth Wenig / AP
Amira Hass
Amira Hass

Only a state can grant the International Criminal Court jurisdiction on its territory. The United Nations made possible the ICC prosecutor’s decision to investigate alleged war crimes in the Palestinian territory Israel occupied in 1967 when it granted the PLO’s request to recognize this occupied area and its people as a state called Palestine.

The public received this UN resolution, from November 29, 2012, with a yawn. In contrast, the ICC prosecutor’s statement Wednesday was received like a fresh breeze. The Fatah movement will presumably take advantage of this necessary but forgotten link in its election campaign, though when Mahmoud Abbas chose the diplomatic route of achieving state status, he wasn’t thinking about the ICC.

On the contrary, he was under pressure by the United States and Europe not to take this legal route in the international arena. He hoped that the “threat” of state status and later the status itself would improve the Palestinians’ positions and revive the negotiations with Israel on implementing the Oslo Accords.

The connection between prosecutor Fatou Bensouda’s decision and state status marks the 1949 cease-fire line in bright green once again – it gives relevance to the Green Line. A Palestinian involved in the moves toward the ICC option told Haaretz: “If I’m in Tel Aviv and five Jewish Israelis beat me and the police stand by watching, the case wouldn’t be brought to The Hague as a war crime. I’d complain to the police and hope the assailants were brought to trial.

“If five Israeli Jews beat me while I was farming my land in the West Bank, and soldiers stood by and the legal authorities didn’t do a thing to punish the attackers, or if five cops beat me up in Isawiyah in East Jerusalem, it could certainly be included among the war crimes.”

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Choosing the ICC course is seen as a daring step, albeit an obvious one, in the Palestinian struggle against the occupation. For years Palestinians have uttered the letters ICC as a magic balm to decrease the pain. The ICC is seen as virtually the only opportunity to tip the scales in the Palestinians’ favor when the world is getting increasingly used to the Israeli occupation, which is becoming increasingly violent and brazen.

Chief Prosecutor Fatou Bensouda at the International Criminal Court in The Hague in 2018.Credit: Bas Czerwinski/AP

The power of the rights groups

Unlike the route of going to The Hague, receiving the status of a “non-member observer state” at the United Nations on November 29, 2012 was seen largely as symbolic, or an artificial resuscitation of a leadership now feckless because it had failed to keep its promises to the people. In the radical Palestinian wing, going to the United Nations for state status was seen as abandoning the refugees, renouncing the right of return and accepting an Israeli occupation from 1948 as a done deal.

The entities that turned the symbolic, compliant path – at least in some Palestinians’ eyes – of state status into a springboard for action that could undermine the status quo and put Israel on the defensive are Palestinian rights groups. For years, directors at Al-Haq, Addameer, the Al Mezan Center for Human Rights and the Palestinian Center for Human Rights went back and forth between The Hague and the president’s office in Ramallah, the Justice Ministry and the PLO’s negotiating department. They prepared thick files with what they considered incriminating material on possible Israeli war crimes. Thanks to their efforts, the possibility of going to The Hague as part of the struggle filtered down to the Palestinian public, Fatah’s ranks and the movement’s young people.

Under pressure from these organizations, the Palestinian Authority’s first attempt to approach the ICC – that is, to say it recognizes the ICC’s jurisdiction in the 1967 territories – came in January 2009, immediately after Israel’s first big attack on Gaza in the winter of 2008-09. The ICC prosecutor at the time considered the request for more than three years and in April 2012 ruled that according to the Rome Statute (the source of the court’s authority) only a state can accept the court’s jurisdiction.

Abbas calling on the UN General Assembly to vote in favor of recognizing Palestine, November 2012.Credit: AP

More confrontational than usual for Abbas

A few months earlier, in September 2011, Abbas missed the opportunity to receive state status. He decided to ask the Security Council that Palestine (in the pre-1967 borders, in keeping with the PLO’s declaration of independence in 1988) be accepted as a UN member, though it was clear the request would be denied.

Some of the people advancing The Hague idea believed that addressing the Security Council was deliberate, intended to postpone the decision on the request to the ICC – again due to the European and American pressure. Another year went by, during which indirect Israeli-Palestinian talks were attempted. When that too turned out futile, the Palestinians went to the United Nations again and in November 2012 the General Assembly recognized the State of Palestine as a non-member observer, alongside the State of Israel.

Still, two years passed until Abbas declared he was signing the Rome Statute, on December 31, 2014. The Gaza war the previous summer, the realization that Israel’s government was deliberately perpetuating the interim phase and the popular demand for an initiative pushed Abbas to choose the course that was more confrontational to Israel than his usual inclination.

Abbas also had a declaration initiated by Saeb Erekat, which the various Palestinian organizations signed, saying they supported joining the ICC and were willing to bear the consequences; that is, that the members of these organizations could be summoned, interrogated and even arrested on suspicion of committing war crimes. Only Islamic Jihad didn’t sign.

After more than 12 years of perseverance, Al-Haq director Shawan Jabarin can say: “I was convinced Bensouda would withstand the tremendous pressures put on her to resist our requests, and I was right. I’m convinced that ultimately arrest warrants and summons will be issued to Israelis suspected of war crimes. When? I don’t know. But it will happen. We’re not seeking revenge but proof that justice can be done.”

Jabarin added: “Israel is tainted with the blindness of arrogance, of someone who feels above the law. But you don’t have to philosophize much to see that it’s possible and right to sue Israelis responsible for war crimes under an international treaty.”

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