To take Israel to court, Palestinians say they're willing to pay the price

The Palestinian decision last week to join the International Criminal Court (ICC), through which Palestinians plan to recommend legal action against alleged Israeli crimes in the West Bank and Gaza Strip, could incur a fairly high cost.

Israel initially responded by withholding $127 million in tax revenues it collects on behalf of the Palestinian Authority – roughly equivalent to a month’s worth of PA salaries. It has also threatened further punitive measures. And more than $400 million in annual US aid would be imperiled if the PA initiates action against Israel at the ICC.

But the Palestinian leadership remains unmoved.

“Deterring one Israeli soldier from murdering one Palestinian child is worth every penny and every suffering and not having salaries,” says Husam Zomlot, an economist and senior foreign policy adviser for the dominant Fatah party. “Our major issue here is not that of salaries, our major issue is that of the status quo and the [Israeli] occupation.”

At issue is how Palestinians can best establish an independent state and protect their rights after 21 years of failed negotiations to end the decades-long conflict with Israel.

Palestinian leaders describe accession to the ICC – established to prosecute war crimes, crimes against humanity, and genocide – as imperative to protecting Palestinian rights, which they argue are undermined by Israeli occupation.

Israel, however, sees Palestinian accession as a unilateral move that undermines the prospects of peace, and has accused Palestinians of being the real war criminals in the conflict. Hamas and other Palestinian militant groups openly acknowledge targeting civilians.

The Israeli government has held a series of meetings to discuss further retaliatory measures. Previous punitive actions have included an acceleration of Palestinian home demolitions, a suspension of family reunification paperwork for Palestinian spouses or relatives, and revocations of VIP passes that facilitate travel for Palestinian politicians and businessmen.

And the prospect of a Palestinian victory at the ICC is not at all imminent. First, the court would need to recognize Palestine as a state, following the example of the United Nations General Assembly in November 2012. Then, the Office of the Prosecutor (OTP) would have to agree to investigate situations raised by Palestinians, the first two of which are likely to be last summer’s Gaza war and ongoing Israeli settlement activity. However, such investigations could also expose Palestinians to legal action brought by Israelis.

Palestinians have widely been seen as eligible to join the ICC since the General Assembly’s recognition in November 2012, but the US and Israel warned that doing so would cross a red line.

After the collapse of US-mediated peace talks last year, however, Palestinians say they have little choice but to seek international legitimacy and legal protection for their cause.

“Palestine is joining a human rights treaty. We’re not joining Al Qaeda or ISIS,” says Xavier Abu Eid, an adviser to the Palestinian negotiating team. “Why is asking for justice a right for everyone, but for Palestinians it’s an issue of negotiation? Our rights are not up to negotiations.”

Many see PA President Mahmoud Abbas’s decision to appeal to the ICC as a combination of a loss of faith in the US as a peace-broker and of rising domestic pressure. The summer war in Gaza boosted support for Hamas and its doctrine of armed resistance against Israel, weakening Abbas. In addition, his support for continuing the PA’s security coordination with Israel, helping to thwart attacks against Israeli targets, has brought increasing criticism.

“People are increasingly saying, ‘What are you doing? It’s starting to look more and more like you’re collaborating with the occupation rather than resisting it,’ ” says Diana Buttu, an international human rights lawyer and former legal adviser to the Palestinian negotiating team.

Mr. Abbas was elected 10 years ago this week for a four-year term, but the PA says a split between Hamas and Fatah since 2007 has prevented fresh elections from being held. In the meantime, Abbas has consolidated the power of the executive and come under substantial fire by critics who say he has ignored the wishes of the people in an effort to placate both Israel and the US.

With Israeli-Palestinian tensions at one of their highest points since the second intifada petered out about a decade ago, some leaders say it’s dangerous to allow the status quo to persist any longer. Absent a return to armed violence, as Hamas is advocating, international legal action is seen as the only option. And while Israel says that undermines peace, Palestinians argue that it could provide urgently needed proof that their national aspirations can be realized without resorting to violence.

“On the contrary, it strengthens those who say diplomacy and nonviolence are the way to move forward,” says Mr. Abu Eid.

The move could hurt the PA economically, however. Under US law, Washington – the largest single foreign donor to the PA – could withhold its $400 million in annual aid to the PA if it seeks action against Israel at the ICC, the rationale being that such action would harm the peace process.

That amount – about 10 percent of the PA’s budget last year, could potentially be replaced by other sources. The Arab League has committed to send $100 million to the PA if Israel cuts off the transfer of tax revenues, and Saudi Arabia has stepped in before to keep the PA going.

In Ramallah, however, there is palpable frustration that the US has opposed the move to join the ICC, given its Bill of Rights and values of freedom and democracy.

“We want to tell our people, ‘Yes We Can, Mr. Obama, challenge the status quo peacefully, legally, and diplomatically,’ ” Zumlot says.