Palestinian authorities are sending strong signals that they intend to apply for membership of the International Criminal Court as the nearly one-month long conflict between Israel and Hamas took a pause on Tuesday for a 72-hour ceasefire. Palestinian foreign minister Riad al-Malki met with ICC prosecutors at The Hague in an apparent bid to launch the process of investigating alleged Israeli war crimes in the occupied Palestinian territories.
Al-Malki’s gesture is a significant one; the threat of becoming party to the Rome Statute, which would grant the court jurisdiction in the occupied territories, is one of the few pressure tactics the Palestinian Authority can draw on with some success in its international dispute with Israel. It was one of the primary concerns Western governments had in confronting the Palestinian Authority’s successful bid for nonmember observer state status at the United Nations in 2012— a move that gave it the recognition necessary to pursue an ICC membership bid.
Over the course of the last month’s fighting between Israel and Hamas in Gaza, the PA has been almost entirely politically marginalized. So it does make some sense that, even despite strong U.S. and European pressure, they are now attempting to invoke the ICC issue, which would at least give them the appearance of relevance here.
Palestinian officials have stopped short, however, of guaranteeing that they will actually go through with the bid. There are, after all, clear risks involved in the event that the application is successful. Any potential ICC investigation in the Palestinian territories could just as easily hold Palestinians accountable for war crimes as well. This is significant for Palestinian President Mahmoud Abbas, who is under serious pressure from his supporters to pursue the bid, as it would likely hold implications for Hamas, which would have to be party to the effort.
Hamas appears to be playing coy thus far in the face of Palestinian chief negotiator Saeb Erekat’s urging of all factions to sign a document in support of the effort.
Saeb Erekat says Hamas leader Khaled Mashaal delaying Palestinian effort to join International Criminal Court “Wants time to study request”
— Khaled Abu Toameh (@KhaledAbuToameh) August 4, 2014
And, according to Haaretz, the chief negotiator will press forward regardless:
Erekat said that if Hamas and Islamic Jihad did not sign, he would demand that Palestinian President Mahmoud Abbas order the signing of the Rome Statute of 2002, the treaty that established the International Criminal Court.
Even in the event that the Palestinians are able to present a united front and successfully petition for membership, there is the additional fear that should they present a case, the ICC might find that it has no jurisdiction, what Washington Post writer Eugene Kontorovich called “Palestine’s Egypt problem”:
…recent developments show that even if the OTP accepts that Palestine is a state – ignoring objective tests – it would conclude that the PA cannot accept jurisdiction on behalf of that state, certainly not for Gaza. In May, the OTP just rejected an attempt by Mohammed Morsi, the first democratically elected president of Egypt, to invoke the Court’s jurisdiction over his country under article 12(3). The OTP concluded that when Morsi filed the declaration last December, he was no longer the head of state for Egypt.
As important as asserting its relevance may be for the PA at the moment, the risks of following through on the ICC bid are higher than Abbas may be able to stomach. Given the choice between putting the brakes on the bid and being thought irrelevant and moving forward and removing all doubt, the PA is likely to opt for the former option. Nonetheless, they are almost certain to gesture towards their pursuit of ICC membership for the sake of their increasingly frustrated supporters.