Why is Abbas refusing to sign the Rome Statute?

This is the question that is etched on everyone’s mind. If there is only one issue that Palestinians agree upon today it is the need for President Mahmoud Abbas to sign the Rome Statute. That would clear the way to file charges in the International Criminal Court (ICC) against Israeli officials for alleged war crimes and crimes against humanity.

By stalling the process Abbas has committed three cardinal errors. First, he has enabled Israelis to escape punishment; second, he has undermined and squandered the international support for Palestinian rights; and third, he has failed to answer to the call of the ICC and the Assembly of States Parties (ASP) issued one year after Palestine became a non-member state of the UN.

On 27 November 2013 the ASP to the Rome Statute adopted a resolution inviting “States not yet parties to the Rome Statute of the International Criminal Court, to become parties to the Rome Statute, as amended, as soon as possible.”

In an obvious attempt to clear the air once and for all, the ICC’s Chief Prosecutor Fatou Bensouda wrote on the Guardian’sComment is Free pages an article headed “The truth about the ICC and Gaza”. She confirmed that “Palestine could now join the Rome Statute” after the UN General Assembly had formally recognised it as a non-member state on 29 November 2012.

As it stands, the onus is squarely upon Abbas personally. In a letter to the Paris-based legal firm Gilles Devers & Associes, which is acting on behalf of the Palestinian Authority, Bensouda said on 14 August, “In accordance with article 7 of the Vienna Convention on the Law of Treaties (VCLT), only the Head of State, Head of Government and Minister of Foreign Affairs are considered lawful representatives of a State by virtue of their functions and without having to produce full powers, for the purpose of expressing a State’s consent to be bound by a treaty.”

Despite the overwhelming support among Palestinians, the Director-General of the human rights organisation Al Haq, Shawan Jabarin, explained that in the past the PA had deferred its signing of the Rome Statute because it was unwilling to anger Israel, America and some European countries. At other times it claimed that it was awaiting the agreement of the Palestinian factions, particularly Hamas. Abbas insisted that the resistance movement should give a written undertaking of support to approach the ICC, acknowledging that it bears full national and international responsibility for the consequences.

In late August, Hamas duly signed the document as stipulated but still no steps have been taken to sign the Rome Statute. With this agreement from Hamas it seemed that Abbas would have no further excuse for not putting his signature to the document. All that is needed is a formal letter from the Palestinian president to UN Secretary General Ban Ki-moon announcing that Palestine has accepted the Statute.

So, could it be that Mahmoud Abbas is himself afraid that he could be prosecuted? That may be so. This is a constant ploy used against him. In April of this year at the International Criminal Court (ICC), an Israeli lawyer, Mordechai Tzivin, lodged a complaint against Abbas and nine members of Hamas for war crimes, crimes against humanity and crimes of aggression. This did not deter Hamas from signing the agreement. On 3 September, The Israel Law Centre announced that it had formally requested the ICC’s prosecutor to open an investigation into war crimes committed by Hamas leader Khaled Meshaal during “Operation Protective Edge”, Israel’s brutal military attack against the civilians of the Gaza Strip.

According to the Rome Statute, the ICC’s jurisdiction includes individuals who are citizens of a state that has ratified the treaty, individuals who commit their alleged crimes on the territory of a state party and cases referred to the ICC by demand of the UN Security Council. While the ICC’s chief prosecutor may under article 15 initiate investigations against those who have committed serious crimes without a formal request from a state or a concerned party, the PA does not have the luxury of time to wait for this to happen.

For Palestinians living under Israeli occupation, signing up to the Rome Statute has been long overdue. While they have no illusions that it will bring an immediate end to their suffering and Israeli crimes, it would mark a major step towards that end. Currently, many Israeli officials will only travel to Europe if they are granted special diplomatic immunity from prosecution under Universal Jurisdiction Laws. The long arm of the law is finally catching up with them but, as Mary Robinson, the former United Nations High Commissioner for Human Rights, once said, “The ICC will work when you, the eyes and the ears of the international community, observe, defend, report and inform the rest of the world about what is happening.”

For the Palestinians, it will work when their president, Mahmoud Abbas, overcomes his deep-rooted fears and places the interest of his people above all else.