The legal war to end the occupation

When Palestinians finally gain admittance to the International Criminal Court (ICC) at The Hague it will spark the beginning of a truly legal war, as the move will be regarded as a breach of the negotiation terms imposed by the US and Israel. This fact notwithstanding, the Palestinian leadership views this decision as the latest and most effective way for it to counter Israel’s resistance to Palestine’s membership of international organisations. Palestine’s entry to the ICC will mean that any Palestinian individual or group has the right to file a lawsuit against any Israeli official who is believed to have committed a war crime against the Palestinian people. This development will create a new front for the Palestinians, wherever they may be, as they continue to struggle against the Israeli occupation.

However, it must also be said that should the Palestinian Authority (PA) use this step as a trump card for use in the negotiations, then this would have the unfortunate effect of putting the Palestinians in the same position in which they have always found themselves. Such a move would be dangerous and would strip Palestine’s entry to the ICC of its value, because it would force the Palestinians once again to consider the non-negotiable factor of having to ensure Israel’s security at the expense of Palestinian security and livelihood. If this is truly what the Palestinian Authority intends to do, it is wholly unacceptable.

It remains unclear whether or not the PA is aware of the fact that entry into the international tribunal would undermine and negate Israel’s argument on security and eradicate the need for the PA to coordinate on such matters with the occupier. In fact, if Palestine accedes to the ICC it would render Israel’s argument completely irrelevant and confirm the illegality of its policies. The status quo justifies Israel’s violations against Palestine and Palestinian land upon its alleged right to ensure absolute security for Israel above all else. However, Palestine within the ICC would confirm what has long been obvious: Israel’s occupation is illegal under international law and cannot be justified in any way.

The problem cannot be summed up by Israel’s killing of innocent civilians despite the fact that this is a breach of international law. On the contrary, the problem in its essence centres on the reality that the occupation is itself a breach of the very principles underpinning international law. Any attempt to summarise this conflict based on the killing of civilians deprives the Palestinian people of their right to resist the illegal occupation. Thus, we see that not only is Palestinian resistance currently being criminalised but the people resisting are being criminalised as well; this means that the decision to head to the ICC will not be enough on its own without a review of certain cases to assess the legal foundations of this conflict generally. All of these factors depend on the PA’s seriousness about its approach to the ICC and whether or not the leadership really plans to present the case against Israel’s recent bombardment and invasion of the Gaza Strip or whether Mahmoud Abbas and his officials will back down under pressure and threats from America and Israel.

Moreover, it is also important to note that the outcome of this decision does not rely solely on what the Palestinian Authority plans to do, for the path is now open for any Palestinian or Palestinian organisation to file a case against any Israeli government and official. The Palestinians now have the opportunity to make the lives of Israeli officials a little bit more complicated, to say the least.

As the prominent Palestinian political analyst Dr Ghassan Al-Khatib once said, the decision to file any one case against Israel in the international tribunal has the potential to limit the movement of any Israeli official around the world, especially retired military and intelligence officials who are now looking for international consultancy roles. Such jobs require frequent and easy travel and so we cannot underestimate the power of future Palestinian legal action. At the same time, we must be careful not to exaggerate this step as a way to end the occupation; nor can we forget that the ICC is not immune to undue influence from world powers, especially Washington (even though the US is not a member). If this were not so, we would have seen many officials from around the world behind bars, especially Americans.

In Israel’s case, the government has often adapted or completely ignored the foundations of international law in order to justify the ethnic cleansing of an entire nation and theft of its land. Thus, the very legitimacy of Israel’s existence is something that is being called into question under international law and this can be a source of strength for the Palestinian people. The PA does not have the right to undermine this strength for the sake of potential advances in the negotiation process.

This is an opportunity for the Palestinian people to put the occupation on trial by presenting their case to the ICC, but it must be stressed that this requires strength and political will, and for the Palestinian Authority to free itself from the shackles of negotiations. Without doubt, the will of the Palestinian people extends much further than that of the PA, for no treaty and no negotiations can justify the occupation or deny the inalienable rights of the Palestinians.

Translated from Al-Araby Al-Jadid, 6 January, 2015

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.