Palestinian leader Mahmoud Abbas may have opened the door to his government’s joining the International Criminal Court on New Year’s Eve when he signed the Rome Statute, the 2002 treaty that created the court. But that doesn’t make the Palestinian Authority — or the State of Palestine, as the United Nations now calls it — a member of the court. Not yet, anyway.
The road from signing the treaty to hauling Israelis before the court on war crimes charges — the road from Rome to The Hague, as Ynet’s Elior Levy put it — is still long and complicated. Abbas has flexed some muscles and shown his people some moxie, but he hasn’t yet declared judicial war on Israel, and it’s not entirely clear that he can — or even that he wants to.
What he’s been doing, it appears, is building, slowly, step by step, a legal-diplomatic edifice that may eventually make that possible. But he still has some hurdles to cross. And there are still opportunities for Jerusalem and Washington to stop the process. His end goal is not getting Israelis thrown in jail, but getting them out of his people’s lives.
If Abbas’s State of Palestine were to be accepted as member-state of the court, it would be entitled to bring charges of war crimes perpetrated against it. At first glance Israel might not seem to be vulnerable, because the rules of the court only apply to countries that are members. Israel is not a member. However, the court specifically allows member-states to bring charges over crimes committed on their territory, even if the alleged perpetrator wasn’t a member-state.
The whole tactic of going to the court carries high risks for Abbas and his allies. He heads up a government that includes the terrorist Hamas, with its long record of intentional, bloody attacks on civilians that unambiguously constitute war crimes. Palestinian leaders might find themselves more vulnerable to prosecution than Israelis.
What could Israel be charged with? The obvious charges involve the large-scale death and property destruction wreaked on Gaza during the three wars against Hamas over the past six years. There are disputes about the proportion of civilians among the dead, but no one questions that there were a lot of them. But it’s not at all clear that those deaths, horrific as they are, would be indictable as war crimes.
Hamas fighters testing a Gaza-made M-75 long-range missile, November 2013 / Getty Images
Maariv’s Eli Bardenstein offered a stunningly clear and disturbing report (in Hebrew, my translation below) on Friday that illustrates the vexing complications introduced into the triangular Jerusalem-Cairo-Gaza relationship by political turmoil in all three places. It makes a very useful companion piece to today’s front-page New York Times report by Jodi Rudoren on Israeli jitters over instability on its eastern front.
In both cases, as Bardenstein notes and Rudoren sort of hints, the Netanyahu government is ignoring the intelligence supplied by its own security establishment, which shows jihadi organizations making life difficult for both Hezbollah in the north and Hamas in the south. The jihadis are creating turmoil, launching pinprick attacks on Israel that violate cease-fire agreements between Israel and Hezbollah and Hamas respectively. Hamas and Hezbollah are both besieged — Hamas by the new, anti-Islamist Egyptian military government, Hezbollah by jihadi spillover from the Syrian civil war (as well as political blowback from the Rafiq Hariri murder trial now underway in The Hague) — and are finding it increasingly difficult to enforce their respective cease-fires with Israel. Israel — meaning principally defense minister Moshe Yaalon — chooses to ignore the intelligence, blame Hamas and Hezbollah and launch military responses that only further weaken Hamas and Hezbollah and strengthen the jihadis.
I’ve translated Bardenstein’s piece below, but here’s the gist: Israel is alarmed at the unraveling of the November 2012 Pillar of Defense cease-fire “understandings” and the increasing rocket fire from Gaza — 17 rockets fired in January alone as of Friday (and more since then). It wants Egypt, which acts as mediator between Israel and Hamas, to pressure Hamas to stop the rocket fire. But Egypt has lost influence over Hamas since the military deposed the Muslim Brotherhood government of Mohamed Morsi last July. The military government’s approach is not to work with Hamas as Morsi did but to crack down on it.
Hamas, in turn, complains that the Egyptian crackdown — particularly the mass destruction of smuggling tunnels, which squeezes the Gaza economy — weakens Hamas rule and reduces its ability to control the jihadi organizations that are doing the firing. And both Cairo and Hamas complain that Israel has been making the situation worse by Defense Minister Moshe Yaalon’s insistence on responding to every single rocket launching, no matter how ineffectual, with aerial bombardment.