The problem with the “peace negotiations” that failed numerous times over the years is that the Palestinians cling to the hope that international organizations — primarily the United Nations and its branches — will force Israel into concessions that harm Israel’s security, and will pave the way not for a lasting peace, but more war with Israel’s position being weakened.

Getting more by threats than negotiations is the tactic the Palestinians just can’t seem to give up.

This rejectionism, reinforced by those who think boycotting Israel will also force Israel to hang itself, has achieved nothing for the Palestinians. The State offered the Arabs of the British Mandate of Palestine in 1947 was rejected. Golda Meir’s offer after the 1967 War was rejected. Offers at Camp David and later by Prime Minister Olmert were rejected.

Always the threats. The threat of terrorism and more Intifadas. The threat of the Security Council forcing Israel back to the 1949 Armistice lines. The threat to join the International Criminal Court and put Israeli leaders on trial for war crimes.

Always the threats, never the hard compromises.

The threat of Security Council action failed yesterday, though it’s likely to be tried again..

Today, Mahmoud Abbas and other Palestinian leaders announced that “Palestine” would join the ICC, via the Times of Israel:

Palestinian Authority President Mahmoud Abbas signed a request Wednesday to join the International Criminal Court, a move that would establish a new avenue for action against Israel after the UN Security Council rejected a resolution which aimed to establish a timetable for a full Israeli pullout from the West Bank and East Jerusalem

In a live broadcast from the West Bank city of Ramallah, Abbas signed 20 international treaties, including the Rome Statute, the ICC’s founding document….

The Palestinians planned to submit the paperwork for joining the ICC to U.N. Secretary-General Ban Ki-moon on Wednesday afternoon, but postponed it, probably until Friday. Handing over the documents is the last formal step for Palestine to become a member of the ICC, which would happen in about 60 days….

Prime Minister Benjamin Netanyahu said in response to the announcement that it was the Palestinian Authority, not Israel, that had to worry about the ICC’s judgments because of its partners, Hamas, from whose Gaza territory over 4,500 rockets and other projectiles were fired at Israel during a 50-day war this summer. Abbas’s Fatah and the Islamist terror group Hamas are the joint backers of the current Palestinian “unity” government.

“We will adopt steps in response and we will protect the soldiers of the IDF — the most moral army in the world,” Netanyahu said in a statement. The prime minister is set to convene a meeting Thursday to discuss responding to the Palestinians’ ICC gambit.

But how much of a threat is that really? It may be that Mahmoud and company have shot themselves in the foot, again, while gaining little. In fact, this move may be a gift to Bibi Netanyahu’s reelection campaign:

I don’t claim any expertise in the ICC, though I have a feeling I’ll be learning about it in the coming weeks.

For now, here are some issues discussed by people who do have that expertise, indicating that the threat of ICC action may be less than it appears.

>>>>>> Major caveat — these analyses assume that the ICC treats Israel the way it would treat any other nation, but anything that related to Israel always seems to skew international organizations, so I have my doubts. <<<<<<

Here are some people to follow on Twitter on the subject:

David Bosco, What to know about Palestine joining the International Criminal Court, discussed many issues, including these:

Will the prosecutor investigate possible Palestinian abuses? However the Palestine situation reaches the court, one thing is certain: the prosecutor’s office will consider Palestinian crimes as well as those by Israel. Palestine cannot tailor a complaint or a referral to only consider Israeli misdeeds. When Uganda attempted to refer only the Lord’s Resistance Army to the court, the prosecutor quickly clarified that he would be examining crimes by all parties. If the court investigates the recent Gaza conflict, it’s all but certain that Hamas’s indiscriminate rocket attacks and certain other tactics would receive immediate scrutiny.

Will the prosecutor investigate settlements? Israel’s nightmare is that the ICC investigates and seeks to prosecute senior Israeli officials for its settlements policy. The Rome Statute (and preexisting international law) lists settlement on occupied lands as a war crime. This issue is particularly unnerving for Israel because decision-making on the settlements policy goes right to the top of the Israeli government. It’s hard to imagine a prosecution over settlements that doesn’t involve a senior government official, even the prime minister. Moreover, Israel has no real “complementarity” defense on settlements. It cannot plausibly claim that it has investigated its own conduct on this issue; my understanding is that the Israeli Supreme Court has avoided directly grappling with the legality of settlements. But if a settlements prosecution is a nightmare for Israel, it might also be one for the court. It would bring the court into the very heart of the dispute and would raise a host of complex legal questions that the ICC judges would have to settle. For those reasons, the prosecutor will have strong incentives to avoid adjudicating the issue and she might do so by trying to define the Palestine situation as narrowly as possible.

Mark Kersten wrote in July, The threat or promise of justice in Palestine:

But an ICC intervention also poses a real threat to certain Palestinian groups. It is a common misconception that Palestinian authorities can “press charges” or refer Israel to the ICC for alleged crimes committed in their protracted, decades-long war. In reality, Palestine can only refer itself to the court and, if it did so, ICC investigators would be restricted to investigating crimes perpetrated on Palestinian territory – a territory that is, for purposes of criminal investigation, still unclear. Any alleged crimes perpetrated in Israel – including the construction of illegal settlements – would be inadmissible.

Indeed, those pressing for a referral of the ICC should be careful what they wish for. Some have suggested that there is a strong case to be made that Palestinian groups like Hamas and Fatah are responsible for international crimes under the Rome Statute and that the seemingly indiscriminate shelling of civilian areas by Palestinian militants in Israel would be prioritized for investigation by the prosecutor. As SOAS criminal law professor Kevin Jon Heller argues: It would be “much easier to prosecute Hamas’s deliberate attacks on Israeli civilians than Israel’s disproportionate attacks, collective punishment of Palestinians, and transfer of its civilians into occupied territory.”

Eugene Kontorovich tweeted some of his thoughts and I certainly look forward to his writings at Volokh Conspiracy and elsewhere:

And so on, and so on.

This is just the latest Palestinian gambit which is not serious, and is just war by other means.

UPDATE 1-1-2015: See also Eugene Kontorovich’s post from mid-December, Five puzzles about occupation and settlements: questions for Geneva.


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