Will Netanyahu End Up At The Hague?
The Palestinian application to the ICC has
set in motion a series of events with
potentially dramatic consequences for both
Israel and the Palestinians
By Jonathan Cook
January 08,
2015 "ICH"
-
(Al-Araby ) - At
the weekend, Fatah
posted
an image on its Facebook page of Israeli
prime minister Binyamin Netanyahu next to a
hangman’s noose, alongside the words ‘coming
soon’ and the scales-of-justice logo of the
International Criminal Court in the Hague.
This is certainly how many Palestinians
would like to view Netanyahu’s fate over the
coming months.
Last week, Mahmoud Abbas, the
Palestinian president, reluctantly signed on
to the Rome Statute, paving the way for ICC
membership, after he failed to win a vote at
the UN Security Council on a resolution to
end the occupation by 2017.
The loyalists of Abbas’ Fatah
party are likely to be disappointed,
however. There are many obstacles to be
cleared before anyone in Israel, let alone
the prime minister, reaches the dock in the
Hague accused of war crimes.
The first test will be
whether Abbas’ nerve holds. It will be 60
days before the application to join the ICC
takes effect. In the meantime, Israel and
the US – neither of which has ratified the
Rome Statute – will exert as much pressure
on him as possible to change course.
At Sunday’s cabinet meeting,
Netanyahu
announced
that Israel would withhold the monthly tax
revenues it collects on behalf of Abbas’
Palestinian Authority (PA) and which it is
obligated to pass on.
Given the PA’s precarious
finances, that is a blow that will be
quickly felt. Abbas dismissed the move,
dressing up his diplomatic desperation as
cavalier disregard. “Now there are sanctions
– that’s fine. There’s an escalation –
that’s fine … but we’re pushing forward,” he
said.
Israel is threatening to pile
on additional punishments this week. Or as a
senior foreign ministry official
put it:
“Israel is about to switch from defense to
attack mode.”
Included is a plan to recruit
Israel’s powerful lobbies in Washington to
ensure the enforcement
of legislation requiring the US Congress to
halt some $400 million in annual aid to the
PA in the event that the Palestinians
actually initiate any actions at the Hague
to investigate Israelis for war crimes.
Implicating Abbas
Further, Israel is
threatening
to use its own undoubtedly formidable
intelligence-gathering against Abbas and his
PA officials, implicating them in war crimes
too.
Israel could try to pursue
Palestinian officials, including Abbas,
through the US courts, which have in the
past shown a willingness to back
terror-related claims against Palestinians.
In September a New York jury
found against
the Jordan-based Arab Bank for channelling
charitable money into the occupied
territories to help poor families, agreeing
that this had helped support “terror”.
At the weekly Israeli cabinet
meeting, Netanyahu
warned:
“Those who need to answer before a criminal
court are the heads of the Palestinian
Authority, who have forged an alliance with
the war criminals of Hamas.” One of his
officials similarly noted that they had
“quite a bit of ammunition” to use against
Abbas.
An Israeli analyst, Barak
Ravid,
suggested
that the goal might be to “create a balance
of terror”, reviving the Cold War principle
of mutually assured destruction: “Each side
would bombard the other with complaints
until they can no longer breathe.”
One course of action
Netanyahu is reported to be loath to pursue
on this occasion is a glut of settlement
building. This was Israel’s response back in
2012 when the Palestinians won a vote at the
UN upgrading their status.
But the diplomatic fall-out
then is said to have
taught Israel a lesson,
and it will not specifically characterise
settlement expansion as part of its
retaliation.
Persuading the ICC
The next obstacle will be
persuading the ICC to investigate Israel. So
far the Palestinians have had little success
with the ICC, but previous justifications
from the court for inaction are no longer
valid.
In early 2012, the ICC
dropped an investigation into Palestinian
claims of war crimes committed during
Israel’s attack on Gaza in 2008-09 on the
grounds that Palestine was not a recognised
state. That changed with the Palestinians’
change of UN status later the same year.
And in November the ICC’s
prosecutor, Fatou Bensouda, halted an
investigation into an Israeli commando
operation against the Mavi Marmara aid ship
in 2010 that killed nine humanitarian
activists. The case had been made possible
only because the ship was registered in
Comoros, which had signed the Rome Statute.
Bensouda
argued that
the deaths of the activists were not of
“sufficient gravity” to justify the ICC’s
intervention.
But now – with a much wider
range of examples to choose from as a member
of the ICC, including the attack on Gaza
last summer that left more than 500 children
dead – the Palestinians should be able to
find cases that better qualify.
Nevertheless, such
investigations, if they take place, will be
laborious and time-consuming, especially as
Israel will be actively uncooperative, just
as it has been in blocking access to Gaza
for UN inquiries into war crimes.
In the meantime, the US will
be certain to put pressure behind the scenes
on the Hague court to reject cases brought
by the Palestinians. It can be expected to
threaten the finances of the ICC and
arm-twist it in other ways, just as it did
Security Council members last week to ensure
that a Palestinian resolution to end the
occupation failed to win the necessary
majority.
The politicised nature of the
ICC should not be under-estimated. Its cases
so far have targeted only African leaders,
and ones that are seen as enemies of the US
and the west.
International law experts
note that it will be extremely difficult for
the ICC to press cases against the leaders
of a state widely seen in the US and Europe
as a western-style democracy.
That might, for example,
encourage uncomfortable comparisons between
Israel’s behaviour and that of the US and
Britain in the Middle East. If Netanyahu or
Tzipi Livni are to stand trial, why not
Barack Obama or his predecessor, George W
Bush? US leaders are just as culpable for
their part in Washington’s extra-judicial
executions by drones over Yemen and Pakistan
or its rendition and torture programmes.
Immunity from prosecution
Nonetheless, Israel has good
reason to be worried.
Whether or not cases are
ultimately brought against Israelis, the
threat of war crimes charges is likely to
act as a restraint, creating an atmosphere
of doubt, caution and fear on the ground
among the Israeli security forces.
That is not something Israel,
driven by a military tradition of creating
deterrence by terrifying its Arab neighbours
into submission, can afford to be complacent
about.
As Tel Aviv law professor
Aeyal Gross
observed,
the ICC threat hangs more heavily over
Israelis than Palestinians. Palestinian
fighters are unlikely to fear an ICC
prosecution given that “they are already at
risk of assassination by Israel or long
prison terms if caught. In contrast,
Israelis have enjoyed de facto immunity from
prosecution for Israel’s actions.”
Adding to this problem,
Israel will have to demonstrate – if it is
to be sure of pre-empting an ICC
investigation – that it has carried out its
own credible investigations and is prepared
to prosecute its own soldiers, including
commanders, with serious charges.
Until now, even lowly Israeli
soldiers have enjoyed almost complete
immunity for their actions, and Israel has
refused to cooperate with independent
investigations.
When Israel announced a
handful of criminal inquiries into its
attack on Gaza last summer, which left more
than 2,000 Palestinians dead, most of them
civilians, it was
harshly criticised
by local human rights NGOs. The two most
respected, B’Tselem and Yesh Din, refused to
cooperate, arguing that the investigations
were a “whitewash”.
Israeli authorities have
so far approved 13
investigations into the summer’s events but
most relate to minor or isolated incidents,
usually committed by junior soldiers. Five
of the investigations are into allegations
of looting: soldiers stealing money or items
from Palestinian homes.
Double-edged sword
That will now need to change,
even if only for appearances’ sake.
Similarly, the threats
Netanyahu and others Israeli officials have
been making against Abbas are a double-edged
sword. While Israeli officials have warned
that the Palestinian application to join the
ICC opens up a “Pandora’s box”, it may be
that any damage to Abbas and the PA
ultimately rebounds on Israel.
There have long been
suggestions that Abbas has been actively
conspiring with Israel against Hamas –
including rumours that he was closely
consulted on Israel’s attack on Gaza in
2008-09. Exposing such collaboration could
simply deepen Israel’s troubles.
In any case, weakening the PA
– whether by implicating it in war crimes or
pulling the plug on its finances – risks its
collapse and Israel’s being forced once
again to bear the full military and
financial costs of the occupation.
That was why the US State
Department on Monday
expressed its opposition
to Israel’s refusal to transfer tax revenues
to the Palestinians, saying it threatened
“stability” in the region.
The Palestinians joining the
Hague court might also serve as a fillip to
groups trying to use the principle of
universal jurisdiction in their own
countries, including several major European
ones that have already incorporated such
legislation. That would be even more likely
were the ICC to appear to be submitting to
pressure to avoid prosecuting Israeli
officials.
It would leave senior
Israelis even more fearful of visiting such
states for fear of arrest.
And maybe not least, the
Palestinians’ move to the Hague will exhaust
yet more US goodwill as it is forced
publicly to rescue Israel from the
consequences of its own worst military
excesses.
Jonathan Cook is a
Nazareth- based journalist and winner of
the Martha Gellhorn Special Prize for
Journalism - See more at: http://www.jonathan-cook.net/2015-01-07/will-netanyahu-end-up-at-the-hague/#sthash.SJ7zt3yr.dpuf
Jonathan Cook is a
Nazareth- based journalist and winner of the
Martha Gellhorn Special Prize for Journalism
http://www.jonathan-cook.net