Analysis: Palestinians shoot themselves in the foot at ICC with execution claims

Upcoming investigation of Russian war crimes in international court could have implications for Israel.

By YONAH JEREMY BOB
Updated: OCTOBER 16, 2015 01:07
The entrance of the International Criminal Court (ICC) is seen in The Hague (photo credit: REUTERS)
The entrance of the International Criminal Court (ICC) is seen in The Hague
(photo credit: REUTERS)
One casualty of the current wave of violence, unless Israeli security forces actually start opening fire on innocent civilians in an unrestrained fashion, could be Palestinian credibility with their claims against Israelis before the International Criminal Court.
The Palestinian Authority and some supporters are loudly proclaiming that Israel is committing new war crimes during the current violence – on top of the alleged war crimes by the IDF during the 2014 Gaza war.
It might have been wiser for them to stick with their Gaza war claims.
The debate is on about where the ICC’s preliminary examination will go relating to that war.
But to the extent that the PA’s credibility is a factor in how far the ICC sticks its neck out and jumps into the Israeli-Palestinian conflict, the latest claims do not help the PA’s cause.
While the IDF has admitted to killing one innocent Palestinian due to a bullet ricochet, most of the cases being complained about are shootings of Arab attackers in the midst of their terrorist acts, or in the dynamic post-attack moment before apprehending the attacker.
There are extreme cases where killing a terrorist who is completely subdued or is retreating and nowhere near civilians could be a crime, but the PA seems to be calling any shooting of an attacker an “execution.”
Painting the cases of these attackers as “executions,” will, if anything, highlight to the ICC the terrorism that Israel has faced, and is highly unlikely to be viewed as a crime – let alone a war crime under the Rome Statute.
Separately, the PA may be undermining itself in the area of statehood. At his UN speech, PA President Mahmoud Abbas’s familiar threat to vitiate the Oslo Accords, dismantle the PA and hand over all responsibilities for the West Bank to Israel has made a comeback.
Palestine is supposed to emerge only as an outcome of the Oslo Accords, and Israel’s recognition of aspects of Palestinian sovereignty is connected to those agreements. Dismantling the PA would eliminate any vestiges of a state of Palestine, other than the idea that there are still Palestinians in the West Bank and Gaza who would like a state.

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Israel has made it clear that it will continue to challenge the ICC prosecutor’s recognition of Palestine, and if the issue comes before the ICC’s Pre-Trial or Appeals Chambers, they could overrule the ICC prosecutor’s recognition and shut down the whole process.
The PA’s latest threats can only be ammunition for Israel’s argument that however desirable a Palestinian state might be, one does not yet exist.
Experts indicated that this may not carry the day, as Palestinians can argue they are a state under occupation and use other creative interpretations to move war crimes investigations forward.
But the threats do not help the PA’s case.
Former Foreign Ministry legal adviser Alan Baker has another view of the latest PA threats to dismantle itself. He argues, “There’s no Palestinian state, and thus their ICC exercise is nothing more than a PR game.”
The ICC will ultimately “reject this Palestinian ploy, whatever the status of the Palestinian entity – as the PA or ex-PA or whatever. It cannot claim to be a state. A UN General Assembly resolution cannot establish statehood.”
Baker added, “The Palestinian leadership is fighting to keep their issue on the international agenda despite Putin, Iran, Syria and the rest,” and has duped much of the media into taking the bluff seriously.
Another recent development, however positive on its own, could foreshadow problems for Israel before the ICC. On Tuesday, ICC Chief Prosecutor Fatou Bensouda announced that she will pursue the first full criminal investigation for alleged war crimes against a major power, namely Russia.
The war crimes allegations relate to Russian military intervention in its former satellite state, Georgia, in August 2008, along with allegations against Georgian armed forces and the breakaway South Ossetia forces.
Bensouda stated that she found “a reasonable basis to believe that war crimes and crimes against humanity were committed in the context of the armed conflict” with between 51 and 113 ethnic Georgian civilians killed “as part of a forcible displacement campaign” conducted by South Ossetia, and possibly by Russia against 13,400-18,500 Georgians.
This may be good for justice for Georgians, but it shows that the ICC is becoming more daring in the countries it will go after, and that it can decide to go after a country even seven years after the alleged war crimes, when many observers thought the case was dead and buried.
There is no connection between the allegations against Russia and those against Israel, but this greater daring and willingness to go after a country after a long time could undermine Israel’s hope that time will kill cases, and that the ICC would not have the stomach for the Israeli-Palestinian conflict and the opposition of great powers to its intervention.
All of the above emphasizes that with an ongoing ICC preliminary examination of alleged war crimes against Israel, every new major event can impact Israel’s fate in The Hague.