x Abu Dhabi, UAEFriday 19 January 2018

The ICC is a hollow option as Israeli settlements expand

There is no guarantee that the International Criminal Court would take up any request to hear a case about settlement building, nor any indication that Palestinian leaders have the will to mount such a legal challenge.

President Mahmoud Abbas has, again, warned that he will dissolve the Palestinian Authority unless Israel commits to meaningful negotiations. It is by no means the first time that Mr Abbas has threatened to do so, but he has also said that Israel has reduced security cooperation in the West Bank. Taken together, the statements mark another escalation in the tit-for-tat recriminations between Israel and the Palestinian Authority in the past month.

The difference is that while Palestinian gains are largely symbolic, Israel is racing to change the facts on the ground.

Israel's punitive measures, in response to the UN recognition of Palestine's "non-member observer" status last month, started with its refusal to hand over $120 million (Dh440 million) in taxes collected on behalf of the Palestinians, exacerbating the already dire economic crisis. Soon after came the announcement that Israel would build thousands of new settlement units in an area east of Jerusalem known as E1, which would link the Holy City to Maaleh Adumim, the West Bank's third-largest settlement.

That plan was met by an uproar in a number of European countries, including the UK, Italy and Germany, which protested to their respective Israeli ambassadors. Israel's Prime Minister Benjamin Netanyahu was unshaken, saying that it was understood by all parties, including Palestinians, that the E1 area would eventually be a part of Israel in any final settlement.

EU diplomats believe that the E1 development, and a plan to expand an East Jerusalem settlement known as Givat Hamatos, are the final nails in the coffin of the two-state solution.

Despite the international criticism, Israeli authorities will move ahead. In addition to the 3,426 units in E1, there are plans to build 2,610 settlement units in Givat Hamatos and 1,600 units in the Ramat Shlomo settlement, according to the Israeli watchdog Peace Now. All three would complete a ring of settlements sealing off East Jerusalem from the rest of the West Bank.

Faced with this escalation, Palestinians are weighing their options. Muhammad Shtayyeh, the special envoy for the UN bid, warned earlier this month that Palestinians might turn to the International Criminal Court over the settlement construction and expansion. Mr Abbas has since backed away from that statement, but in the absence of even token negotiations, there will be more pressure for the Palestinian Authority to take action.

In one sense, the ICC has become the "nuclear option". Faced with an outdated and largely irrelevant peace accord that has left the Palestinian Authority dependent on Israel in almost every area, Palestinians are hoping that their success at the United Nations will open doors to other organisations.

Even before the UN vote, Washington and London had cautioned Palestinians against turning to the ICC. The news agency Reuters explained part of that rationale: "Netanyahu has indicated in private he fears Palestinians might accuse his government of violating the Geneva Conventions' prohibition on forced displacement of populations by establishing settlements."

Palestinians already have turned to an international body - the International Court of Justice - for an advisory opinion on the separation wall. In the 2004 opinion, the court wrote that the wall contravened international law. That did not stop Israel from extending it, but the opinion did shed light on Israel's systematic plan of land grabs to create a de facto border incorporating settlements into Israel.

An ICC ruling would further expose the on-the-ground consequences of settlement building: any future Palestinian state would resemble a piece of Swiss cheese.

But whether an ICC ruling would be anything other than symbolic remains unclear. In any event, there is no guarantee that the court would take up a Palestinian request to hear the case in the first place. The ICC prosecutor might cite the capability of the Israeli legal system to handle the matter. And even if the court did hear the case and Israeli officials were indicted, the court has no policing arm and enforcement would be left to Israel or its allies.

There is also an internal Palestinian debate about whether to go to the ICC. Many Palestinian officials have threatened to turn to various UN agencies, but there is also talk of resuming negotiations with the Israelis under Jordanian auspices. Critics of the decision to take statehood to the United Nations point out that there was a lack of planning for the aftermath.

The confusion is also apparent in the number of options being weighed. The Palestinian Authority has said it would push for a boycott of Israeli goods and engage in civil disobedience. Another option might be halting the security coordination with Israel, which has kept the West Bank relatively quiet compared to the Intifada years - which is not to say that the collaboration has curbed the killings, land grabs and detention of Palestinians.

At present, it is the Israelis who appear to be reducing that cooperation. Senior Palestinian officials will be reluctant to cross Israeli authorities for fear of losing their perks of recent years, such as relative freedom of movement as compared to that of most Palestinians.

The United Nations vote undoubtedly left Israel more spooked than it cares to admit. So too do the possible repercussions of a legal challenge regarding the hundreds of thousands of illegal settlers in the West Bank. However, such an undertaking would be difficult, and it remains to be seen whether Palestinian leaders have the will.


Dalia Hatuqa is a journalist and writer based in the West Bank

On Twitter: @DaliaHatuqa