As 2014 came to a close, the Palestinian Authority made two controversial moves in the international political arena that have sparked many legal questions. Under pressure from a civil society frustrated with its political toothlessness and still suffering from the traumatic effects of this summer’s massacre in Gaza, the PA pushed forward a hasty vote on a statehood resolution submitted to the United Nations Security Council demanding an end to the occupation by 2017. Following the failure to garner the requisite 9 votes to pass the resolution, Palestinian Authority President Mahmoud Abbas carried through on an earlier threat and signed over 20 international treaties. One of these treaties was the Rome Statute, the first step to joining the International Criminal Court.
Most mainstream coverage of these events in the United States has portrayed these steps as outrageous, unprovoked, and totally beyond the bounds of diplomatic legitimacy. In retaliation for this audacious attempt to invoke diplomatic and legal mechanisms to change the status quo, Israel froze $127 million dollars of tax revenue for the Palestinian Authority. Other repercussions are likely to follow, including the possibility of further limiting electricity, gas, and travel permits to the West Bank. In the US, the $400 million dollars in foreign aid given annually to the PA may also be under serious threat.
Israeli Prime Minister Netanyahu’s move to freeze the Palestinian Authority’s tax revenue was widely condemned, even by both Israeli President Rivlin and the US. Rivlin asserted that having a functioning PA is in Israel’s best interest. This is true: Israel relies heavily on the Palestinian Authority to enforce its occupation, and the prospect of bearing the burden of providing social services in the West Bank is certainly not in Israel’s interest.
The Palestinian Authority has few diplomatic cards left in its hands. Other tools remaining in the PA’s arsenal include dissolving itself and ending security cooperation with Israel. Some Palestinian analysts and activists support the PA’s dissolution, as it is a product of the failed (and flawed-from-the-beginning) Oslo process and plays a significant role in enforcing Israel’s occupation of the West Bank. But its unclear at this point whether that threat would ever be carried out, or what would ensue if it did.
If the Palestinian leadership follows through on the process to join the ICC, they could become members of the court on April 1st, at which time they would have the opportunity to ask the court to pursue an investigation into the massacres in Gaza this past summer. It is also possible that the ICC prosecutor will open an investigation into war crimes in Gaza, independent of a Palestinian request, since the PA has now given the court retroactive jurisdiction dating back to June 13, 2014. According to a provision slipped into the December Consolidated Appropriations bill, should the Palestinians bring an investigation to the court, US aid to the Palestinian Authority will be automatically cut off.
The Israeli government has asserted that they will be contacting members of Congress to demand that the US halt aid to the Palestinian Authority preemptively. Senator Rand Paul has already introduced a bill that would cut off aid to the PA until their ICC bid is withdrawn, though his bill seems unlikely to move forward. More concerning are the warnings issued by several senators, including Senators Chuck Schumer and Lindsey Graham, who chairs the Appropriations subcommittee that governs aid to Palestine. According to Foreign Policy, Graham said he plans to capitalize on the current frustration to chip away at the $400 million dollars in aid to the PA, asserting “I’m going to lead the charge to make sure the Palestinians feel this.” Graham has threatened to introduce a bill that would require the US to cut off aid should the Palestinians become full members of the ICC, without waiting for them to initiate an investigation.
More worrisome still is the impact that a funding blow-up may have on the entire UN system. As Lara Friedman at Americans for Peace Now explains, the US has tied the viability of the entire UN system to the Palestine question. According to anachronistic laws that date back to 1990, the US will cut funding to any UN agency that Palestine becomes a member of, a law which was enforced when Palestine joined UNESCO. Should Abbas go through with his pledge to join further UN agencies, the US, the largest donor to the UN, will yank its support.
The US’s main criticism prompting the threat to cut funding to the PA is that pursuing these steps in the international arena amounts to taking "unilateral actions." As State Department spokeswoman Jen Psaki reminded everyone on Monday, the US condemns any unilateral actions that would prejudge the outcome of any peace negotiations, as well as any steps that would increase tensions between the two parties. One reporter pressed her on that claim: "Could continued Israeli settlement activity, which you say is a unilateral act and which you don’t like, also have implications for U.S. assistance to Israel?” Ms. Psaki deflected the question, seeing this as a matter for Congress to address.
The US has also weighed in on the legal debate over whether Palestine is considered enough of a state to make this move. The State Department claimed on Wednesday that Palestine is not a state and therefore does not qualify to join the ICC. However, as legal scholar Alex Whiting points out, the ICC Prosecutor made it clear that the question of whether Palestine qualifies as a state was settled when the UN General Assembly recognized it with non-member observer status in 2012. Palestine may not be a state in many senses of the term, but pursuing recognition for statehood seems to be one of the few paths left for a Palestinian leadership with very little power.
The US response to this audacity has been almost comically hypocritical, an example of US exceptionalism at its finest. The US is not a member of the ICC, and has historically been quite hostile to the court. Fearful that its own soldiers and political leaders would be prosecuted for war crimes—and with all the recent discussion about the CIA torture report, they certainly should be concerned)—the US has repudiated one of the only international legal mechanisms, as politicized as it may be, to hold international leaders accountable.
The obstruction faced by the Palestinians at the UN and in the bid to join the ICC effectively sends the message that they should forego diplomatic and legal means to achieve justice, leaving them with fewer and fewer options to resist the status quo. In the words of Daniel Levy, Director of the Middle East and North Africa Programme at the European Council on Foreign Relations, speaking to Al Jazeera last week, Palestinians are being told they have no options but to “sit down, shut up and enjoy being occupied and having no rights, or to pursue armed resistance because the options of diplomacy and international law are closed.”
The US and Israel (also not a member of the ICC) are so vehemently opposed to the Palestinian attempt to take responsibility for abiding by international law that they have painted this action as a provocative attempt that threatens the possibility of peace in the region. Well, it is provocative, but it doesn’t threaten so-called peace. While it remains to be seen whether the move to join the ICC will help Palestinians get anywhere nearer to a just peace, what it really threatens is Israel’s international image and its status quo of occupation and oppression.
Naomi Dann has a degree in Peace and Justice Studies from Vassar College, and is interested in representations of war and violence, nonviolent strategic conflict, and the geographies of State power and postcolonial resistance.