The ICC Gambit

The Palestinian move to join the International Criminal Court seems desperate and rash -- to everyone but the Palestinians.

Palestinian President Mahmud Abbas looks on before giving a speech in the West Bank city of Ramallah on January 4, 2015. Abbas spoke about the steps he took to try and get membership for Palestinians to the International Criminal Court, in a move strongly condemned by both Washington and Israel. AFP PHOTO/ ABBAS MOMANI (Photo credit should read ABBAS MOMANI/AFP/Getty Images)

I’ve known both Palestinian Authority President Mahmoud Abbas and lead PLO negotiator Saeb Erekat for more than 20 years now. I consider them both to be rational men with whom one could easily reason, argue, and, at times — when the arguments and circumstances were compelling — persuade. Neither one lives in a fantasy world. And they are both Palestinian patriots who, unlike Yasser Arafat, eschew violence and consider talking and not shooting to be the only way to independence and statehood.

I’ve haven’t spoken to either of them lately about the recent Palestinian move to sign the Rome Statute and join the International Criminal Court (ICC). My own personal view — for the little it’s worth — is that the move is misguided and unlikely to advance the cause of an independent Palestinian state. Palestinians believe they’ve run out of options. Fair enough. But that’s no reason to default to an approach that’s actually a campaign ad for the Likud, saying, “We’re not your partner; we’re going to prosecute you for war crimes,” and will only feed a Republican-controlled Congress that already wants to cut off assistance to the Palestinian Authority, will further constrain another John Kerry peace effort, and will ultimately undermine the center and what remains of the left in Israel.

But Palestinians have their needs and requirements. And even though I don’t see the ICC move as being good for the Palestinians, I do see it making sense to the Palestinians. Understanding the reasons why Palestinians have gone to the ICC may help explain that far from being a tactic, the move may well constitute the new look in Palestinian strategy. Abbas and the PA may be on the verge of crossing their own Rubicon of sorts. And here’s why.

Abbas’s Legacy

National and personal interests often mix seamlessly into the lives of leaders. Abbas is now nearing 79. He’s in relatively good health, but as former Florida Senator Claude Pepper used to say, there would be a point in life when he would no longer be buying green bananas. Legacy is very much on Abbas’s mind.

Abbas has been under pressure from just about everyone for being a weak and feckless leader. Younger Fatah leaders want him out; state-builders like former Prime Minister Salam Fayyad question his whole approach to statehood; he’s at war with some of Arafat’s old team, like Mohammed Dahlan; and Hamas wants him weakened. And, most important, Palestinians see little in the way of results since he succeeded Arafat in 2004. That’s 11 years now, roughly the time it took for Arafat to get thrown out of Lebanon andvia Tunis and the Oslo process – to reposition Palestinians on the international stage and to set up the PA in the West Bank and Gaza.

Abbas hasn’t ended the occupation or improved the Palestinian economy; he lost Gaza in 2007; his unity gambit with Hamas lies in shambles; unlike Hamas, he’s failed to orchestrate big prisoner exchanges; and he is feeling less relevant to both Israel and the United States than ever before. A December 2014 Palestinian poll shows a dramatic decline in Abbas’s popularity, from 50 to 35 percent.

So what remains? If negotiations won’t work and violence isn’t an option, then why not try a diplomatic intifada? International recognition has long been a PLO goal, since the 1970s. What’s new is seeking legitimacy for the statehood component, not just for symbolic recognition but as an operational tool to isolate, hold Israel accountable, and even charge and perhaps prosecute the Israelis for war crimes.

Virtual statehood suddenly offers prospects of imposing real costs on Israel in the real world. First came U.N. non-member observer status, in 2012; then recognition from European parliaments and governments; and now in 2015, accession to 22 international conventions, including the ICC. It’s popular on the streets, validates independent action on the part of Palestinians when their world is marked by dependency on Israel and Arab states, and represents — pardon my Italian – a fuck you to Israel and the Americans to boot. That’s not much, you say? But when you’re looking at life from the bottom of the barrel, it’s something, or at least better than nothing.

A Tactic or a Strategy?

To suggest that the Palestinian national movement has now developed what it has lacked for half a century — a coherent strategy — really is a stretch. Isn’t this just another effort to throw something at the wall and see if it sticks? A desperate move by a desperate people? Maybe the ICC gambit is just a place holder designed to lay down proverbial markers if Israel and the United States don’t get serious about the peace process, and perhaps to influence the outcome of the March elections, now less than 75 days away.

In the old days, I’d have bet that’s exactly what this was. I’m not at all sure now. We’re a long way from the last serious negotiation between an Israeli government that had the incentive to cut a deal and a unified PLO capable of making decisions. Facts on the ground have multiplied. The Middle East is melting down and the priority of solving the Palestinian issue is not nearly the priority it used to be in a divided and dysfunctional Arab world or even in Israel. Iran, the jihadis, and the Islamic State have replaced Palestinians, and not just for the short term. The Sunni-Shiite struggle, the fight with Islam, the whole question of whether the Arabs states can be coherent and functional, are generational struggles, and Palestinians, divided, demoralized, and weak, know this.

Palestinians will play at keeping the old options for negotiation open, of course. In the unlikely event that there’s some miraculous transformation in Israel or America that puts them on the road to statehood, Palestinians will jump on board on serious negotiating. But barring someone rescuing them, they’ve embarked on a different game that can easily be rationalized as finally taking their fate into their own hands. No more dependence on negotiations or sacrificing Palestinian positions to accommodate Israeli or American demands. No more even feigning to buy into Washington’s talking points. No, Palestinians are free at last to promote the Palestinian narrative in international forums and world capitals, to pursue their own sense of justice by seeking to redress their grievances against Israel at an actual international court so that they can finally have their day.

And who knows, they rationalize? Maybe, just maybe, over time, particularly if there’s a right-wing government elected in March, Israeli policies will get so bad that the vaunted international community will actually stand up and pressure Israel with serious sanctions and finally champion the Palestinian cause.

Israeli Elections

And that brings me to the most intriguing aspect of the current Palestinian initiative. Back in the day, Abbas might have waited a few more months to see what would happen in the March Israeli elections before taking this bold step. And maybe given the fact that the ICC won’t act on any Palestinian request for any kind of investigation into Israeli actions for several months, you might conclude he’s done precisely that. But once you start down this road, it’s not so easy to turn back. It’s election season in Israel and the process the Palestinians have started may actually bring them the worst of both worlds — bolstering the right’s claim that Israel can’t be expected to negotiate with a partner that’s accusing it of war crimes, weakening a potential center-left negotiating partner, and in the end failing to have the ICC do much of anything.

And this is what’s so intriguing. Is it possible that Abbas no longer cares? Indeed, is it conceivable that his strategy is predicated on a right-wing Israeli government coming to power and boosting Palestinian credibility by alienating Europe and America even further? In fact, maybe Abbas has given up on Israeli politics altogether. A former Palestinian negotiator told me last week that the worst outcome for Palestinians is a center-left government with a kinder, gentler face (fewer settlements; sweeter talk) but without the capacity to make and deliver big decisions on issues such as the June 1967 borders and a Palestinian capital in East Jerusalem. That would surely undermine the Palestinian campaign to isolate and pressure Israel abroad and even turn the tables against the PA’s effort.

Right now, Palestinians seem liberated. As long as the West Bank doesn’t explode with an intifada-like uprising — a development that would doom Abbas to irrelevance and open up opportunities for Hamas — the PA will see how much it can extract from the ICC move.

But as so often is the case in life, decisions that seem to make sense too frequently have repercussions and consequences that don’t and are counterproductive. Israel has already withheld $127 million in tax revenue and the U.S. Congress will certainly move to restrict assistance to the PA as well. If Abbas really does want a right-wing government, he may get his wish and turn Benjamin Netanyahu into the longest-serving prime minister in Israel’s history. And it’s by no means certain, with a Republican Congress and a 2016 presidential campaign with candidates competing with one another to demonstrate their pro-Israeli credentials, that Washington (even with John Kerry’s determination) will be able or willing to do much on the peace process.

The full impact of the PA’s decision to go the international route, complete with joining the ICC, is not yet clear. It’s hard to see how the peace process — already in a coma — will benefit. Palestinians have no good options. Still, the ICC beckons. But what’s really hard to see is how this one is going to bring them any closer to redeeming their national aspirations and getting the state they surely deserve.


Aaron David Miller, a distinguished fellow at the Wilson Center, served as a State Department Middle East analyst and negotiator in Republican and Democratic administrations. He is the author of The End of Greatness: Why America Can’t Have (and Doesn’t Want) Another Great President. Twitter: @aarondmiller2

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