On the day after the defeat (both by insufficient votes and a U.S. veto) of the recent U.N. Security Council Draft Resolution calling for an Israeli withdrawal from all “occupied” territories, Palestinian President Mahmoud Abbas announced his accession to the “Rome Statute” of the International Criminal Court. This membership in the Court would put the Palestinians in a position to possibly bring Israel (Not a signatory of the Statute) before the I.C.C. on charges of War Crimes, particularly as alleged to have been committed during the recent “Operation Protective Edge” in the Gaza Strip.

     The Rome Statute which created the I.C.C. was first passed in 1998, and declared to be in force on 1 July 2002. Currently (before the accession of Palestine), there are 123 “states parties” to the Statute. The Court’s Prosecutor, Fatou Bensouda of The Gambia, and her predecessor have opened nine (9) cases to date, all of them in Africa. The Court has been criticized by Africans for “concentrating” on African countries—so far exclusively. There have also been efforts within the African Union to ask its members to withdraw from the Rome Statute, but so far those efforts have come to naught. Canada and The United Kingdom are states parties, the United States is not (The U.S. signed the Statute, but it has never come before the U.S. Senate for ratification.). Of Israel’s immediate, contiguous neighbors, only Jordan is  a state party. The Court sits in Den Haag (The Hague), in the Netherlands.

     The Court has been criticized for “obsessing itself” with Africa. All the cases that have actually been brought to trial originated on that continent (although investigations of several situations from elsewhere are in process).  The judges sitting on the International Criminal Court are from countries around the world, and five new ones were just elected in December 2014. None is from Israel (though the Chief Judge of the Tribunal on the Former Yugoslavia—also in The Hague--is a Polish/Israeli/American jurist, Theodor Meron), nor are any from any of the Arab countries immediately bordering Israel.

     The fear in Israel has always been that the Palestinians would use the I.C.C. to try Israelis for some form of War Crimes or Crimes Against Humanity—either for its conduct of the Gaza conflict, or simply for its administration of the territories acquired by force of arms in 1967. In a statement quoted in the New York Times, President Abbas explained his government’s resort to the I.C.C.: “There is aggression practiced against our land and country, and the Security Council has let us down—

where shall we go?” The implication here, of course, is that the Security Council is controlled by the United States, who “frustrate” Palestinian efforts at some form of “justice”, or statehood, by means of its veto as a Permanent Member, as empowered by the U.N. Charter.

     In fact an effort was made, earlier last year by the Comoros (a signatory of the Rome Statute) to bring Israel to the I.C.C. for its actions against the Turkish-flag vessel Mavi Marmara in 2010 (The Islamic Federal Republic of the Comoros consists of a group of islands in the Indian Oceasn, just north of Madagascar.) . At that time, Prosecutor Bensouda concluded that theoretically, just possibly some crimes may have been committed…but that they were not of sufficient magnitude to warrant prosecution by her Court. This was on 9 November 2014.

     In an even earlier explanation of the Court’s position, the Prosecutor spoke, on 9 February 2014, to charges that she had been “avoiding” investigating alleged Israeli war crimes in Gaza. Speaking in unusually unequivocal language, she said “I reject this baseless allegation in the strongest terms. It is devoid of any merit”. It should be remembered, however, that she specifically referred to Palestine as having not yet having acceded to the Rome Statue, which it now has done. She also clearly stated, however, that “…recourse to justice should never be compromised by political expediency”.

     And so President Abbas filed papers on 31 December—one day after the failure of the Security Council Resolution—to accede to the Rome Statute. One cannot help but wonder, however, if the accession to the Statute came as a consequence of failure in the Council…or if the vote in the Council (which he knew would surely fail) was set up expressly to “enable’’ (that is, to justify) the accession.

     On 6 January 2015, U.N. Secretary-General Ban Ki-Moon released a statement, confirming that the “State of Palestine” would be a State Party to the Rome Statute (i.e., would join the International Criminal Court), as of 1 April 2015. Thus, the stage is set for a confrontation in court, over who is charged with what crimes of war. And it well may be that the Palestinians have more to fear from the I.C.C. than do their Israeli rivals.

     The Palestinians’ accession to the Rome Statute set off a round of responses, measures and countermeasures that has likely not yet run its course. Abbas, said the Washington Post, had declared “diplomatic war” on Israel. The Israelis dubbed this course a “diplomatic intifada”.  And Dore Gold, Israel’s former U.N. Ambassador and now head of the Jerusalem Center for Public Affairs, said that the situation had weakened Abbas’s Fatah faction, to the advantage of its radical Gaza rival, Hamas. Former U.S. President Jimmy Carter—long since no friend to Israel—said that both Israel and Hamas should be investigated for war crimes. And The New York Times, in an article bylined to its Editorial Board, called it a “desperation move”. Desperate

or not, it certainly appears to be an act of weakness. Abbas’s actions, it maintained, would “…almost certainly make the situation worse”.

     Writing in an article published by the Washington Institute for Near East Policy, David Makovsky questioned what short-term effect Palestine’s I.C.C. membership would have. In retaliation for the move, Israel announced it was withholding about $150 million in tax revenues, which would normally be transmitted to the P.A. government. Makovsky also noted that this situation will only “deepen the loathing” between Abbas and Netanyahu. The U.S. might also make some retaliatory moves. And individual U.S. citizens might sue the Palestinian government, on behalf of victims of terrorist acts. As he concluded, the effects of the I.C.C. move “have just begun to ricochet”.

     Canada’s former Ambassador Alan Baker, in an article published by the Jerusalem Center for Public Affairs (headed by Ambassador Gold) asserts that by acceding to the Rome Statute (and by unifying with Hamas), the Palestinian Authority has “fundamentally breached” the Oslo Accords of 1993, in which it promised to make peace with Israel through negotiation. This action, Baker said, would enable the “injured party” (i.e., Israel) to declare those Accords null and void.

     As this was being written, on Friday, 16 December, I.C.C. Prosecutor Fatou Bensouda, announced that she had “opened a preliminary investigation into the situation in Palestine”. She noted that the Court had been asked to do so before, in 2009, but declined to do so on the grounds that Palestine was merely an “observer entity”. Since the General Assembly has since dubbed Palestine to be an “observer state”, its accession to the Rome Statute was now accepted. The I.C.C. “…conducts independent and impartial investigations and prosecution of the crimes of genocide, crimes against humanity and war crimes…”. Just whose crimes will be investigated…remains to be seen.

     Not surprisingly, the Palestinian reaction was uniformly positive. The P.A. Foreign Ministry called it “a positive and significant step toward achieving justice and respecting international law”.  And Hamas spokesperson Sami Abu Zuhri called it “a step in the right direction”, and called for the trial of Israeli leaders, presumably on some sort of war crimes charges. Separately, P.A. Executive Committee member Mustafa Barghouti said “The day will come when the government and the Israeli army commanders and all 650,000 settlers will be wanted in various countries around the world and will not be able to travel”.  In such a scenario, Israelis could travel only to the U.S.A—or so they maintain--since it is not an I.C.C. member.

     Naturally, the possibility that has not yet been considered is that of accusing the Palestinians—particularly the Hamas leadership--of war crimes. Such accusations might include the use of “human shields”, the placement of artillery in residential areas, and other such common practices of Hamas.

     In the aftermath of these announcements, Prime Minister Netanyahu assured his nation and the world that Israel will do whatever it needs to do,  to defend itself, it people, its soldiers and its public officials. We will defend Israel’s right to defend itself”, he said, “and not allow IDF soldiers to be tried by an international tribunal”. He referred to the Prosecutor’s investigation as the “height of hypocrisy and the opposite of justice”. And Intelligence Minister Yuval Steinitz characterized the announced investigation as “a kangaroo court that reminds me of the Dreyfus affair”, referring to the 1894 trial of the French Jew Alfred Dreyfus, on charges (Much later proved to have been totally fabricated) of spying for Germany.

     There is some doubt as to whether the Court would have jurisdiction over events since the start of the latest Gaza Wars, as the Palestinians maintain, or only those from the date of its ratification. And there is the possibility that the U.S.Congress—or some of its members—may try and take some retaliatory action, possibly including further cuts in aid to the Palestine Authority. And, of course, Israel could bring cases against the Palestinians. All in all, who knows what cans of worms may be from here unleashed?