Looking for leverage.

Photographer: Abbas Momani/AFP/Getty Images

Do Palestinians Have to Take Israel to Court?

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

Palestine’s bid to join the International Criminal Court is unlikely to lead to actual charges being brought against Israel, for reasons legal, political and institutional. So why is Palestinian President Mahmoud Abbas willing to pay a high price in lost revenue and U.S. anger to make the effort? And why is Israel so concerned about the Palestinian move? The answer is a matter of framing -- and it sheds light on the trajectory of the Israeli-Palestinian conflict more than 20 years after the Oslo accords.

The legal barriers to ICC jurisdiction over the Israel-Palestine conflict are significant and complex. The most salient is that the ICC only takes jurisdiction when the accused state has been unable or unwilling to make a serious criminal investigation on its own. Yet Israel has a robust judicial system that has consistently investigated civilians and military personnel alike for alleged war crimes. What's more, the Israeli military is accustomed to operating under judicial supervision that's almost unmatched anywhere in the world. As a result, Israeli military officials typically act only after receiving advice from military lawyers that justifies both their strategy and their tactics. These facts make ICC jurisdiction unlikely.

The only prominent exception to this state of affairs relates to Israeli settlements in territory that the rest of the world considers occupied. The Fourth Geneva Convention makes it illegal for an occupier to “transfer parts of its own civilian population into the territory it occupies.” On its face, this prohibition would appear to render Israeli settlements in the West Bank as war crimes. Israel has a series of responses, the most important of which is that because the West Bank did not legitimately belong to any other sovereign country when it occupied the territory in 1967, the provision should not apply. But this claim is to some degree undercut by the fact that the Israeli High Court itself applies the international law of occupation to the West Bank.

In theory, the ICC could perhaps say that Israeli courts haven't sufficiently considered the charge of war crimes for the creation of settlements. Even this argument might not convince the court, because Israeli authorities have considered the claim -- they’ve just rejected it.

Even if the hurdle of Israeli investigations of alleged crimes could be overcome, a series of further, more technical obstacles exist. Some relate to political geography. The Oslo accords gave control over different parts of the West Bank to Israel, the Palestinian Authority or both: over which can Palestine give the ICC authority? What are the borders of Palestine, anyway? Others have to do with chronology. From when can the ICC take cognizance of alleged Israeli war crimes?

Perhaps most important of all, it seems highly unlikely that any chief prosecutor of the ICC would want to enter the political thicket that is the Israel-Palestine conflict. So far, the ICC has focused almost exclusively on African conflicts. It has faced criticism for this exercise of prosecutorial discretion as benighted, shortsighted, selective and even racist. But what the cases brought so far have in common is that for each case, no major constituency strongly opposed bringing it. This would not be the case with respect to Israel. Whatever legitimacy the ICC might gain with the harshest critics of Israel in Europe or the developing world, it would face protracted criticism from the U.S. and its legal establishment. Again, it’s hard to picture the ICC making Israel one of its first non-African targets.

So why has Mahmoud Abbas pressed the point? The effort has been far from costless for him or the Palestinian Authority. Israel has made initial moves already to cut off revenue previously relied on by the authority to do even the most basic governance. Israel has also made it clear that it will use the ICC accession as a reason not to recommence negotiations -- and it seems near certain that the U.S. will back this decision, especially with a presidential election season looming.

For its part, Israel’s harsh response suggests that Benjamin Netanyahu’s administration takes the Palestinian ICC effort seriously. This, too, requires explanation given the unlikelihood of any actual prosecution.

The answer in both cases lies in how the Palestinians can use even the distant specter of ICC charges to frame the nature of the Israel-Palestine conflict. The great accomplishment of the Oslo accords from the Palestinian perspective was to place Palestine and Israel on putatively equal terms as nation states negotiating over sovereign territory. For a would-be nation that had been denied not simply sovereignty but even a claim to national existence, this was a major symbolic accomplishment.

But the Oslo ploy fizzled. Acknowledgment of Palestine as a state-in-the-making didn’t actually give the Palestinians sufficient negotiating power to get kind of deal that they, or at least Yasser Arafat, felt was necessary to forgo historical claims to the whole of Palestine. Since Arafat’s death, Abbas has failed to generate even the types of concessions that Ehud Barak was willing to make to Palestinian statehood.

That leaves the Palestinians with the necessity of trying to generate new forms of leverage. The latest, most promising from Abbas’s perspective, is to convince Western states (with the exception of the U.S.) that Israel’s occupation is basically criminal -- and that Israel is therefore a rogue or outlaw state that should be shunned by the international community.

The boycott and divestment movement directed at Israel is one facet of this program to generate negotiating leverage. Intentionally modeled on the social movement that sought to condemn South African apartheid, the movement seeks to convey to Israel the substantial threat that continued occupation will make it an international pariah.

Seen through this lens, it hardly matters whether the ICC will ever actually take jurisdiction over the Israel-Palestine situation. Repeated appeals to the ICC will create a constant drumbeat of insistence that Israel is in violation of international criminal law. The association with genocidal African actors will be beneficial to creating leverage for the Palestinians -- or so Abbas reasons. Based on the harshness of its response, Israel is clearly worried that this strategy might work. In any rational world, the endgame is still negotiation. But the tactics to get there -- and to provide leverage at the table -- are evolving fast.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net