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It's wrong to oppose Palestine's ICC application

It is bad enough that non-members of the ICC should oppose such a move, but far worse from countries that are members, including EU states
The 'hypocrisy' of advising Palestine against joining the ICC is dangerous (AFP)

Predictably, Palestine's formal submission of its application to join the International Criminal Court has resulted in American and Israeli condemnation and threats. It is yet another example of the absurd illogic of condemning the pursuit of justice rather than the injustice itself. The immorality inherent in such a stance means critics of the Palestinian decision are not worthy of consideration.

It is bad enough that non-members of the ICC should oppose such a move, but far worse from countries that are members - including European states such as Britain and France - because they are violating their commitment to encourage access to the Court.

These countries have been keen on ending impunity in other cases such as Libya, North Korea, Sudan and Syria. In November, former UN High Commissioner for Human Rights and Judge at the ICC, Navi Pillay, summed up members' opposition to Palestine's accession in one apt word: "hypocrisy".

In a position paper published last month, human rights organisations including Amnesty International, Christian Aid, Human Rights Watch and the International Federation for Human Rights said: "Opposing ICC membership for Palestine nurtures impunity and undermines international justice."

They added: "Advocating the impartial use of international justice mechanisms in Israel and Palestine is not about taking sides, but rather about upholding international norms, and ensuring all parties are held to account for serious international crimes and protected by international criminal law."

This a key point ignored by Israel, because as an ICC member Palestine would also be held accountable. So in the case of the last Gaza war, for example, Hamas as well as Israel would be investigated for war crimes. While Israel vehemently opposes this, Hamas had been encouraging the Palestinian Authority to join the ICC and criticising it for not doing so, even after the war.

Israeli Prime Minister Benjamin Netanyahu said on Wednesday that the PA should be the one to feel threatened by the Court for "maintaining an alliance with a terrorist organisation, Hamas, which commits war crimes." He also reiterated the age-old propaganda that the Israeli Army is "the most moral army in the world." If that is the case, then why is Israel so furious?

Israel and its allies have only themselves to blame for the Palestinian application to the ICC. Since Palestine's upgraded status at the UN more than two years ago allowed it to join the Court, the PA repeatedly delayed doing so - causing widespread Palestinian anger - while warning that Israel's repeated provocations would force its hand.

Palestinian President Mahmoud Abbas's seemingly limitless patience with Israel finally ran out this week, signing the document requesting ICC membership the day after the UN Security Council's failure to adopt a resolution calling for a timeframe to end the occupation. He cannot be accused of rushing to join the ICC - on the contrary.

"We've tried every possibility to reach a solution with the Israelis and we've spent 20 years of negotiations that didn't end their occupation over us," said senior Palestinian official Mohammed Shtayyeh, explaining the decision to apply to the Court.

Ashraf Khatib, an official in chief Palestinian negotiator Saeb Erekat's office, explained that: "after the failure in the political negotiation process last year during [US Secretary of State] John Kerry's engagement and the failure of the UN resolution, it became clear that Israel wasn't serious about negotiations." It was obvious long before then, but at least the PA has eventually realised this.

Abbas had said prior to the Security Council vote that its failure would result in an ICC application, yet the US successfully lobbied Council members to abstain, vowed to use its veto if necessary, and expressed satisfaction - along with Israel - that the resolution did not pass.

For the sake of his own domestic position, Abbas could no longer break promises to join the Court. He has also surprised sceptics who believed he would not take further action beyond joining the ICC, by reportedly asking it to investigate crimes committed in the Palestinian territories since 13 June, 2014, which would include the last Gaza war as well as settlement-building.

Those who argue that joining the ICC would harm the peace process seem oblivious to, or want to divert attention from, the reality that there has never been a genuine peace process. Israel has focused throughout this period on process over peace, in order to provide time to entrench its occupation and colonisation of Palestine.

Successive Israeli governments have been very clear, in their statements and actions, that they oppose the creation of a viable Palestinian state. Why, then, should the Palestinians bother to negotiate?

No peace process that allows for the continuation of abuses is worth pursuing, yet the PA is still assuring Israel and the US that it wants to talk, albeit with "a clear terms of reference". Their response has been threats that have been implemented before, including Israel halting the transfer of Palestinian taxes to the PA, and the US withholding some half-a-billion-dollars-worth of annual aid.

The Authority has not buckled (not yet anyway), saying withholding tax revenues would lead to it suspending security cooperation with Israel. This is a potent threat because such cooperation has led the PA thus far to do more to manage Israel's occupation and quell Palestinian resistance to it, than to end it.

More fundamentally, any Israeli and American action that might cause the PA to collapse would backfire on Israel, which would then have to assume responsibility over the Palestinians as the occupying power. The PA's creation some two decades ago allowed Israel to shirk this responsibility.

According to the results of a poll in December by the Palestinian Center for Policy and Survey Research, most Palestinians do not seem perturbed by the potential collapse of the Authority, with 55 percent of them believing it has become "a burden on the Palestinian people."

Opposition to the Palestinians' accession to the ICC is part of a wider strategy of discrediting any pursuit of their basic rights. Supporters of Israel condemn any armed resistance to the occupation, including that which is permissible under international law (not targeting civilians).

However, they also oppose peaceful avenues such as the ICC, the Boycott, Divestment and Sanctions movement, and initiatives at the UN such as the most recent failed resolution or joining UN organisations. In effect, Israel and its allies will only accept Palestinian capitulation.

Insisting on the creation of a Palestinian state only via negotiations with a country doggedly opposed to it is not just illogical, it is insulting, particularly when coming from those who profess support for such a state.

The US and Israel will do all they can to penalise the PA for applying to the ICC, and to stop it pursuing any investigations. The Authority must resist all such pressures - nothing is worth the continued denial of the Palestinians' national aspirations and rights. Nothing.

Sharif Nashashibi is an award-winning journalist and analyst on Arab affairs. He is a regular contributor to Al Arabiya News, Al Jazeera English, The National, and The Middle East magazine. In 2008, he received an award from the International Media Council "for both facilitating and producing consistently balanced reporting" on the Middle East.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.

Photo: Young women protest during this summer's 50-day war between Gaza and Israel (AFP)