There is little doubt that the mid-February meeting between Israeli Prime Minister Benjamin Netanyahu and US President Donald Trump at the White House further dampened already dim Palestinian hopes for a sustainable peace based on a political compromise. The biggest blow was Trump's casual abandonment of the two-state solution coupled with an endorsement of a one-state outcome provided that the parties agreed to such an outcome, a result which is almost impossible to imagine. With geopolitical bravado suitable for the real-estate magnate that he remains despite the presidential manoeuvrings, Trump also vaguely promised to negotiate a grand deal for the region that evidently reached beyond the contested territory of Palestine, so long locked in conflict, and encompassed neighbouring countries or possibly the whole region. It is easy to speculate that such murmurings by Trump were not welcomed in either Jordan or Egypt, presumed dumping grounds for Palestinians from the West Bank and Gaza in order to ensure that Israel maintains a comfortable Jewish majority if the one-state solution were ever to be forcibly implemented. An inflammatory part of this new context is the accelerated expansion of the existing network of unlawful Israeli settlements located in Occupied Palestine. Although near unanimously condemned in a UN Security Council Resolution in December, Israel has defiantly announced the approval of thousands more settlement units, endorsed plans for an entirely new settlement, and by a Knesset initiative provocatively legalised settlement “outposts”, 50 of which are distributed throughout the West Bank in direct violation of prior Israeli law. It is possible that the Israeli Supreme Court will heed anticipated judicial challenges to this latest move and eventually void this Knesset law, but even if this happens the passage of such a law sends a clear message from the political forces currently steering Israeli policy never to permit the establishment of a viable Palestinian state. In these circumstances, it becomes incumbent upon the Palestinian Authority (PA) to show the world that it is still alive, and it has few ways of doing this. From such a perspective it would seem a no-brainer for the PA to light up the skies of public awareness of the Palestinian plight by vigorously demanding justice at the International Criminal Court (ICC) in The Hague. After all, there is a wide consensus on the global stage that all the Israeli settlements, and not just the outposts, are in violation of Article 49(6) of the Fourth Geneva Convention. These settlements have for decades acted as a major obstacle in the search for a satisfactory diplomatic solution to the conflict. Of course, it would be naive to expect Israel to comply with an adverse judgement from the ICC, or to participate in such a proceeding in any way other than by challenging the competence of the tribunal. But a favourable outcome would still be of great value for the Palestinians. It would cast Israel in an unfavourable light in relation to the UN, international law and world public opinion, and it would also undoubtedly encourage the growth of the global solidarity movement. Yet, despite these circumstances that make the ICC seem such an attractive option, a PA decision to take this path is far from obvious. Last week, former PA foreign minister and member of the Fatah Central Committee Nasser Al-Kidwa effectively dismissed the ICC option, telling the Website Middle East Eye that it was “complicated” without any further explanation. There are mixed signals emanating from the Palestinian leadership circles. PLO Secretary-General Saeb Erekat, in contrast to Al-Kidwa, minced no words in his insistence that the ICC investigate “the colonial settlement regime.” It seems useful to speculate on why there should be such ambivalence among Palestinian leaders. After all, both international law and public opinion seem to side strongly with the Palestinians. Israel is defiant and shows every sign of further expansion. At the bottom of this debate is the tricky question of whether deference to the vagaries of geopolitics serves Palestinian interests at this time. PROS AND CONS: The case for recourse to the ICC is obvious, as it would back Israel into a corner. The Netanyahu government is certain to react with anger and hostility to any such move by the PA. Such a reaction would be widely seen as strong confirmation of Israel's vulnerability to any impartial test as to whether its settlement policies meet the minimum requirements of international law. Most importantly for the PA, it would demonstrate that despite recent political disappointments, the Ramallah leadership is prepared to pursue a controversial course of action that displays political courage, including a willingness to endure the expected vindictive acts of reprisal. Recourse to the ICC would also play well with the Palestinian people, especially those living under the Israeli occupation. They experience daily tensions with violent Israeli settler groups and see no future for themselves in the absence of confrontation with Israel. If the PA chose such a course, it would help restore support for the flagging claims of the PA to serve as the sole legitimate representative of the Palestinian people. The arguments against going to the ICC are somewhat more elusive. There is no doubt that Palestine, recognised by the UN as a state, now enjoys the jurisdictional qualifications to participate in ICC proceedings. What is less clear is whether the ICC would be responsive. During its 15 years of operation, the ICC has been reluctant to be proactive except in Africa, and even there it has been stung by an intense pushback by African governments and the African Union. The ICC has been reluctant to stir up political opposition in the West, which would certainly occur if it launched a full investigation into Palestinian criminal grievances against Israel. There is also the reverse problem of ICC action that might disappoint the PA. To appear balanced, the ICC might extend its investigation to include allegations relating to indiscriminate rocket fire from Gaza. It could then decide that a strong case of probable criminal responsibility attributable to Hamas existed, while allegations against Israel failed because of the inability to establish criminal intent. Although a setback for the PA, such an outcome at the ICC would be internationally criticised as contrary to reasonable interpretations of international law and would be widely regarded as a reflection of political pressures exerted by Washington. Probably, the PA is most inhibited by the “lawfare” campaign being waged by Israel and the United States against it. Already during the time in office of former US president Barack Obama, Congressional legislation was passed terminating financial assistance to the PA in the event of any recourse to the ICC. Since Trump's inauguration in January, these warnings have escalated, including the total suspension of financial aid, the closing of the PLO offices in Washington and threats to put the PLO and Fatah back on the US list of terrorist organisations. It is evident that the PA is taking these unseemly threats seriously. There are also PA fears that any ICC initiative would induce Israel to move more quickly towards closure with respect to the underlying conflict, annexing most or all of the West Bank. Such a reaction would be in keeping with Israel's tendency to respond disproportionately to any formal action directed at the legality of its policies and practices. Israel is particularly sensitive about war crimes charges. Now that Netanyahu can count on unconditional support in the White House and the US Congress, it would not be surprising to see him seize the occasion of an ICC initiative to proclaim Israeli sovereignty over the whole of historic Palestine. PA PARALYSIS: Given this context, it seems almost certain that the PA will not take advantage of the ICC option. It is likely to adopt a posture of neither/nor, that is, neither explicitly ruling out recourse to the ICC, nor activating the option. This reflects the reality that the PA is caught between the rock of American and Israeli bullying tactics and the hard place of an increasingly restive Palestinian population, acutely reminded of its ordeal by the grim realisation that 2017 is the 50th anniversary of the Israeli occupation of the West Bank and Gaza Strip. The US posture, although more belligerently pro-Israeli as a result of the Trump presidency, is nothing new, however. Even during the Obama presidency it opposed every attempt by the PA to rely on international law to advance its national struggle. Instead of welcoming the use of law rather than weapons, the US government castigated efforts made by Palestine to gain membership of the UN system or to seek relief for its grievances in international venues. This turn against international law, as well as the UN, is clearly a signature issue for the Trump presidency, and not just in relation to Palestine. This is not good news for the world as a whole. The writer is an international law and international relations scholar who taught at Princeton University in the US for 40 years. In 2008 he was appointed to a six-year term as UN special rapporteur on Palestinian human rights.
