A curious piece of theatre took place outside the Chief Prosecutor's Office in the International Criminal Court in The Hague on August 5. This was 28 days into Israel's attack on Gaza, just over half way through, and the Palestinian foreign minister banged the drum.
Riad al-Maliki told the media that there was "clear evidence of war crimes" in the attack and he was in The Hague to "get acquainted with the work of the ICC" and "find out what is really required... for Palestine to become a member of the court."
Fellow Palestinian ministers scratched their heads. Maliki knew what to do. It had already been done six days before. I can reveal a legal application had been submitted to the ICC by the Palestinian Justice Minister Saleem al-Saqqa and the General Prosecutor of the Court of Justice in Gaza, Ismail Jabr on July 30.
The ICC was puzzled too. Inside the meeting, Fatou Bensouda and her deputy prosecutor James Stewart wanted to know whether the application they had received on July 30 from al-Saqqa and Jabr had been made in the name of the Palestinian Authority.
This was the chief remaining legal impediment, since the UN General Assembly voted to accept Palestine as an observer state at the UN.
Their jaws dropped when Maliki told them that al-Saqqa and Jabr were not acting on the authority of unity government, the Palestinian Authority, nor President Mahmoud Abbas.
Stewart confirmed the meeting in a letter to the pair's french lawyers, which I have obtained.
On 5 August, 2014, I met the Minister for Foreign Affairs for Palestine HE Mr Riad Maliki where I provided clarifications he requested on the different mechanisms for a State to accept jurisdiction of the ICC and regarding the legal framework of the Rome Statute. At that meeting, I sought to confirm whether or not your communication dated 30 July 2014 was transmitted on behalf of the Palestinian Authority, as a result of which I did not receive a positive confirmation. Accordingly there is no legal basis for my Office to consider and/or treat the 30 July 2014 communication as emanating from a representative of Palestine endowed with the required full powers to seize the Court's jurisdiction pursuant to article 12(3) of the Statute.
Maliki's purpose in flying to The Hague in the middle of a devastating Israeli bombardment was to stop a legal application for Palestinian membership of the ICC going ahead. Why?
Consider the date -- August 5. Two days after that, Hamas decided to put its signature to a Palestinian declaration to join the ICC, incurring the risk of coming under a war crimes action itself for indiscriminate rocket fire from Gaza. That decision was leaked to the Middle East Eye on August 11.
Abbas knew that once that decision was made public, he could not use other Palestinian groups as a fig leaf for his own reluctance to sign up to the ICC. Hamas' move robbed him of that excuse. So he sent al- Maliki to the Hague to stop it.
Why again? That is harder to answer. The strategy of using the UN and accession to international bodies to advance Palestinian statehood is his. Why would he, of all people, be blocking it?
He knows that Israel is really concerned about a war crimes case starting and is already rushing moves to prevent this from happening. To forestall an impending ICC investigation Israel's attorney general and military advocate are setting up their own investigations into the campaign on Gaza.
As The New York Times reported today:
The investigation process may also be intended to counter threats by the Palestinian leadership to join the International Criminal Court for the purpose of holding Israel accountable for its actions as an occupying power. The court generally only investigates cases where the country involved is unwilling or unable to investigate itself.
So Abbas is trying to apply the brakes at the very moment when signing the Rome Treaty of 2002 is a matter of urgency. Senior Fatah leaders have long suspected Abbas' motives for delaying the ICC application. Abbas has consistently used accession to the ICC as a bargaining chip with Israel. Fatah official Nabil Shaath told the Palestinian news agency Ma'an that Abbas would activate its application to the ICC if the UN Security Council rejected a demand to set a three year deadline for Israeli withdrawal to its 1967 borders.
In June, a recording was leaked in which Saeeb Erekat, the Palestinian Chief Negotiator claimed that Abbas had promised the Israeli Premier Benyamin Netanyahu not to make the application.
Erekat allegedly said:
Abu Mazen [Abbas], if you want to move Netanyahu, work on the [application] documents for international institutions. He said: I made a commitment' [not to apply to international institutions]. What commitment have you made? This isn't your daddy's farm! This is a nation, this is Palestine. This is bigger than individuals. He didn't listen to me. I swear, I submitted my resignation twice.
Abbas and Netanyahu met again secretly in Amman days before the ceasefire was announced, although both sides have denied this. The sole subject of conversation was how to stop Hamas claiming victory.
Since then, Abbas reverted to blaming Hamas for the faltering unity government claiming they have not yet relinquished power to his ministers in Gaza. This, again, is a curious claim to make because the ministers themselves have stayed in Ramallah and have not tried to exercise their duties in Gaza. Neither has Abbas himself turned up.
In both the unity agreement and the ceasefire, Hamas handed Abbas important cards to play: the militant group accepted that PA troops could man the border with Egypt at Rafah, that Abbas ministers -- all of whom are his appointees -- could run Gaza, and that Abbas could take credit for the lifting of the siege of Gaza if and when a seaport is open and an airport built.
Hamas gave Abbas had the opportunity of playing the role of Palestinian President in Gaza itself. Instead the Palestinian president whose own mandate has run out, is trying now to rattle the unity agreement with Hamas to bits. Trying to counter the surge in Palestinian support for Hamas -- Fatah members are flocking to join Hamas in the West Bank -- is more important to him than ending the impunity Israel enjoys international law. Personal ambition which will never see the light of day -- Abbas's plan for an Israeli withdrawal from the West Bank in three years -- trumps the collective Palestinian search for justice.
Abbas is at least consistent. He is treating the ICC application in the same way as he initially tried to oppose the Goldstone Inquiry into a previous Israeli military campaign in Gaza.
Remember the outrage when the PA, under pressure from the US and Israel, abruptly halted its drive to take the Goldstone report, which accused both Israel and Hamas of war crimes, to the ICC. The PA had initially urged the UN human rights council to refer the issue to the UN Security Council, which could in theory ask the ICC to open a war crimes prosecution.
Later the Palestinian Papers revealed why this had happened. Senator Mitchell presented Erekat with a document containing language that would nullify the chance to prosecute Israeli officials for war crimes in Gaza at the ICC.Mitchell's paper stated:
The PA will help to promote a positive atmosphere conducive to negotiations; in particular during negotiations it will refrain from pursuing or supporting any initiative directly or indirectly in international legal forums that would undermine that atmosphere.
Erekat, Abbas and the Palestinian Authority accepted this and agreed to call for a deferral of the UNHRC vote.
Palestinians are not blessed with their leaders but this is not the ICC's fault. When The Guardian claimed that the ICC was coming under international pressure to avoid a war crimes investigation, Bensouda was rightly indignant. She wrote:
...the statute is not one of the treaties that Palestine has decided to accede to, nor has it lodged a new declaration following the November 2012 general assembly resolution. It is a matter of public record that Palestinian leaders are in the process of consulting internally on whether to do so; the decision is theirs alone and as ICC prosecutor, I cannot make it for them.
Only too true.