By Daoud Kuttab

The state of Palestine officially became a member of the International Criminal Court April1 allowing it to sue Israel for crimes of war. The distance between the ability to sue and an actual conviction is going to be long and arduous and will require a totally new strategy. And such a strategy will require an ingredient that has been missing for year- national unity.

While any new Palestinian strategy must be focused on the ultimate goal of ending the occupation, it is important not to continue using the issue of the ICC as a bargaining chip. Past delays have been made in return for shameful short term gains.

The Palestinian team preparing the case against Israel reportedly has two different areas for which to sue Israel for crimes of war. It can charge Israelis for crimes of war during last summer’s war on Gaza in which 2,200 Palestinians were killed, thousands were injured and buildings including hospitals, schools and homes were demolished. Palestinians can also begin proceedings against Israel for its continued war crimes in the occupied territories namely the colonial settlement activities.

While both cases will have merit, many jurists believe that focusing on the settlement issue is a much stronger case. According to international humanitarian law you can only charge political or military officials or soldiers with war crimes if their country has not carried out any serious investigation into this the specific acts. While Israeli violent efforts in the past have been superficially investigated international human rights groups have concluded that these investigations of crimes against Palestinians are not serious and don’t meet international standards. However, the fact that the Israelis do investigate fatal related violence make a case against them weaker. Furthermore a case against Israeli violence in Gaza will certainly force an investigation of the Palestinian violence using unsophisticated rockets which can be introduced to weaken the Palestinian case even though the numbers of Israelis killed or injured by Palestinian rockets dwarfs compared to the Israeli initiated violence.

A much stronger case, however, is the one against settlements. The Fourth Geneva Convention which details how a prolonged occupation should be managed makes it absolutely clear that an occupying power is not allowed to bring its own population to the occupied territories. The applicability of the Geneva IV convention has been settled in the request of the International Court of Justice ruling about the illegality of the Israeli security wall built on Palestinian lands.

The case about settlements is also much more powerful because of its continuity. This is not a onetime act but a continuous one. It is not being carried for security reasons but for purely political and ideological reasons that can’t be denied or defended. The fact that settlement activities and the protection of settlements is carried out publicly and unabashedly by the Israeli government make the international legal effort against settlements an open and shut case.

Of course the bigger problem in regards to this case is the political one both within the court and outside it. While International jurists will claim that the ICC is independent and immune from political pressure, the fact is that it for the most part all the cases that have reached the advanced levels in the court’s proceedings have had political consensus behind them. For many around the world while the ICC mandate is international, most of the cases being heard have come out of Africa or ones that have international clout behind them such as Bosnia and the Harriri assassination.

What will be even a much bigger source of political pressure will be the ones that will be placed on the Palestinian presidency. Pressure in financial term and other means will be placed on the Palestinians to delay or even forge the ICC in return for trying again the failed direct negotiations route. In order to be able to successfully reject these pressures Palestinians must be united. A serious effort must be made to forge past problems and present a unified front in the upcoming case. This means that the Fatah-Hamas dispute that has deviated Palestinian attention for years must be immediately resolved. A date for Parliamentary, presidential elections as well as for the reformulate Palestine National Council must be declared.

All parties must commit to make the elections work and must accept the results. Regardless of the elections a sensible inclusive strategy must be agreed upon so that Palestinians of all colors inside and outside the occupied territories can be united in the pursuit of ending the occupation. No other issue should interfere with that.

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