In light of the Palestinian decision to seek membership in the International Criminal Court (ICC), and to pursue action in that body, and consistent with APN’s longstanding Board-adopted principles regarding the efforts of the Palestinians in the international arena, APN today articulated the following principles, adopted earlier this month by APN’s Board of Directors:

The Palestinians have the right to seek to join the ICC and make their case to the ICC. Whether people like it or not, and whether they believe it is a good idea or not, it is the Palestinians’ right to seek recognition of a state of Palestine, even under Israeli occupation, as they did previously in the United Nations General Assembly.  Based on this recognition, it is the Palestinians’ right to seek standing in the ICC and in other international bodies.  Indeed, in seeking recognition and standing in international bodies as part of their bid for independence and statehood, the Palestinians are following in the footsteps of David Ben Gurion and Israel’s other founders, who sought legitimacy and support in the international arena in the period before Israel became a recognized state.

The Palestinians’ resort to the UN and ICC is not a rejection of the negotiations process, but rather a recognition of the failure of that process.  The decision of the Palestinians to take their case first to the UN and now to the ICC reflects, first and foremost, the loss of credibility of the peace process paradigm that has been in force since the early 1990s and the growing realization – felt not only by the Palestinians but by much of the world – that this paradigm will never lead to an end of the occupation and a viable two-state solution.  As such, this decision reflects a rejection of “process” for its own sake and a recognition of the fact that developments on the ground in the West Bank and East Jerusalem, in particular expansion of settlements and settlement-related infrastructure, may soon make the two-state solution impossible.

With their efforts in the international arena, including at the ICC, the Palestinian leadership is continuing its embrace of non-violent means to achieve its goals, in accordance with international law.   The Palestinians’ efforts in the international diplomatic arena, however objectionable Israel may find them, demonstrate concretely the Palestinian leadership's continued determination to achieve progress solely through non-violent means.  By submitting themselves to the jurisdiction of the ICC and international law, and inviting the ICC to exercise jurisdiction in the occupied territories, the Palestinian leadership not only reinforces its own rejection of violence and terror, but subjects any Palestinians who employ such odious tactics – including Hamas – to international scrutiny and consequences.  For its part, Israel has a clear interest in having a neighbor who is held to international legal norms.

With its efforts in the international arena, including at the ICC, the Palestinian leadership is doubling down on its commitment to the two-state solution.   Notwithstanding misleading portrayals by critics, the Palestinians’ appeals to the UN and the ICC have been consistently and explicitly grounded in their embrace of a two-state solution, along lines endorsed by virtually the entire international community.  Importantly, potential Palestinian appeals to the ICC are expected to focus solely on Israeli policies and actions vis-à-vis territories occupied in Israel in 1967, doubling down on the Palestinian leadership’s continued commitment to a two-state solution, consistent with their efforts in the UN, with the Arab Peace Initiative, and with the consensus of virtually the entire international community.

Israeli concerns about the ICC are not unreasonable.  Given the complicated and controversial nature of Israel’s presence and actions vis-à-vis the Palestinians and the occupied territories under international law, Israeli concerns that it could be subjected to sanctions and multilateral enforcement mechanisms as the result of ICC action – or that its officials, soldiers or private citizens might be subject to international legal action – are not unreasonable.  Moreover, Israelis have a long and painful experience with UN and international agencies, which they often see as unfairly targeting Israel, being indifferent to the very real threats Israel faces, or employing a double standard in their treatment of Israel.  This has led Israelis to understandably mistrust such bodies and view them as hostile.

The Palestinians’ joining the ICC must not be a pretext for dangerous retribution against the Palestinians or international agencies.   It would be reckless and foolish for Israel, the United States, or other parties to respond to the Palestinians joining the ICC with dangerous, self-defeating retribution – like Israel withholding of tax revenues that legally belong to the PA, or Israel accelerating actions on the ground that could hasten the demise of the two-state solution, or the United States stopping assistance to the PA.  Such actions could destabilize or even lead to the collapse of the Palestinian Authority, opening the door for myriad risks and threats to the security and well-being of Israelis and Palestinians alike.  They would strengthen extremists who reject the PA’s non-violent, pro-two-state approach and endorse a return to “violent resistance.” And they would validate the conclusion – among Palestinians and in the international community – that Israel is not interested in peace and a two-state solution, feeding global anti-Israel activism and greater international pressure and isolation. 

The U.S. and the international community should act boldly to transform the current crisis into an opportunity.  The appropriate response by those concerned with the Palestinians’ strategy of taking their case to the ICC is not simply attacking the Palestinians, demanding that they desist, and threatening (or imposing) dire consequences.  Rather, the proper, constructive response is to work urgently to establish a near-term horizon for ending the conflict, giving the Palestinians a real reason to change course.  What is required today is bold action by the U.S. and the international community to demonstrate to Israelis and Palestinians that a negotiated solution is both possible in the short-term and vital to both peoples.  An example of such action could be the UN Security Council adopting constructive parameters and a timeline to end the conflict, as a basis for re-launching peace talks in a context of far greater international urgency and investment.  What are not needed today are more feeble diplomatic pretexts that seek merely to defuse the immediate crisis, rather than seriously advancing peace – and along the way further discredit diplomacy and negotiations as a means to achieve a solution to this conflict.

The US and Israel, for their own interests, should be working to avoid a crisis over the ICC.  The world has lost patience with Israeli actions and policies that contradict a serious commitment to the two-state solution.  The increasingly brazen nature of Israel’s right-wing – and its open embrace of a Greater Israel ideology that is inimical to any two-state, negotiated solution to the Israeli-Palestinian conflict, has deepened international openness to see the Palestinians take their case to bodies like the UN and the ICC.  In this context, Israel will find itself in an awkward, isolated, marginalized position opposing the Palestinians’ right to appeal to the ICC.  Similarly, the U.S. will find itself in a comparably isolated, awkward position, forced to choose between opposing actions that in principle are consistent with U.S. policies and values, or be portrayed in some circles as having abandoned Israel.  This is a situation that would be disastrous for Israel and unwarranted for the US, and one that both the U.S. and Israel should work assiduously to avoid.

ICC action, just like UN action, cannot resolve the Israeli-Palestinian conflict.   Entry of the ICC into the Israeli-Palestinian equation could increase the sense of urgency among Israelis and Israel’s supporters to achieve a negotiated solution.  However, action by the ICC – be it an investigation of the policies and actions of Israel or the Palestinians – is not and cannot be an alternative to a negotiated settlement.  ICC action on Palestine will not end the occupation or resolve the issues of borders, refugees, security and Jerusalem.  These issues will only be resolved through negotiations that involve both Israel and the Palestinians - something that the Palestinian leadership itself has recognized even in the context of its current effort to enhance its footprint on the international arena.