One cannot underestimate the impact of the $655.5 million US terrorism trial verdict against the Palestinian Authority on its hopes to convince the International Criminal Court prosecutor to indict Israeli soldiers and leaders for alleged war crimes in last summer’s Gaza war.
Whether the ICC intervenes is viewed as an open question, and the overall diplomatic and legal situation could have a big impact.
On one hand the ICC is not (yet) viewed as unabashedly biased against Israel like many UN organizations, such as the UN Human Rights Council, UNRWA and the UN General Assembly.
It is viewed as far more legal-professional in its approach and less automatically controllable by the nonaligned movement of Muslim states and other third-world countries, who regularly vote against Israel.
Many do not realize that the ICC prosecutor’s recent decision to recognize “Palestine” as a state was and is a long way from actually opening a full criminal investigation, let alone indicting Israelis.
But while it may not be political at its core, it is most certainly not a completely apolitical organization.
Also, at only 12-years-old and standing on shaky ground after being ignored by Sudan, Libya and Kenya over war crimes allegations against them, it is highly concerned about the specter of being written off as irrelevant – a charge Israel and many Western allies would make if it really ends up going after Israeli officials.
On the other hand, it faces accusations that it is Africa-centric, since all of its full cases so far have been against African countries, and intervening in Israel-Palestine could help defend against those allegations.
In the midst of all of this will be the debate over the big-picture narrative.
Is investigating Israel-Palestine about defending Palestinian human rights from Israeli impunity, or is it about – intentionally or not – giving cover to Hamas terrorists for committing war crimes and constraining Israel from defending its civilian population.
Why would a US ruling on whether the PA was involved in terrorism in 2004, matter in 2015? Because until now, despite Israeli allegations of Yasser Arafat’s involvement in the second intifada violence, the PA has said Hamas performed all the terrorism and that it has been clean since the mid-1990s Oslo Accords.
If it emerges in the verdict that the PA was involved in terrorism from the top down, suddenly the PA is not coming with clean hands, but with hands awash in the war crimes that it accuses Israel of.
If the ICC prosecutor is on the fence, a major decision like this – and maybe more like it following – could push the narrative far enough in Israel’s favor that the prosecutor could be concerned about being viewed as having indirectly assisted terrorists.
Israel or Israel-supporters could even try to use the US decision, though it is a civil damages case, to push the ICC to intervene against the PA, dating back to the second intifada.
Until now, PA President Mahmoud Abbas had no personal risk going to the ICC, as the Gaza war at most, put Israel and Hamas at risk.
Investigating the second intifada could put him and his inner circle at legal risk – producing a situation where the ICC would be reliant on Abbas providing evidence against Israel, which in turn could present equally damaging testimony against him.
Though this is only one verdict and one bad day for the PA, which it may successfully brush off, Israel and its supporters have already made good on the threat that the PA’s use of “lawfare” could boomerang in unpredictable ways.