Only in the topsy-turvy world of Middle East politics could one find a word as apparently self-contradictory as 'lawfare'. A word that is so new that it does not yet appear in the Oxford English Dictionary. Defined by some as meaning 'the use of law as a weapon of war', it is being used increasingly and pejoratively by Israeli press and politicians to describe non-violent legal-based resistance by the Palestinians to Israel's 47-year occupation of their land.
The word has been much in evidence these last few days, following the controversial decision of the Palestinian president Mahmoud Abbas on 31 December to sign and therefore seek accession to the 1998 Rome Statute which established the International Criminal Court, the world's first permanent war crimes tribunal.
The move, which followed the UN Security Council's rejection the previous day of a Palestinian resolution calling for an end of the occupation and the creation of a Palestinian state by 2017, was seen as opening the way for the ICC to prosecute alleged Israeli war crimes.
Palestinians claim that war crimes have occurred throughout the occupation, but especially during Israel's assault on Gaza last summer, which left over 1,500 Palestinian civilians dead, a third of them children. Article 8 of the Rome Statute states that "intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities" constitutes a war crime.
In a report published in November 2014, Amnesty International examined in detail Israeli attacks on eight Palestinian homes in Gaza, in which over 100 civilians were killed. Amnesty concluded "that the devastating toll on civilians and civilian property was out of all proportion to any military advantage from the attack". In other words, war crimes might well have been committed.
The reaction of the Israel government to Abbas's signature of the Rome Statute and 19 other international agreements in Ramallah was predictably negative, despite the fact that Palestine, as a non-member observer state of the United Nations since November 2012, was perfectly entitled to sign the agreements. With this March's general election doubtless in mind, Prime Minister Benjamin Netanyahu said he would defend Israeli soldiers – whom he described as "the most moral army in the world" – against international war crimes accusations.
Foreign Minister Avigdor Liberman was even more hyperbolic, stating that the Palestinians had more to fear from the ICC's jurisdiction than Israel: "the only one committing war crimes in the conflict are the Palestinians, who are responsible for murderous terrorism against babies, children, women and men, indiscriminately for the past century". In Washington a State Department spokesman said the US was "deeply troubled" by the Palestinians' "escalatory step".
But President Abbas's reasoning was not hard to fathom. It came as much as anything from a sense of desperation at the international community's continued failure to address the Israel/Palestine dispute. This frustration has grown as Israel's rejectionist stance has hardened and Israel has continued its policy of building Jewish settlements in East Jerusalem and the West Bank, itself almost certainly a war crime and therefore subject to ICC review. As Abbas said when he signed the treaties: ""They [the Israelis] attack us and our land every day, to whom are we to complain? The Security Council let us down – where are we to go?"
Some observers have described Abbas's signature of the Rome Statute as his "nuclear option", given that it is likely to provoke the Israelis into further retaliatory measures against the Palestinians. This could include invoking the ICC against the Palestinians themselves (a kind of mutually assured legal destruction, although Israel would itself have to become a party to the ICC, which it currently refuses to do precisely for fear that its settlement programme might be challenged), the withholding of tax revenues and the approval of further settlements.
The key question is: will any of this really serve to advance the Palestinian search for justice? At first glance there are few reasons for optimism:
1. There is for a start no certainty that Palestine will be allowed to join the ICC, given legal uncertainties over its almost unique status (shared only with the Holy See) as a 'non-member observer state' of the UN. Only fully-fledged states can accede to the Rome Statute, and Prime Minister Netanyahu has already called on the ICC to reject the Palestinian application, as "the Palestinian Authority...is not a state but an entity linked to a terrorist organisation".
2. In the twelve years since it entered into force in July 2002, the ICC has been a notoriously ineffective body, with a focus almost entirely on Africa: all nine formal investigations and all 36 ICC indictments to date have involved African countries, leading some observers to condemn the Court as a tool of Western neo-colonialism. Only two convictions (from DR Congo) have so far resulted from a overly bureaucratic court apparatus employing over 500 staff and costing almost £100m a year to run.
3. As a court of last resort, the ICC can only investigate and prosecute cases (or 'situations' as they are known) where the country concerned has not satisfactorily investigated its own alleged war crimes. With its independent yet politically-influenced judicial system, Israel could forestall the ICC for years by launching its own investigations. As was seen in the tragic case of the American peace activist Rachel Corrie, crushed by an Israeli army bulldozer in Gaza in 2003, such investigations almost never lead to convictions of Israeli military personnel.
4. While the carnage in Gaza this summer was appalling, many people feel that Israel's most egregious violation of international law is its continued policy of building settlements in occupied East Jerusalem and the West Bank. Unlike a stray missile vapourising a whole family in Gaza, such an endeavour is an explicit policy of the Israeli government and cannot be attributed to human error, or a rogue individual. Yet the ICC has no experience of investigating state policy as opposed to the acts of individuals. This is a key distinction, although the two are intimately related. As one American human rights activist succinctly observed: "acts of physical violence...cannot be divorced from the much more pernicious legal and structural violence that defines Israel's occupation and its ethno-chauvinistic and discriminatory policies".
President Abbas's signature of the Rome Statue prompted an explosion of fireworks in Ramallah as Palestinians marked what they saw as a powerfully symbolic gesture. There were similar celebrations when the UN General Assembly voted overwhelmingly to approve Palestine as a non-member observer state in November 2012. But since 2012 the prospects for peace with justice in Israel/Palestine have diminished, not increased, with the abortive peace initiative sponsored by US Secretary of State John Kerry (the failure of which was largely attributed to Israel), bloodshed and destruction in Gaza, and Israel's approval of thousands of new settlement units in the occupied territories.
It is likely that this latest move will be an equally false dawn. Without a true vision for peace from Israel, and without genuine pressure on Israel from the United States (something that will certainly not happen if, as seems likely, the Republicans seize the White House in next year's US presidential elections), Palestinian suffering looks as if it will continue for some while yet. The Palestinians should certainly not count on 18 smartly-robed ICC judges in The Hague to come to their rescue.
Jeremy Moodey is chief executive of Embrace the Middle East , the Christian development charity. More details at www.embraceme.org.
