BY PRESIDENTIAL DECREE
“The Palestinian president issued a presidential decree forming a national committee to follow up with the ICC,” writes Hani al-Masri in the leading Palestinian daily al-Ayyam.
This is a positive step because it reflects a Palestinian determination to follow up and activate its membership in the ICC, rather than succumb to American and Israeli pressures and European entreaties.
Much can be said about this committee’s odd and peculiar makeup. It includes over forty Palestinian figures, most of them members of the PLO Executive Committee and Fateh’s Central Committee, as well as heads of the security agencies, representatives of government ministries and bodies, the Foreign Ministry – which, according to the presidential decree will be in charge of the committee’s secretariat – members of human rights organizations, and figures representing Fateh’s Advisory Council, the PLO’s Palestinian National Council (PNC), and the various political factions, including one member of Hamas.
Despite its large ‘bandwagon’, which makes it difficult for it to work, the committee does not include anyone specializing in international criminal law or international law. Absent are figures known for their expertise who contributed to previous activities of this nature – especially the national committee that succeeded in eliciting the legal ruling from the court in The Hague. That ruling bestowed upon the Palestinians a treasure more valuable than anything they had expected, but which they did not put to good use.
Also absent are representatives of the Palestinian Diaspora, despite the large number of Palestinian refugees and communities across the world that have many experienced and qualified members who would have made important contributions to the committee. Moreover, they are free from the pressures exerted on the Palestinians in occupied Palestine.
It is also worth noting that the committee lacks any real representatives of university professors, especially from law schools. It may be claimed that they can be included in the specialized technical committees; but this does not justify the exclusion of qualified people from a national committee that is supposed to be responsible for dealing with the ICC and having the major say in this matter.
But the problem is not confined to the committee’s lineup. The main problem stems from the fact that its members are mostly from the official and political echelons, which means that it will be subject to the political leadership’s calculations and commitments, and hence subject to pressure.
This is especially likely since the committee has no real powers. Its task is purely technical, advisory, consultative, and media-related, confined to ‘preparing the documents and dossiers that the State of Palestine will present to the ICC via a technical committee headed by the Foreign Ministry, whose priorities will be determined by the Supreme National Council which can seek help from whoever it sees fit and from the technical and legal committees, but with the Council retraining full authority over them.’
In fact, the decree is not sufficiently clear regarding the committee’s powers, which allows for various interpretations. These include one that is consistent with the above quoted text and according to which it is the state that will decide when and how lawsuits are to be conducted and how to pursue war crimes and crimes against humanity, as well as ongoing crimes such as settlement activities and other such crimes.
Placing almost the entire matter in the official leadership and state’s hands, with the same faces appearing that we see on various other committees dealing with various issues, deprives the Palestinians from the participation of a variety of qualified people who would have enriched the committee and contributed to achieving the necessary renewal and change.
It also deprives them from the most important aspect of the ICC, namely, that it is a court for individuals, in which any Palestinian individual or institution, or the Palestinian state, can sue Israeli individuals, politicians, or military figures who have either committed or contributed to, or taken decisions leading to any sort of crime against the Palestinian people, in general, and our people in the Gaza Strip, in particular. The latter have suffered greatly from major barbaric aggressions and war crimes, with five-thousand martyrs and many times more wounded, and with homes, establishments, and infrastructure systematically destroyed – from late in 2008 up till the latest aggression in July 2014.
The Palestinian [official state] leadership will hesitate long before taking any step at the ICC, because it will have to pay a political, moral, and material price for its consequences. Moreover, it will place any such step in the context of its continued wager on resuming negotiations after the coming Israeli elections in March, especially if the [Labor Party-led] ‘Zionist camp’ wins or joins a future Israeli government.
Here, the leadership is motivated by the illusion that, at the end of his second term in office, Obama can do what he has not done till now, namely pressure Israel to accept a settlement that secures a minimum of Palestinian rights. However, these are nothing but dreams that cannot be fulfilled, akin to ‘Satan’s dream of entering paradise.’
The committee has been established by presidential decree. Its president is a member of the PLO Executive Committee. It will only convene at its president’s request, even though the presidential decree is meant to include a clause that requests the committee to agree on the rules that determine its activities and meetings, instead of leaving the entire matter in the hands of the committee president who can request it to convene whenever he wishes and refrain from doing so whenever he wishes, until further notice.
We can understand the argument that the committee needs political cover. But what is the point of inundating it with such a large number of politicians and the commanders of all security services? If it is to benefit from the latter’s capabilities and information, the committee can secure their services without the need for their commanders to sit on the committee.
There is need to establish an official committee, and another civil committee, provided that there is close institutional coordination between them to ensure the harmony and appropriate division of labor that safeguard’s each committee’s freedom of action. And this should be done in a manner that does not harm the official leadership that is shackled by preconditions and commitments and is subject to outside pressure. And it should also be done in a manner that does not harm the civil committee, whose hands are supposed to be free and unconstrained.
For imagine what would have happened if the ‘boycott committee’ (BDS) [Boycott, Divest, and Sanctions Movement] had been established in the same manner as the ICC committee; it would certainly not have achieved half or a quarter of what it has done so far.
Another possibility is to establish a mixed ‘official/civil’ committee, but grant it real authority giving it independent status that allows it to work and decide without being bound by official considerations, and with a large proportion of qualified specialists including its president and members.
Based on the above, the creation of the national ICC committee in this manner is not reassuring. It reminds us of the absence of institutional, professional, collective, and democratic work, with the transparency, accountability, and supervision that go with it. And this increases the likelihood that yet another paralyzed committee has been added to the paralysis that our institutions already suffer from – from the PLO’s Executive Committee to the Central Committee, to the PNC which has been effectively nonexistent for a long time now.
For the PNC has not convened for years, while the Central Committee holds meetings at unspecified periods without exercising its full authority as a mediating leadership body that convenes between every two PNC meetings. Nor have PNC elections been held for a long period now.
“Moreover, [Fateh/Hamas] national accord – the sole alternative that could partially compensate for the absence of electoral and ballot box legitimacy, especially now that the terms in office and the mandate of all the PLO and PA bodies and figures inside have expired – has not been achieved,” concludes Masri.