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MAY 4, 2014 – JERUSALEM — More than a year after Palestine was upgraded to become a nonmember observer state of the United Nations, the attributes of statehood exist mainly on official Palestinian letterhead.
Now, with the collapse of the American-brokered Middle East negotiations, the Palestinian leadership is focusing on its diplomatic and legal struggle for international recognition of Palestine as a state under occupation and for Israel to be held accountable as the occupier.
Last month, in a move that angered Israel and Washington, President Mahmoud Abbas of the Palestinian Authority signed applications to join 15 international treaties and conventions after Israel missed a deadline for releasing Palestinian prisoners.
In the absence of negotiations, the Palestinians plan to proceed cautiously as they join more than 40 other treaties and agencies, culminating in an application to join the International Criminal Court in The Hague, which was established in 2002 to prosecute perpetrators of genocide, crimes against humanity and war crimes.
The court is seen by the Palestinians as a powerful tool because, experts say, Israel risks prosecution there for its policy of settlement building in the West Bank and East Jerusalem, territories Israel seized in the 1967 war and which, along with Gaza, the Palestinians claim for their state.
“Israel cannot maintain the status quo,” said Saeb Erekat, the chief Palestinian negotiator, in a recent interview. “I hope Netanyahu has a good legal team studying this,” he said of the Israeli prime minister, Benjamin Netanyahu, “so he won’t be surprised if we take further action to defend ourselves.”
The Palestinians assert that Israel has already deprived the West Bank-based Palestinian Authority, an interim self-rule body established 20 years ago, of any real powers. Mr. Abbas recently complained to a group of Israeli journalists at his headquarters in Ramallah that “any junior Israeli officer could come in here and disperse this meeting, because we have no power or authority.”
One option Mr. Abbas is weighing is to disband the authority, dismantling its security forces and forcing Israel to take responsibility for the state under occupation.
“We have a plan, step by step, depending on the situation,” said Mustafa Barghouti, a member of a special committee of experts and politicians who are discussing the various options.
Among the first treaties the Palestinians joined were the four Geneva Conventions of 1949 and additional protocols of 1977 on the laws of war. Others deal primarily with human rights issues such as discrimination against women and the rights of children.
Palestinian leaders argue that by signing on to the Geneva Conventions, Palestine has been recognized as a state under occupation, undermining the official Israeli position that the 1967 territories are disputed.
But the Palestinian plan is fraught with complexities, not least because it opens the Palestinians themselves up to scrutiny and potential counteractions by Israelis. Experts say a Palestinian state could potentially be held responsible for every rocket fired into Israeli civilian areas by militants in Gaza, which is controlled by the militant group Hamas.
“By joining these treaties they are basically exposing themselves to criticism,” said an Israeli official who was speaking on the condition of anonymity because he said the government had decided not to discuss the issue publicly. “Official rebuke, special reports, fact-finding missions and condemnations — they are not ready for that.”
He added, “There is nothing easier than to show that human rights are being systematically violated, day in day out, in Gaza.”
Shawan Jabarin, director of Al-Haq, an independent Palestinian human rights organization based in Ramallah, said: “Palestine is not in a normal situation. We have to also say where Israel is responsible as an occupying power.” Still, he added, ratifying treaties and conventions “puts an obligation and responsibility on the Palestinian state.”
Ready or not, he said, the Palestinians should face the challenge.
By joining the International Criminal Court and coming under its jurisdiction, the Palestinians could open themselves to potential investigations requested by pro-Israeli nongovernmental organizations or the United Nations Security Council, under court rules, even if Israel is not itself a member.
Israel originally supported the establishment of the international court but it did not ratify the Rome Statute that governs it, in part out of fear of ending up in the court over the issue of settlements.
Alan Baker, a former legal adviser to the Israeli Foreign Ministry who was involved in negotiating the Rome Statute, said that Arab states injected language referring to the “direct or indirect” transfer of populations.
“The whole idea was to declare Israeli settlement as one of the most serious crimes against humanity,” said Mr. Baker, who now works at the Jerusalem Center for Public Affairs, a conservative-leaning research institute.
Yet at the same time Mr. Baker, himself a settler, and some other Israelis dismiss the risk of Israel’s being prosecuted for the settlements.
They note that the court deals only with grave crimes committed since its establishment in 2002; the bulk of the settlements were established before that. The court also deals with the crimes of individuals, not governments, meaning that it would have to establish who was most responsible for the diffuse settlement project that took place over decades.
Mr. Jabarin of Al-Haq countered that it would be easy to sue Israel over the settlements because it was an open policy, not secret, and it was “a continuing crime.”
Either way, the threat has stirred up disparate responses in Israel.
Shurat HaDin, an Israeli law center that supports victims in lawsuits against terrorist groups, says it is preparing proposed indictments of Palestinian officials for perpetrating attacks against Israelis. It plans to activate these complaints if the Palestinians join the international court.
“We can do what the government cannot do,” said Nitsana Darshan-Leitner, the director of the center.
If the Palestinians insist on going to The Hague, Naftali Bennett, an Israeli right-wing minister, recently wrote in the newspaper Israel Hayom, “call us and we’ll buy you a ticket.”
Israelis on the left are raising the idea of Israel’s joining the court and being held accountable for possible crimes along with the Palestinians.
Ishai Menuchin, director of the Public Committee Against Torture in Israel, a nongovernmental organization that serves as an advocate for all those in Israel’s prison system, said it was important to open a debate about the court in Israel. His group will soon publish a report examining the implications. “Both sides have something to fear,” he said.
In Israel, Yaela Raanan has lived for nearly a decade in communities near Gaza, which have been the targets of persistent Palestinian rocket attacks.
“The I.C.C. was created for people like me,” she said. “The people lobbingQassam rockets at us should be in prison.”
But Ms. Raanan, 49, a teacher of public policy at a regional college, also said that Israel should face the legal consequences of its settlement-building policies, an untypical view in Israel. “A change in the rules of the game could be positive,” she added.