As the current negotiations with Israel show signs of a crisis, the Palestinian leader and negotiators repeatedly threaten to renew their bid for membership in the UN and other international agencies, notably the International Criminal Court (ICC). At the UN such a move could be blocked in the Security Council by one of the five permanent members but elsewhere Palestinians can count on a majority which will grant “Palestine” membership.

The instinctive Israeli reaction is negative, claiming that such a Palestinian move will amount to violation of the Oslo Accords commitment not to unilaterally change the situation, and that such a step undermines the negotiations aimed at reaching a permanent and comprehensive solution to the conflict.

Notwithstanding its concerns it might be worthwhile for Israel, and maybe the US, too, to consider taking the initiative and supporting the State of Palestine’s accession to the UN. True, it will be a state with no permanent borders and a self-declared capital, with major issues such as the refugees still unresolved. It will not, however, be much different from its neighbor Israel in this respect. Israel’s borders with the Palestinians, both in Gaza and the West Bank, and with Lebanon and Syria are still to be permanently fixed, and its capital, Jerusalem, is not formally recognized by the international community.

Beyond exposing the hollow Palestinian threat, such a move will turn the Israeli-Palestinian conflict into just one of close to 200 international disputes on territories and borders. Jerusalem, security, refugees and mutual recognition of their national status will still have to be negotiated, but that will be carried out by two legally equal entities.

A major apprehension in Israel is that UN membership is a prerequisite to ICC membership. The Palestinians do not hide their intention to use this body to try and indict Israeli leaders, army officers and settlers for “war crimes” committed, mostly by the building settlements in the West Bank.

That is a real risk, but it is not clear whether the International Criminal Court will wish to immerse itself in endless complaints, political in nature, submitted by the Palestinians .These are not the crimes of mass murders, mutilations and rapes that are set out in the ICC constitution and, according to the preamble of that constitution, the world recognizes as “grave war crimes” and “unimaginable atrocities that deeply shock the conscience of humanity.”

Furthermore, as a member of the ICC, all Palestinian citizens would themselves be subject to its jurisdiction if accused of grave war crimes, presumably including those perpetrated from Gaza by either Hamas or other terrorist groups against Israeli citizens. This should give the Palestine state officials pause for thought before they flood the ICC, or other international agencies, with their complaints. And just as an observation – with the exception of Jordan, none of Israel’s Arab neighbors acceded to the jurisdiction of the court.

Clearly there are risks for Israel in adopting such a preemptive move. It might, however, be better to seize the initiative, force the Palestinians to concentrate on negotiations rather than on alternatives and give the US-led diplomatic effort another chance.

Dr. Oded Eran was head of Israel’s negotiation team with the Palestinians, 1999- 2000, and is a senior researcher at Israel’s Institute for National Security Studies.

Professor Robbie Sabel teaches international law at the Hebrew University, Jerusalem, and was the legal advisor of the Israeli Foreign Ministry.


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