Diplomacy: Can September place Israel on the ICC dock?

Palestinians are likely to lose their battle for full UN membership, but can still advance their cause by becoming an observer state.

By TOVAH LAZAROFF
PA President Mahmoud Abbas at the UN General Assembly 311 (B (photo credit: Daniel Acker/Bloomberg)
PA President Mahmoud Abbas at the UN General Assembly 311 (B
(photo credit: Daniel Acker/Bloomberg)
If one wants to understand what could happen at the United Nations this September, one need look no further than the words of Palestinian Authority President Mahmoud Abbas in a New York Times opinion piece from May.
“Palestine’s admission to the United Nations would pave the way for the internationalization of the conflict as a legal matter, not only a political one,” Abbas wrote.
“It would also pave the way for us to pursue claims against Israel at the United Nations, human-rights treaty bodies and the International Court of Justice.”
Currently, most of the debate around the Palestinian bid for unilateral statehood has centered on its impact on potential negotiations, should they resume.
Language inserted into any UN General Assembly resolution could make it even more difficult for Israel to arrive at a two-state solution that is not based on pre-1967 lines.
In particular it could harden Palestinian resolve not to compromise on a two-state solution based on a return to that border.
But for Israel, there is a second and very relevant issue that emerges from September, and that is the potential legal dangers posed to Israel by any move that would increase the type of state rights Palestinians could exercise, even in advance of formal statehood.
With one month to go before the opening of the high level portion of the 66th United Nations General in New York on September 20, the battle lines between Israel and the Palestinians are fairly well drawn.
Most pundits can already predict the outcome.
If the Palestinians seek membership at the United Nations through the Security Council, they will likely lose, because it is expected that the US will veto that bid.
But if Palestinians seek a declaration of statehood through the General Assembly, they will likely win, as they already have the support of a majority of the 193- member body.
The General Assembly, however, cannot on its own confer UN membership or grant statehood. Statehood can be declared anywhere, and it is dependent on criteria, which is independent of the United Nations.
Typically, the accepted definition of statehood comes from the Montevideo Convention of 1933, which spoke of four criteria for statehood: a permanent population; defined territory; government; and the ability to enter into relations with other states. A public display at the UN of states on behalf of Palestinian statehood would help boost the Palestinians along that fourth point.
But in many respects, the Palestinians already enjoy some of the de-facto benefits of statehood, including embassies in capitals around the world. According to the non-governmental jurist group Al-Haq, based in Ramallah, 117 states have already recognized Palestine.
That number is expected to have gone up to over 130, as of September.
For the Palestinians, a September declaration at the UN would give them an emotional boost and have a diplomatic and political impact.
But unless the Palestinians are given full membership status at the United Nations, they won’t achieve one of their more significant objectives: the full rights which can be conferred in the international arena only through
the United Nations and the International Courts.
This step is important for the Palestinians who want to use these rights as an additional tool to push Israel to leave the West Bank.
Among the rights the Palestinians have sought, is the ability to purse Israelis legally for war crimes before the International Criminal Court, a right which they can exercise only if they are a state body.
Here, unlike the September showdown at the UN, it’s unclear what the outcome will be. Lawyers and diplomats can speculate, but they cannot say for sure what impact, if any, moves at the UN in September would have on the ICC.
Already in 2009, the Palestine National Authority Minister of Justice applied to the ICC to be recognized as a state before the court. A ruling on the request has yet to be made. Such a ruling would be unnecessary if the UN Security Council would grant the Palestinians full-membership status.
The Palestinians, however, are hoping that in September they can make use of a small side step to expand their rights both at the United Nations and before the ICC.
To do this, they are likely to ask the UN General Assembly to upgrade their status from an “observer” to an “observer state” – a move that is independent of the UN Security Council and needs only the approval of a majority of the 193-member states.
They are hoping that an “observer state” status at the UN would strengthen their case before the ICC to be recognized as a state.
A report on the issue, published by Al-Haq at the end of last month, spoke of the observer-state status as the most likely outcome in September, and its possible impact on an ICC ruling.
“Practically, the most Palestine could achieve through the UN admission procedure, in light of the likely US veto at the Security Council, is a General Assembly resolution recommending the recognition of Palestine’s statehood; and or granting it the status of ‘observer state.’” As evidence of the unchartered nature of this maneuver, it noted that such status was based purely on practice, and that there are no provisions for it in the UN Charter.
Others who have had this status include Switzerland, which was then granted full membership in 2002, and the Holy See (the Episcopal jurisdiction of the Catholic Church in Rome) which still has it. The Holy See, which has the closest legal bearing on the Palestinian endeavors, can sign international treaties as a result of this designation.
The upgrade to state observer, according to Al- Haq, “is nevertheless an important adjustment that would provide Palestine with further political leverage, and confirm its rights as a state within the UN system.”
Al-Haq noted that an observer state status could provide access rights to international organizations and treaties. Importantly, he added, he could facilitate access to the ICC.
“Palestinians would also gain further political leverage to pressure the international community to comply with its responsibility to bring Israel’s violations of international law to an end – including by strengthening the possibility to get the UN to define the Israel-Palestine conflict as a ‘threat to international peace and security’ in order to allow for the use of UN collective measures against Israel,” said Al-Haq.
In the past months,, Israel has focused its attention of soliciting the support of European countries, and those which are major powers on the international stage, in hopes that if they opposed any Palestinian initiatives at the UN General Assembly, it would lessen its impact.
However, Even they acknowledge that there is little they can do to halt the legal implications of a shift in status.
When queried by The Jerusalem Post, the ICC said they could not comment on the matter in advance of its ruling.
Dore Gold, a former Israeli ambassador to the UN, noted that while a change in status could advance the Palestinian case at the ICC, Palestinian statements regarding their intention to pursue Israel legally before the court might sway the ICC not to approve their application.
The court might fear that its stature would be “deeply injured” if it is seen as a political tool by which to attack Israel, Gold said.