Palestinians are unlikely to get the full U.N. membership they seek anytime soon, but they do expect an upgrade to non-member observer status. That may change nothing on the ground, but it can have a serious impact in the courtroom — and that has the Israeli government worried.
Even without a state, Palestinians will then have standing to go to the International Court of Justice in The Hague, which is what Palestinian leader Mahmoud Abbas has in mind.
ICC access for the Palestinians “would pave the way for the internationalization of the conflict as a legal matter, not only a political one” by pressing claims against Israel at the Court, the United Nations and human rights treaty bodies, Abbas wrote in an op-ed in the New York Times in May.
Israel (like the United States) is not a member of the ICC, which raises questions about the Court’s jurisdiction. Robbie Sabel, a professor of international law at Hebrew University of Jerusalem, wrote in an email to me that the Court has jurisdiction “over every war crime committed in the territory of a member state by any person even if he is a citizen of a (non-member) state.”
Israel initially supported creation of the Court but dropped out after it was hijacked and politicized by the Arabs and their supporters who portrayed Israeli settlements and the security fence as possible war crimes — but exempted terrorism and drug trafficking. In addition, Israelis were effectively excluded from election as judges.
The Palestinian Authority has sought membership since 2002, asking to be treated as a state, but so far the Court has not responded.
The statute establishing the Court defines “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” as a war crime. This was written with Israeli settlements in mind, and Israeli leaders who are instrumental in such “transfers” could be subject to the jurisdiction of the Court, Sabel noted in his email.
He sees little danger for Israel because the settlement issue is a political issue of borders and the Court “is highly unlikely” to want to involve itself in that. But Abbas has indicated he will try.
Palestinian lawfare against Israel could further isolate the Jewish state and make it difficult for the country’s political and military leaders to travel abroad without fear of arrest on war crimes charges brought by the Palestinians. All ICC member states are required to arrest suspects in their territory and turn them over to the Court.
But that can be a double-edged sword for the Palestinians, particularly with the baggage of sharing control of their bifurcated would-be state with Hamas, which the United States, Israel and others countries consider a terrorist organization.
If Abbas goes ahead with waging lawfare, he will open a new stage in the conflict that is likely to set back the cause of peace.
Hamas and Fatah are both vulnerable to war crimes charges, particularly with major figures in each group having much blood on their hands, notably Khaled Meshaal and Marwan Barghouti.
Sabel believes it is “doubtful” the Palestinians would join the ICC because “any Palestinian citizen, including citizens of Gaza, who commits a war crime will be subject to the jurisdiction of the Court unless the Palestinian state prosecutes or investigates it in good faith. War crimes includes deliberate targeting of civilians. For this reason, except for Jordan, none of Israel’s neighbors has become a party to the statute.”
Palestinians have tried for years to bring criminal charges against Israel for actions in east Jerusalem, the West Bank and the Gaza Strip but they’ve failed because the legal status of those areas “is internationally undetermined,” according to Hussein Ibish of the American Task Force on Palestine, a Washington-based advocacy group.
That could change with upgraded status (similar to that of the Vatican) because the Palestinian Authority and the PLO would claim to be “the legal sovereign in the occupied territories,” he wrote in Slate, the online magazine.
That has the Israeli government and some of its friends worried.
Concern over use or abuse of the ICC by Palestinians with their expected elevated status was high on Prime Minister Benjamin Netanyahu’s agenda in his discussions with world leaders at the United Nations last week.
Some Western countries are looking into putting restrictions on the Palestinians’ upgraded status that would “block potential access to the ICC and other international legal enforcement agencies,” Ibish said. Russia and China might go along with that because of worries about potential precedents regarding their own military actions against guerrillas or insurgents in heavily populated areas.
If and when the Israelis and Palestinians get around to serious peace negotiations, a top agenda item will have to be mutual exemption from ICC prosecution. Without that there can be no end to the conflict, much less two states living side-by-side in peace.
Douglas M. Bloomfield is the president of Bloomfield Associates Inc., a Washington, D.C., lobbying and consulting firm. He spent nine years as the legislative director and chief lobbyist for AIPAC.