Palestinian strategy focused on UN General Assembly and international courts to avoid US veto

Barak Ravid writes today in Haaretz about Israeli fears over the Palestinian UN bid.

Israeli officials believe the Palestinians will skirt the Security Council and will appeal directly to the General Assembly, in order to avoid a potential American veto…….Israel is concerned that the Palestinians may use the General Assembly resolution in order to launch a legal fight in the International Court at the Hague

Israel officials are correct. In a PNN exclusive on May 24th of this year Nimir Hammad, political advisor for the Palestinian president, affirmed that the Palestinian authority had no intention to go to the United Nations Security Council for recognition of a Palestinian state.

Hammad explained that the Palestinian Authority will seek recognition in the General Assembly of the UN because of the nature of the current Israeli position towards the peace process and its refusal to achieve what has been agreed on in the past years.

“Because Israel refused to freeze settlement construction and the Judaization of Jerusalem we decided to take the whole problem in front of the UN General Assembly. If we succeed in achieving a recognition of the Palestinian state there then we will go to the UN at later stages backed by the majority votes in the General Assembly to recognize a Palestine state,” said Hammad.

UN recognition of statehood would provide Palestine access to pursue claims thru both the International Court of Justice and also the International Criminal Court. The ICJ is a civil tribunal that deals primarily with disputes between states. (update: In a recent NYT editorial Abbas wrote “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. 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.” ) The US has no veto in either of the courts.

As Hostage explains:

I think that Palestine will go ahead and apply for full membership in the UN and that the 10th Emergency Special Session will be reconvened if the US interferes in the vote in the Security Council. If Palestine is admitted, it can pursue its own claims in the ICJ and ICC.

If not, the General Assembly can always adopt a resolution(s) (a) designating Palestine as a Permanent Observer State; (b) inviting Palestine to become a party to the ICJ Statute; (c) requesting that the ICC prosecutor act on the Article 12(3) Declaration of the State of Palestine; (d) requesting a follow-up advisory opinion on the legal consequences for states arising from Israel’s continued violation of the erga omnes obligation to remove impediments to the exercise of the right of self-determination by the Palestinian people in the occupied territories – including continued Israeli occupation, colonialism, and allegations of apartheid reported by UN fact finding missions; (e) calling on member states to impose sanctions including boycotts and divestments; and (f) calling on the member states of the ICC to refer the situation in Palestine to the Prosecutor in accordance with article 14 of the Rome Statute, while providing the Court with every assistance necessary for the exercise of its functions and the fulfilment of its purposes.

One or two of those eventualities would be more than adequate to alter Israel’s behavior.

I recommend additional comments from Hostage in this thread.

About Annie Robbins

Annie Robbins is Editor at Large for Mondoweiss, a mother, a human rights activist and a ceramic artist. She lives in the SF bay area. Follow her on Twitter @anniefofani
Posted in Israel/Palestine

{ 19 comments... read them below or add one }

  1. Dan Crowther says:

    Great job annie and Hostage. And Holy Sht – this is really coming together!!

    Zionism is Over
    if you want it

    • annie says:

      this is really coming together!!
      i know dan, i’m really excited! i hope hostage reads this. ever since i read his posts on the thread (which i bookmarked and saved in my draft file) i’ve been waiting to read something about this either in the US or israeli press. so, last night i sort of bolted out my chair when, in the course of reading the harrezt article..there it was snuggled in amidst the other info. BINGO!

      thanks hostage!

      • Hostage says:

        It looks like you’ve gotten the roles of the ICC and the ICJ confused a bit. But more than a few lawyers and the mainstream press do that too (this stuff is harder than Chinese arithmetic).

        The ICJ is analogous in many ways to a civil court for States. It does deal with crimes occasionally. For example, it has formal jurisdiction to determine “state responsibility” for the crime of genocide and certain other violations of international conventions. Only States can participate in cases before the ICJ, although UN organs can request advisory opinions.

        The ICC can investigate “situations” in a particular state or territory, but it’s criminal jurisdiction is strictly limited to “natural persons”, not States. So it could, for example, prosecute the individual government officials responsible for the crime of genocide. Only a State or the UN Security Council can refer a situation to the Court. The Prosecutor can initiate investigations on his own initiative. The ICC operates The Trust Fund for Victims (TFV). So a possibility exists “to address the wrongs which have been committed through a claim for reparations against the individual convicted by an international criminal court, including an option to claim restitution, compensation and rehabilitation.”

        Abbas’s Op-Ed in the New York Times frankly stated that:

        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. 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.

        Palestine would not necessarily have to become a member to persue cases in the ICJ, but it would still require a vote in the Security Council. I’ve commented elsewhere on an excellent article by Camille Mansour reprinted by the Institute for Palestine Studies about Palestinian Options at the United Nations. The author mentions there that Palestine would need a recommendation from the Security Council to become a party to the ICJ Statute. However, the implication that the Security Council could veto its accession to the Rome Statute of the ICC is incorrect.

        The Arab League has decided that it will sponsor Palestine’s application for membership in the Security Council. The Saudis have made it clear that a U.S. veto would trigger a disaster in US-Saudi relations.
        link to haaretz.com

        • annie says:

          thank you. yes i find it very confusing. so it appears abbas is stating it would “pave the way for us to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice” the foreign policy link says “would pave the way to membership in additional institutions including very likely the ability to take cases to the International Criminal Court (ICC). While the asymmetry of Israeli-Palestinian realities and therefore the logic of the Palestinians gaining leverage by utilizing non-violent diplomatic tools of this nature is a powerful one, this is not something that the Palestinian leadership is claiming it will pursue subsequent to any U.N. vote. ”

          so for now, the IJC is in, and the ICC they are not intending to pursue at this time if their UN bid is successful, according to Levy.

          thanks for the links, i will check them out especially Mansour’s.

          and i will change the wording of the main post “The ICJ is a civil tribunal that deals primarily with disputes between states. ” and add abbas’s statement.

        • Hostage says:

          Abbas was discussing the benefits of UN membership. UN member states are automatically State Parties to the ICJ Statute. The States parties to the Statute of the Court may also declare that they recognize as compulsory the jurisdiction of the Court (Art 36, para. 2 of the Statute). If not, there are a number of special international agreements, like the genocide convention which entail compulsory subject matter jurisdiction.

          The PA has a complaint pending in the ICC for war crimes and crimes against humanity committed on its territory since 2002. So, they wouldn’t necessarily have to do anything subsequent to the UN vote. Article 12(3) allows non-member States (of the ICC) to accept the Court’s jurisdiction without ratifying the Rome Statute. Recognition by the General Assembly would automatically qualify Palestine to become a State Party and end the dispute over its status as a state.

  2. seafoid says:

    Israel can’t afford to pay compensation to the tens of thousands of Palestinians it has injured, imprisoned and killed over the last 44 years. It doesn’t have the money to restore the property rights and the water stolen or the effects of the deliberate pauperisation of the entire Palestinian economy 44 years.

    Israel has to persist with the status quo because it is like Wil E Coyote after leaving contact with the cliff and if it stops the whole system will collapse.

    Israel is like the US economy prior to 2008. It is living a debt fueled orgy funded by claims on the future it will never be able to meet. The debts are all owed to the Palestinians.

  3. eee says:

    Yeah, yeah, we heard all this nonsense before coming from Lebanon which is a full member of the UN. Where are the Lebanese ICJ and ICC actions?

    You guys seem to think that there is some silver bullet that can be used against Israel, when in fact only negotiations will work. You also never look more than half a step ahead. Suppose the Palestinians did go to the ICC or ICJ, what would be Israel’s reaction? Why would Israel continue to cooperate with the Palestinians and help them while being sued? Do the Palestinians really want to make the West Bank similar to Gaza? The Palestinians need to cooperate with Israel to thrive. That means only negotiations will help them.

    • Hostage says:

      Yeah, yeah, we heard all this nonsense before coming from Lebanon which is a full member of the UN. Where are the Lebanese ICJ and ICC actions?

      Palestine has already accepted the jurisdiction of the ICC. The ICC advised the UN High Commissioner for Human Rights that in accordance with Article 12 (2) (b) of the Statute South African lawyers had communicated information to the Office of the Prosecutor on alleged crimes committed in Gaza by individuals possessing South African nationality. That’s a Rome Statute State Party referral.

      FYI, Lebanon piled-on when the Arab League submitted its own fact finding mission report to the Prosecutor. BTW, four of the members of the Arab League are State Parties to the Rome Statute. The Office of Jurisdiction advised the UN that:

      According to the principle of complementarity enshrined in the Rome Statute the ICC is a court of last resort. Even if the Court has jurisdiction, it cannot intervene if relevant authorities are conducting genuine investigations or prosecutions.

      In addition to the resolution on Palestinian statehood, the General Assembly has an HRC resolution on its agenda regarding the GA mandate to follow-up on the Goldstone report. The resolution:

      Condemns the non-cooperation by the occupying power, Israel, with the members of the committee of independent experts, and its failure to comply with the calls of the Human Rights Council and the General Assembly to conduct investigations that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the Fact-Finding Mission, and also condemns Israel’s failure to ensure accountability and justice;

      On January 23, 2009, the Registrar of the Court wrote to the PA acknowledging receipt of its declaration and informed it that its acceptance of the Court’s jurisdiction obligated it under “the provisions of Part 9 and any rules thereunder.” Part IX of the Rome Statute contains the rules applicable to States that accept the Court’s jurisdiction. So, the Court is already treating Palestine as a State – and its waiting for the results of Israel’s investigation.

      I’ve pointed out before that in accordance with Article 17 of the Rome Statute, a total or substantial collapse or unavailability of the Palestinian national judicial system actually triggers the complimentary jurisdiction of the ICC. Israeli officials obviously know that they are in jeopardy. See Israel demands PA drop war crimes suit at The Hague. FYI, the Court would still have jurisdiction under the terms of Palestine’s Article 12(3) declaration either with, or without, a complaint from Palestine. There is plenty of information in the 300+ other reports the Prosecutor received on Cast Lead. See for example the discussion on Côte d’Ivoire and the International Criminal Court.

      • eee says:

        Hostage,

        Why do you always post irrelevant info? For once can’t you answer a simple question? Why aren’t there ANY Lebanon actions against Israel or Israelis in the ICC and ICJ?

    • Why would Israel continue to cooperate with the Palestinians and help them while being sued?

      As occupier Israel must tend to civilian needs. Agreed? -N49

      • Chaos4700 says:

        Of course, eee won’t agree because Israel is already in flagrant violation of the Fourth Geneva Convention (at minimum).

        Israelis, the majority of Jewish Israelis anyway, DO NOT care about justice and freedom. Case and point…

      • eee says:

        Their are negotiated solution to the I/P problems and there are non peaceful solutions. That is it. The Palestinians tried violence and it didn’t work. If they do chose to use the ICC and ICJ it will backfire, just like violence did. The Palestinians are just too weak and too dependent on Israel economically.

        • annie says:

          who’s dependent on who economically? do you have any idea how much israel racks in for it’s little occupation. it’s got millions of ‘customers’ who are held hostage to israel dumping all their excess products on palestine, they steal resources up the yang, including ripping off palestinian quarries which their construction industry is totally dependent on, they build farms on stolen property in the WB illeglly and then turn around and charge palestinians for the same produce they’ve just grown on the stolen land, they make a killing of containment and the wall industry. you must think we are fools eee. the occupation is a cash cow for israel. it is woven into every fiber of the israeli economy. and that’s exactly why bds is dangerous to them.

        • talknic says:

          eee

          The Palestinians have tried everything… from almost 100 years of legal argument, through to justifiable and legitimate armed resistance to Israels voluntary occupation of Palestinian territories, in which alas, some Israeli folk have become collateral. A tiny minority of Palestinians have resorted to terrorism.

          Negotiations mean only one thing. The Palestinians forgoing some of their rights in order that Israel keep what is not rightfully Israeli.

          “Their are negotiated solution to the I/P problems and there are non peaceful solutions. That is it.”

          Twaddle. There is the option Israel has not attempted; Adhere to the UN Charter (esp Chapt XI), International Law and UNSC Resolutions. Withdraw to Israels actual declared and only recognized borders of May 15h 1948, taking Israeli citizens with it, to the safety of Israel.

        • Hostage says:

          Their [sic] are negotiated solution to the I/P problems

          Sure there are. The PLO originally demanded a single state in Palestine. Then it negotiated for 18 years over a [bullshit] two state solution. We’ve all seen the video of Netanyahu bragging about killing-off the Oslo Accords. Now the PA has advanced a proposal for a state based upon the 1967 borders and a counter-offer if that proposal is declined.

          Haaretz reports that Palestinian negotiator Saeb Erekat said if the United States continues to stymie the Palestinian efforts to get a state recognized by the United Nations, the Palestinian Authority should be dismantled. [PA President Mahmoud Abbas] should throw the keys in their faces”.

          “If the United States wants the Palestinian Authority to continue to exist, then the price is the establishment of a Palestinian state in keeping with the 1967 borders, with East Jerusalem as its capital,” Erekat told the envoys, according to a transcript of his remarks that appeared in the Al-Ayam newspaper.

          “But if the United States vetoes accepting Palestine to the United Nations in the Security Council, uses its financial aid to the PA as political blackmail and leaves Israel as the source of authority, then in my opinion, the PA must cease to exist.”

          “Israel’s actions in the field effectively canceled Oslo years ago,” . . . “The Palestinian Authority has a mission called independence,” Erekat said. “If the PA cannot achieve independence, it’s better that it didn’t exist at all.” link to haaretz.com

          Fayyad recently stated that if Israel doesn’t grant the Palestinians their freedom, they will instantly demand Israeli citizenship and the right to vote. Abbas has repeatedly stated that he will dissolve the PA and let Israel take over, e.g. link to haaretz.com

          The US and Israel can accept either alternative as the basis for future negotiations, but the PA is about to adopt a full-blown anti-apartheid campaign that Diana Bhutto, Ali Abunimah, et.al have been recommending for years and the Arab Quartet have signaled that a UN veto will result in disastrous consequences for US-Arab relations.

        • CigarGod says:

          The only border/territory plan that has a chance (long term), imo.

  4. Lexikon says:

    Correct me, if needed, but ICJ is open only to UN members or to states with permission from the UNSC.

    And the UN membership also depends of UNSC approval.

    • mig says:

      “Correct me, if needed, but ICJ is open only to UN members”

      ++++ No. Even non-UN state can bring case to ICJ.

      “Only States (States Members of the United Nations and other States which have become parties to the Statute of the Court or which have accepted its jurisdiction under certain conditions) may be parties to contentious cases.

      The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways:

      by entering into a special agreement to submit the dispute to the Court;
      by virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty containing a provision whereby, in the event of a dispute of a given type or disagreement over the interpretation or application of the treaty, one of them may refer the dispute to the Court;
      through the reciprocal effect of declarations made by them under the Statute whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. A number of these declarations, which must be deposited with the United Nations Secretary-General, contain reservations excluding certain categories of dispute.”

      link to icj-cij.org

      “or to states with permission from the UNSC.”

      ++++ Going to ICJ doesnt need SC permission.

      “And the UN membership also depends of UNSC approval.”

      ++++ Not exactly so. Original text says like this :

      ” States are admitted to membership in the United Nations by decision of the General Assembly upon the recommendation of the Security Council.”

      link to un.org

      Now here lies a trick. Because every state has done a binding affirmation when they joined to UN, that they will not vote against membership application by any joining state. Some will do and has done so anyway ( example in Kosovo case), but if majority votes yes, its there then.

      And if example US votes in SC nay, it can be bypassed through Uniting for peace – resolution, and thats it then also.

    • Hostage says:

      Correct me, if needed, but ICJ is open only to UN members or to states with permission from the UNSC.

      A state does not need to be a member of the UN to become a party to the ICJ statute, but it does need a UNSC recommendation and approval from the General Assembly.

      Any State recognized in a General Assembly resolution can deposit an instrument of accession to the Rome Statute of the ICC with the Secretary-General without UNSC permission. See The “Vienna formula”; the “all States formula”; the practice of the General Assembly in “Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties”

      There has been some discussion regarding the desirability of obtaining an advisory opinion about the right of the permanent members to veto membership applications, since it appears to be a procedural matter with no connection to the maintenance of peace and security. See the link to the Palestine Studies article on UN Options at the link in my post above.