Palestinian options at the UN and the ICC

By Victor Kattan, November 12, 2014

The International Criminal Court building

The International Criminal Court building

At last, it appears that the United Nations General Assembly’s (UNGA) 138-9 majority vote in November 2012 to accord Palestine observer state status might finally be bearing fruit.

At last, it appears that the United Nations General Assembly’s (UNGA) 138-9 majority vote in November 2012 to accord Palestine observer state status might finally be bearing fruit. Sweden’s announcement that it will recognise Palestine, the House of Commons 274-12 majority vote calling on the British government to recognise the state of Palestine alongside the state of Israel, the decision by Spanish lawmakers to hold a similar vote on recognising Palestine in their parliament, and France’s announcement that it will recognise Palestine if negotiations with Israel fail are all steps in this direction.

Unable to end Israel’s 47-year occupation through negotiations, Palestinian President Mahmoud Abbas took the first incremental steps towards asserting Palestinian statehood in the international arena by acceding to more than a dozen treaties on human rights and humanitarian law, steps that only states can take. He also took steps to reunify the West Bank and the Gaza Strip as a single political entity under one rule of law, a process that is still underway.

After Israel’s 51-day assault on the Gaza Strip this summer, President Abbas announced a plan to end the occupation. In his UN speech, he said that Palestine and the Arab Group at the UN had started to prepare a draft UN Security Council (UNSC) resolution that would set a timetable for Israel to end the occupation that would be linked “to the immediate resumption of negotiations between Palestine and Israel to demarcate the borders, reach a detailed and comprehensive agreement, and draft a peace treaty between them”.

There is no guarantee that the UNSC will move to a vote. In the case that it does, the United States has indicated that it will veto the resolution. If this happens, President Abbas has threatened to apply for membership in UN agencies and join the International Criminal Court (ICC). An application by Palestine for membership in UN Agencies and the ICC, however, would result in the loss of much needed Congressional funds, not to mention US political support. Israel could also retaliate in myriad ways. Moreover, membership in the ICC could involve delays and legal complications.

Does President Abbas have any other options?

He does. Instead of submitting applications to UN agencies and the ICC in the event of a US veto, President Abbas might consider delaying these moves and ask the UNGA to discuss the steps that member states can take to help end Israel’s occupation of Palestine. Should Israel ignore a call from the UNGA to end the occupation, Palestine and the Arab Group could then ask the UNGA to request an advisory opinion from the International Court of Justice (ICJ) on the legal responsibilities of states and international organisations to end the occupation.

It will be recalled that when the US vetoed a draft UNSC resolution that condemned Israel’s decision to construct the wall in the West Bank in 2003, the UNGA requested an advisory opinion from the ICJ on the legal consequences of its construction. In July 2004, this lead to 14 of the 15 judges to declare in their advisory opinion that the settlements, the wall, and their associated regime are contrary to international law. The court also called on states not to aid or assist Israel in the wall’s construction. But because the question addressed to the court in 2003 specifically concerned the wall, the court could not address the larger issue of ending the occupation. In 2003 it was not clear whether a Palestinian state had emerged, and moreover the Second Intifada was still underway.

In light of the developments that have taken place in the last decade, President Abbas could ask the UNGA to request a new advisory opinion from the ICJ in the event of a US veto. This time, however, consideration could be given to drafting a question for the UNGA that would: 1) inquire into the legal consequences of Israel’s continued occupation and settlement activity in the state of Palestine in light of the UNGA resolution that accorded Palestine observer state status; and 2) provide guidance to the UNGA on the responsibilities of states and international organisations to bring to an end the occupation and Israel’s settlement activity.

The question could make reference to the 134 states that have already recognised Palestine, relevant UN resolutions, applicable treaties, and customary international law. Unlike in 2004, this time the court would have its previous advisory opinion to take into account, Palestine’s application for membership in the UN, its membership in the UN Educational, Scientific, and Cultural Organization, and the UN resolution that accorded Palestine observer state status. The court would also have to hand a plethora of UN reports, including the report of the UN Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory.

There have been a number of legal developments since 2004 as well. In addition to the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts, the International Law Commission has drafted Articles on the Responsibility of International Organizations. Furthermore, the court would be expected to make reference to the treaties that Palestine acceded to in April 2014. In addition to the 1907 Hague Regulations, the four Geneva Conventions, and Additional Protocol 1, these treaties include the Human Rights Covenants, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Suppression and Punishment of the Crime of Apartheid.

Of course, the question rendered to the court would have to be carefully framed, preferably by lawyers with legal experience and expertise at the ICJ. The emphasis of a question that focuses on legal consequences, the occupation, and Palestine’s statehood would be to inquire into the legality of a prolonged occupation that has prevented the Palestinian people from exercising their right to self-determination. The hope is that the court would call for an end to the occupation as a matter of international law in order to enable the Palestinian people to exercise their right to self-determination within their own state. The question formulated for the court could be linked to President Abbas’s plan to end the occupation.

There are several advantages of going back to the ICJ as opposed to lodging another application at the ICC. The Palestinians have a good track record at the ICJ. They do not have a good track record at the ICC, which rejected their attempt to grant that court jurisdiction after Operation Cast Lead in January 2009. Although the ICC prosecutor has indicated that the ICC would accept a new application submitted by Palestine to join the court, the final ruling on whether the ICC has jurisdiction would be left up to the judges. Furthermore, the ICC has a mixed record of carrying out investigations or preliminary examinations quickly. Not only would it have to check whether Israel is investigating the crimes that took place in Gaza, it may have to wait for the Israeli legal process to run its course, which would also take time. Additionally, because Israel is not a party to the Rome Statute, it has no obligation to co-operate with the ICC; without Israeli co-operation, the process could take even longer. And finally, even if the prosecutor decides to open a full investigation, she would then have to charge and issue arrest warrants for Israelis and Palestinians implicated in crimes under the statute. Yet Israel would be unlikely to hand over any of its nationals to the ICC. With so many possibilities for a stalemate, the ICC route is unlikely to produce the desired results.

In contrast, an ICJ advisory opinion could be produced in a matter of months. The 9 July 2004 advisory opinion on the wall only took the court five months to deliver after it heard the oral pleadings in February 2004. Admittedly, a question on the legal consequences of Israel’s continued occupation of Palestine, in light of its new statehood status, would raise more intricate legal issues and might take more time. Even so, it would still be a quicker process than anything at the ICC.

Another advantage that the ICJ has over the ICC is that there is no Congressional legislation that would require the US to withhold funds from the Palestinian Authority in the event that the UNGA requests an advisory opinion from the ICJ, because it is not Palestine that would request the opinion but the UNGA. Moreover, the Palestinians and the Arab Group at the UN would have more control over the question that is formulated for the ICJ, because an advisory opinion is a response to a question that has been rendered to it from the UNGA, which Palestine and the Arab Group can influence.

An opinion that addresses Palestine’s legal status and the territories over which Palestine is entitled to exercise sovereignty could help future applications to join the ICC, UN Agencies, and other international institutions. It would also be an opportunity for the court to offer clear guidance on the extent to which Israel is still the occupying power in Gaza (which Israel has disputed since it redeployed its troops in 2005) and provide guidance on the manner in which the Palestinian state came into being in light of the UNGA resolution that accorded Palestine observer state status despite Israel’s continuing occupation.

Israel and its allies would find it more difficult to object to a question to the ICJ from the UNGA than a Palestinian application to the ICC. Unlike the ICC, the ICJ cannot try individuals or heads of states for crimes. An appeal to the ICJ could therefore be portrayed as being consistent with a diplomatic effort to reach a negotiated two-state solution by linking it to a need to end the occupation and to stop Israel from building more settlements in East Jerusalem and the West Bank.

In the event that the UNGA requests an advisory opinion from the ICJ, member states would be invited to give written statements and make oral submissions to the court. As part of this process, member states would have to clarify their legal positions with respect to Palestine’s statehood, including explaining what steps the UNGA could take to bring an end to Israel’s occupation and settlement activity. Some states may make reference to the manner in which Israel has violated the territorial integrity of the Palestinian state through its construction of the wall in defiance of the court’s previous opinion and through its establishment of settlements and by-pass roads. They may also suggest to the court that states and international organisations have a responsibility not to aid or assist Israel in maintaining the occupation and its annexation of Jerusalem, possibly even calling on states and international organisations to consider suspending economic, cultural, and trade agreements with Israel to the extent that these agreements apply to the territories that comprise the Palestinian state. Although advisory opinions are not legally binding in the sense that states are not obliged to comply with them (unless the UNSC determines otherwise), in formulating its opinion, the court would be stating what the law is, which would be binding on states irrespective of the legal status of the advisory opinion.

A favourable and cogent opinion from the ICJ could help shift world public opinion further in favour of Palestinian rights to have a state of their own next to, and at peace with, the state of Israel. At the same time, an advisory opinion may give impetus to Israeli and Palestinian leaders to sit down and negotiate a final status agreement to establish a democratic, contiguous, and independent Palestinian state along the lines of the phased plan to end the occupation that President Abbas plans to present to the UNSC.

In the event that Israel ignores the court and chooses to defy the international community by further entrenching the occupation and building more settlements, those states and organisations sitting on the side-lines would be given a reason and an opportunity to take the moral high ground and insist that Israel respects the court’s opinion and the right of the Palestinian people to exercise independence in their own state alongside the state of Israel or face consequences in the form of countermeasures. At that stage, President Abbas could then take steps to join the ICC and UN Agencies.

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Victor Kattan is a post-doctoral fellow at the Law Faculty of the National University of Singapore and a policy advisor to Al-Shabaka, The Palestinian Policy Network. He was previously a legal adviser to the Palestinian Negotiations Support Project in Ramallah on secondment from the United Nations Development Program (UNDP) in Jerusalem. Kattan is the author of From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict 1891-1949 (London: Pluto Press, 2009) and is the editor of The Palestine Question in International Law (London: The British Institute of International and Comparative Law, 2008). 

Article courtesy of the European Council on Foreign Relations

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