North Africa, West Asia

Palestine's statehood options: a dialogue

What are the choices facing Palestinians regarding their state sovereignty, and how best should they be pursued? Two legal scholars debate these increasingly urgent questions. 

Michael Kearney Victor Kattan
6 November 2014

Victor Kattan: Palestine, the United Nations and the International Court of Justice

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's 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 forty-seven-year occupation through negotiations, Palestine's 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 fifty-one-day assault on the Gaza strip in mid-2014, 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.

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 led to fourteen of the fifteen 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:

* 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

* 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 Organisation (Unesco), 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 Organisations. 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 cooperate with the ICC; without Israeli cooperation, 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 bypass 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 intends 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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Michael Kearney: The ICC as tool of resistance

It is claimed an advisory opinion would shift public attitudes towards the Palestinian cause, promote Israel-Palestinian Authority negotiations, give states the moral high ground in their diplomatic outreach to Israel, and ensure continued United States funding of the Palestinian Authority. Joining the International Criminal Court (ICC) is discouraged because the court and its prosecutor operate slowly, Israel will not cooperate, and the US will cut funding to the PA.

I disagree generally, and on each count. First, as outlined by Al-Shabaka, the function of the "much needed" US-European Union funding is to consolidate a repressive police state. The PA’s existence is premised on its willingness to submit to Washington through collaboration with Israel’s apartheid regime. This unrepresentative institution which the "international community" has chosen to recognise, to the exclusion of all others, as permitted to negotiate on behalf of Palestinians repeatedly demonstrates it servility by failing to defend Palestinian rights. Following US/EU/Israeli orders to refrain from going to the ICC is a clear example.

Second, global public opinion, as such, is not reliant on the interpretations judges give to international legal texts. Popular initiatives such as Boycott, Divestment, Sanctions (BDS) already use international legal standards as a baseline for their goals, but public opinion is shaped by the massacres unleashed against Palestinians before the eyes of the world. What is expected in response to the self-evident crimes of the occupation isn’t merely a reassertion as to what the law says, but rather the total satisfaction of demands for equal rights and justice. In this light it is naive to suggest that another advisory opinion might provide states with the moral high ground by which to act: it can only be sustained political, economic, and legal pressure from within which forces governments to adjust the nature of their relationships with Israel.

Such pressure can be increased by the state of Palestine ratifying the Rome Statute. It is one of the few international institutions where Palestinians can attempt to assert and reclaim their rights. Mahmoud Abbas’s empty threats to ratify Rome echo and overlap the west’s meaningless motif of commitment to a two-state solution. When the statute was drafted in 1998, Israel voted against because of the inclusion of the war crime, rooted in the 1949 Geneva Conventions, of the transfer of one’s own civilian population into occupied territory, aka "settlement".

The ICC can also investigate those Israelis’ responsible for the crime against humanity of apartheid. These core activities of the Israeli state are being perpetrated with impunity and demand opposition at every level and such opposition must utilise the ICC process.

Amira Hass recently wrote that "The genius of Israeli evil is that it is broken down into an infinite number of atoms, individual cases that the human brain - and even more so a newspaper column - cannot contain in their entirety, and a single definition cannot conceptualize them." International criminal law, pursued through national and international courts, provides one avenue by which the weasel words of western states condemning "illegitimate" settlement expansion can be upended and the inherent criminality of Israel’s occupation, in all its guises, and individual cases, be brought centre-stage.

While the court’s orders and arrest-warrants might not be binding on Israel, they are binding on its 122 member-states. That would leave most of the EU bound to arrest any Israeli indicted by the court, regardless of their political position. It would also ramp up the possibility that those Europeans, and others, who are aiding and abetting Israeli crimes in Palestine could come within the court’s jurisdiction. It is for this reason that the various Palestinian political groups, Palestinian civil society, and Palestinian public opinion all reject western opposition and are firmly behind going to the ICC. We should support the Palestinians in this choice, working alongside them to expedite any investigatory and prosecution process, by continuing to push for the Palestinian representatives to ratify the statute.

Israel’s war against Palestinians is accelerating. The UN General Assembly, Arab League, secretary-general, Security Council, ICJ process is a technocratic merry-go-round not to be indulged. The ICC will not stop Israel’s war, but as one tool of resistance amongst many, it must be triggered immediately.

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Victor Kattan: The ICJ advantage

The most persuasive argument in favour of Palestine’s accession to the Rome Statute of the International Criminal Court (ICC) is that in the event of a favourable ruling by the pre-trial chamber, the issuance of arrest-warrants would be binding on its 122 member-states. This means that these states would become obliged to arrest Israelis indicted by the court. But it is likely that arrest-warrants will also be directed at Palestinians and would obligate the ICC’s 122 member-states to arrest Palestinians accused of committing crimes as well.

Even if the possibility of arresting and transferring Palestinians accused of crimes to the ICC were a price worth paying to constrain the holiday plans of high-ranking Israeli officials, it is not clear how this would assist Palestinian self-determination or safeguard human rights due to the likely repercussions that may follow Palestine’s accession to the Rome Statute.

The United States Congress has made it clear that it will withdraw US aid to the Palestinian Authority (PA) if Palestine were to accede to the Rome Statute. The US does not only give money to the PA security sector, it also provides aid for health and humanitarian assistance, economic development, and plays a crucial role in servicing the PA’s substantial debts to the private sector. The PA owes large debts to East Jerusalem hospitals, to which 45% of the PA health-ministry referrals are sent (including from the Gaza strip).

Furthermore, the US is the largest single donor to the United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA). At present, over 150,000 Palestinians are employed in the public sector by the PA. The donor community subsidises 50% of these salaries, which include the salaries the PA pays for its employees in the Gaza strip. The US was one of the biggest donors at the October conference in Cairo on raising funds for reconstructing Gaza.

The risks of accession to the Rome Statute must be weighed against the costs, including retaliation from Israel and diplomatic fallout.

Not only does the ICC operate slowly, but the UN Security Council could intervene to prevent the prosecutor and the court from opening an investigation and exercising jurisdiction even after Palestine has acceded to the Rome Statute. In addition, ICC judges are not obliged to follow the practice of the UN secretariat or resolutions of the UN General Assembly, when it comes to making an assessment as to whether Palestine has the competence to confer jurisdiction on the court for crimes committed under the statute. At present, the Palestinian Authority does not have criminal jurisdiction over Israeli nationals in PA controlled territory due to the continuing applicability of the 1995 Israel-PLO interim agreement. Unless that agreement is denounced it could conflict with the Rome Statute.

This is not to say that Palestine should not accede to the Rome Statute. Israel’s settlement policy is in clear violation of the statute, although the court would not necessarily confine itself to that issue even if Palestine were to accede to the Rome Statute. It would make more sense to see what happens in the UN Security Council later in November, and for the results of the UN’s Fact-Finding Mission, before taking steps to accede to the Rome Statute. Triggering the jurisdiction of the ICC immediately would, at this moment, be foolhardy - especially since the PA has become even more dependent on aid as a result of the destruction caused by the IDF in Gaza. EU states are upgrading their relations with Palestine by recognising Palestine as a state, with Sweden leading the way. Immediate accession to the Rome Statute might cause other states to hesitate recognising Palestine.

A further advisory opinion would make more sense than immediate accession to the Rome Statute. The UNGA is currently in session and the Palestinians have prepared a draft UN Security Council resolution on ending the occupation. Whilst it is expected that the US will veto this resolution, there are indications that the US, angered by Israel’s behaviour and conduct in Gaza, and worried about the lack of progress in the peace process through Israel’s intransigence, may support it - especially if the PA were to delay accession to the Rome Statute. Of course, this is speculative. But if the US supports Palestine’s draft UN Security Council resolution this would be a huge diplomatic setback for Israel. A Chapter VII Security Council resolution would be binding on all of the 193 UN member-states. Immediate accession to the Rome Statute would ensure a US veto.

The benefits of recourse to the International Court of Justice (ICJ) for another advisory opinion should not be lightly dismissed - especially in the event of a US veto or Israel’s refusal to abide by the UN Security Council resolution. The drafting of the question would be crucial - and should focus on settlements and the occupation, and make use of the treaties that Palestine has already acceded to - which include treaties that reference apartheid and segregation. The court would not only have to hand the UN report on Israel’s settlement activities (7 February 2013), it would also have to hand the concluding observations of the committee on the elimination of racial discrimination (9 March 2012). Both of these reports make reference to the way in which Israel’s policies of apartheid and segregation have consolidated Israel’s settlement enterprise and violated the Palestinian people’s right of self-determination.

Whilst global public opinion is not reliant on the interpretations judges give to international legal texts, the 2004 opinion of the ICJ did provide a boost to the Stop the Wall campaign and the BDS movement that was established in 2005. The ICJ also helped to delegitimise South Africa’s apartheid policy and its illegal occupation of Namibia by issuing four advisory opinions over two decades (1950, 1955, 1956, and 1971). A favourable ICJ opinion could also assist civil-society efforts to lobby law-based communities like the EU to suspend or terminate cultural and trade agreements with Israel (such as the EU-Israel association agreement of 1995 that is based on respect for human rights). It may even influence political movements within Israel that want an end to the occupation and assist with efforts to isolate Binyamin Netanyahu, the Likud, and his right-wing coalition partners.

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Michael Kearney: An end to impunity

To begin, I think Palestine should use all the options the international legal framework purports to provide for the assertion of basic human rights and accountability for international crimes, including the International Court of Justice and the International Criminal Court.

There is the possibility that the International Criminal Court would indict Palestinians alleged to be responsible for war crimes, and this prospect was well known to each of the Palestinian political groups when they signed an agreement in summer 2014 supporting the PA’s consideration of triggering the court’s jurisdiction. If it were to transpire that Palestinians were being seized and sent to The Hague though, this would need to be in connivance with Israel, given that it is Israel which controls all the exits from Palestine. Should there arrive a point where the ICC were to be prosecuting Palestinians handed over by Israel, while Israel continued to shield its own wanted nationals, well, then this would merely illustrate how twisted international law can be in favour of the western powers over the colonised.

Regarding the matter of United States funding of the Palestinian civil service and UNRWA, the question to be considered is why an enemy of Palestinians should be funding them in the first instance. It should be clear that the function of this charitable donor aid is to facilitate the minimum adequate living standards so as to attempt to avoid a situation of such desperation that all Palestinians would have no option but to turn to armed or other forms of revolt. In this sense US funding underwrites the occupation and ensures its viability. From the international-law perspective, the Geneva Conventions are clear that it is Israel who has the legal obligation to provide for the needs of the "protected population", those Palestinians living under its military occupation. As for overall debt to the private sector, an independent Palestine would merely be joining pretty much every other country that achieved decolonisation only to find itself perpetually subjugated by debts to western financial institutions.

As for Israeli retaliation: what can Israel do if Palestine joins the ICC? Build more settlements, kill more Palestinians, increase levels of administrative detention and torture, hype up the racist and violent rhetoric? All these things are happening anyway. To suggest that a negative cost of going to the ICC will be the cut to aid needed to rebuild Gaza is beyond the point. Gaza will be destroyed again, that's certain. Aid isn’t necessary, justice and liberation are what is demanded.

With respect the ICC, the suggestion that Oslo could conflict with the Rome Statute has no basis at all. Neither is there any substance to the suggestion that the judges might not recognise the existence of the state of Palestine. But if they were, somehow, to conclude as such, well perhaps then one might want to see what the ICJ would have to opine.

I don’t believe, as suggested, that the US is angry with Israel’s conduct against Palestinians. The US might be miffed at the brusqueness of Israel’s diplomats but remains wholeheartedly a supporter - through finance, the use of the UNSC veto, and the provision of weaponry for Israel’s illegal policies and practices in the occupied territory. Palestine does not need yet another Security Council resolution, but rather the enforcement of all the previous relevant UNSC resolutions calling for an end to then occupation, and the enforcement of the Wall advisory opinion in 2004.

The allusion to the European Union as a "law based community" is offensive. It’s common knowledge that the EU has been more than happy to pursue its financial profiteering from the occupation while flouting its so-called "human-rights conditions! in the various trade agreements with Israel. Parallels with the ICJ’s advisory opinions against apartheid South Africa are of limited value with respect to Palestine today. There certainly is no future in which Palestine can wait for successive advisory opinions stating that Israel is acting unlawfully.

The situation now, as it has been for a long time, is one where the total impunity afforded to Israel can, and is, fuelling the destruction of the Palestinian people, dunam by dunam, and day by day. This reality can only lead to irrevocable tragedy, continued racial domination, and persecution against the Palestinians. There must be a push for the PA to ratify the Rome Statute immediately, because, and in the full knowledge of all its limitations and the political consequences, this is what the Palestinian political groups, civil society, public, and international solidarity activists are demanding. It is time for the lawyers to contribute by working to change the political language applied to the Israeli politico-military elite from one of illegitimacy/apology/unfortunate to one of criminality/ accountability/ equal rights and justice.

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