Abbas and the hollow Palestinian threat of running to the ICC

The General Assembly’s vote from November 2012 defines “Palestine” as a state for the purpose of the ICC’s jurisdiction. But since Israel is not a member of the ICC, the Court can only have jurisdiction over the virtual “State of Palestine” – a territory that is not defined in law.

By Emmanuel Navon


The 20-year-old circular “negotiations” between Israel and the PLO, and Israel’s acquiescence to release murderers for the mere sake of pursuing those negotiations, are perhaps best summarized by a famous scene from the 1964 James Bond movie “Goldfinger.” Tied to a table by Dr. Goldfinger, Bond helplessly watches the approaching laser beam about to cut him in half. “Do you expect me to talk?” asks Bond. “No Mister Bond,” answers Goldfinger. “I expect you to die. There is nothing you can talk to me about that I don’t already know.”

Palestinian Authority leader Mahmoud Abbas addresses UN General Assembly, 2013 ( United Nations )

Palestinian Authority leader Mahmoud Abbas addresses UN General Assembly, 2013 – Photo courtesy, United Nations

Admittedly, Israel does not wish to be blamed for the failure of the current negotiations. Recent history, however, provides ample evidence that Israel will be blamed, regardless of its concessions and that the Palestinians will be absolved, regardless of their intransigence.

We have already seen this movie. It had the same ending after the Camp David conference of July 2000, after the Clinton parameters of December 2000, and after the Olmert proposal of May 2008. In each case, Arafat and Abbas simply got away with saying “no” and could even rely on countless apologists in Israel and in the US to justify their obstructiveness. The hope for a different outcome of a fourth attempt defies logic. In fact, President Obama made sure to clarify in advance, via his recent interview with columnist Jeffrey Goldberg, which side the United States intends to blame for the present talks’ expected failure.

Another possible, and unconvincing, explanation for Israel’s insistence on maintaining the current negotiations is the Palestinian “threat” to initiate unilateral moves at the UN and to “ask membership in all UN agencies” as PA official Mustafa Barghouti recently warned and as Mahmoud Abbas actually did on Tuesday night when he announced that the Palestinians were applying immediately for acceptance to 15 UN agencies. This also is a movie that Israel has seen many times.

In December 1988, the UN General Assembly recognized the “State of Palestine” proclaimed by Yasser Arafat in Algiers a month earlier. Since the signature of the 1993 Oslo Agreement, the PLO has threatened many times to unilaterally declare statehood, even though it did just that in 1988 in Algiers. In November 2011, the virtual “State of Palestine” became a member of UNESCO. On November 29, 2012, the General Assembly granted non-member observer state status to the virtual “State of Palestine.” Full UN membership, however, requires the Security Council’s approval (Russia’s veto has been blocking Kosovo’s membership just as the US veto has been blocking Palestine’s).

Would it be that terrible if the virtual “State of Palestine” were to become a member of additional UN agencies such as the World Meteorological Organization? Obviously, the PA’s threat is about obtaining membership at the International Criminal Court (ICC) and about pressing cases against Israel. That “threat,” however, is hollow, as well.

PA Chairman Mahmoud Abbas has more than once threatened to “go to the ICC” to challenge Israeli settlements in the West Bank, as well as Israeli retaliatory military actions in the Gaza Strip. In January 2009, the PA formally accepted the jurisdiction of the ICC, but in April 2012, the ICC Prosecutor declared himself unable to determine whether “Palestine” is a state for the purpose of the Court’s jurisdiction. Theoretically, the General Assembly’s vote from November 2012 defines “Palestine” as a state for the purpose of the ICC’s jurisdiction. But since Israel is not a member of the ICC, the Court can only have jurisdiction over the territory of “Palestine” – a territory that is not defined, since there never was a Palestinian state in the past. Even the General Assembly’s November 2012 decision did not determine the borders of “Palestine.” The resolution does refer to the former armistice lines between Israel and Jordan, but those temporary lines, drawn more than 60 years ago, were not an international border.

In any case, the General Assembly has no authority to determine the borders of states. Nor does it have the authority to supersede Security Council Resolutions (according to Security Council Resolution 242, the future borders between Israel and its neighbors shall be negotiated). Moreover, since the Oslo Accords grant Israel exclusive criminal jurisdiction over Israelis in the West Bank, the PA cannot delegate to the ICC a territorial jurisdiction that it does not possess.

Finally, the use of the ICC by Palestinian “lawfare” is a double-edged sword. Israel could give the Palestinians a taste of their own medicine by joining the ICC and suing the “State of Palestine” for its deliberate targeting of, and incitement against, Israeli civilians.

Israel’s decision to free convicted murderers for the sake of renewing negotiations is not only morally abject, it is also strategically misguided, because the Palestinians will anyways “go to the ICC” the moment negotiations fail, and because the “threat” of adding the ICC to the repertoire of Palestinian “lawfare” is hollow.


About the Author:

Emmanuel Navon

Emmanuel Navon heads the Political Science and Communication Department at the Jerusalem Orthodox College and teaches International Relations at Tel-Aviv University and the Herzliya Interdisciplinary Center. He is a Senior Fellow at the Kohelet Policy Forum.


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