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Saturday, September 24, 2011

UN move could help establish Palestinian legal rights

Ma'an, Joseph Schuman – Behind the diplomatic battle over Palestinian statehood at the United Nations this week is the prospect of a new front in the Middle East conflict: the international courts.

The Palestinians hope that full or partial UN recognition of Palestine as an independent state could give them the power to bring the Israeli government or its officials before war-crimes tribunals or sue them in other global venues.
Israeli officials warn with increasing alarm that the waging of such "lawfare" would isolate Israel and prevent its civilian and military leaders from traveling abroad out of fear they'd be arrested as war criminals.

Some commentators say that, like lawyers in any legal fight, both sides may be exaggerating the stakes in what's more of a political and public-relations drama in New York.

"The concern that something dramatic would change is overblown," said Rosa Brooks, a professor of international law at Georgetown University who has also served in policy roles at the State and Defense Departments.

But through formal recognition as a state, the Palestinians could gain greater standing at the International Criminal Court and other global judicial bodies, where they could try to put Israel on the stand.

That scenario hinges on how far the statehood effort gets in New York, where the United States is maneuvering intensively to stop it.

President Mahmoud Abbas has said he'll formally apply on Friday for UN membership at the Security Council, and if eventually rejected there - a near certainty thanks to a promised US veto - he'll turn to the General Assembly.


While only the Security Council can approve full membership, a two-thirds majority of UN member states can -- and almost certainly would -- vote to upgrade the Permanent Observer Mission of Palestine from "entity" to "non-member state."

This may not sound like much, but the key word is "state."

As a recognized state, Palestine could go to other international bodies where the United States wields no veto and request membership or accession to international treaties. Each organization has its own rules for admission, but at each of them General Assembly recognition would strengthen Palestinian claims to membership.

The biggest jurisdictional prize cited by Palestinians is the Hague-based ICC, the successor to war crimes tribunals for the former Yugoslavia and Rwanda that was created by the Rome Statute.

The ICC is the one international venue where individuals can be criminally charged, and all 117 countries that ratified the Rome Statute are bound to turn over suspects.

Israel hasn't joined the Rome Statute -- nor has the United States -- but this would not stop the Palestinians from pursuing cases under its auspice.

Alleged war crimes or crimes against humanity can be referred for investigation to the ICC's prosecutors by the Security Council or by ICC member states. Non-member states can also ask the ICC to assume jurisdiction on their territories.

The Palestinians did just that in October 2009, requesting the prosecution of Israeli officials who carried out the 2008-2009 conflict with Hamas in Gaza and earlier "acts committed on the territory of Palestine."


The ICC chief prosecutor never decided whether the entity Palestine has enough standing to make such a claim.

But statehood recognition by the General Assembly could strongly influence any future ruling, said Robert Malley, the Middle East program director for the International Crisis Group.

And that's what frightens Israel.

Israeli generals and defense officials involved in the fighting over Gaza have already canceled trips to international conferences in London and Madrid out of fear they could be served with international arrest warrants there.

"Israelis are afraid of being hauled to The Hague," Malley said.

Israeli newspapers reported last week that Prime Minister Benjamin Netanyahu had said privately that he fears the Palestinians would also accuse Israeli settlers in the West Bank of violating the Geneva Conventions' prohibition on forced displacement of populations.

Of course, if they entered the legal battlefield, the Palestinians would risk being accused and prosecuted in the same venues where they'd try to target Israelis.

There is also no guarantee the ICC prosecutor would follow through on charges against Israel or its officials. The ICC has procedural obstacles that could head off any prosecution there. And the ICC is a political organization as much as a legal one, where geopolitical considerations can trump a strictly legal case.

"But it's a sword of Damocles the Israelis don't want hanging over their heads," the International Crisis Group's Malley said.

The author is a contributing editor for Reuters.