Britain claims it is prepared to support Palestine’s bid to be recognized as a state at the United Nations if Mahmoud Abbas, President of the Palestinian National Authority, pledges not to pursue a case against Israel for war crimes committed in Gaza. Britian also demands that peace talks are resumed.
A political carrot (of the carrot and stick variety) in support of peace talks seems reasonable, but what of the condition that Palestine promises not to attempt to pursue judgment by the International Criminal Court or International Court of Justice?
The Palestinian bid for non-member observer state status at the United Nations is expected to go to vote on 29 November 2012. This bid follows an unsuccessful Palestinian bid to join the UN as a full member state in 2011 because of a lack of support for the bid by the Security Council.
The process to gain non-member observer status is simpler than to gain full membership: a vote by the UN General Assembly, therefore eliminating the possibility of a veto in the Security Council. For states to be admitted as full members in the UN, an application makes it to the General Assembly for consideration only after the Security Council considers it. Any recommendation for admission as a full member must receive the affirmative votes of 9 of the 15 members of the Security Council, provided that none of the Security Council’s 5 permanent members with veto power (China, France, Russia, the U.K. and the U.S.) vote against the application. The US (and Israel) has adamantly opposed the possible recognition of Palestine as a state.
One of the major fears of Palestine gaining statehood is that it might then be able to gain membership in the International Criminal Court (ICC) and other multilateral bodies. One of the reasons that Israel and the US are fighting against the success of the bid is that recognized statehood could open avenues to inviting investigations by the ICC. The importance of statehood was highlighted when, in January 2009, Palestine invited the ICC to investigate the possibility of commission of war crimes committed in Gaza. In April 2012, the Court declared a decision not to proceed with any investigation, based not on any assessment of evidence, but because the Court lacks jurisdiction to investigate since the Office of the Prosecutor does not have the jurisdiction “to make the legal determination whether Palestine qualifies as a state for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1)”.
Is Britain’s attempt to restrain Palestine from its pursuit of investigations into whether war crimes were committed reasonable and justified? All of this fear seems to indicate an assumption that if given the chance international legal institutions would judge against Israel and its nationals. Presumably, if such investigations would occur, Palestinian actions would also be investigated and judged. Officially, the ICC is independent and impartial, and former Chief Prosecutor, Luis Moreno-Ocampo, has made effort to argue (if not demonstrate) that the Court considers objectively a situation, not a side – it investigates all sides to a conflict. Israel, it would seem, would rather keep any talk of war crimes and reasonable legal limits of self-defence speculative and in the hands of political and security commentators rather than international courts.
Membership in the UN comes with obligations, and recognition of Palestinians as a sovereign people with rights and international obligations could hopefully be the impetus to revive true dialogue, promote diplomacy between peoples (rather than violence), and provide greater options for condemnation of aggression. Recognition of statehood would not make significant changes on the ground, perhaps, but could possibly jostle deadlocked conversation. Allowing Palestine to invite investigations also seems warranted, as does the possible investigation of crimes committed by Palestine against the civilian population of Israel. A world where the norm for resolving conflicts is one of peace and pursuit of decisions by recognized international organizations seems one for which Britain should strive.