The legal tsunami is on its way
The significance of a Palestinian state joining the UN is that, for the first time, it will be the Palestinians who will decide what the international legal framework is that is binding in their territory.
Israel’s cautious foreign policy on legal matters over the past 44 years is likely to collapse in September. The mechanisms of legal defense that it built since the occupation of the West Bank and Gaza Strip, to combat the “danger” of international jurisdiction about its conduct toward millions of people who are under its control, are likely to turn into dust at the stroke of the diplomatic moves.
If indeed the international community recognizes a Palestinian state, the question whether officers in the Israel Defense Forces who are involved in assassinations, shooting at unarmed demonstrators and using phosphorus bombs will be interrogated and brought to trial at the International Criminal Court in The Hague and the question of whether international human rights treaties (and other treaties) will obligate Israel during action in the territories, will no longer be decided in the government offices in Jerusalem but rather in the corridors of the Muqataa in Ramallah.
Together with the diplomatic “tsunami” that Defense Minister Ehud Barak has forecast, Israel can expect a legal tsunami, which for the first time will claim a price for violating human rights in the occupied territories.
The Israeli-Palestinian conflict, and the prolonged occupation of the Palestinian territories that Israel conquered in 1967, are not an internal Israeli issue. This is an international conflict in which the international community has a legitimate interest.
However, during the years of the occupation the state of Israel has repelled the professional legal mechanisms of the United Nations, that deal with protecting human rights, from discussing its actions there. Thus, for example, Israel refrained from granting authority to the UN Committee on Human Rights to discuss complaints from Palestinians against the IDF.
(The committee is a professional body that consists of world renowned experts in human rights law, as opposed to the Council on Human Rights, which is a political body composed of representatives of countries.)
In a similar vein, in the territories Israel refused to apply the various human rights treaties that deal, inter alia, with discrimination against women; rights of the child; racial and other discrimination; and torture. Some of Israel’s most talented advocates were sent to Geneva to claim that these treaties were not binding on Israel beyond the Green Line.
Israel considers itself the representative of the victims and survivors of the Holocaust, and as such was one of the initiators of the establishment of an international criminal court for war crimes. The height of jurisdictional isolation came when Israel decided not to ratify the court’s statute so as not to grant it authority to investigate and discuss crimes that, allegedly, were/are being carried out by Israeli officers and soldiers.
Over the course of 44 years, Israel has succeeded in putting the job of judging its actions in the occupied territories in the hands of the High Court of Justice, which approved almost every policy and practice of the army in the territories, deepening the occupation and making possible massive violations of human rights under its patronage.
Israel succeeded in leaving the investigations of its crimes to military advocates/attorneys who made sure that the policy of investigation would be such that enforcing the rigor of the law on soldiers and officers who had violated it would be a sort of miracle.
All of this is about to come to an end. Judging Israel’s actions in the sphere of human rights is apparently about to be placed in the hands of the nations of the world. To become internationalized.
If indeed Palestine is accepted as a full member of the UN in September, the button controlling jurisdiction over events that will take place in the West Bank and Gaza Strip will, to a large extent, be transferred from Jerusalem to Ramallah, from Benjamin Netanyahu to Mahmoud Abbas − because the significance of accepting Palestine as a member of the UN is that the new member will be sovereign to sign international treaties, to join international agreements and to receive the jurisdictional authority of international tribunals over what happens in its territory.
The young state of Palestine will act wisely if it decides, immediately on joining the UN, to sign all the major human rights treaties and all the clauses or protocols that grant its professional bodies the authority to discuss claims by civilians of violation of their rights.
If the Palestinian government also decides to sign and ratify the international criminal court’s Rome Statute, the territories of the West Bank and Gaza will fall under the international tribunal’s authority to investigate and prosecute.
The significance of a Palestinian state joining the UN is that, for the first time, it will be the Palestinians who will decide what the international legal framework is that is binding in their territory. After more than 40 years in the wilderness of the occupation, the Palestinians will have the possibility of influencing their fate through legal means.
Attorney Michael Sfard is the legal adviser for the Yesh Din human rights organization.