Palestinians Signaling: The Hague Is Next

Whether to accept Palestine as a signatory to 15 international treaties rests mostly with UN Secretary General Ban, who will be hard-pressed to say no.

Aeyal Gross
Aeyal Gross
PA President Mahmoud Abbas addressing the UN General Assembly in New York, November 29, 2012.
PA President Mahmoud Abbas addressing the UN General Assembly in New York, November 29, 2012.Credit: Reuters
Aeyal Gross
Aeyal Gross

The Palestinians’ request to become a party to 15 international agreements includes the primary human rights covenants, the Fourth Geneva Convention, the treaty that regulates diplomatic and consular relations, as well as the “Treaty of Treaties,” the one that regulates treaties concerning international law. For now, the Palestinians have not requested to join the Rome Statute that founded the International Criminal Court at The Hague where claims regarding war crimes and crimes against humanity are heard. But a future Palestinian bid to join the Rome Statute could be in store.

When the Palestinians petitioned the ICC to investigate claims of alleged Israeli war crimes during Operation Cast Lead, the prosecutor decided in April 2012 that Palestine’s status as a state is unclear, and that only states are allowed to agree to give jurisdiction to the court for crimes that took place in their territory. (This rule has an exception: When a case is referred to the ICC by the UN Security Council, the states do not need to agree for jurisdiction to be created. Also, states can consent to the ICC's jurisdiction over crimes allegedly committed by their citizens). The prosecutor pointed out that Palestine was classified as an observer by the UN, and not as a state, and that if the status were to change, the request to investigate war crimes could be reviewed, stressing also that the UN secretary-general gets to decide if a political entity constitutes a state. When in doubt, the UN Secretary General generally goes along with the position of the General Assembly.

But in November of that year, the UNGA decided by a large majority to recognize Palestine as a non-member state. Palestine will not manage to become a member of the UN anytime soon, as that would require approval from the Security Council, and the United States would most likely veto such a motion. But now, as the Palestinians are asking to sign onto various international agreements, many of which relegate the decision on an entity’s status to the secretary general, this “hot potato” will end up in Ban Ki-moon’s hands. Since the secretary general is supposed to take his cues on issues like these from the UNGA, the decision from 2012 will make it difficult for him not to accept Palestine as a party to these treaties. And in any case, if the secretary general asks the UNGA for an opinion, undoubtedly, the UNGA will treat Palestine as a state.

The treaties Palestine is currently seeking to join are generally those that would bind Palestine to human rights and humanitarian law. Thus, for example, Palestine would have to report to UN human rights bodies, just like Israel and other nations. Successfully joining these treaties, however, would be a cue to Israel and the rest of the world that Palestine is able to join the ICC statute as well, or to simply return to the ICC with its non-member state status. If that were to happen, especially after joining 15 international agreements, the ICC prosecutor would have a hard time turning down the Palestinians’ case on the count of unclear statehood status. In such a case, Israelis could be investigated by the courts for war cries, for various acts against Palestinians including settlements, as the court statute forbids an occupying power from transferring its civilian populations into occupied territory.

The Palestinian case is a unique one, as occupation does not negate sovereignty, but one measure of statehood is proving effective control over territory and population, as well as political independence. Can a state be created on territory that is still under occupation? This paradox could keep jurists busy for years to come, but in reality, this latest Palestinian step looks like another step toward defining its political status as a state, and a warning sign to Israel, that it might have to find its citizens on the defendant’s bench in The Hague.

Palestinian President Mahmoud Abbas gives a letter requesting recognition of Palestine as a state to Secretary-General Ban. Credit: AP

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