By Alan Baker
It is incorrect to assume that by upgrading their status in the UN to a non-member state, the Palestinians would necessarily be able to refer complaints against Israeli leaders to the International Criminal Court.
The politically-driven General Assembly resolution that would presumably be adopted by automatic majority would not create a Palestinian state, and would not turn the Palestinian delegation into that of a state, except for the purpose of seating in the General Assembly hall, between Panama and Pakistan, rather than among the observers.
The UN General Assembly does not have the power or the authority to establish states. Any such General Assembly resolution upgrading the Palestinian delegation would be no different from any other non-binding, recommendatory resolution of the General Assembly, and would have no legally binding status.
The 1998 Statute of the International Criminal Court (ICC) enables only states – genuine states that are party to the Statute – to refer complaints to the court (in addition to the Security Council and the ICC Prosecutor). In the same way Palestinians failed in 2011 to prove statehood when they attempted to attain membership in the UN, in light of the clear lack of national unity and capability of governance and inability to fulfill international obligations of a state, so now in 2012 it would be highly unlikely, even after an upgrade-resolution, that they will be able to prove to the ICC that they are a genuine state entitled to initiate complaints against Israeli officials and officers.
In 2011, after conducting an in-depth examination and consulting with experts, the Prosecutor rejected the Palestinian attempt to instigate complaints against Israeli officials and officers, and referred their request to the Assembly of States Party to the ICC Statute and to the UN Secretary-General.
While the Palestinians will doubtless attempt to utilize their upgraded status in order to achieve political advantages in various UN bodies such as the Specialized Agencies (which are in any event urged to act pursuant to General Assembly resolutions), this would not necessarily be applicable to the ICC, which is an independent organization, not part of the UN System.
But even if, as a result of political pressures and manipulation of the automatic majority, they do succeed in persuading the ICC Prosecutor to consider them as if they are a state, for the purpose of initiating a complaint, there is no guarantee that such complaints would be accepted by the court, which, since its establishment in 1998, has barely dealt with two complaints against Ugandan and Sudanese officials.
Thus, the constant repetition in the Israeli media and by various Israeli politicians and commentators, of the artificial threat that Israeli political and military officials and soldiers might be subjected to arrest warrants and be tried for war crimes, would appear merely to play into the hands of the Palestinian leadership – Abu Mazen and Saeb Erekat, – who are making every effort to inflate this threat as a direct purpose and result of an upgrade resolution.
This is misleading the Israeli public and creating a false atmosphere of fear.
Clearly we should not underestimate the Palestinian upgrade exercise, as a blatant political PR exercise to enhance the reputation of Abu Mazen in light of his clear lack of any political achievements, especially prior to his ending his term of office. But it is highly unlikely that this exercise will have any legal or serious political consequences.
Thus, it appears to be absurd to claim, as several Palestinian leaders have recently been claiming, that the upgrade of their UN status would alter the status of the territories, that the Oslo Accords would no longer be relevant, that the 1967 lines would become the recognized border and that Jerusalem would be re-divided, etc.
In my opinion, nothing will change unless Israel decides to view this exercise as a fundamental breach of Article 31 of the 1995 interim Agreement (1995) and declare the Oslo Accords no longer valid, with all that that would imply, but this would be very doubtful in view of the upcoming elections. Ultimately the Palestinians and the Israelis will have no choice but to return to negotiations in order to determine mutually their common border and to solve all the other issues between them, all of which cannot be dictated by a UN General Assembly resolution.
Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, is former Legal Adviser to Israel’s Foreign Ministry and former Ambassador of Israel to Canada. He served as Deputy Head of Israel’s government delegation to the Durban I conference.