Opening The Door To The ICC

For the second year in a row, Mahmoud Abbas announced he will ask the U.N. to upgrade Palestine’s legal status by putting the word “state” behind its title. It’s a bold move. Though Abbas has softened the language slightly this time around, he’s again asking the U.N. to decree what was supposed to be settled through negotiations. In stark contrast to last year, however, Abbas’s recent overtures have attracted precious little attention. American Jewish groups, who last year mobilized a fierce opposition to the bid, have scarcely taken note and the media has generally dismissed the development as unimportant. The New York Times’ Jodi Rudoren, for example, called the move “largely symbolic.”

The drastically disparate reaction to the two bids is a mistake: True, last year’s bid would have unequivocally granted Palestine statehood, while this year’s operates more subtly. But the renewed bid holds the potential to bestow certain key privileges that should not be overlooked. Of particular import, the move opens the door for Palestine to litigate against Israel at the International Criminal Court (ICC), where, among other things, it could argue the settlements constitute war crimes.

Last year, Abbas requested that the U.N. upgrade Palestine from a “Permanent Observer Entity” to a full-fledged “Member State.” The request was doomed from the start—and as a result, arguably only symbolic—because U.N. membership requires Security Council approval and the U.S. had promised to veto the motion. In the end, Abbas could not even get enough Security Council votes to force the U.S. to use its veto and he tabled the motion.

This time, Abbas is asking to become a “Non-Member State Permanent Observer,” a designation currently reserved for the Vatican. This seemingly modest request can be approved by the General Assembly alone, without the Security Council’s blessing. Because the Palestinian motion is nearly certain to win far more than the needed majority in the General Assembly, if it is raised, it will pass, and Abbas will get his upgrade.

This won’t cause any earth-shattering consequences at the U.N. Although there’s some ambiguity about the rules governing “Permanent Observer Entities” and “Non-Member State Permanent Observers,” they seem to confer the same basic rights at the world body: Both confer the right to “participate as observers in the sessions and the work of the General Assembly” and neither gives the right vote. (There is some reason to believe that the designation of “non-member state” would make it easier to join specialized U.N. agencies, but given that Palestine was recently admitted to UNESCO, this is clearly not a prerequisite.) The lack of consequence at the U.N. is likely why so many believe the move is “largely symbolic.”

But putting the word “state” behind Palestine’s title could have significant implications elsewhere—at the ICC. It’s the ICC, not the U.N., which is the real target of the Palestinian initiative.

Here’s why: The ICC does not have the power to try cases concerning any state on the planet. Instead, the Court can only hear cases concerning crimes that were committed in, or by, a state that has consented to the Court’s jurisdiction.

Because Israel has never consented to the Court’s jurisdiction, Palestine must provide the requisite consent for the ICC to obtain jurisdiction over Israeli actions in the territories. And to do that, Palestine must first prove itself to be a state.

One way Palestine could establish statehood would be to become a U.N. Member State, as it tried last year. But this is not necessarily the only way to make the claim. In fact, after deliberating on the question of Palestine’s statehood for three years, the ICC Prosecutor issued an opinion last April in which he suggested that an upgrade to “non-member observer state” would suffice to prove statehood. By June, Abbas began suggesting that he would ask the next U.N. to do exactly that.

In short, this year’s bid is similar to last year’s in that, if approved, it will likely enable Palestine to make the showing of “statehood” required to bring cases against Israel at the ICC. But the motion is also quite different from last year’s in one essential way: if raised, it will pass.