On November 30, the United Nations General Assembly voted to make Palestine a Non-member Observer State by an overwhelming number: 138 voting yes, 9 no votes, and 41 abstentions. Commentary on this latest development has ranged from potentially game-changing to meaningless and “symbolic,” while U.S. Ambassador Susan Rice called it “unfortunate and counterproductive.” The United States and Israel say they are concerned that this new recognition of Palestine at the United Nations may derail the peace process even further. Let’s unpack their stated reasons.
Violation of Oslo Accords
The Oslo Accords were signed in 1993 by Yitzhak Rabin and Yasser Arafat during the Clinton administration. In this agreement, the West Bank and Gaza were designated as the territory of a future Palestinian state, and Israel handed power over to the Palestinians in parts of these areas. Over the following five years (now long since passed), Israel and Palestine were supposed to hammer out “final status” issues: concerns over refugees, security arrangements, clearly defined borders, settlement issues, and the status of Jerusalem. The Oslo Accords nominally still stand. There haven’t been any meaningful negotiations since the failure by Ehud Barak and Yasser Arafat to strike a deal in 2000.
The resolution passed on November 29 at the U.N. General Assembly (A/67/L.28), titled “Status of Palestine in the United Nations,” asks for recognition of a Palestinian state based on the pre-1967 borders, returning the territory that Israel captured in the Six Day War.
Israel warned that this recognition would effectively cancel the Oslo Accords. Palestinian recognition along the pre-1967 borders means that not only are the West Bank and Gaza under Palestinian control, but East Jerusalem is the official capital. Israelhas always insisted that Jerusalem must not be divided and that all other issues should be discussed in “final status” negotiations.
An Israeli Foreign Ministry communique declared that this move at the United Nations could bring about “grave consequences” for the Palestinian Authority (PA), headed by Mahmoud Abbas, and would begin “unilateral Israeli responses.” One day after the resolution was passed, Israel approved three thousand new settlements in East Jerusalem and the West Bank, with plans to push ahead with one thousand more. The PA has said it won’t return to the negotiating table until all settlements are halted.
The International Criminal Court
Non-member status at the U.N. gives Palestine the opportunity to become a signatory to the International Criminal Court (ICC), established and put into effect under the Rome Statute in 2002. Israel is not a signatory to the ICC; however, if Palestine joined this treaty body, it could potentially bring Israel before the court. This would be the first time the ICC would have in its jurisdiction any territory controlled by Israel. According to the ICC’s statute, a state can be brought to trial for “war crimes” under a provision that speaks about movement of people’s by an occupying power. This would be the statute Palestine most likely would pursue to bring the issue of Israeli settlements before the Court. Israel and the United States are afraid of this possibility, and rightfully so.
However, Palestinian officials, including U.N. Ambassador Riyad Mansour, have noted that they will not join the ICC right away, but will give negotiations a chance to begin again in earnest before they take this step. In this way, Palestine may use its potential to join the ICC as a lever it has never controlled before. Still, Mansour stated that if settlements continue, Palestine will “consult with friends” to see what it should do “to bring Israel into compliance.” If all else fails, one can assume, Palestine will attempt to become a signatory to the ICC and will bring the settlement issue before this body. The US and Israel haven’t explained whether they think these suits would be unjustified legal harassment, or whether their own reading of international law suggests they are culpable of Geneva Convention violations.TK
The proposition of having cases brought against Israel before the ICC has both Israel and the United States worried for the future. The United Kingdom, as well as other European states, expressed concern that Palestinian membership in the ICC would complicate and completely derail future peace talks.
Bringing a case against Israel to the ICC won’t be easy for Palestine once it becomes a member, however. There are a “number of legal hurdles” that must be addressed. Also, according to Lichtenstein’s U.N. Ambassador, although Palestine could bring general cases before the U.N., it cannot guarantee what the ICC will investigate. Meanwhile, Palestine itself would be subject to inquiries by the court. Rockets fired from Palestinian territories, suicide bombings, and other tactics could come under investigation at the ICC. But since Israel is not a party to the ICC, it’s unlikely that Israeli investigations of Palestinian crimes would evolve into ICC cases.
The United States Is Upset that the World Is Moving Forward Without Us
The U.N.’s acceptance of Palestine as a non-member observer state and the possible prosecution of Israel before the ICC has been painted by the United States as a death knell for the peace process as we know it. The facts are different: the peace process has been clinically dead for over a decade and any prosecution at the ICC will take years, if Palestine even looks to join the ICC. Why then is there all this concern?
Perhaps the real reason is this simple: the overwhelming vote for Palestine to become a non-member observer state, 138 to 9, is a huge hit to the international legitimacy of the United States’ stance on waiting for negotiations to bring about a two-state solution. The nine countries that voted “no”—the United States, Canada, Israel, Czech Republic, Panama, Marshall Islands, Micronesia, Nauru, and Palau— represent an ever-shrinking clique of nations that believe that the current sad state will yield a viable Palestinian state in the future.
The United States and Israel are most afraid of Palestine gaining further political momentum in the international community. The Palestinian Authority’s case for statehood is rapidly gaining favor in Europe. Israel and the United States tried to stop this vote from taking place, but they couldn’t. Europe, meanwhile, overwhelmingly sided with Palestine. Both nations repeatedly drew a line in the sand and it was trampled over at the UNGA this week. The international community has made it clear that the status quo is untenable. Regardless of the short-term tangible benefits, Palestine’s ascension to partial nationhood at the United Nations marks a political victory for Palestine and a political loss for Israel and the United States. Its implications aren’t yet known and shouldn’t be overstated – but for all the dismissive language today about how irrelevant this vote is to reality, it’s an outcome that Israel and the United States strongly hoped to avoid.