Opponents Of Palestinian U.N. Bid Use Disingenuous ICC Argument

ICC Building in the Hague, Netherlands

As the date approaches for the Palestinians’ bid for United Nations membership, one of the strongest counter arguments coming from Israeli officials and their closest stateside allies is that U.N. recognition of Palestinian statehood — even as a “non-member observer state” — would be able to gain access to the International Criminal Court (ICC). Access to the international body, which prosecutes war crimes, is often listed as one of the few concrete gains for Palestinians if their bid succeeds, even if just in the less powerful General Assembly.

Israeli and American officials have both said that for Palestine to push charges against Israelis at the ICC, also known as “the Hague,” would be crossing a “red line.” U.S. Ambassador Susan Rice named Palestinian access to the ICC as one of the “real-world implications” of the Palestinian statehood bid.

But the Israeli figures have been most outspoken against Palestinian access to the ICC. If the Palestinians press charges against Israelis — which could be for armed actions or even possibly for the settlers that accompany Israel’s military occupation of the Palestinian West Bank — Israeli officials have said they would break off all diplomacy with the Palestinian Authority. Last month, Israel’s right-wing foreign minister Avigdor Lieberman said:

You cannot have security coordination [with Israel] while you are also trying IDF soldiers at The Hague.

In late August, Israel’s ambassador to the U.S. Michael Oren, threatening to end agreements with the Palestinians, echoed this point in an interview with Foreign Policy.

But the Israeli objection to Palestinian statehood recognition by the U.N. is a red herring: Palestinian access to the ICC is not a feature of U.N. recognition, but of Palestinians statehood. If, for example, the George W. Bush “Road Map” for Middle East peace had proceeded according to its suggested timeline and created a Palestinian state in 2005, Palestinians would have had six years of access to the ICC by now. Since ICC access is a feature of statehood, those opposed to statehood recognition by the U.N. seem to be less opposed to the “U.N. recognition” aspect, and more opposed to the “statehood” part.

Furthermore, Palestinian access to the ICC is not as drastic a scenario as Israel and its allies are painting it to be. A new report (PDF) from the International Crisis Group outlines all the issues that are often overlooked in the heated debates on the issue:

Put aside the incongruity of seeking to immunise any party from the reach of international law at a time when the international tribunal is considered a perfectly appropriate forum for others – Colonel Qaddafi the latest in line. Put aside the myriad obstacles Palestinians would need to overcome before a case could make it before the ICC. And put aside the fact that some Palestinians also could be hauled before the court if they are accused of war crimes – as they were during the last Gaza war. Still, this clearly is a major cause for anxiety and could prompt Israel to initiate severe moves in reprisal.

In other words, just because Palestinians gain access to the ICC does not mean they can use it to, as one one neocon put it, “renew attacks on Israel in the International Criminal Court.”

One expert told Foreign Policy that if Israel is really worried about Palestinians taking them to the Hague for war crimes, they should negotiate an exemption from prosecutions as part of a deal with Palestinians “before it’s too late. That alone counsels for a more serious attempt at resuming peace talks.”

Instead, Israel and its allies are displaying their fear not of what they often mistakenly called a “unilateral declaration” of Palestinian statehood, but of Palestinian statehood at all.