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Palestine in Criminal Court Triggers Western, Israeli Fears
By Thalif Deen
UNITED NATIONS, Sep 27, 2011 (IPS) - If Palestine fails to achieve full statehood recognition at the United Nations, the only other viable option is to get "enhanced" observer status with the 193-member General Assembly, the U.N.'s highest policy making body.
But that proposed new status has already triggered Israeli and Western fears that Palestinians may also logically win the right to haul the Jewish state before the International Criminal Court (ICC) in The Hague on war crimes charges.
"If Israel is not going to commit any war crimes or violate international humanitarian law," says Dr. Nabeel Shaath, a senior official of the Palestinian Authority (PA) and a former foreign minister, "it should have absolutely no reason to fear our membership with the ICC."
The ICC is one of those institutions created by the United Nations in order to make people accountable when they violate, he said.
"If they don't violate, why should they be worried?" asked Shaath, one of the most articulate Palestinians holding a doctorate from the University of Pennsylvania, where he once taught finance and economics.
"Of course, Shaath is rhetorically correct," said Richard Falk, a former U.N. Special Rapporteur on Palestinian Human Rights, "but the Israeli response would be that would not stop the Palestinian Authority from making irresponsible allegations."
"In fact, I would doubt that the PA would use its enhanced membership status to make allegations about past Israeli criminality, but it might use it to raise fresh charges arising out of future Israeli behaviour," he told IPS.
"It is rather complicated situation but I suspect that the PA will not push its General Assembly recognition of statehood in these directions early on," he said.
It is more a political question than a legal one, said Falk, professor emeritus of international law at Princeton University.
Medea Benjamin, co-founder of Code Pink, a women-initiated grassroots peace and social justice movement, told IPS, "Yes, if the Israeli government feels its actions are justified under international law, it should have nothing to fear from Palestine joining the ICC."
But that's a big "if", she added.
"Surely, they understand that the continued building of settlements on Palestinian land, the siege of Gaza and the brutal Gaza invasion (Operation Cast Lead) are gross violations of international law," she said.
They certainly don't want the intense scrutiny that would come from cases being brought before the court, said Benjamin, also a co- founder of the international human rights organisation Global Exchange.
The speculation at the United Nations is that Palestine has to clear two political hurdles: either get the nine required votes in the 15- member Security Council on its claim for statehood, or escape a veto by the United States.
If it fails on both counts, the Palestinians will have only one option: go to the General Assembly for "enhanced" observer status.
The vote requires only a simple majority - 97 out of 193 votes. But as of now, Palestine could end up with as much as 125 or 130 votes.
Armed with the new observer status - on par with the Vatican in the General Assembly - Palestine will qualify to join the myriads of U.N. agencies, and also the ICC, which was created to pursue war crimes and crimes against humanity.
Currently, Palestine only has "observer" status with very limited options and political clout. As expected, if the General Assembly votes in favour, Palestine will be "a non-member State member."
"We'd be accepted as a state but we won't have the full membership that only the Security Council can award," Shaath told reporters last week.
Mouin Rabbani, a visiting senior fellow at the Washington-based Institute for Palestine Studies, told IPS it's not yet clear whether or not the Palestinians will go to the General Assembly, and whether they will seek enhanced observer status if they do go that route.
"I think the American-Israeli fears that the PLO could accede to the Rome Statute (that created the ICC) and file cases in the ICC are precisely why the Palestinians should make a concerted effort to take this route," he said.
It has become abundantly clear to many over the course of the past two decades - and particularly so since U.S. President Barack Obama assumed office - that the Palestinians need to definitively break with the Oslo framework and develop alternative strategies that challenge rather than accommodate U.S. policy.
The 1993 Oslo accords between the Palestine Liberation Organization (PLO) and Israel resulted in the creation of the Palestinian Authority; called for the withdrawal of the Israeli Defence Forces from parts of the occupied territory; and also spelled out the future relationship between the two warring parties.
Rabbani said the record conclusively demonstrates that U.S. mediation has become indistinguishable from Israeli policy and thus leads to consolidation of Israeli occupation rather than Palestinian self- determination.
"And the American policy that most needs to be challenged is its systematic sponsorship of Israeli impunity in its dealings with its colonial subjects," he added.
Shaath told reporters last week that it took Israel one and a half years to join the United Nations as a full member, it took Macedonia nine months, but it took only two days for South Sudan to join the world body.
He pointed out there are already nine countries in the Security Council which recognise Palestine as a state: China, India, Russia, Lebanon, South Africa, Brazil, Bosnia and Herzegovina, Gabon and Nigeria.
But he said there is tremendous pressure on some of these countries either to vote against or abstain on the statehood resolution, thereby depriving Palestine the nine votes it needs.
Shaath said the Palestinians were conscious of the fact that there is an upcoming presidential election in the U.S. "and a lot of domestic requirements of the president of the United States".
"We are not seeking to join the mafia or Al-Qaeda," he stressed. "We are seeking the United Nations that Mr. Obama spoke about so eloquently (at the General Assembly last week) and so grandly."
Rabbani said Shaath's statement draws attention to the reality that Palestinians cannot just file cases with the ICC and expect a fair hearing.
It is after all a court that thus far has interpreted its mandate as applying exclusively to Africans, and under current circumstances the prospects that the ICC would accept cases concerning Israeli war crimes are at best minimal, he said.
This is, however, a reality that is subject to change, particularly if the Palestinians launch a concerted campaign to promote the internationalization of the Palestine Question, and bolster such a campaign with other elements of an alternative strategy, both on the ground in the occupied territories, as well as regionally and internationally, said Rabbani, also a co-editor of Jadaliyya, an independent e-magazine published by the Arab Studies Institute.
Such a strategy, he pointed out, should systematically challenge the U.S. -Israel agenda and seek and break their monopoly on Middle East diplomacy.
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