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10
Jul
2014

Mahmoud Abbas’ Latest ICC Bluff


Palestinian President Mahmoud Abbas latest attention-grabbing bluff is to renew the Palestinian request to be accepted as a state by the International Criminal Court (ICC), for the sole purpose of being able to institute war crimes and other proceedings against Israeli leaders and senior security personnel.

He tried this in 2009 and was rejected by the then-prosecutor on the grounds that the court’s statute permits only states to become party, and the Palestinians could not claim that they were a state.

Now, since the UN 2012 upgrade resolution recognizing them as a “non-member state observer,” Abbas and his advisers have been given to understand from the new prosecutor of the court that a renewed request may well be accepted.

This would be a regrettable development for the stature of the international criminal court as a viable and apolitical judicial institution.

To accept the Palestinians as a state would be a grave legal mistake by the ICC prosecutor. The UN upgrade resolution did not establish Palestinian statehood. That is beyond the capability of the UN. It merely upgraded the Palestinian observer status within the UN organization. The Palestinians are no more a state following this resolution than they were beforehand, since they still do not fulfill the internationally recognized criteria for statehood, which include unified governance and the ability to carry out international obligations. Furthermore, the ICC, being an independent body unconnected with the UN, is not bound by the UN upgrade resolution.

By permitting itself to be manipulated by the Palestinian Authority, the ICC will be turning itself into another “Israel-bashing body,” further distancing itself from any hope of acceptance within an international community that up to now has not really regarded it as a viable body, especially since the U.S., China and Russia have not become parties to its statute.

But even if the prosecutor permits herself to be politically manipulated and to accept the renewed Palestinian request, then the Palestinians will open themselves up to accusations of war crimes and crimes against humanity through the mass and indiscriminate rocket-firing and acts of terror against Israeli citizens. They will also be faced with strict requirements set out in the ICC Statute to prove and provide genuine, acceptable evidence that actions of Israeli leaders fulfil the evidentiary and procedural criteria for each and every offense listed in the statute.

It is highly unlikely that the Palestinian leadership, apart from creating this public relations bluff, would really be interested or able to follow through and seriously engage the court with genuine claims.  That is not what they want. They want the PR boost.

Additionally, it is highly unlikely that the ICC, which is trying to establish its international juridical veracity, really wants or needs to be pulled into such an unfortunate political trap.

About Amb. Alan Baker

Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.
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