By Joseph Schuman
NEW YORK, Sept 22 (Reuters) - Behind the diplomatic fray
over Palestinian statehood is the prospect of a new front in
the Middle East conflict: the international courts.
The Palestinians hope that full or partial recognition of
Palestine as an independent state at the United Nations would
give them the power to bring the Israeli government or its
officials before war-crimes tribunals or sue them in other
Israeli officials warn with increasing alarm that the
waging of such "lawfare" will isolate the Jewish state and
prevent its civilian and military leaders from traveling abroad
out of fear they'd be arrested as war criminals.
Like lawyers in any legal fight, both sides may be
exaggerating the stakes in what's more of a political and
public-relations drama this month at the U.N., said Rosa
Brooks, a professor of international law at Georgetown
University who has also served in policy roles at the State and
"The concern that something dramatic would change is
overblown," Brooks said.
But through formal recognition as a state, the Palestinians
could gain greater standing at the International Criminal Court
(ICC) and other global judicial bodies, where they could try to
put Israel on the stand.
That scenario hinges on how far the statehood effort gets
in New York.
Palestinian President Mahmoud Abbas has said he'll pursue
formal U.N. membership at the Security Council, and if rejected
there - a near certainty thanks to a promised U.S. veto - he'll
turn to the General Assembly.
While only the Security Council can approve full
membership, a two-thirds majority of U.N. member states can -
and almost certainly would -- vote to upgrade the Permanent
Observer Mission of Palestine from "entity" to "non-member
This may not sound like much, but the key word is
As a recognized state, Palestine would go to other
international bodies where the United States wields no veto and
request membership or accession to international treaties. Each
organization has its own rules for admission, but at each of
them General Assembly recognition would strengthen the
Palestinians' claims to membership.
The biggest jurisdictional prize cited by Palestinians is
the Hague-based ICC, the successor to war crimes tribunals for
the former Yugoslavia and Rwanda that was created by the Rome
The ICC is the one international venue where individuals
can be criminally charged, and all 117 countries that ratified
the Rome Statute are bound to turn over suspects. (Israel
hasn't joined the Rome Statute, nor has the United States,
though the Obama administration has promised to cooperate with
Alleged war crimes or crimes against humanity can be
referred for investigation to the ICC's prosecutors by the
Security Council or by ICC member states. Non-member states can
also ask the ICC to assume jurisdiction on their territories.
The Palestinians did just that in October 2009, requesting the
prosecution of Israeli officials who carried out the 2008-2009
conflict with Hamas in Gaza and earlier "acts committed on the
territory of Palestine."
But the ICC chief prosecutor never decided whether the
entity Palestine has enough standing to make such a claim.
Statehood recognition by the General Assembly could strongly
influence any future ruling, said Robert Malley, the Middle
East program director for the International Crisis Group. The
Holy See, the only current non-member state at the U.N., was
allowed to play a role in the writing of the Rome Statute.
And that's what frightens Israel.
Israeli generals and defense officials involved in the Gaza
war have already canceled trips to international conferences in
London and Madrid out of fear they could be served with
international arrest warrants there.
"Israelis are afraid of being hauled to The Hague," Malley
Israeli newspapers reported last week that Prime Minister
Benjamin Netanyahu has said privately that he fears the
Palestinians would also accuse Israeli settlers in the West
Bank of violating the Geneva Conventions' prohibition on forced
displacement of populations.
Of course, by entering the legal battlefield, the
Palestinians risk being accused and prosecuted in the same
venues where they'd try to target Israelis.
There is also no guarantee the ICC prosecutor would follow
through on charges against Israel or its officials. The ICC has
procedural obstacles that could head off any prosecution there.
And the ICC is a political organization as much as a legal one,
where geopolitical considerations can trump a strictly legal
"But it's a sword of Damocles the Israelis don't want
hanging over their heads," Malley said.
(Reporting by Joseph Schuman)