It is in nobody's interest to engage in lawfare

By Robbie Sabel, September 22, 2011

International law defines an entity as a state if it has a permanent population, boundaries, an effective government and the ability to sign treaties and exchange diplomatic missions. Even if these conditions are present, other states have discretion as to whether to recognise such a new international entity.

Formally, the UN has no role to play in the question of recognition although, if the Palestinians apply for membership in the UN, then those states that vote to support such an application will be deemed to have recognised Palestine as a state.

Membership of the UN requires the approval of both the Security Council and the General Assembly. The US has declared that, if necessary, it will veto a Security Council approval of Palestinian application for membership.

There is no right of veto in the UN General Assembly and the Palestinians can assume that a large majority of states in the Assembly will support any resolution they propose, but such a resolution cannot grant them membership.

"Palestine" is already recognised as an observer at the UN with all the rights of an observer state, therefore such new recognition will have little significance at the UN itself, nevertheless such a resolution will not be devoid of effect.

On political issues, all international organisations affiliated with the UN take their cue from the UN General Assembly. If the UN General Assembly passes a resolution recognising Palestine as a state then it must be assumed that all the other international organisations will accept "Palestine" as a member state. Such organisations include the International Court of Justice, the International Labour Organisation, the World Health Organisation, the International Atomic Energy Agency and the international organizations dealing with civil aviation, maritime traffic, telecommunications, posts and patents. None of these bodies have the veto system and membership is approved by a majority vote.

Palestinian membership of the International Criminal Court could pose a particular problem for Israel. Subject to certain conditions, the Court is competent to try any individual who commits a war crime on the territory of a member state.

A "War Crime," as defined by the constitution of the Court, includes "The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies." This clause was incorporated in the Court's Charter at the instigation of the Arab states explicitly with the Israeli settlements in mind.

However, if "Palestine" should decide to join the Court, then any Palestinian citizen who commits a war crime, anywhere in the world, would be subject to the jurisdiction of the Court. Deliberate attacks on civilians are of course also defined as war crimes.

Apart from Jordan, none of Israel's Arab neighbours have joined the Court, and it may give the Palestinians, particularly with their Hamas contingent, pause to carefully ponder whether it is in their interest to accept the jurisdiction of the ICC.

Robbie Sabel is a Professor of International Law at the Hebrew University and a former legal adviser of the Israel Ministry of Foreign Affairs

Last updated: 12:52pm, September 22 2011