By Arlene Kushner
Then, I want to share a level-headed and informed assessment of Mahmoud Abbas’s recent threats. You’ve heard much of this from me, but better still to hear it from an international lawyer.
Alan Baker – director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs and director of the International Action Division of the Legal Forum for Israel – says, in his piece – “Is Abbas Serious?” – that (emphasis added):
“The Palestinian Authority leadership’s fixation on ‘internationalizing the conflict’ by ‘going back to the UN,’ joining various international conventions and taking Israeli political and military leaders to the International Criminal Court sounds dramatic and even threatening. But it involves a large degree of self-delusion…
“The latest ploy by Palestinian Authority President Mahmoud Abbas for frightening the Israelis – going to the UN Security Council with a resolution demanding withdrawal by Israel from ‘Palestinian territory’ to ‘the 1967 borders’ within three years and threatening to go to the International Criminal Court if it isn’t passed – would appear to be no less misguided legally, no less self-deluding and fraught with non-sequiturs than previous abortive Palestinian UN forays.
“Despite all the annual politically generated UN resolutions, which do nothing more than represent the political opinions of the states voting for them, the territories of Judea and Samaria and the Gaza Strip have never legally or historically been declared to be ‘Palestinian.’ There has never been a sovereign Palestinian state, and no treaty, agreement, or binding resolution has ever determined that the territories belong to the Palestinians.
“To the contrary, even the Palestinians themselves agreed in the 1993-1995 Oslo Accords, guaranteed by the US, the EU, Russia, Norway, Egypt and Jordan and endorsed by the UN, that the permanent status of the territories would be determined in negotiations. To determine in advance that these territories are Palestinian is to prejudge an agreed-upon negotiating issue.
“Similarly, there is no such thing as the ‘1967 borders.’ The parties have agreed to negotiate ‘secure and recognized boundaries,’ as demanded by UN Security Council Resolution 242, and the question of ‘borders’ is also an agreed negotiating issue pursuant to the Oslo Accords…
“Moreover, Abbas’s ostensibly serious ammunition – his threat to go to the International Criminal Court (ICC) and have Israeli leaders and military officers tried for war crimes in the event that his Security Council ploy fails – appears almost certain to backfire.
“Even if the ICC prosecutor, as she has promised, accepts a Palestinian request for standing in the Court…that, in and of itself, cannot guarantee that Abbas and his associates will be able to advance any serious criminal claims against Israeli political or military leaders.
“This is because of the Court’s complex evidentiary rules, specifically the rule of ‘complementarity,’ which prevents the Court’s exercising its jurisdiction if the case in question is already subject to investigation and potential juridical process by the nation state of the accused…Thus it is highly unlikely that any such attempt to bring Israeli leaders to trialwould succeed.
“Even more noteworthy is the likelihood that the Palestinian leadership, in giving the Court jurisdiction over the territories, including the Gaza Strip, would be placing itself – as well as senior Hamas commanders and tacticians – at the mercy of anyone who chooses to initiate claims against them for serious war crimes and terrorism.”