It looks like a sure loser: the Palestinian bid for admission to the United Nations as a sovereign state. Never mind that a large majority of the U.N. General Assembly would vote "Yes." U.N. rules clearly state that all applications must first pass the Security Council, where the United States stands poised to exercise its veto, at the behest of Israel.
If not that, then what? Then come the fallback options, including one alternative that experts on international law describe as so attractive to Palestinians there's a strong case for making it the first option. Instead of asking for full U.N. membership, Palestine can ask to be admitted as an "observer state." That's one rung up from the "observer entity" status it has held since 1974. Such a promotion comes with two advantages: It requires no Security Council action, and so amounts to a sure thing. The other privilege: it very likely opens the way for Palestinians to level charges against Israel in the International Criminal Court, and otherwise confront the occupying power in new, more sympathetic venues.
"The ICC is a big issue," says Yuval Shany, a professor of international law at Hebrew University, "but I'm not so sure it's the only issue. There could be other issues, like peacekeeping. "A Palestinian observer state might invite U.N. peacekeepers into the West Bank and Gaza, inviting at least a legal confrontation with Israeli troops that have been occupying the territories since 1967. "It opens up a lot of options, no matter what happens," Shany says.
Palestinian leaders are still debating what course to take come Sept. 21, when the U.N. General Assembly convenes in New York. While both Israeli and Arab diplomats court wavering European governments, the Obama administration is working frantically to produce a formula that will coax the Palestinians back to negotiations with Israel, which have proceeded for 20 years without resolution. Meanwhile, the global Palestinian community is riven by an earnest debate about the implications of statehood for the four to five million Palestinians living outside Gaza and the West Bank.
But the die appears to be cast, the hotels booked. Palestinian Authority President Mahmoud Abbas, also known as Abu Mazen, is set to address the assembly on Sept. 23. The question is what he will bring home.
"I actually make the argument against going to the Security Council, because you're just going to embarrass the Americans by forcing them to veto," says Victor Kattan, a policy advisor for al-Shabaka, the Palestinian Policy Network. "You can go to the General Assembly and get what you want."
What Palestinians want, most immediately, is leverage over Israel, because statehood only becomes meaningful with the withdrawal of Israeli troops, which Abbas concedes will happen only through negotiations. The threat of being dragged before the bar at The Hague looks like leverage. As evidenced by its outcry over the U.N. investigation of war crimes in the 2008-2009 Gaza offensive, Israelis are extremely sensitive to allegations of wrongdoing leveled by international organizations. Indeed, the country likes to describe the Israel Defense Forces as "the most moral army in the world." If things got as far as arrest warrants, accused Israeli officials would be cast in the same lot as Sudan's Omar al-Bashir and others who must plan their overseas travel with great care.
"It's more than bad publicity," says Kattan. "I think they would be terrified of traveling to any country, not just Europe, any country that has ratified the Rome treaty [establishing the ICC]. The U.S. hasn't so they'd be safe there."
But Palestinians would face the same hazard, notes Robbie Sabel, another Hebrew University professor of international law. Signing on to the ICC treaty as experts say entities with U.N. observer status are very likely entitled to do also makes the signatory accountable for crimes against humanity, including terror attacks. "If they join the ICC every Palestinian citizen in the future who commits a war crime or crime against humanity will be subject to the jurisdiction of a court," says Sabel. "This is why none of Israel's neighbors, except Jordan, have joined the ICC. So the Palestinians would have the same dilemma."
Palestinian moderates, who are led by Abbas, might be tempted to exploit that dilemma in order to coerce militant factions, such as Hamas, to forswear violence. If that seems a bad bet, however, U.N. rules present yet another option, one that would put similar pressure on Israel without any immediate prospect of blowback. The General Assembly might ask another court affiliated with the U.N., the International Court of Justice, for an advisory opinion on whether Palestine qualifies for statehood.
"I recommend it," says Abdallah Abu Eid, a retired international law specialist from Birzeit University on the West Bank. "Ask the General Assembly to ask the ICJ for an advisory opinion. Although advisory opinions by the ICJ are not binding legally but they have very big impact morally." Sabel agrees: "It's considered weighty, shall we say."
The bottom line, experts say, is that in legal terms Palestinians ought to gain from almost any course they ultimately choose in New York. In the end, states become states by being recognized as states by other states. Admission to the General Assembly, which South Sudan won in July, amounts to collective recognition, which is wonderfully efficient. But a steady accumulation of endorsements by individual governments and international institutions the IMF and World Bank both say Palestine looks ready has the same effect, and being gradual, may be more likely to coax Israel toward concessions.
"I think the most significant tangible outcome they can hope to attain is a call by the General Assembly on member states to recognize a new Palestinian state and facilitate its introduction to other international instruments and institutions," says Shany. "That would mean you have significant political endorsement with perhaps some legal implications."