October 08, 2012
By Evelyn Gordon
Palestinian Authority (PA) President Mahmoud Abbas plans to seek UN recognition as a nonmember observer state this fall. His formal request to the UN General Assembly probably won't be submitted until after the U.S. elections. But given how many parties may need to be lobbied, Washington should start working to thwart his move soon - not only because such recognition would destroy any remaining prospects of Israeli-Palestinian peace, but also because it substantially increases the risk that American military personnel could someday be indicted in the International Criminal Court (ICC).
The consequences for peace talks are obvious. If the General Assembly accedes to Abbas's request to recognize "Palestine" in the 1967 lines, no Palestinian leader will be able to accept less. Yet no Israeli leader could agree to this. Aside from Israel's longstanding security objections to the " Auschwitz lines," hundreds of thousands of Israelis live in East Jerusalem and the major settlement blocs; evicting that many citizens from their homes would be politically impossible.
Even if one assumes the 1967 lines would merely be the starting point for negotiations, UN recognition would hinder the talks. Contrary to the widespread view that borders are an easily resolved issue, negotiations have consistently foundered over them. Even Prime Minister Ehud Olmert, who offered Abbas the equivalent of the 1967 lines in 2008, sought land swaps for about seven percent of the West Bank to avoid evicting hundreds of thousands of Israelis. Yet Abbas has consistently offered only about two percent. And he's unlikely to be more forthcoming once the UN has endorsed his position.
Moreover, such recognition would reduce Palestinian willingness to agree to necessary concessions on other issues, like security and refugees, since Israel's main bargaining chip is the territory it controls. Thus once the UN has already awarded the Palestinians 100 percent of this territory, what could Israel offer in exchange for concessions on other issues?
But while the threat UN recognition poses to peace talks is clear, the threat to American military personnel may seem less obvious. Though Abbas openly admits to wanting UN recognition primarily so he can file charges against Israel in the ICC, media reports often imply that Israel's main concern is an indictment over the settlements - an issue irrelevant to the U.S. military.
Yet the one issue over which Abbas has actually sought to indict Israel isn't the settlements, but its war with Hamas in Gaza in January 2009. The ICC rejected that request, but only because the PA wasn't a state, and therefore lacked standing to join the court: It explicitly said it could reconsider should the General Assembly recognize "Palestine" as a nonmember state.
The PA's case rests on the infamous Goldstone Report, which accused Israel of war crimes in Gaza and recommended that these findings be submitted to the ICC prosecutor for consideration. Both the UN Human Rights Council and the General Assembly overwhelmingly endorsed the report (though even its author has since disavowed it).
But there's virtually nothing Israel did in Gaza that the United States and some of its European allies haven't done in Iraq, Afghanistan and elsewhere. For instance, the Goldstone Report assailed Israel for having caused civilian casualties, ignoring the difficulties of avoiding such casualties when fighting terrorists who wear no uniforms and deliberately launch attacks from civilian population centers. Thousands of civilians have been killed under similar circumstances in Iraq and Afghanistan. Thus if Israel could be indicted for this, so could America.
Or take the houses Israel destroyed due to fear they were booby-trapped: The United States has demolished hundreds of houses in Afghanistan for the same reason.
But an ICC indictment against Israel over Gaza isn't just a precedent that could be used against America. Rather, it's an essential precondition for indicting America.
Like all new institutions, the ICC must expand its reach cautiously to avoid a backlash. And smart institutions accomplish this by beginning with "easy" targets, then using the precedents set in those cases to tackle harder ones.
Israel is unquestionably the West's easiest target: Far from provoking an international backlash, indicting it would win the ICC global applause - including in Europe, where only eight countries voted against the Goldstone Report. But once the court indicts Israel over Gaza, it will have no grounds for refusing to indict the United States or one of its allies for identical actions in Iraq or Afghanistan, or any other country where, say, U.S. drone strikes have killed civilians (such as Pakistan). After all, Israel tries just as hard as they do to avoid civilian casualties, as attested by no less a personage than the former commander of British forces in Afghanistan.
Thus all it would take would be for one such country to join the court (if it hasn't already) and file a complaint. An indictment would then require all 121 existing member states - including many American allies - to arrest any defendants that enter their territory.
Clearly, this doesn't mean every private in the field would be at risk; war crimes charges generally target the senior officers and government officials who devise the allegedly "illegal" tactics and issue the orders, rather than the lower-ranking soldiers who carry them out. That is how the ICC has acted to date, and it's equally true of cases Palestinians have hitherto pursued in European countries with universal jurisdiction laws. When a Spanish judge agreed to investigate the 2002 airstrike in Gaza that killed leading Hamas terrorist Salah Shehadeh, for instance, the Israelis named as suspects included the defense minister, the Israel Defense Forces chief of staff, the air force commander, and the Shin Bet security service chief. Israelis who have canceled visits to Britain because of arrest warrants sought by Palestinian groups include a former foreign minister, the IDF chief of staff, the commander of the IDF's Southern Command, and the Shin Bet security service chief.
Giving the PA the status necessary to seek an ICC indictment of senior Israeli officers over Gaza thus greatly increases the risk that American officers, too, could someday find themselves in the ICC's dock. Therefore, Washington has a vested interest in preventing it.
Fortunately, it also has the leverage to do so. It could threaten Abbas with an aid cutoff if he goes through with his bid, and lobby other PA donors to follow suit. Even more important, it could warn both the UN and member states that should the UNGA approve Abbas's request, it will forfeit Washington's 22 percent share of its budget.
Just how effective this latter threat can be is evident from the aftermath of UNESCO's admission of "Palestine" last year. Initially, Abbas planned to follow up by applying to join other UN agencies. But after Washington canceled its 22 percent contribution to UNESCO's budget, both UN officials and other countries pressured him to drop the idea, because they didn't want other agencies' budgets similarly gutted. And he did.
In short, America both can and should thwart the PA's UN bid - not only because of its stated commitment to Israeli-Palestinian peace, but for the sake of its own men and women in uniform.