The Trickle-down Effects of Normative Power: The Role of International Courts in Advancing Palestine’s Actual Independence

Abstract

One of the questions raised in the context of Palestine’s application for United Nations’ (UN) membership concerns the value of UN affirmation of Palestinian inalienable rights, including the right to self-determination, and the possible action that could flow from such repeated recognition. On 29 November 2012, Palestine obtained ‘non-member State observer’ status in the General Assembly, which ‘accord[s] to Palestine non-member observer State status in the United Nations.’ The resolution is a measure undertaken in parallel to Palestine’s pending application for full UN membership submitted in September 2011, which was shelved by the Security Council later that year for lack of agreement amongst the Council members. This short paper examines prospective international law tactics and strategies for gaining the means to ensure the independence of the State of Palestine, namely, by triggering the respective roles of the International Court of Justice (ICJ) and the International Criminal Court (ICC). The role of international courts in achieving Palestine’s independence on the basis of the above-mentioned strategy can be divided into two facets: (i) the strictly procedural role of the ICJ in providing a legal determination with respect to Israel’s conduct, which would prepare the grounds for defining the framework to counter Israel’s territorial regime in the Occupied Palestinian Territory (OPT); and (ii) the substantive role of the ICJ and ICC in enforcing the rights that flow from Palestine’s current independence and sovereignty by criminally prosecuting Israeli officials for their commission of international crimes, and furthering the imposition soft and hard sanctions, as appropriate, on the Israeli government for its violations of international law. In this regard, for instance, a determination by the ICJ could be used as a basis to pursue additional avenues within the UN collective security system. By reaffirming the intrinsic illegality of Israel’s presence in Palestinian territory, third state obligations that flow from Israel’s illegal conduct would be reified, thereby furthering concrete measures intended to counter Israel’s conduct and reaffirm the rule of international law. Further determinations concerning Palestine’s statehood status in international law and the illegality of its occupation regime would provide Palestine with additional tools and means to enforce its sovereign rights vis-a-vis Israel, as well as third party States and international organisations, by granting it additional leverage to demand withdrawal of all Israeli troops and settlements from its territory and compliance by international actors with their legal obligations, both under international law and their respective domestic legal orders and foreign policy commitments.