The Palestinians hoped that the last year would be a watershed period for them, one in which they would achieve parity with Israel and true standing in the international community. Instead, they received something much more deserved: rebuke and embarrassment. The latest setback came yesterday with the International Criminal Court’s (ICC) surprising announcement that it would not—indeed, that it could not—accept the Palestinian Authority’s 2009 attempted accession to the Court’s jurisdiction.

The Court’s reasoning was simple: under the Rome Statute, only the United Nations Security Council or a State can confer jurisdiction on the ICC, and there does not exist a Palestinian State. This stands in sharp contrast to the Palestinians’ position this past summer when they submitted an application on behalf of the “State of Palestine to full membership in the United Nations,” citing the Palestinian National Council’s 1988 declaration of independence. Mahmoud Abbas and company expected the UN application to turn the tides in the Middle East and pressure Israel to accept a two-state solution despite the Palestinians’ repeated resort to terrorism and violations of their international obligations. Instead, the application failed even to garner the nine votes that would have forced theU.S. to exercise its Security Council veto.

Yesterday’s decision by the ICC further de-legitimizes the Palestinians’ cheap legal maneuvers and reaffirms what Israel has repeatedly stated: a two-state solution can only come through negotiations, not extortion.

Serious international lawyers, historians, and political leaders knew all along that a Palestinian State didn’t exist. That is because statehood is a legal question determined by several factors, including whether a body can conduct foreign relations, has a defined territory, a permanent population, and a government. Not only do the Palestinians not fulfill these preconditions, but they acknowledged so much in the Oslo Accords of the early 1990s. Of course, none of this would be relevant had the Palestine Arab Higher Committee accepted Resolution 181 in 1947, which recommended creating a Jewish State and an Arab State. Instead, the Palestine Arab Higher Committee rejected the proposal and resorted to war against the newly formed Jewish State, and the Palestinians have been crying ‘foul’ ever since.

Their attempt to give the ICC criminal jurisdiction over Israeli soldiers in the aftermath of Operation Cast Lead was just the latest ploy to try and gain leverage in international negotiations and intimidate Israeli’s military apparatus from engaging in self-defense. And it almost worked.

Twice I traveled to The Hague with a delegation of lawyers to argue that the ICC clearly lacked jurisdiction over Israelis or Palestinians precisely because a Palestinian State did not exist. It took the ICC more than three years to state what was clear from the beginning, and the short opinion left open the possibility of a change in position “should competent organs of the United Nations or eventually the Assembly of StatesParties resolve the legal issue.” The “competent organ” of the UN to which the ICC refers is the General Assembly, a virulently anti-Israel bunch that would very likely recognize a PalestinianState if afforded the opportunity.

Nonetheless, at least for one day, the ICC proved itself capable of resisting the ultimate politicization. Most importantly, it proved to the Palestinians that rewriting history may be harder than they expected.



Brett Joshpe is an attorney and author in New York and is principal of Joshpe Law Group LLP.