Palestinian Legal strategy against Israel: The Real Prize is Europe

by Juan Cole

11/30/2012 The United Nations General Assembly voted overwhelmingly to accord Palestine the status of “Observer State” on Thursday, with 138 countries voting in favor of the measure, 41 abstaining, and only 9 voting against. The US and Israel were decisively marginalized, as Italy and Sweden joined France, Spain, Portugal, Ireland and several other European countries in voting for the new status. Continental Western Europe and Scandinavia were almost unanimous in supporting the Palestinians, in a kind of declaration of independence from the Obama administration. Even Germany, which for historical reasons is typically reluctant to buck Israel, voted to abstain rather than to oppose. From the Israeli press, it appears that many government and press figures are absolutely stunned and in a state of angry disbelief over the magnitude of this diplomatic defeat. The Israeli Right wing is so out of touch with how its aggressive policies are seen by the outside world and so self-righteous and arrogant that it even launched a Facebook page urging a boycott of Israeli supermodel Bar Rafaeli merely for tweeting during the recent Gaza war, “I pray for the safety of the citizens on both sides and for the day when we will live in peace and harmony. Amen.” Caring about human beings from the other side, or praying for peace are apparently verboten in “Strong Israel.” (Somehow I think Ms. Rafaeli’s fan base is secure, inside and outside Israel). How the World voted: Green: In favor; Red: Against; Yellow: Abstain; Blue: Absent; Grey: Non-Members The UNGA vote will not have a big immediate effect on the lives of Palestinians toiling under Israeli occupation. But over time, if the Palestinian leadership deploys it wisely, the new status could have an incremental effect, especially affecting Israel’s relationship to Europe. Europe itself now has the opportunity to play the kind of honest broker between the two sides that the US pretended to but almost never did (Jimmy Carter a partial exception). Many European countries have elevated the Palestine mission in their capitals to the status of full embassy. Palestine’s new status as UN observer state could well become a basis for it being given further embassies in Europe. Being an embassy rather than a mission strengthens the legal status of Palestine, including in national courts and EU tribunals. Israel’s economy is deeply dependent on its relationship to Europe, the largest single source of imports into Israel and the second-largest market for exports (after the United States). European investment in Israel is also significant, as are various agreements giving Israel access to European technological advances and promoting scientific and technological exchange. The European Union imports 15 times more goods from Israeli setter enterprises in the Occupied West Bank than from the Palestinians themselves. Europe is therefore a major, hidden support for Israeli crimes against the Palestinians. Much speculation has focused on whether Palestine will attempt to take Israel to the International Criminal Court, getting specific Israeli officials or officers indicted for war crimes or crimes against humanity. Such cases may well be brought, and if successful might more or less imprison the individual inside Israel, since traveling abroad would risk arrest by Interpol. But actually, gaining the standing to provoke resolutions and statements from various United Nations bodies and committees is also important. Such documents can then be cited in the European Parliament and in national parliaments in Europe. Over time, a latticework of human rights law on the treatment of the Palestinians can be erected that might well cause Europeans to boycott settler-made goods or even Israel proper (after all, the settlers are being sent into Palestine by the Likud government). One Israeli strategy over the years has been to attempt to prevent the creation of such a body of resolutions, findings, and judgments (the US veto on the Security Council and the lack of Palestinian standing as a state to bring matters before the UNGA both aided in this Israeli quest for impunity). A big problem with international law, such as the Geneva Convention on the treatment of Occupied populations (1949), the Apartheid convention, etc., is that they typically do not have attached to them any court in which a practical judgment of guilt can be rendered. The European Court of Human Rights and the International Criminal Court are steps toward achieving such arenas of adjudication for claims of rights violation. But the European Court of Human Rights, e.g., has no mechanism for enforcing its rulings. It seems to me that any court rulings against Israel will have their major effect through providing a basis for civil society organizations (unions, businesses, associations, NGOs) and parliaments to punish Israeli war crimes, Apartheid crimes, and crimes against humanity through boycotts. Over time, such steps could begin having a major impact on settler enterprises and even on the Israeli economy itself (which is fragile and highly dependent on foreign trade with Europe, since its goods are often shunned in the Middle East). An example is the recent demand of the youth wing of the Swedish Social Democratic Party that Sweden boycott all settler-made goods. (Sweden, a little unexpectedly, voted for the UNGA resolution yesterday). If such demands proliferate, and the next generation of Europeans feels so strongly on this issue, the settlers could end up bankrupted. How this could work is clear on a small scale is apparent in the 2010 European Court of Justice ruling that goods from the Occupied West Bank do not fall under the European Union’s preferential trade provisions for Israeli goods. What is important here is that German authorities declined to allow the British firm Brita to import mineral water tariff-free into Germany because they believe it originated with a settler company in the West Bank. The German decision was upheld by the ECJ. Expect to see more such decisions by governments in Europe, and by its courts. The Palestinian victory at the UN will likely begin creating a whole set of new opportunities for the Palestinians to make their case in the most important Israeli market.