How Bolton’s Strategies toward Palestine Could Backfire at World Court26 Oct 2018
Writing for Palestine Square, MEI’s Senior Research Fellow Victor Kattan assesses just how much clout the US has in seeking to curb Palestine’s ambitions at the ICJ. A favourable decision for Palestine at the Court will not only be symbolic in and of itself; it will send reverberations through the US’ domestic courts. Palestine’s upcoming legal battle with the US over the relocation of the American embassy to Jerusalem and assesses their chances of success at the International Court of Justice. The full article is below.
On 28 September, Palestine filed an application instituting proceedings against the United States at the International Court of Justice (ICJ). The dispute is over President Donald Trump’s decision to recognize Jerusalem as the capital of Israel and to relocate the U.S. embassy to the city.
Palestine’s application to the Court clearly infuriated John Bolton, the U.S. National Security Advisor, who told a press conference that the United States would “not sit idly by as baseless politicized claims are brought against us.”
During the same conference, Bolton announced that the United States was withdrawing from the Optional Protocol to the Vienna Convention on Diplomatic Relations (VCDR), which forms the jurisdictional basis of the case that Palestine has brought before the Court. Bolton’s announcement will make no difference to the case that Palestine, as the United States was party to the Optional Protocol to the VCDR when the proceedings were instituted.
Nonetheless, the standing of Palestine at the Court is contentious because it is not a member state of the United Nations (UN). Only UN member states are ipso facto parties to the Court’s Statute, but Palestine’s application for membership of the UN divided the Security Council and Palestine was not admitted to the organization. Therefore, it will be up to the Court to pass judgment on Palestine’s capacity to bring claims against the United States. This is because Article 34(2) of the Court’s Statute provides that “only states may be parties in cases before the Court.”
Indeed, as far as the United States is concerned, Palestine “does not meet the customary international law test of statehood. It doesn’t control defined boundaries. It doesn’t fulfill the normal functions of government. There are a whole host of reasons why it’s not a state,” Bolton said at the press conference. He added that Palestine “could become a state… but that requires diplomatic negotiations with Israel and others.”
The refusal of the United States to recognize Palestine is not unique to the Trump administration, as no previous administration had recognized Palestine. When Palestine began acceding to treaties during the Obama administration, the United States submitted notifications to the UN Secretary General, stating that “the Government of the United States of America does not believe the ‘State of Palestine’ qualifies as a sovereign State and does not recognize it as such.”
What’s different with Bolton, however, is his longstanding anti-Palestinian history.
A political appointee in the Reagan and both Bush administrations, Bolton began his career in government at the United States Agency for International Development (USAID). Accordingly, he is familiar with withholding aid to countries the United States disagrees with. It is therefore hardly surprising that on Bolton’s watch, the United States cut aid to the Palestinian Authority, including NGOs and hospitals, and closed the Palestine Liberation Organization (PLO) mission in Washington, D.C.
Bolton was also involved in an unsuccessful attempt to close Palestine’s UN Mission in New York in 1989, which led to proceedings at the ICJ. In his book Surrender is Not an Option: Defending America at the United Nations and Abroad, Bolton disclosed that he began engaging in anti-PLO lobbying at the UN in the late 1980s, before he was confirmed as assistant secretary for International Organization Affairs in the Baker State Department.
Much has changed since then, especially regarding the status of Palestine at the UN. Today, Palestine is a member of the United Nations Economic, Scientific, and Cultural Organization, INTERPOL, the International Criminal Court, and other organizations where only states can be members. Most recently, Palestine was elected to chair the G77, a position traditionally held by states. It is a signatory to numerous multilateral and bilateral treaties. Palestine’s government has engaged in the highest level of diplomacy with other states, including the United States. It controls territory and governs a population, albeit with great difficulty. Palestine’s borders may be contested but so are Israel’s and other states.
The situation was very different when the PLO first issued its 1988 proclamation of independence in Algiers. Not only was the PLO’s application to join the World Health Organization—a UN Specialized Agency—unsuccessful, it also did not control any territory in Palestine as it was exiled in Tunisia. Today, the Palestinian leadership exercises (albeit restricted) authority over most Palestinians in the West Bank and Gaza. It has since applied for UN membership and gained the recognition of 139 countries thus far.
Does Bolton’s account of his years in Surrender is Not an Option provide any indication of what he recommends the Trump administration does next?
In addition to withdrawing from the VCDR, Bolton said that the United States will review all treaties that contain dispute resolution clauses and may recommend withdrawing from them in order to shield from future cases at the ICJ.
That, however, could be a double-edged sword. While withdrawal from treaties with such clauses would prevent states from bringing cases against the United States at the world Court, it may also prevent it from having access to the Court under the same treaties. Thus, the United States would not be able to act as plaintiff in other disputes it may bring, as it did in the 1979 Iranian Hostages Case.
The reality is that Bolton would not be able to withdraw the United States from the Court unless he recommends it leaves the UN altogether. This would be foolhardy as the United States would be giving up its seat on the world’s most powerful institution: the Security Council.
In his memoir, Bolton explained that he spearheaded efforts to isolate the PLO at the UN by recommending to President Bush in 1989 that the United States “make no further contributions, voluntary or assessed, to any international organization which makes any change in the PLO’s status as an observer organization.” He added that: “the defending threat ultimately worked—an important lesson—and the PLO was defeated.” Accordingly, Bolton could recommend further cuts to the UN’s budget. He could also recommend cuts to U.S. contributions to the ICJ and recommend that the United States not appear in the case Palestine has filed at the Court.
These scenarios could backfire, however, and antagonize the UN Secretariat and members of the Court. And, other states could step in to meet the shortfall in United States contributions. If the United States decides not to appear at the Court, the case can proceed without it and the Court would then only be presented with Palestine’s arguments. Non-appearance would amount to an admission that the United States does not have a legal case to defend.
More likely, the United States will double down on the Palestinian Authority by squeezing it economically in the hope that they discontinue the case. Bolton may also suggest that Trump pressure other Arab states to isolate the Palestinians, although the administration’s attempts to get Arab states to pressure President Abbas do not appear to have worked.
The United States has lost leverage over Ramallah by imposing cuts that have been picked up by other states. For example, European states were quick to make up for U.S. cuts to UNRWA. If the United States hits the Palestinians too hard and cuts aid to Palestinian Security Forces, this could lead to the complete collapse of law and order, in which case, Israeli forces would re-enter Areas A and B of the West Bank, which presumably Israel wants to avoid.
It should be clear that the Palestinian leadership is unlikely to yield, in which case, the United States will have to challenge Palestine’s statehood claim in Court. Alternatively, the Court could simply refuse to hear the case on the grounds that Palestine is not a state. While Palestine’s pursuit of proceedings against the United States is audacious, little is likely to change on the ground, even if the outcome is favorable to Palestinians. Yet, we must not be too despondent, for a favorable ruling from the ICJ would give the Palestinian leadership political leverage in its negotiations with Israel and other states. If the Court says that Palestine is a state in a judicially reasoned decision it would be very difficult for states to continue to deny Palestine’s statehood.
A favorable ICJ decision in Palestine v. United States of America would be more significant than the Court’s 2004 Advisory Opinion on the Wall because it would be binding on the United States. While the Trump administration would likely ignore an adverse decision, United States’ domestic courts might not necessarily hold the same view, and could take the decision seriously, especially if it is well reasoned. A decision that Palestine is a state could also influence other international institutions’ decisions on whether to admit Palestine for membership, and provide cover for those states that have not recognized Palestine to do so.
Victor Kattan is Senior Research Fellow at the Middle East Institute of the National University of Singapore (NUS) and an Associate Fellow at NUS Law. Twitter: @VictorKattan