Anne Herzberg, legal advisor of NGO Monitor, and the United Nations (U.N.) liaison for the Institute for NGO Research, spoke to an August 22nd Middle East Forum Webinar (video) in an interview with Ashley Perry, senior advisor to the Middle East Forum's Israel Victory Project, about the Palestinian Authority's (PA) use, under the direction of its leader, Mahmoud Abbas, of international institutions and legal frameworks to promote the PA's ongoing campaign of irredentism.
Herzberg began by saying that "the Palestinian refusal to accept Jewish presence and sovereignty in the region is the core cause of the conflict. And efforts to resolve the conflict continue to pay scant attention to this root cause. And without tackling it, I believe that peace in the region will remain elusive."
The evidence of PA's irredentism, she continued, is seen in every official PA map, illustrating the Palestinian claim to all of Israel, Judea and Samaria [West Bank], and Gaza for its nascent state. Herzberg said Palestinian Arab irredentism has been ongoing since the Jewish state was re-established in 1948. The PA's strategy "foments terrorism and armed conflict globally," squanders billions of U.S. taxpayer dollars and European funding, degrades "international institutions, and [subverts] U.S. and Western values ... often at our own hands."
Herzberg said the primary international institution the PA exploits to further its irredentist campaign is the United Nations. In 2011, a New York Times op-ed by Mahmoud Abbas promoted the PA's bid for U.N. "member state status" which would enable "the internationalization of the conflict as a legal matter, not only a political one." Instead of using it as an opportunity to achieve a peaceful resolution, Herzberg said such a bid would open the door for the PA to "pursue claims against Israel at the United Nations, human rights treaty bodies, and the International Court of Justice (ICJ)."
In 1974, the U.N.'s General Assembly (GA) advanced Palestinian irredentism by recognizing the Palestine Liberation Organization's (PLO) [the official military branch of the Palestinians established in1964 and precursor of the PA] ability to participate in GA debates on the "question of Palestine." A month later, Yasser Arafat, the PLO leader whom Israel and the U.S. considered a terrorist, spoke at the GA. Shortly thereafter, the U.N. granted the PLO "observer status."
In 2009, the PA attempted to join the International Criminal Court (ICC), founded in 1998 via the treaty of the Rome Statute. A key requirement of the ICC was "that only states could join the court." Rather than deny the Palestinian bid to join the court as a non-state member, Luis Moreno Campos, then ICC prosecutor, conducted a series of debates on the PA's entry over a number of years. Meanwhile, the PA, unsuccessful in its effort to achieve full member status at the U.N., decided to "circumvent the Security Council" by gaining admission to the United Nations Educational, Scientific, and Cultural Organization (UNESCO) as a "member state."
Although the European Union (EU) was unable to block the PA's entry due to a lack of consensus, the EU continued to fund UNESCO. Herzberg said it is difficult for Western countries to "overcome these votes" because UNESCO is "dominated" by the Arab league and the Organization of Islamic Cooperation (OIC) [an inter-governmental organization representing Muslim states]. The U.S. ceased funding the agency and withdrew from UNESCO under the Trump administration.
Notwithstanding that Campos refused the PA's entry to the ICC, he did promote Palestinian irredentism by crafting a "blueprint" for the PA, saying it could join if "the U.N. considers Palestine to be a state." In 2012, the GA passed Resolution 67/19 "declaring Palestine to be a non-member observer state," which the PA leveraged with its bid for ICC entry. Herzberg said the PA's irredentism, aided by the U.N., "paves the way for the PA to join other international bodies."
The Palestinians joined the Rome Statute in 2015 — a move unopposed by Campos's successor, Fatou Bensouda, then ICC prosecutor. In 2019, she applied to the "pretrial chamber of the court to confirm her jurisdiction" to open an investigation against Israel with the following three "selective" proposals "relying on U.N. resolutions" which supported the Palestinian bid to join the ICC: (1) GA Resolution 67/19's inclusion of the word "state" in the text; (2) The resolution's determination that East Jerusalem, Gaza, and the West Bank constituted territory for a Palestinian state; and (3) Palestinians should become a member of the court "as a consolation prize" for not having a state.
Herzberg said Bensouda's successor, the United Kingdom's Karim Khan, is "biding his time" while the court is preoccupied with Ukraine, as Khan has "empaneled a commission of inquiry (COI)" which Herzberg believes is currently "doing the work" of building a case against Israel for Khan to use. Herzberg said the ICC "has teeth," not only because of its ability to prevent Israeli officials and former Israel Defense Force (IDF) members from traveling to Europe, but also because the ICC can "issue arrest warrants ... conduct trials and" and jail people. She is further concerned that ICC cases could be used "to support universal jurisdictions" and even "[bolster] sanctions campaigns" against Israel.
Herzberg said another legal strategy the PA is using in its efforts to "delegitimize" the Jewish state, shape the "narrative" of the conflict, and "[embolden] the irredentist camp," initially came to light at a 2013 conference in Ramallah. A group of attendees comprising "PLO officials, U.N. officials, European officials, many NGO's [non-governmental organizations], [and] many terror-linked individuals" decided to "move to an apartheid paradigm, as opposed to an occupation paradigm." To advance its strategy accusing Israel of "apartheid," the PA approached the ICJ "to get another advisory opinion about apartheid and colonialism." The motivation behind this move was the ICJ's 2004 declaration that Israel's defensive wall to counter terrorists was "contrary to international law."
The PA executed its strategy by applying for ICC membership and doubled down on "apartheid" accusations by filing an "interstate complaint" in 2018 against Israel "for racial discrimination and apartheid" with CERD, the U.N.'s Committee on the Elimination of Racial Discrimination. Despite the U.N.'s Office of Legal Affairs' opposition to the move, Herzberg said that for the first time, CERD has started its proceedings but is "making it up as they go along." CERD will rely upon "Palestinian advocates, BDS [boycott, divest and sanction] advocates, [and] terror-tied NGO's," while ignoring pro-Israel, pro-West voices. Herzberg said a CERD report will be used by the Commission of Inquiry begun by the Human Rights Council (HRC) in 2021. She added that a number of HRC commissioners made "prejudicial [and] extremely antisemitic" comments about Israel. Herzberg anticipates that the "unprecedented commission," charged with collecting "evidence" for the ICC, is "coalescing" with other forces aiming to make a collective charge of "apartheid" against Israel.
Herzberg said an HRC COI report will be used against Israel by churches and U.S. college campus forces aligned with the BDS movement to press harder for sanctions against Israel. She said Israel and other governments are "not taking enough proactive steps" quickly enough. To counter the array of anti-Israel entities from succeeding, Herzberg said the main weapon Israel and its allies can employ is to "block the funding" of the COI, a move she said should have been unleashed "from day one." This was shown to be the case years ago when the HRC released a "defamatory BDS blacklist" of companies it claimed violated human rights by "operating in settlements." She said the "U.S. cuts to the office of the commissioner" was successful in thwarting its success, "so that really needs to be the number one goal."
Herzberg said the Abraham Accords also "have been extremely influential" and that Israel should work to "expand" the accords to enable more countries to join. The benefit is that it removes support for the Palestinian irredentist campaign and can incentivize the PA to "actually negotiate a compromise to the conflict." The U.S. Congress can do its part by passing "additional legislation" similar to that used to cut UNESCO funding and strengthening bills to make it more difficult to have them "circumvented." The U.S. can also "pressure" Europeans and the international community to block funding of Palestinian "lawfare" to signal that the PA's exploitation of international institutions will not be tolerated.
Herzberg recommended that Israel use "punitive measures" against the PA's irredentism by cutting services to them and putting pressure on European allies. This pressure could take the form of denying permission to "operate" their missions for Palestinians out of Jerusalem and have them "operate" out of Ramallah. Also, she said, the ICC "does what it wants. ... [T]hey're making up the law as they go. ... I don't see why Israel should cooperate when ... the deck is completely stacked against it."
Herzberg said, when dealing with the U.N., Israel should "play hardball." In 2013, the Jewish state was able to gain "full" membership in "the Western Europe and others" group which enabled Israel to counter "a lot of discrimination" by joining more committees. Herzberg said by playing hardball, Israel has "influence now at the U.N. in places they never did before."
Marilyn Stern is communications coordinator at the Middle East Forum.