David versus Goliath is one of the oldest and well-known stories exhibiting the phenomenon of asymmetrical conflict, with small David out-maneuvering and ultimately defeating the giant Goliath. Modern conflicts are reflecting a similar theme, as great power wars have given way to non-state groups fighting their own state or another state. Of course, military superiority will always be a measuring stick for strength and the key to winning battles, but on its own, military strength is no longer enough to win the war. If we apply this to the Israeli-Palestinian conflict, we see that Israel won most of its military battles and has yet to be pushed into the sea by the Arab world. However, in the international political and legal community, the Palestinians are enjoying victory after victory, watching Israel scramble in an effort to try to defend itself from all sides of the diplomatic and legal battlefield.
Indeed, Israel continues to be terrified of the growing status of the Palestinians in the halls of international institutions around the world. So much for the strongest military and economic power in the Middle East! Yet this fear is wholly unfounded and is in fact irrational. The more recognition the Palestinians obtain in the international community and the more their legal personality grows, the better this is for Israel, even with the ongoing occupation of the West Bank. In other words, the more legal institutions and treaties and conventions the Palestinians are allowed to join, the more they will become an equal adversary on the one battlefield they have long held an advantage. This is the best kind of victory, one that entails your adversary defeating itself.
For example, if the Palestinians are a state for the purposes of the 1949 Geneva Conventions and Additional Protocols I and II, they will no longer be able to escape accountability and scrutiny when they intentionally fire rockets at the Israeli civilian population. Some may argue that the UN bodies that have historically been biased against Israel will maintain their bias. I tend to agree. However, to maintain the legitimacy of international humanitarian law and human rights law, other states will have to hold the new State of Palestine – like other small states – accountable, lest risking the weakening of the entire structure. At the moment, with the Palestinians seen as David – the underdog suffering at the hands and in the power of mighty Israel – how could they be expected to uphold these norms? This will not be the case when they have the status of a state and are fully-fledged members of the UN, with the attendant rights and obligations that such entails.
The same argument can be made for the use of force. Israel is often held in violation of international law for using force against Palestinian fighters and terrorists. The main claim being that a state (Israel) does not even have the right to use self-defense against a non-state actor (the Palestinians). Again, this will no longer be the case when the Palestinians are a fully-fledged and recognized state. The same can also be said for the International Criminal Court (ICC). The ICC’s jurisdiction covers situations, not just incidents and individuals. Thus, if and when the Palestinians join the ICC and submit a situation to the Prosecutor, their own actions will fall under the judicial microscope as well. There is no doubt that the Palestinians will have a difficult time defending the intentional firing of rockets at civilians and the financing of terrorism. Thus, instead of fearing the ICC, Israel should be preparing for the ICC in order to pre-empt and counter the next legal battle with the Palestinians. The day after the Palestinians join the ICC, Israel should be ready to unload case files on Palestinian war crimes for the Office of the Prosecutor to deal with. This is a legal war, one that Israel can win with proper foresight, readiness and determination, not defensive tactics that resemble trying to hide in a cave.
Therefore, Israel should encourage the UN Security Council to immediately recommend the Palestinians for consideration of UN membership to be voted upon by the General Assembly. They will no doubt receive such membership, thus making them bound by the same exact provisions that Israel is so heavily criticized for violating vis-à-vis the Palestinians. Then the Palestinians can continue to join every treaty and organization they desire, increasing the amount of legal accountability they will need to adhere to with every signature. It does not matter that they will be recognized as a state with undetermined borders – Israel has had the same problem since 1948 when it was brought into the community of nations.
Indeed, it is sad that one of the well-trodden defensive mechanisms of successive Israeli governments is the claim that nothing will change on the ground if the Palestinians gain international recognition for statehood. As happened on November 29, 2012, when anticipating the UN General Assembly vote to upgrade the status of the Palestinians to that of a non-member state, Israeli Prime Minister Bibi Netanyahu stated, “The decision at the U.N. today will change nothing on the ground.” Well, if nothing was going to change on the ground then, and nothing will change on the ground now, then Israel should have been then, and should be now, the first member-state of the UN to stand up and vote in favor of the creation of a Palestinian state.
The good lords of all religions know that change is desperately required. But in the meantime, the Palestinian insistence to become a grown-up in the international community will not turn out to be all that they desired. They will become a state, just like Israel, and thus an equal side to this legal battle.