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On 30 December, the Palestinian Observer Mission to the United Nations submitted a draft resolution to the UN Security Council (UNSC) through Jordan, the only Arab member of the UNSC.

The resolution demanded an end to the Israeli occupation and the recognition of a Palestinian state on the borders of June 4, 1967. It stipulated, among other things, a one-year deadline for the conclusion of Israeli-Palestinian negotiations, a three-year deadline for Israel to completely withdraw from occupied West Bank and East Jerusalem, and the establishment of East Jerusalem as the capital of a future Palestinian state.

The sad spectacle at the UNSC on 30 December speaks volumes about Palestinian sloppiness.

We should note that there were previous versions of the resolution tabled on 29 December. In fact, on 30 September, 2014 Palestinians circulated a draft resolution that in many ways lacked meaningful substance. It was only after its content became known to the Palestinian public, and was vociferously opposed by the very people most affected by the Israeli occupation and by the different Palestinian factions, that amendments were introduced to the resolution at the last minute. These came mainly in the preamble, but some were made in what is referred to in UN parlance as "the Operative Clauses".

The newly amended text was viewed by the United States and Britain (even France which voted for the resolution) as representing a considerable hardening of the Palestinian position compared to the previous versions.

The previous text called for Jerusalem to be a shared capital between Israel and Palestine, while the new text called for East Jerusalem to be the capital of the Palestinian state. The resolution also clearly demanded the "complete cessation of all Israeli settlement activities in the territory occupied since 1967, including East Jerusalem", and recalled the International Court of Justice’s 2004 advisory opinion on the separation-wall which Israel completely ignored.

Failure

It failed in the UNSC. Eight members voted yes, one short of the required nine that would undoubtedly have triggered a US veto. The United States and Australia voted no, and there were five abstentions including a surprising one by Nigeria, who has recognized Palestine as a state long ago, but either caved to American pressure, or, as some sceptics suggest, did so with the Palestinians' knowledge to spare Washington an embarrassing veto.

The following day, the last of 2014, Palestinian Authority (PA) President Mahmoud Abbas signed some 20 different international protocols and treaties including a request to join the International Criminal Court (ICC) as a state party to potentially press a number of war crimes complaints against Israel, including for its war on Gaza last summer and settlement building. The move was described by American diplomats – including John Kerry, the secretary of state – as the “nuclear option”.

	Palestinians have a right to question their leadership over repeated failures (AFP)

On 7 January, Ban Ki-moon, the UN Secretary-General, announced that the state of Palestine will join the International Criminal Court on April 1, (although by the end of the day there was confusion in that regard with State Department Spokeswoman Jen Psaki claiming this was not the case).

Israel immediately moved to withhold tax revenues that it collects on behalf of the Palestinians in accordance with accords brokered by the United States, freezing more than $125 million dollars, further straining an already cash-strapped Palestinian bureaucracy. Israel also said it would restrict the movement of Palestinian VIPs and implement other punitive measures, including extra settlement building.

The usual confusion

For its part, the United States warned that Congress, which appropriates aid to the PA, is likely to move to cut off aid to the Palestinians as a result of their defiance of the US, especially now that both houses of Congress are controlled by the Republican Party, which has close ties to the Likud Party of Israeli Prime Minister Binyamin Netanyahu. Indeed, on the same day, Republican Senator Rand Paul introduced a bill that would immediately halt US aid to the Palestinians until they halt their effort to join the ICC.

In reality it remains to be seen whether the US will actually cut off aid to the Palestinians. Aid is one of Washington’s most important levers with the PA, a means by which it can defuse tensions and provide actual 'benefits' to the current status quo. US presidents wield much power to use their waivers, and bothPresident Barack Obama and his Republican predecessor George W. Bush, used this waiver in the past to maintain the flow of financial aid despite Congressional opposition.

Of course, as with all Palestinian efforts on the international stage, there is confusion and an inability to explain their position on the ICC or what it would mean charging Israelis who have committed war crimes against Palestinian civilians into court.

And, as we navigate through the complexities of war crimes prosecutions, it behoves us also to remember that accession to the ICC is governed by its constitutive instrument, the Rome Statute. Regardless of what Ban Ki-moon or anyone else says, under the Statute, the UN’s secretary general merely serves as a depository of Palestine’s accession documents. There is only one way for Palestine to join the ICC under current international law, and that is through Article 125 (3) of the Statute, which provides for accession by “States.” If Palestine is not a considered a state, its accession application is null and void.

So the key question is who gets to decide whether Palestine, which is a non-State Member of the United Nations, counts as a “state” under the ICC’s charter?

The pitfalls of prosecution

Late last fall, renowned legal scholar and Georgetown Law School Professor David Luban who has done a huge amount of scholarly research, and written extensively on the topic, told this writer in his office at Georgetown School of Law that for the Palestinians to be able to bring charges with prosecutable evidence against Israeli commanders, soldiers and politicians for crimes committed in Gaza is an insurmountable task.

In fact, he suggested, Israel may be in a better position to file charges against the Palestinians, both Hamas and the PA, for war crimes than the Palestinians are. Existing protocols, according to Luban, allow Israel to use statements repeatedly uttered by Hamas spokesmen and leaders claiming to have fired rockets on Israeli population centres, or even the claim that they have developed rockets that can reach Tel Aviv or other cities as evidence admissible in court.

He cautioned: "The question of whether Palestine is a state – a prerequisite to joining the ICC – could still be debated. After all, the Palestinian effort to bootstrap itself into statehood by joining international organizations backhandedly concedes that its statehood claim needs buttressing." He added: "The UN Security Council refused a 2012 Palestinian request to become a member of the UN. And of course, extensive and in some areas exclusive Israeli authority over parts of the West Bank mean that Palestine does not exercise all the functions of states, and that the PLO agreed to this divided authority in the 1995 Oslo accords."

Instead, Luban suggested, the Palestinians might conceivably be more successful in proving that Israel committed war crimes against a civilian population through the movement of population (Israeli population) into areas the United Nations defines as a militarily occupied land, as is the case with West Bank and East Jerusalem.

A failure of leadership

The move to join the ICC and give it jurisdiction to investigate allegations of Israeli and other war crimes in Palestine should be seen as a positive development that brings international law into play in the Palestinian-Israeli conflict. But a sceptical world finds it difficult to be enthusiastic or optimistic. The Palestinian leadership is too much about personalities and too little about institutions.

The sad spectacle at the UNSC on 30 December speaks volumes about Palestinian sloppiness and the lack of understanding of political and diplomatic manoeuvring despite decades-long negotiations with both Israel and the US.

Palestinians have the right to question the wisdom of insisting on presenting the draft resolution for a vote on 30 December a day before a more friendly council was due to take office. On 1 January, four countries sympathetic to the Palestinians – Spain, Malaysia, Venezuela and Congo – were set to take up UNSC membership, giving the Palestinians the nine majority needed in the council even without counting on France or Luxembourg.

They have the right to question whether the failure at the UNSC is symptomatic of a wider problem that has bedevilled a Palestinian leadership lacking in vision under Abbas, who with his few advisers have consistently failed to settle on a course to succeed, while the Palestinian cause drifts on an aimless trajectory.

To be sure, the Palestinians should not hesitate in joining the ICC. They should accelerate the process and file as many war crime charges as they can against the criminal Israeli military occupation. But they should do so as a country under occupation.