The most recently floated idea is that Palestinians could apply for non-member state observer status, as opposed to the PLO's present observer status as a non-state mission. Theoretically, this would require a 50 percent-plus-one vote in the General Assembly, a tally Palestinians could likely easily achieve. However, such a change in status would make Palestine neither a member state of the UN nor a state with practical independence. Abbas and others have said the goal is to gain a more even footing with Israel diplomatically and to negotiate over the occupation not of undefined territory, but the territory of another state. Whether such a change of status in the UN would achieve this result is highly questionable.
But there are real reasons to pursue non-member state observer status. In the UN's history, other than the Vatican,16 states have had held that status, and all 16 eventually became members. It could also provide Palestine with access to the International Criminal Court, possibly allowing it to accede to the Statute of Rome and become a member of the Assembly of State Parties. This is no doubt among the most important of Israel's concerns about such a move, against which it has threatened unspecified unilateral retaliation.
Like many countries engaged in conflict, Israel is potentially liable for "war crimes" which includes unlawful use of force against civilians and property, most notably with regard to the last war in Gaza. But the Statute also defines a "war crime" as, "The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" which could easily be applied to Israel's settlement activities in the occupied Palestinian territories.
Despite Israel's continuous insistence that these territories are "disputed" rather than occupied, the Security Council holds that the territories captured in 1967 are indeed occupied and Israel is the occupying power. Article 49 of the Fourth Geneva Convention states that such settlement of occupied territories is unlawful and a human rights abuse.
Another potential ICC vulnerability for Israel is "the crime of apartheid," which the Statute defines as "inhumane acts ... committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime."
However, because Palestine would not have the clearly defined borders necessary to join the ICC as a state, and since Israel is not a party to the Statute, Israelis could not be prosecuted by the ICC based on their nationality, or for their actions in areas that are not in the territory of a state that is party to the Statute. In January 2009, following the war in Gaza, the PA formally recognized the jurisdiction of the ICC, implicitly asking for it to exercise its authority in areas the PA considers under its authority, including Gaza. The ICC "accepted the declaration without prejudice" to its applicability, but made no clear determination, apparently because of the nebulous nature of Palestinian statehood. Non-UN-member state status may or may not improve the chances of a clear ICC acceptance of jurisdiction in any territories claimed as part of the Palestinian non-member state.