Thursday, November 29, 2012

Arlene Kushner On UN Recognition Of A Palestinian State And The Legal Implications

From Arlene Kushner:
November 29, 2012:

That Infernal UN Petition

Today is the 65th anniversary of the UN General Assembly vote on the recommendation that Palestine be partitioned into a Jewish and an Arab state.  This followed the surrender by Britain of the Mandate for Palestine, under which the British were supposed to work for the establishment of a Jewish homeland from the Jordan River to the Mediterranean Sea.  The British found themselves unwilling, finally, to cope with Arab violence and resistance to the Mandate and threw up their hands.
It was this vote that led, the following May, to Israel's declaration of independence as a state. In solidly rejecting this recommendation, the Arabs rendered the portion of Palestine that could have been an Arab state unclaimed Mandate land.
Since 1977, the UN has been observing this same day as "International Solidarity Day with the Palestinian People."  It should be noted that the UN observes no other day as a time of solidarity with any other people.  For example, there is no official solidarity observed for the Kurds, a legitimate people, residing in portions of Syria, Turkey, Iraq and Iran, who clamor for the independence of Kurdistan. 
Since 2005, the UN "Committee on the Exercise of the Inalienable Rights of the Palestinian People" has been charged with organizing for this day an exhibit on the rights of the Palestinians or a cultural exhibit.
No surprise then that Mahmoud Abbas has chosen this day for bringing a petition to the UN General Assembly regarding a Palestinian state. 
Abbas is most commonly referred to as president of the Palestinian Authority, but in fact his term expired in January 2009; more accurately, he comes as Chair of the PLO.
(The PLO is formally the representative of the "Palestinian people" and the party with which negotations are held, while the PA is an interim administrative entity established by the Oslo Accords, as agreed to by Israel and the PLO.  In practice, and in media reports, this distinction is often blurred.)
The goings-on at the UN, including a scheduled speech by Abbas, will likely take place too late in the day, with the seven hour time difference between NY and Jerusalem, for me to wait until it's all over and then begin writing.  It is considered exceedingly likely, if not certain, that Abbas will secure the vote he is seeking. And so I will address the issues here.  If there is need for additional reporting, or comment on his speech, I will do a follow-up (although it is questionable as to whether that will be tomorrow, as Shabbat is early).
Last year, Abbas attempted to secure recognition as a state via the UN Security Council, but was rebuffed by a US veto. There is no veto process in the General Assembly and sufficient support to pass what Abbas seeks is already insured. 
The US has lobbied with enormous energy to stop Abbas from proceeding. Without success.  Neither have the Americans or the Israelis successfully prevailed upon European countries en masse to vote against this.  It was felt that even if the motion passed (Western states being a minority in the UN), if a substantial bloc of Western democracies voted against this, it would undercut the power or legitimacy of the vote.  But in recent days there have been European states that have declared they will vote with Abbas, most notably France, and also Spain, Switzerland and just possibly, Britain. 
A couple of these nations have sought to qualify their support, saying they will vote for the motion, provided that Abbas agrees that he will not do this or will do that. 
We need to take a closer look, however, at what Abbas is actually seeking.  The UN cannot create a state.  Abbas wishes to create the impression that they can, and the Palestinian Arabs will celebrate as if this were the case. But this is illusion: PR, which is a good part of what this is all about.
What Abbas wants is an upgrade in PLO status in the UN. Instead of having non-state observer status, a Palestinian non-member state with observer status would be recognized.  Only the Security Council can recommend that a state become a member of the UN, and this is not going to happen. 
What Abbas wants is recognition that this state of "Palestine" has as its border with Israel the '67 armistice line, or Green Line -- regularly but erroreously referred to as Israel's legitimate "border" -- and that it includes eastern Jerusalem.  Specifically, he is asking the UN to recognize the “right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967.”
But this is nonsense.
There are international criteria for the recognition of an entity as a sovereign state:
  1. The entity must exercise effective and independent governmental control.
  2. The entity must possess a defined territory over which it exercises such control.
  3. The entity must have the capacity to freely engage in foreign relations.
  4. There must be effective and independent governmental control over a permanent population.
In all likelihood the PA does not meet any of these criteria.  What kind of government has a president whose term expired almost four years ago and hasn't held elections as scheduled?  But note, especially, number 2.  Most obviously, the PA does not control all the land from the Jordan River to the Green Line in any terms, never mind exercising effective governmental control over it.  The UN declaring a "state" on this line means zilch.
Other than a PR coup, there are a couple of other things the PA/PLO hopes to gain from this exercise.  The PLO, once assigned the status of "state" within the UN, will have access to certain agencies and committees directly affiliated with the UN.
Then there is the question of the International Criminal Court in the Hague, which is not an organ of the UN, but which the PLO hopes now to utilize for pressing charges of crimes against humanity against Israeli leaders. This is a dubious proposition (see below), but cannot be totally dismissed.
In an effort to deflect criticism, Abbas has made statements regarding the fact that he will be willing to pursue negotiations with Israel after the vote, and that, in fact, it will strengthen the PA in a way that gives it further confidence in negotiating successfully.
What can I say about this? Piffle.  He does not want to be seen as having pursued a path that destroys the potential for negotiations.  This, after all, is what so alarms the US.  And so, he is murmuring, "Don't worry..."  But while he issues these reassurances, there are reports that again the PA is saying it will not come to the table unless all settlement construction is frozen, etc., etc.
Israel's original position was that this action constituted an abrogation of the Oslo Accords -- which require that there be no change in status of the situation except via negotiations -- and that we will be free after the UN vote to pursue matters as we choose. 
In recent days there has been a turnabout in the Israeli government's position on this, with a determination to keep a low, wait-and-see, profile. 
It is difficult not to see the fingerprints of international pressure here.  Obama is particularly concerned that Israel not take an action that would further interfere with the possibility of resuming negotiations.
The way Israel is presenting the situation is this: Were Israel to react now with a retalitatory measure, such as applying civil law to communities in Judea and Samaria, world focus would be on this.  The onus for putting a roadblock in the way of "peace" would be placed on Israel.
And so the Israeli government has decided to sit tight and see what Abbas does next, taking its cues from this. 
There is tremendous frustration on the right with this position.  What we seem to be doing once again is determining our policy with our eyes cast over our shoulders -- concerned with what the world will think, instead of behaving forcefully to assert Israel's interests.
In this instance, however, I have concluded that going it slowly, and low key, might be the far better option.  (With the proviso that if we later determine a stronger response is required, we will have the inner strength to act.
Gabriela Shalev, a law professor and former Israeli ambassador to the UN, believes that some Israeli politicians have over-reacted to Abbas's declared intentions:
"Our reaction was certainly exaggerated," she said, referring to the PLO bid that was likely going to be "largely symbolic."
When we react strongly, we run the risk of giving this ploy more credence than it deserves.
In his response to my query, Alan Baker -- international lawyer, former advisor to the Ministry of Foreign Affairs, former ambassador to Canada, and Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs -- had this to say on the subject (emphasis added):
"Following the General Assembly vote there will be no state of Palestine. The UN does not have the power to establish states, andany general assembly resolution is nothing more than a recommendation. It has no mandatory powers. It merely constitutes the opinion of the states voting for it, nothing more.

Practically speaking, for purposes of the UN only, "Palestine" will be considered to be a non-member state, and will be moved from the observers seats to sit among the states, between Oman and Panama.

It will have no voting rights, and the only practical consequence that I can foresee will be a series of similar upgrades in the various UN specialized agencies that are obligated to follow the UN. That does not necessarily include the International Criminal Court which is not a UN specialized Agency but an independent judicial organ.

However, since even the states party to the ICC Statute, and its Prosecutor are nevertheless driven in their actions by international political considerations, the Palestinians well doubtless attempt to push themselves to be accepted as a state in order to be able to institute proceedings against Israel's leadership.

I doubt if they will succeed because, as determined a year ago by the prosecutor, they still cannot prove that they have the components of statehood, and there would be considerable opposition within the enlightened elements of the international community.

You are correct in your observation as to this being an extra-judicial exercise. This is a classical PR exercise by Abu Mazen [Abbas] without any legal significance. After a failed career without any real achievement of peace or anything else, he needs to go down in history with something, and this will be it. He"ll get two days of glory and then nothing.

Regrettably the Israel government, rather than publicly dismissing this as a cheap PR exercise, is attributing to this exercise more credibility and importance than it merits, and thereby playing into the hands of Abu Mazen.

As to whether Israel wishes to act on this or not, and whether this initiative abrogates Oslo or not, it depends how we interpret it. If we consider it as an attempt to alter the status of the West Bank territories then it is a violation, entitling israel to declare the agreements invalid and carry out its own unilateral measures, whether this be to annex parts of the territory or take less far-reaching measures.

If, on the other hand, we choose to dismiss it as insignificant since, practically, there will be no change in the territory, then logically we shouldn't react and we should merely dismiss it as a regrettable abuse of the international community.

For those interested in further information, in a separate piece for the JCPA on the PA, "The Palestinians at the UN and the International Criminal Court," Ambassador Baker wrote (emphasis added):
"The 1998 Statute of the International Criminal Court (ICC) enables only states – genuine states that are party to the Statute – to refer complaints to the court (in addition to the Security Council and the ICC Prosecutor). In the same way Palestinians failed in 2011 to prove statehood when they attempted to attain membership in the UN, in light of the clear lack of national unity and capability of governance and inability to fulfill international obligations of a state, so now in 2012 it would be highly unlikely, even after an upgrade-resolution, that they will be able to prove to the ICC that they are a genuine state entitled to initiate complaints against Israeli officials and officers.

"In 2011, after conducting an in-depth examination and consulting with experts, the Prosecutor rejected the Palestinian attempt to instigate complaints against Israeli officials and officers, and referred their request to the Assembly of States Party to the ICC Statute and to the UN Secretary-General"
Said Mark Regev, spokesman for the prime minister, very recently:
"Ultimately, what we will see at the United Nations is diplomatic theater. It will in no way affect the realities on the ground."
© Arlene Kushner. This material is produced by Arlene Kushner, functioning as an independent journalist. Permission is granted for it to be reproduced only with proper attribution. 
If it is reproduced and emphasis is added, the fact that it has been added must be noted.

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