By Alan Craig
Alan Craig is the Pears Lecturer in Israel and Middle East Studies at the University of Leeds. Alan adopts an interdisciplinary approach to this research, using International Relations and International Law methodologies to examine current developments in the region. His book ‘Israel’s Front of Legitimacy’ is due to be published next year by Lexington Books.
On November 15, 1988 Yasser Arafat declared an independent state of Palestine with Jerusalem as its capital. Recognition followed from over 100 states including the Soviet Union and China but very little changed on the ground. The declaration did not deliver a state. Now history is repeating itself with another push for recognition. In May 2011, through the columns of the New York Times Mahmoud Abbas, President of the Palestinian National Authority (PNA) and chairman of the Palestine Liberation Organisation (PLO) proclaimed the Palestinian UN strategy in uncompromising terms, “this September, at the United Nations General Assembly, we will request international recognition of the State of Palestine on the 1967 border and that our state be admitted as a full member of the United Nations”.1
This time recognition is to be by the UN, and facts have already been changing on the ground.
Although the peace process has stagnated and Gaza has remained mostly blockaded, relations between Israel and the Palestinian National Authority on the West Bank have never been so good. Close security cooperation and the suppression of Hamas activists on the West Bank has accompanied rapid economic growth and increased Palestinian prosperity.2 The security/prosperity balance has clear dividends for both Israelis and Palestinians, including a demonstrably better quality of life in the West Bank than under Hamas rule in Gaza, but the unwelcome consequence for Netanyahu’s right wing coalition government is that the efficient functioning of Palestinian institutions is seen by others as state building. This is not to suggest that there has been any secret about the Palestinian strategy. In August 2009 Palestinian Prime Minister, Salam Fayyad, published his government’s programme of institution building with a clear timetable promising that, “This is the path to the creation of the independent state of Palestine on the Palestinian territory occupied in 1967, with East Jerusalem as its capital. And, yes, this can and must happen within the next two years.”3 Two years later, both the World Bank and the IMF have lavished praise on Palestinian economic institutions. The IMF reports that the PNA is “now able to conduct sound economic policies expected of a future well-functioning Palestinian state, given its solid track record in reforms and institution building”, while the World Bank expresses the view that, “If the Palestinian Authority maintains its performance in institution-building and delivery of public services, it is well positioned for the establishment of a state at any point in the near future.”4 Perhaps this is to be expected of a Palestinian Prime Minister with a PhD in economics who has worked at the IMF. But progress has not been confined to the economy; the fragile reconciliation between Fatah and Hamas has re-established governmental mechanisms and a timetable for elections. In short, state construction has been forging ahead while the peace process has failed to keep up.
The current right-wing Israeli coalition government is unwilling and, owing to its dependence on religious and ethno-nationalist votes in the Knesset unable to meet the Palestinian demand for a settlement freeze, which is the PNA condition for resuming negotiations. Equally, the PNA will not meet the Israeli precondition of acceptance of the Israeli state as the Jewish State, which would imply an abandonment of the Palestinian right of return. Recently revealed secret meetings in London between Israeli President Shimon Peres and Mahmoud Abbas have failed to find a face-saving formula for a meaningful resumption of negotiations in return for the abandonment of the Palestinian UN strategy.5 Instead, Israeli public diplomacy employs intense diplomatic activity designed to garner UN votes, particularly European and other democratic votes. In addition, Jerusalem has been warning the PNA that their UN manoeuvring risks abrogation of the Oslo Accords that form the basis for the current limited Palestinian self-government.6 With settlement expansion continuing,7 the Netanyahu government is treading a narrow line between managing Palestinian unilateralism and provoking a third intifada.
The UN vote
Palestinian diplomacy ahead of the September UN session has been frenetic.8 Both Russia and China have assured the PNA that their 1988 recognition still stands. Palestinian diplomacy has been particularly successful in South America where Palestine is now recognised by Brazil, Argentina, Uruguay, Bolivia, Ecuador, Paraguay and Chile. But is this of any greater consequence than the spate of recognition that followed the 1988 declaration? Accumulating recognitions that do not include the US and Israel does not change the day to day realities of occupation; it just demonstrates that a lot of countries are prepared to upgrade their bi-lateral relations with the PNA.
International law, while vague in its definition of statehood, is generally now understood to recognise state legal personality by reference to the fact of independent governance rather than by exclusive reliance on the acts of recognition of other states.9 This is the predominance of the declaratory theory over the nineteenth century constitutive theory. In international law, there is more to being a state than receiving recognition from other states. In relation to Palestine, the legal argument runs that by examining the facts on the ground, Israel can be seen to have so much control over day to day life in its occupied territories, and the functions of the PNA so limited, that Palestine cannot be a state despite its institutional advances.10 If this is right, it follows that recognition by other states is a political act without legal consequence – the attribution of political legitimacy without legal grounding. Alternatively, if Palestine does meet the test of statehood as John Quigley, Presidents’ Club Professor of Law at Ohio State University argues, recognition by other states is simply an acknowledgment of an existing situation.11 A further set of legal arguments finesses the independence point by relying on the Customary International Law principle that a state does not cease to be a state when it comes under belligerent (non-consensual) occupation. This allows the argument to be made that at some point in time during the Ottoman and post-Ottoman period a Palestinian state emerged that is still in legal if not independent existence. As might be expected, this legal analysis is hotly contested by those who draw differing conclusions from the complex diplomatic history of the region. Given that the balance of legal opinion does not identify Palestine as a state, why has the prospect of a UN vote provoked such interest?
What is clear is that for all the legal nuances, Palestine is not free and independent and stretching the definition of statehood to include Palestine as it is presently constituted will not make it so. This does not mean that a collective recognition expressed in the form of a General Assembly resolution lacks importance. On the contrary, the very fact that Palestinian state recognition is the subject of such fierce political infighting attests to that. It does mean, though, that the political significance is greater than the legal. This comes as no surprise to those working in the field of International Relations, where political legitimacy frequently trumps legal formalism.12 This is what makes the meaning of a UN resolution so complex; legally, it may have very little significance, while politically the outcome is much more difficult to predict.
In fact, there is little prospect of Palestine upgrading its UN observer status and joining the UN as a state any time soon.13 This is not because of the application of legal doctrine. Rather, it is a combination of the requirements of the UN Charter and the political reality of the Security Council. Under the Charter, admission to the UN as a state member requires the recommendation of the Security Council to the General Assembly and a two-thirds vote in the chamber.14 The administration has made it clear that the US will use its Security Council veto to stop any recommendation. Such an overt blocking of Palestinian national aspirations holds no attraction to the Obama administration and has led to increasingly desperate, but thus far unsuccessful, efforts to get the parties back to the negotiating table. This relegates the matter to the General Assembly, long the venue of supportive pro-Palestinian resolutions that have had limited practical effect. The most recent being on the March 21, 2011 restatement of the Palestinian right to a state which, “Reaffirms the right of the Palestinian people to self-determination, including the right to their independent State of Palestine.”15
A possible strategy would be for the General Assembly to proceed without a Security Council recommendation under the ‘Uniting for Peace’ procedure that acts to empower the General Assembly where the Security Council has failed to function. Since the rule is designed to allow emergency measures to avert war, a resolution on the status of Palestine that overtly circumvents the constitutive rules of the UN is unlikely to be seen as an appropriate use of the procedure and will probably carry no more weight than other General Assembly resolutions. From the legal perspective, the General Assembly is not a law-making body and its resolutions can be better understood as recommendations.16 A vote in the General Assembly purporting to recognise a Palestinian state, where Palestine is clearly under Israeli rule, legally-speaking amounts to little more than a joint demonstration of individual state recognitions. Nevertheless, in terms of practical political consequences, the outcome may be favourable to the Palestinian state construction process. The PNA has been reluctant to spell out their strategy ahead of a vote, but according to Palestinian Ambassador Professor Manuel Hassassian, if the Security Council resolution fails, the Palestinians will secure a General Assembly Resolution granting Palestine State Observer status.17 This would allow participation in debate as a state albeit without voting rights. The Vatican is currently the only state observer although Switzerland maintained this status until 2002. General Assembly resolutions are taken seriously within the UN system itself and such a vote will operate as an encouragement to other UN bodies and international institutions to treat Palestine as a state. In other words, a vote that fails to admit Palestine as a state member of the UN may still have significant consequences for both Palestine and Israel.
The International Criminal Court
A game changing scenario involves a resolution whose persuasive effect is to cause Israel to be brought within the reach of the International Criminal Court (ICC)18 – an eventuality that has thus far generated little academic comment beyond the legal scholarship.19 The ICC currently has no territorial jurisdiction over the West Bank and Gaza but this could change as a consequence of: (a) Palestine being admitted to the UN as a state member, which, as has already been argued, is unlikely, (b) a persuasive General Assembly resolution or, indeed, (c) as a consequence of the current Palestinian diplomatic campaign irrespective of what happens at the UN.
The jurisdiction of the ICC to prosecute individuals for genocide, crimes against humanity, war crimes and the crime of aggression is determined by application of the Statute of the International Criminal Court 199820 (the ICC Statute). Simply put, the ICC Statute confers jurisdiction over states that have become a party to the statute or where there is a direction from the Security Council. In the absence of a Security Council resolution, there is no jurisdiction unless the crime has taken place in the territory of a state party to the statute or the crime is alleged to have been committed by one of its nationals. Since Israel is not a party and can rely on the US to block any Security Council referral, Israel has long been considered to be beyond the reach of the ICC. On January 22, 2009, in the aftermath of the War in Gaza (December 27, 2008 to January 18, 2009) when there was a great deal of condemnation of Israeli ‘impunity’,21 Ali Khashan, Minister of Justice of the PNA, lodged a declaration with the ICC accepting ICC jurisdiction over the territory of Palestine since July 1, 2002.22 The declaration was made under Article 12 (3) of the statute that enables states that are not a party to the statute to opt in. Article 12 (3) provides that: “If the acceptance of a state which is not a party to this statute is required under paragraph 2, that state may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the court with respect to the crime in question”. The Independent Prosecutor is still deciding how to respond.
The question that the ICC has yet to decide is whether a declaration by the PNA is a declaration by a state as required by the statute. In fact, although the ICC Statute refers throughout to states it offers no definition of what a state actually is. At the time of writing the Office of the Prosecutor has been ‘analysing the position’ for the past two and a half years. Lengthy legal submissions by international law experts have been submitted by both sides in the argument and are available on the ICC website, constituting a rich source of legal and historical material for those interested in the finer points of the debate.23 On the Palestinian side, in addition to the arguments that Palestine is functioning as a state and was a state before at the termination of the Mandate,24 the ICC is urged to interpret the Statute in accordance with its purpose of ending impunity from prosecution for the most serious crimes known to mankind. In other words, the ICC is being urged to wriggle free of the accepted definition of a state to enable it to meet the wider expectations of those who seek a greater role for international law and the institutions designed to uphold it. The point to be emphasised here is that if the UN General assembly were to grant Palestine state observer status, the ICC might just stretch a legal interpretation and extend its jurisdiction to the West Bank and Gaza. This would be a major victory for the Palestinian strategy, opening up the possibility of Israeli political and military actors being brought before the ICC, a risk that Israel is keen to avoid.
Whether the current Palestinian strategy of institutional state building signals the abandonment of negotiation in favour of peaceful unilateralism, or whether this is another twist in the Palestinian/Israeli contests for international legitimacy remains to be seen. In more general terms, the Palestinian strategy amounts to a demand for inclusion within an international society of states as a state under occupation rather than as a territory yet to achieve independence. With the path to UN membership blocked in the Security Council, and a positive vote in favour of recognition on the cards in the General Assembly, the question is one of predicting the possible consequences of a General Assembly resolution. Whether international organisations are going to be influenced to admit Palestine as a state remains to be seen. From the Israeli perspective, holding the line against the ICC becomes a key policy objective.
In practice, the outcome is unlikely to be the sudden inclusion of Palestine among a community of states. Rather, there will be a gradual process of creeping legitimation; the more states and international institutions treat Palestine as a state the more it comes to resemble a state and the greater the legal and political empowerment.
But this is a slow process and to abandon both negotiation and violence in favour of a strategy that Abbas claimed in his New York Times piece would “pave the way for the internationalization of the conflict as a legal matter, not only a political one” and which would allow the PNA “to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice” promises more than it can quickly deliver. Especially, if as seems likely, it is accompanied by the withdrawal of US financial support.
This is at a time when populations across the region expect more rather than less from their leaders and when the Hamas-Fatah accord looks shaky at best. Israel has not been immune to the popular mobilisation that has characterised the Arab Spring. There have been unprecedented mass demonstrations with an estimated 200,000 to 300,000 people taking to the streets on August 6, 2011.25 But this is a popular movement protesting against the rapid rise in the cost of food and housing. If anything, it represents a left-leaning agenda that has detached itself from an unpopular peace process rather than a movement that is going to break the deadlock. On the Palestinian side, popular activism in June of this year saw a symbolic return to Palestine by Palestinians in Lebanon resulting in lethal confrontations with the Israeli Defence Forces.26 Mass protests across the Occupied Territories, either in support of the UN strategy or, as is more likely, in frustration at its failure to bring change, runs the risk of degenerating into another violent intifada.
Palestinian leader Marwan Bargouti, jailed by the Israelis for his part in organising the bloody second intifada, has called for massive peaceful demonstrations to accompany the UN strategy.27 Mass rallies on the West Bank seldom remain peaceful and there is a persuasive realist analysis that predicts a third intifada beyond the control of either President Abbas or Prime Minister Fayyad. There is a difficult year in progress that is unlikely to be made easier by the legal nuances of statehood.
1 Mahmoud Abbas, “The Long Overdue Palestinian State,” New York Times, May 16, 2007, http://www.nytimes.com/2011/05/17/opinion/17abbas.html
2 International Crisis Group, ‘Squaring the Circle: Palestinian Security Reform under Occupation’, Middle East Report, No. 98, September 7, 2010, http://www.crisisgroup.org/en/regions/middle-east-north-africa/israel-palestine/98-squaring-the-circle-palestinian-security-reform-under-occupation.aspx
3 Palestine, Ending the Occupation, Establishing the State, Program of the Thirteenth Government, August 2009, http://www.mop-gov.ps/web_files/issues_file/090825%20Ending%20Occupation,%20Establishing%20the%20State%20-%20Program%20of%20the%2013%20government.pdf.
4 World Bank, Economic Monitoring Report to the Ad Hoc Liaison Committee, Building the Palestinian State: Sustaining Growth, Institutions, and Service Delivery, April 13, 2011, http://siteresources.worldbank.org/INTWESTBANKGAZA/Resources/AHLCReportApril2011.pdf. IMF Program Note, West Bank and Gaza, http://www.imf.org/external/np/country/notes/wbg.htm
5 Martin Bright, “Peace talks in a London kitchen,” The Jewish Chronicle, August 19, 2011.
6 Harriet Sherwood, ‘Israel warns Palestinians all deals are off if UN vote goes ahead’, Guardian, June 17, 2011, http://www.guardian.co.uk/world/2011/jun/17/avigdor-lieberman-palestinians-un-oslo. See also, Haaretz editorial, “Israel leaders in hysterics ahead of September,” Haaretz, August 12, 2011, http://www.haaretz.com/print-edition/opinion/israeli-leaders-in-hysterics-ahead-of-september-1.378260
7 Tovah Lazaroff, “Israel approves 294 new W. Bank homes in Betar Illit,” Jerusalem Post, May 22, 2011, http://www.jpost.com/DiplomacyAndPolitics/Article.aspx?id=221739
8 Barak Ravid, “Erekat: Palestinians planning ‘massive’ diplomatic push for state recognition,” Haaretz, July 18, 2011, http://www.haaretz.com/news/diplomacy-defense/erekat-palestinians-planning-massive-diplomatic-push-for-state-recognition-1.373848
9 James Crawford, The Creation of States in International Law, (Oxford: Clarendon Press, 2006), pp. 1-196. The Montevideo Convention of 1933 is generally regarded as a check list of requirements for statehood, requiring (1) a stable population, (2) a defined territory, (3) effective government and (4) a capacity to enter into diplomatic relations. This approach was approved in Western Sahara Advisory Opinion, I.C.J. Reports, 1975. The issue with regard to Palestine is frequently discussed in terms of the limited Governmental functions reserved to the PNA under the Oslo Accords.
10 Crawford, The Creation of States in International law, pp. 421-446. For an alternative reading that analyses the historical legal status of Palestine to argue that Palestine is a state under occupation, see John Quigley, The Statehood of Palestine: International Law in the Middle East Conflict, (Cambridge: Cambridge University Press, 2010). See also, Victor Kattan, Book Review of the Creation of States in International Law, American Journal of International Law, April 2011, vol. 105, pp. 407-415.
11 Crawford and Kattan supra note 10.
12 Ian Clark, Legitimacy in International Society, (Oxford: Oxford University Press, 2003).
13 1974 GA Resolution 3237 granted the Palestine Liberation Organisation (PLO) observer status at the UN with a seat and to speak but not to vote. Designation was changed to ‘Palestine’ in 1988.
14 UN General Assembly, “Rules of Procedure,” Chap. XIV, http://www.un.org/en/ga/about/ropga/adms.shtml See also, International Court of Justice, ‘Competence of Assembly Regarding Admission to the United Nations’, 1950, I.C.J. Reports 4, p. 5, http://www.icj-cij.org/docket/files/9/1883.pdf and Edith M. Lederer, “Palestinian state requires UN council support,” Yahoo News, May 27, 2010, http://old.news.yahoo.com/s/ap/20110527/ap_on_re_us/un_un_palestinians_general_assembly. For an easily accessible summary see Brett Schaefer and James Phillips, “How the U.S. Should Respond to the U.N. Vote for Palestinian Statehood,” The Heritage Foundation, July 6, 2011, ackgrounder#2574,http://www.heritage.org/research/reports/2011/07/how-the-us-should-respond-to-the-un-vote-for-palestinian-statehood
15 Resolution A/RES/65/202, http://unispal.un.org/UNISPAL.NSF/0/38E7802B1450C72485257856004F3CE4
16 Marko Divac Oberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’, The European Journal of International Law , 2006,Vol. 16 no.5
17 Interview with the author, September 7, 2011.
18 Michael Sfard, ‘The legal Tsunami is on its way’, Haaretz, April 29, 2011, http://www.haaretz.com/print-edition/opinion/the-legal-tsunami-is-on-its-way-1.358758
19 Malcolm N. Shaw QC, “The Article 12(3) Declaration of the Palestinian Authority, the International Criminal Court and International Law,” Journal of International Criminal Justice, 2011,Vol.9, Issue2, pp. 301-324; Yuval Shany, “In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yaël Ronen,” Journal of International Criminal Justice, 2010, Vol. 8, issue 2, pp. 329-343; Yaël Ronen, “ICC Jurisdiction over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-state Entities,” Journal of International Criminal Justice,2010, Vol. 8, issue 1, pp. 3-27; John Quigley, “Competing Claims to the Territory of Historical Palestine,” Guild Practitioner, 2002, Vol. 59, p 76; John Quigley, “The Palestine Declaration to the International Criminal Court: The Statehood Issue,” Rutgers Law Record, 2009, Vol. 35, p.1.
20 The ICC statute is available at http://untreaty.un.org/cod/icc/statute/romefra.htm
21 Among those who challenge the legitimacy of Israeli military actions and its broader security policy, ‘impunity’ has come to replace ‘Israeli exceptionalism’ within a broader discourse of illegality. While exceptionalism implies the application of different rules, impunity suggests lawlessness beyond the reach of redress. See for instance, Barnette, Jennifer (2010) “The Goldstone Report: Challenging Israeli Impunity in the International Legal System?,” Global Jurist: Vol. 10: Iss. 3, Article 1.
22 Declaration recognising the Jurisdiction of the International Criminal Court, www.icccpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4C8071087102C/279777/20090122PalestinianDeclaration2.pdf.
23 International Criminal Court, “Summary of submissions on whether the declaration lodged by the Palestinian National Authority meets statutory requirements,” May 3, 2010, http://www.icc-cpi.int/menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/palestine/summary%20of%20submissions%20on%20whether%20the%20declaration%20lodged%20by%20the%20palestinian%20national%20authority%20meets?lan=en-GB
24 The historical status of Palestine is important because it is well established in Customary International Law that belligerent (unasked for) occupation does not extinguish the state.
25 Jonathan Lis, Eli Ashkenazi, IlanLior , Yanir Yagna, “More than 300,000 demonstrate across Israel to protest high cost of living,” Haaretz, August 21, 2011, http://www.haaretz.com/news/national/more-than-300-000-demonstrate-across-israel-to-protest-high-cost-of-living-1.377295. On the decline of the Israeli left, see Clive Jones, “What’s Left of the Left in Israel? The Shadow of the February 2009 Election,” Asian Affairs, 2010, 20-34.
26 Yasmine Ryan, “Palestinian activism energised by Arab Spring,” Al Jazeera, June 8, 2011, http://english.aljazeera.net/indepth/features/2011/06/201168131013184315.html
27 “Jailed Palestinian leader Barghouti calls for mass rallies to back UN statehood bid,” Haaretz, July 20, 2011, http://www.haaretz.com/news/diplomacy-defense/jailed-palestinian-leader-barghouti-calls-for-mass-rallies-to-back-un-statehood-bid-1.374256