The Palestinians' Unilateral "Kosovo Strategy": Implications for the PA and Israel. Part III

 

by  Dan Diker

3^rd part of 3

Implications for Israel

The Palestinian "Kosovo strategy" contains several major implications for Israel. First, the Palestinian delegitimization of Israel in the interim poses a strategic threat. The Palestinian state-building process has succeeded in painting Israel as a pariah state, while the hidden foreign policy agenda of the PA and PLO leaderships is to drive a wedge between Israel and the United States. Although unlikely, if the Palestinians win international endorsement of sovereignty along the 1967 lines, Israel will become persona non grata anywhere east of the "green line," including in many central neighborhoods within its own capital city, Jerusalem, that have been developed since the 1967 war.

The unilateral Palestinian bid for sovereignty will also likely turn the Palestinians into the leading petitioner against the State of Israel at the International Criminal Court. An early indication of what can be expected if the PA's "Kosovo strategy" comes to fruition may be seen in the petition submitted to the court by the PA after the Gaza war. Although the PA is not a state and therefore should have no legal standing before the court, its petition was not rejected by the ICC.

Finally, the unilateral Palestinian quest for the 1947 lines may well continue even if the 1967 lines are endorsed by the United Nations. The PLO's 1988 declaration of independence was based on UN General Assembly Resolution 181, which recognizes the 1947 partition plan for Palestine, not the 1967 lines, as the basis for the borders of Israel and a Palestinian state.

This threat is not theoretical. In 1999, former Palestinian UN Ambassador Nasser al-Kidwa, today a senior Palestinian official and a major proponent of UN endorsement of a unilaterally-declared Palestinian state, submitted a letter on behalf of the PLO asserting that Resolution 181 and its corresponding 1947 partition plan are accepted by the PLO and cannot be annulled, as they provide the legal basis for the existence of both Jewish and Arab states in Mandatory Palestine.⁵⁴ Since then, Resolution 181 has been invoked by other Palestinian leaders. In view of the PLO's intention to replace the PA as the legitimate legal authority to carry out the Palestinian's Kosovo model, the implications of unilateral Palestinian action are far-reaching.

 

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Notes

1. Khaled Abu Toameh and Herb Keinon, "Recognition of ‘67 Border Before Talks," Jerusalem Post, December 15, 2009. Abbas announced at the PLO Central Council meeting on December 15, 2009, that the Palestinians will not resume peace talks with Israel unless the international community recognized the "1967 borders" as the boundaries of a Palestinian state. Abbas' latest precondition, as well as the complete Palestinian rejection of all Israeli concessions and gestures since the failed Annapolis peace process - including Prime Minister Benjamin Netanyahu's recognition of a demilitarized Palestinian state, a virtual complete settlement moratorium in the West Bank, and the granting of amnesty to hundreds of members of Palestinian terror groups - illustrates a Palestinian refusal to negotiate with Israel. See "The Palestinian Refusal to Negotiate Peace," Israel Ministry of Foreign Affairs, January 4, 2010, http://www.mfa.gov.il/MFA/About+the+Ministry/Behind+the+Headlines/Palestinian_refusal_negotiate_peace-Jan_2009.

2. "Erekat: It's Time to Recognize a Palestinian State," Ma'an News, November 17, 2009. See also, "Palestinians Should Follow Kosovo Example: Negotiator," Agence France Press, February 20, 2008, http://afp.google.com/article/ALeqM5iS_5y-7raxAQIhNgJDtMOIhadGrg. Prime Minister Fayyad also referred to "Kosovo" as the model for a prospective Palestinian state, according to a source who met with Fayyad in late 2009.

3. "Palestinians Unveil Two-Year Development Plan for Statehood," Ha'aretz, November 15, 2009.

4. http://www.mofa-gov.ps/ar/index.php?p=main&id=22. The PLO Central Council also voted to delay implementing the replacement of the Oslo-sanctioned Palestinian Legislative Council (PLC), extending the PLC's role in the interim until elections can be called "at the earliest possible date."

5. Yaakov Katz, "Taking a Cue from Kosovo," Jerusalem Post, September, 3, 2009.

6. Abbas acknowledged to the Washington Post's Jackson Diehl after the failure of Annapolis that Olmert's offer of 97 percent of the West Bank and the recognition of the right of return (that included the return 100,000 refugees - DD) was more generous to the Palestinians than the offers of either George Bush or Bill Clinton, and yet Abbas said: "The gaps were wide." See Jackson Diehl, "Abbas' Waiting Game," Washington Post, May 29, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/05/28/AR2009052803614.html.

7. Ali Abunimah, "Kosovo and the Question of Palestine," Electronic Intifada, February 25, 2008.

8. "Erekat Unimpressed with New U.S. Attitude," January 9, 2009, Jerusalem Post, http://www.jpost.com/servlet/Satellite?cid=1262339435514&pagename=JPost%2FJPArticle%2FShowFull.

9. Tova Lazeroff and Herb Keinon, "Erekat Denies PA Unilateralism Plans," Jerusalem Post, November 18, 2009, http://www.jpost.com/servlet/Satellite?cid=1258489190816&pagename=JPost%2FJPArticle%2FPrinter. In the Kosovo case, UN Security Council Resolution 1244, passed in 1999, established Kosovo as a UN Protectorate. However, similar to the Palestinian case, Kosovo has not yet won a UNSC resolution for independence, since the Security Council has been unable to agree on a resolution backing supervised independence. See International Crisis Group Analysis, http://www.crisisgroup.org/home/index.cfm?id=3225&l=1.

10. Separate conversations with international law experts Professors Ruth Lapidot and Porofessor Irwin Cotler, former Justice Minister of Canada, in Jerusalem, December 21, 2009.

11. Kosovo - a province of Serbia - has been under international trusteeship since NATO's armed intervention in 1999. UN Security Council Resolution 1244 provided international sanction for UN trusteeship. For Serbs, Kosovo is an ancestral homeland and the site of many important Serbian Orthodox churches and monasteries. They insist that the area remain under Serbian sovereignty. The current state of limbo, tension, and sporadic violence between Kosovo's Albanian majority, which is mostly Muslim, and the Serbian minority, which is mostly Orthodox Christian, has mobilized international support away from the notion of a multi-ethnic society there and ratcheted up support for Kosovo's break from Serbia.

12. Clearly, the legal analogy does not work. Kosovar independence, currently being considered by the International Court of Justice, requires the consent of Serbia, the sovereign power, notwithstanding exceptional cases of brutality that would obviate agreement of the sovereign. Ironically perhaps, legally, the Palestinians must also receive Israel's agreement in any final status arrangement over final borders, as enshrined in UN Security Council Resolution 242, and as agreed upon at Oslo and in the 2002 Roadmap.

13. The Kosovo case was referred by the UN General Assembly to the International Court of Justice on October 8, 2008, for an advisory opinion as to the legality of Kosovo's unilateral declaration. The ICJ opinion is still pending. See http://www.icj-cij.org/docket/files/141/14797.pdf.

14. http://reut-institute.org/en/Publication.aspx?PublicationId=3679.

15. A map of Kosovo reveals that its ethnic composition leaves the minority Serb population contained in the provinces in Kosovo's north, leaving the majority of the land to the Muslim Kosovar majority without the risk of geographical interlocking or overlapping communities.

16. The 2002 Arab Peace Initiative referred to the issue of refugees thus: "Achievement of a just solution to the Palestinian refugee problem to be agreed upon in accordance with UN General Assembly Resolution 194." http://www.guardian.co.uk/world/2002/mar/28/israel7.

17. Dan Diker, "Why Israel Must Now Move from Concession-Based Diplomacy to Rights-Based Diplomacy," Jerusalem Viewpoints #554, June-July 2007, http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DRIT=2&DBID=1&LNGID=1&TMID=111&FID=253&PID=0&IID=1607&TTL=Why_Israel_Must_Now_Move_from_Concessions-Based_Diplomacy_to_Rights-Based_Diplomacy. See also "Palestinian Refusal to Negotiate Peace."

18. See examples of Palestinian leadership denials of the Jewish Temple in Jerusalem in Dore Gold, The Fight for Jerusalem (Washington: Regnery Publishing, 2007), pp. 10-11.

19. John Quigly, "The Palestine Declaration to the International Criminal Court: The Statehood Issue," Rutgers Law Record, vol. 35, (Spring 2009), http://www.lawrecord.com/files/35-rutgers-l-rec-1.pdf.

20. "Palestinian Refusal to Negotiate Peace." Daniel Reisner, former head of the Israel Defense Forces' International Law Department, pointed out in interviews on January 6, 2010, on Army Radio and Channel 10 that Fayyad's government successfully appealed to the International Criminal Court without having the status of a sovereign state. Surprisingly, Reisner noted, the court did not dismiss the appeal, which underscores the vigorous efforts of PA Foreign Minister Riyadh al-Malki to upgrade the status of the PA to a sovereign state, which would in turn leverage up the number and effectiveness of Palestinian petitions to the ICC against the Israeli government and military officials.

21. In late 2009, Defense Minister Ehud Barak narrowly escaped arrest while on an official visit to London, while Israeli opposition leader and former foreign minister Tzippi Livni cancelled a planned visit to London, fearing arrest. http://www.myfoxchicago.com/dpp/news/international/Israeli_Military_Delegation_Cancels_Britain_Trip_Fearing_Possible_War_Crime_Charges_25944716.

22. On March 22, 2009, Fayyad convened in his bureau the committees of the "popular intifada," as opposed to the military one. These committees were charged with organizing public activities against the security barrier and the settlements. Fayyad told them: "This example of resistance received respect, appreciation and support worldwide." Al-Hayat al-Jadeeda, March 22 2009. See also Dan Diker and Pinhas Inbari, "Is thePalestinian Authority

Stable Enough for Peace Talks? Assessing the Resignation and Return of Prime Minister Salam Fayyad," Jerusalem Issue Brief, vol. 9, no. 3, June 16, 2009, http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DBID=1&LNGID=1&TMID=111&FID=442&PID=0&IID=3007. For a typical anti-Israel protest website, see http://www.awalls.org/.

23. http://www.aawsat.com/details.asp?section=4&article=548758&issueno=11341.

24.  U.S. Senator Joe Lieberman, visiting Ramallah in November 2009, said, "I know some people concerned that this is unilateral, but it seems to me that it is unilateral in the healthy sense of self-development." See "Fayyad, PA Getting Ready for Statehood," Jerusalem Post, November 15, 2009. See also Dan Diker and Pinhas Inbari, "Prime Minister Salam Fayyad's Two-Year Path to Palestinian Statehood: Implications for the Palestinian Authority and Israel," Jerusalem Issue Brief, vol. 9, no. 11, October 2, 2009, http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DBID=1&LNGID=1&TMID=111&FID=442&PID=0&IID=3096.

25. Alan Baker, "A Paradox of Peacemaking: How Fayyad's Unilateral Statehood Plan Undermines the Legal Foundations of Israeli-Palestinian Diplomacy," Jerusalem Viewpoints, no. 574, November-December, 2009, http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DBID=1&LNGID=1&TMID=111&FID=443&PID=0&IID=3185.

26.  Diker and Inbari, "Fayyad's Two-Year Path."

27. http://www.maannews.net/arb/ViewDetails.aspx?ID=252188

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28. "Erekat: PA May Declare State via UN," Ynet News, November 14, 2009, http://www.ynet.co.il/english/articles/0,7340,L-3804948,00.html.

29. Assaf Uni, Jack Khoury, and Yanir Yagna, "EU Chief Urges UN to Set Unilateral Timetable for Palestinian Statehood," Ha'aretz, July 13, 2009.

30. Barak Ravid, "EU Draft Document on Division of Jerusalem," Ha'aretz, December 2, 2009, http://www.haaretz.com/hasen/spages/1131988.html.

31. Dore Gold, "Europe Seeks to Divide Jerusalem," Jerusalem Issue Brief, vol. 9, no. 14, December 10, 2009.

32. Baker, "A Paradox of Peace Making."

33. "Washington Rejects Palestinian Kosovo Comparison," AFP, February, 20, 2008.

34. Ibid.

35. http://www.haaretz.com/hasen/spages/1124825.html.

36. Isabel Kershner, "Israeli Settlement Growth Must Stop, Clinton Says," New York Times, May 28, 2009.

37. Khaled Abu Toameh, "Palestinians and Obama, End of a Honeymoon," Hudson Institute New York, November 24, 2009.

38. Khaled Abu Toameh, "Why Is Abbas Stonewalling?" Jerusalem Post, December 24, 2009.

39. "Obama Tells Abbas Committed to PA State," Ynet News, October 23, 2009. Following Obama's phone call to Abbas, his spokesman, Nabil Abu Rudeinah, said, "It was a very important conversation for the future of the peace process and the region." As the Palestinians sole priority has been to win U.S. and international endorsement for the 1967 lines, the PA's uncharacteristically positive reaction to Obama after Washington's reversal of its former precondition of a total Israeli settlement freeze strongly suggests an Obama commitment on the central Palestinian demand.

40. Amidst the growing tensions between the U.S. and Israel over Israeli construction in the Jerusalem neighborhood of Gilo, Israeli journalist Akiva Eldar wrote, "the Obama administration has recently begun discussing how to appease Abbas. For example, by giving him letters spelling out U.S. support for a final status arrangement based on the 1967 borders and reaffirming Washington's position that Jerusalem is divided into eastern and western parts." See Akiva, Eldar, "Will Netanyahu's Behavior Push Obama into Abbas' Arms?" Ha'aretz, November 19, 2009.

41. Abbas reportedly revealed to a Kuwaiti newspaper that he had "verified information that Hamas was planning to take over the West Bank. Khaled Abu Toameh, "Can Hamas Be Stopped from Seizing the West Bank," Hudson Institute New York, January 5, 2010, http://www.hudsonny.org/2010/01/can-hamas-be-stopped-from-seizing-west-bank.php.

42. While many Hamas PLC lawmakers remain in Israeli custody, the Palestinian leadership wanted to remove Hamas from even formal majority control of the Palestinian Authority's Legislative Council.

43. Salim Zanoun, Chairman of the PLO's National Council, noted that the Palestinian Authority was the legal child of the PLO and the Central Council which the PNC established in 1994. The Palestinian Ministry of Foreign Affairs further explained the proposed but yet to be implemented PLO takeover of the PA Parliament, saying: "The PA'a duty is only to provide services to the Palestinians." Hence, the PLO and not the PA is the only legal body empowered to declare a state, http://www.mofa-gov.ps/ar/index.php?p=main&id=22. Ironically, perhaps, the PLO Council did not uproot the PA and endorsed the continued functioning of the Palestinian Authority's legislative council, in order to enjoy the ongoing receipt of billions of dollars in international donor contributions. The PA received $3 billion in 2008, according to French estimates, while the December 2007 Paris donors' conference pledged over $7 billion in aid to the PA over the years 2008-2010. See Dan Diker and Khaled Abu Toameh, "Can the Palestinian Authority's Fatah Forces Retake Gaza?" Jerusalem Viewpoints, no. 569, January-February 2009, http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DBID=1&LNGID=1&TMID=111&FID=443&PID=0&IID=2842.

44. While not recognizing Palestine as a state, 104 countries recognized the 1988 Palestinian Liberation Organization's Declaration of Independence. See John Quigly, "The Palestine Declaration to the International Criminal Court." See also Palestinian National Council, Declaration of Independence, November 15, 1988, UN Doc. A/43/827, S/20278, Annex III, November 18, 1988, reprinted in 27 I.L.M. 1668 (1988). The August 2009 publication of PA Prime Minister Salam Fayyad's "Two-Year Plan to Palestinian Statehood" is seen by most Western and many Israeli observers as a unilateral state-building plan in its initial phases, but not necessarily one in which Fayyad or the PA will unilaterally declare a Palestinian state in 2011, thereby maintaining the framework of a negotiated solution.

45. Tal Becker, "International Recognition of a Unilaterally Declared Palestinian State, Legal and Policy Dilemmas," Jerusalem Center for Public Affairs, http://www.jcpa.org/art/becker1.htm.

46. Baker, "A Paradox of Peacemaking."

47. Becker, "International Recognition of a Unilaterally Declared Palestinian State."

48. "Erekat: It's Time to Recognize a Palestinian State," Ma'an News. See also "Abbas: Only Solution Is to Declare Palestinian State," Ha'aretz, November 25, 2009, http://www.haaretz.com/hasen/spages/1128786.html.

49. Hilary Leila Krieger, "Jerusalem Rejects 2-Year Peace Deadline," Jerusalem Post, January 8, 2010.

50. Maan News (Arabic), December 12, 2009, http://www.maannews.net/arb/ViewDetails.aspx?ID=245977.

51. http://www.aawsat.com/details.asp?section=4&article=548758&issueno=11341.

52. For example, Palestinian Foreign Minister Riyadh al-Malki signed a state-to-state agreement with France which is an upgrade of the PA's political status on the declarative level, but the Palestinians had to backtrack from practical decisions expressing unilateral statehood, such as issuing a Palestinian currency or issuing Palestinian passports. The Lebanese daily al-Akhbar reported that one of the main purposes of Abbas' visit to Beirut was to deal with the rejection of issuing passports to the Palestinian refugees in Lebanon, as they believed passports would cost them the right of return. Abbas, according to the report, accepted the claim and rescinded the issuing of passports.

53. http://www.maannews.net/arb/ViewDetails.aspx?ID=245885.

54. See the letter submitted by PLO Ambassador Nasser al-Kidwa to the General Assembly, http://www.jcpa.org/art/jid-apx.htm#plo181.

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Dan Diker is Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, where he is also a senior foreign policy analyst. He is also an Adjunct Fellow of the Hudson Institute in Washington.

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