by Seth Mandel
On Tuesday, the United Nations published a report by its Middle East coordinator claiming that the Palestinian Authority is prepared to govern a state of its own, and that any challenges it faces would be the fault of the continued Israeli “occupation.”
The report is another step toward the declaration of a Palestinian state with the imprimatur of the United Nations. Just a few months ago the Palestinian leadership of Mahmoud Abbas and Salam Fayyad were threatening unilateral declaration through the UN Security Council, though that would be subject to an almost certain veto by the U.S. This time, the Palestinians are seriously floating a plan to call for a vote on statehood by the full General Assembly this coming September.
But as University of San Diego law professor Abraham Bell pointed out, this would not enable the Palestinians to avoid the American veto.
“Member states have to be recommended by the Security Council, and then after the Security Council recommends them, the General Assembly can then vote by two-thirds majority to accept them,” Bell said.
Bell said that if the U.S. vetoes the resolution at the Security Council, the Palestinian Authority would be denied statehood, but that in the General Assembly the Palestinians would likely have the votes for a supermajority. If the Palestinians get only the supermajority vote in the General Assembly, their status would not change one iota under international law. “It doesn’t make something that wasn’t a state into a state. And failure to win the vote, doesn’t make what is a state, not a state.”
But that doesn’t mean the Palestinians would gain nothing from the vote, even if the resulting resolution is nonbinding. The Heritage Foundation’s Brett Schaefer, author of ConUNdrum: The Limits of the United Nations and the Search for Alternatives, said that the Palestinians could still open certain legal doors with such a vote, and would certainly reap some diplomatic benefit from it.
“It’s obviously a political coup for the Palestinians, because what it does is it signals widespread recognition of them as an independent state,” Schaefer said. “It could lead to diplomatic recognition individually among states in increasing numbers. And it does give them more leverage over certain things including, potentially, joining the International Criminal Court, as a participant in that. That’s a double-edged sword. One ramification of that, should it happen, would be that any attacks that Israel launches on Palestinian territory could be subject to the jurisdiction of the ICC. However, the Palestinians themselves would also be subject to that jurisdiction. I think that the Palestinians would want to think long and hard about whether they’d want to subject themselves and the actions of Hamas, who operate in their territory, to that type of jurisdiction.”
Ironically, Bell said it is Hamas in Gaza that possess the legal prerequisites to form a state—not Fatah, which controls the West Bank and runs the PA.
“Hamas in Gaza has the legal ingredients, which are territory, a population, government, and a capacity to carry on foreign relations,” Bell said. “So if they declare themselves to be a state, I think they are a state. They don’t apparently have any interest. And then you have Fatah, which controls some authority in the West Bank, though under Israel, and I don’t think they have the ingredients. Do they have territory? It’s doubtful; they don’t really control exclusively any territory. Do they have a government? Yes, but it’s subordinate to Israel under the agreements. They have a population; they have the capacity to carry on foreign relations. So I think they’re missing ingredients. The General Assembly voting to say that they’re a state doesn’t make them actually one if they’re missing legal ingredients. And they’re the ones who are going to be pressing for this vote.”
Both Bell and Schaefer agreed that the vote would be designed to put diplomatic pressure on Israel. Bell referenced the vote the PLO called for in 1988, which was intended to pressure Israel into unilaterally relinquishing territory that UN member states now recognized as part of “Palestine.”
Amir Mizroch, former executive editor of the Jerusalem Post, believes it would accomplish just that—if the Palestinians invoked UNGA Resolution 377, also known as the “uniting for peace” resolution. It states that the General Assembly may take matters into its own hands if the Security Council fails to uphold its responsibilities to maintain peace. If the Palestinians won a GA vote after invoking 377, Mizroch wrote on his website, it would put Israel in an exceedingly difficult situation diplomatically.
“Right off the bat [Palestine] will claim that it is being occupied by another UN member state, and will seek Security Council action. At that point, Israel’s diplomatic wiggle room is dramatically reduced. The argument that the West Bank is disputed land and that the Jews have a historical claim to it is in dispute only amongst Israelis: the rest of the world does not prescribe to this claim in the least,” Mizroch wrote. “As free nations emerge all around us, Israel will be challenged to maintain its image of a stable democracy if it continues to keep the lid on Palestinian national aspirations. The cries of freedom all across the Middle East are authentic, and the Palestinians are part of this train whether the Israeli government likes it or not.”But it will also create a political migraine for the United States, putting U.S. officials in what Schaefer said would be a “difficult diplomatic dilemma.” Unilateral measures complicate American mediation efforts. That’s why Susan Rice, U.S. ambassador to the UN, said in testimony to the House Foreign Affairs Committee last week that she believes “the tough issues between Israelis and Palestinians can be resolved only by direct negotiations between the parties—not in New York.”
“The United States would obviously work with other countries to make them aware of the kind of strain that this vote would place on resolving the Israeli-Palestinian conflict, and would try to urge them to avoid that kind of a showdown that could ultimately undermine that effort rather than advance it,” Schaefer said.
But if anyone encouraged such unilateral moves, it was President Obama, according to Anne Bayefsky, a senior fellow at the Hudson Institute and leader of the institute’s Eye on the UN project. Bayefsky said Obama’s speech to the 2010 UNGA set an artificial deadline for the creation of a Palestinian state as September 2011, thus inspiring the Palestinians to call for this vote.
“If President Obama was serious about preventing such a unilateral declaration he could immediately take three steps,” Bayefsky said. “One, he could rescind his artificial deadline of September 2011 for Palestinian statehood that he set of his own volition in his 2010 General Assembly speech. Two, he would make it clear as a matter of urgency that such a declaration would result in an immediate and complete cessation of U.S. funding to UNRWA; UNRWA funding by U.S. taxpayers would necessarily cease since there would be no Palestinian refugees as they would all be citizens of Palestine. Three, he should make it clear to his Quartet partners that such a declaration would render the Oslo accords and the Roadmap null and void, since it would constitute a unilateral rejection by the Palestinian Authority of its obligations thereunder, thereby ending any obligations under prior agreements on Israel’s part as well.”
Bayefsky said the president has shown no signs of doing any of the above; unilateral declaration of a Palestinian state would therefore be on his shoulders.
Bell said that as much of a headache as it would be for the U.S., the American delegation would still vote no. The real target, therefore, would be Europe.
“It’s not U.S. pressure with the Palestinians that’s going to decide things, it’s U.S. pressure with Europe that’s going to decide things, because ultimately this is a Palestinian gambit to get Europe into a fight with Israel,” Bell said. “If it looks like it’s going to be successful, the Palestinians will go forward with it.”
Bell said the European countries have to do more than vote no—they have to signal to the Palestinians that a state can only come about through internationally recognized norms and law and not through political warfare or diplomatic maneuvering. He said the Europeans might be gun shy on such recognition after their experience with the break-up of Yugoslavia and the independence of the Balkan states that propelled the region into war.
“There is a danger in ratcheting up the political stakes in this way,” Bell said. “And I think the Europeans can understand that putting people into a corner where war is a possible result is not a good idea.”
Seth Mandel
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