Australia/Israel & Jewish Affairs Council

Palestinians finally submit draft statehood request: analysis and implications

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Last night, the long-awaited Draft Resolution for the Palestinian UN statehood bid was filed by the Permanent Observer Mission of Palestine, and a copy has since been leaked. The Draft's most substantive point is the request to alter Palestine's status in the UN General Assembly (UNGA). This is contained in the third paragraph, which reads that the UNGA:

DECIDES to accord to Palestine Observer State status in the United Nations system, without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization  as the representative of the Palestinian people, in accordance with the relevant resolutions and practice. (emphasis added)

On the surface, this seems a bizarre provision to include. The only previous liberation movement afforded observer status at the UN was the South West African People's Liberation Organisation ('SWAPO') in Namibia, which was then controlled by a South African Puppet regime. When the SWAPO won its independence in 1990, Namibia was admitted as a full UN Member in Resolution S-18/1. This simply said that:

The General Assembly,

Having received the recommendation of the Security Council of 17 April 1990 that the Republic of Namibia should be admitted to membership in the United Nations,

Having considered the application for membership of the Republic of Namibia,

Decides to admit the Republic of Namibia to membership in the United Nations.

(For more detail on this issue, see my article in this month's Australia/Israel Review)

This was not done without prejudice to the status of the SWAPO - for self-evident reasons. If there is a recognised State, what need is there for an internationally recognised 'liberation movement'? The achievement of statehood is the ultimate liberation for a people; it entails complete independence within a defined territory.

In fact, the request derives from failed a precedent that, despite its intent, did not deliver the Palestinians a state. The wording of the Draft Resolution is reminiscent of Resolution 43/177 - which was acknowledged in the current Draft's preamble - in which the PLO's designation was changed to 'Palestine' and Palestinian statehood was acknowledged. This Resolution provided that the GA:

1. Acknowledges the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988;

2. Affirms the need to enable the Palestinian people to exercise their sovereignty over their territory occupied since 1967;

3. Decides that, effective as of 15 December 1988, the designation "Palestine" should be used in place of the designation "Palestine Liberation Organization" in the United Nations system, without prejudice to the observer status and functions of the Palestine Liberation Organization within the United Nations system, in conformity with relevant United Nations resolutions and practice; (emphasis added)

In substance, the Draft Resolution does not propose anything different to that Resolution, aside from another change in the designation of the PLO. By refusing to prejudice the role of the PLO as the representative of the Palestinian people, PLO Chairperson and Palestinian Authority ('PA') President Mahmoud Abbas is effectively conceding that he is not yet in control of a State. This entirely vitiates his application for recognition of statehood.

The preservation of the PLO relates to the Palestinian demand for a 'right of return' to what is now Israel. Abbas sparked outrage amongst Palestinians last week when he said on Israeli television that he had no right to go back and live in the town where he was born - Safed in northern Israel. The resulting pressure on Abbas from those who cling to the idea of return forced him to backtrack.

Abbas realises that the actual creation of a Palestinian state would preclude the 'return' of Palestinians and their descendants to Israel as the refugee situation will be resolved within the borders of what will become Palestine. In fact, the Draft makes no mention of this alleged right and only refers to refugees as one of the 'outstanding core issues', as well as mentioning the need for 'a just resolution of the problem of the Palestine refugees' in the Preamble. The reason that Abbas is unable to put the liberation movement to bed is that the PLO, in theory at least, represents the millions of ethnic Palestinians living in neighbouring Arab countries - all of whom are demanding the right to 'return'. By declaring a Palestinian government, Abbas would essentially be conceding that there would be a distinct Palestinian people living within a Palestinian state, who are not refugees, but nationals of that state.

With this in mind, the obvious question is what exactly the Resolution is trying to achieve. The answer lies in the reasons that the Prosecutor of the International Criminal Court ('ICC') published in April for declining a request for the ICC to exercise jurisdiction over 'acts committed on the territory of Palestine since 1 July 2002'.

The Prosecutor noted that only the Security Council or a 'State' can confer jurisdiction to the Court. As he outlined:

any State seeking to become a Party to the Statute must deposit an instrument of accession with the Secretary‐General of the United Nations. In instances where it is controversial or unclear whether an applicant constitutes a "State", it is the practice of the Secretary‐General to follow or seek the General Assembly's directives on the matter.

Here, the Prosecutor alluded to the practise of the Secretary-General, which requires 'unequivocal indications from the Assembly that it considers a particular entity to be a State'. He went on to note that 'the current status granted to Palestine by the United Nations General Assembly is that of "observer", not as a "Non‐member State"'. He also told the press that 'As soon as the General Assembly establishes that Palestine is an observer state, then we can proceed.'

Once they are successful in doing so, the Palestinians will hope to engender confrontation between Israel and the international community through accusations of war crimes committed by Israeli officials - abusing the nascent Court for political ends and delegitimising both the ICC and Israel in the process. As PLO official Abbas Zaki said yesterday, 'Once we become a recognized state, we will go to all UN agencies to force the international community to take legal action against Israel.'

From past rhetoric, it is clear that the alleged 'war crimes' that the PLO wish to pursue against Israel are not violations of the laws of war as commonly understood, but to highly political issues. Their goal is to vindicate their position that all Israeli security measures in the West Bank are illegal and that it is a 'war crime' for any Israeli to live beyond the pre-1967 lines. Israel is not a party to the ICC, so even if they were successful, it would have no real effect on the policies on the ground. Rather, the PLO would be engaging in a grand propaganda exercise through the vehicle of the ICC.

Of even more concern is Zaki's subsequent statement that, due to the bid, 'the case of the Oslo Accords and the Palestinian Authority will be closed.' The refutation of Oslo is no idle threat -- the bid itself constitutes a material breach of the Accords, which ban either side from unilaterally changing the status of the Palestinian territories.

The Accords represent perhaps the most progress that has been made in the Israeli/Palestinian conflict since 1967. They form basis for not only a whole array of Israeli-Palestinian cooperation and coordination on matters such as taxes, law enforcement, economics and security, but also constitute the only legal basis on which the Palestinian Authority exists. By refuting these Accords, the PA leadership is essentially taking the peace process back to the state in which it was in two decades ago.

Also of interest is the approach taken to negotiations in the Draft. Significantly, the Draft provides in para 5 that Palestine will be established 'on the basis of the pre-1967 borders, with delineation of borders to be determined in final status negotiations' (emphasis added); and in para 6 that the UNGA 'Expresses the urgent need for the resumption and accelerations of negotiations within the Middle East peace process' (emphasis in original). Abbas has essentially conceded that the pre-1967 lines are a guideline and not a hard-and-fast border, therefore there will need to be land swaps in order to reach a genuine solution. This has long been accepted by the international community, but never expressed as official PLO policy - as is evident by the letterhead on which the Draft was presented, which depicts the entire area of Israel/Palestine as one homogeneous mass, without distinguishing Israel from the West Bank and Gaza.

Para 6 begs a very obvious question: if Abbas recognises the urgency of negotiations, why is he refusing to negotiate? This whole exercise in the UN is happening instead of negotiations, simply because Abbas refuses to sit down with the Israeli leadership. In filing this Draft, Abbas is essentially asking the UNGA to pass a Resolution calling on him to do something that he currently refuses to do. He is condemning his own intransigence and, in so doing, entirely undermining the request.

The fact that the wording of the Resolution contains policy positions that are clearly in conflict with Abbas' actual conduct suggests a troubling motive. The calls for negotiations and the vague but conciliatory statements appear to be aimed at placating the international community so that they approve Abbas' plan to launch a whole new round of diplomatic offensives against Israel, using the ICC as a novel venue. In contrast to the tone of the Resolution, it will have a very negative impact on the peace process.

There is an unfortunate history of UN organs being hijacked by the anti-Israel movement, transforming them into farcical propaganda tools instead of institutions promoting international peace and security. For example, after decades of condemning only Israel and entirely ignoring human rights abuses around the world in any other State, the Human Rights Commission was finally reformed into the Human Rights Council in the hope that it may finally implement its actual mandate. Unfortunately, the new institution has not shown a great deal of improvement - as can be seen by the glowing reports it gave to the likes of Syria and Libya in the session just prior to the outbreak of the current uprisings in those countries.

The ICC is a young institution and is still fighting for legitimacy. Nothing could do it more damage than becoming embroiled in the tragic saga of the Israelis and the Palestinians at the United Nations. The harm from the bid does not stop there. It risks distracting the world from negotiations that Abbas even recognises are extremely urgent, while setting the peace process back decades. This Resolution must be rejected and Abbas must be pressured into taking the only course of action with any hope of being productive: negotiating with Israel.

Daniel Meyerowitz-Katz