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School Bus attack near Gaza/ Responding to Palestinian Unilateralism

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Update from AIJAC


April 8, 2011

Number 04/11 #03


As readers may or may not have heard, there was a particularly heinous attack from Gaza on an Israeli school bus yesterday, which fortunately did not kill anyone, but did wound one child severely, as well as the bus driver. (This report explains how the attack would have been much worse if most children had not already gotten off the bus). Reports says Hamas' military wing claimed responsibility. This was accompanied by a large rocket and mortar barrage on Israel from Gaza.

Barry Rubin says Hamas may be attempting to start a major conflict with Israel based on the bus attack and major rocket launches. (Israel's new Iron Dome defence system shot down one rocket over Ashkelon, a first combat use of the system). He asks why they would be seeking to do so, given that, militarily, they performed poorly in the 2008-2009 Gaza war. He argues that Hamas is apparently interpreting changes across the Arab world as in their interests, and perhaps expecting help from Egypt in any fight with Israel. For this full view, CLICK HERE. Yaakov Katz of the Jerusalem Post has more on this "callous escalation" from Hamas, as does Israeli military journalist Ron Ben Yishai. Ben Yishai also had an excellent piece on what Israel has learned from alleged Hamas rocket and bomb maker Dirar Abu-Sisi, controversially brought back from the Ukraine.

Next up, Elliot Abrams, a former US senior official focussed on the Middle East, looks at the Palestinian strategy of seeking statehood unilaterally, via UN recognition and without negotiations with Israel, and how Israel can respond. He argues that Israeli PM Binyamin Netanyahu needs a pro-active strategy, including not only a willingness to negotiate, but more, and says he should consider pre-empting by recognising Palestinian statehood in existing areas of Palestinian control. He also looks at some of the complexities in Palestinian politics that make it unclear what situation Israel will have to deal with. For this important look at a major strategic dilemma for Israel, CLICK HERE. Canadian academic Gil Troy also urges Israeli pre-emption of unilateralism via a peace plan, but Israeli columnist Yoel Meltzer warns of war as the likely outcome of UN-backed Palestinian unilateralism.

Looking more at the legal side of Palestinian unilateralist plans is international law specialist Alan Baker. He points out that the Palestinian plan to act unilaterally effectively voids the whole Oslo peace process as well as numerous other agreements and resolutions on which the international community has acted. He further points out the huge complexities and dangers the plan for unilateral statehood poses on such key issues as Jerusalem and refugees. For Baker's full exploration of the legal and political difficulties of the Palestinian unilateral plan, CLICK HERE. The Jerusalem Post also argues the dangers of endorsing Palestinian statehood without addressing Israel's needs.

Readers may also be interested in:

 


Hamas is Moving Toward War With Israel

By Barry Rubin

Pajamas Media,
April 7th, 2011 - 7:10 pm

Two events show us that an emboldened Hamas in the Gaza Strip is moving toward war with Israel.

First, an Israeli schoolbus, painted bright yellow, was hit by fire from the Gaza Strip and at least one child was seriously wounded. This is not just another terrorist attack but part of a wider strategy. What is strategically significant here is how the bus was attacked. Usually, attacks from the Gaza Strip–either carried out or sanctioned by the Hamas regime there–are by homemade rockets, mortars, or attempted cross-border ground attacks. Deaths and damage are usually random.

In this case, though, the attack was carried out with an advanced anti-tank rocket. In other words, a terrorist deliberately aimed at the bus and fired, hoping to kill the maximum number of children.

But there’s more. Hamas can fire an advanced anti-tank rocket because the Egyptian revolution has ended a regime that acted in its own interest to block most arms shipments to Hamas. The Egypt-Gaza border is now open. Terrorists and superior weapons are flooding into Gaza.

Another demonstration of this fact was the second major incident in which Hamas fired an Iranian-made Grad missile, far superior to the usual homemade rockets, at Israel. In this case, it was shot down by an Israeli anti-missile, part of the new defense system deployed only a few days earlier. A total of 50 rockets and mortars were fired on that one day, equalling the number shot from the Gaza Strip at Israel during the entire month of March. There were also several attempts at cross-border ground attacks, more in one day than at any time in the past.

It was clear to the Hamas leadership that this escalation–and probably more to follow–brings the situation closer to another war like the one fought in December 2008-January 2009 after Hamas ended the ceasefire and launched a massive rocket and mortar barrage against Israel. 

While saved politically by Western intervention–which does not favor the overthrow of the Hamas regime and largely accepted Hamas propaganda portraying Israel as a villain–that war was a bad defeat for Hamas. Its forces fought quite poorly, especially when compared to Hizballah’s units in 2006 in Lebanon.

Why, then, is Hamas provoking a new war? Part of the answer, of course, is ideology. Hamas believes that the deity is on its side, that victory is inevitable, and that martyrdom is a substitute for good military strategy and strength.  Hamas is also indifferent to casualties, material damage, and the suffering of its own people. Its goal is total victory, Israel’s destruction, and the mass murder of Israeli Jews.

But none of that is new. What is new is a shift in the strategic situation. The recent upheavals in the Arab world have emboldened revolutionary Islamists and Hamas most of all. Its close ally, the Muslim Brotherhood, can operate freely in Egypt. There is much support for Islamism in the Egyptian army. And even the “moderate” presidential candidate Muhammad ElBaradei said that Egypt would go to war if Israel attacked the Gaza Strip.

Does Egypt want war with Israel? Of course not. But Hamas calculates–and, of course, it often miscalculates–that crisis with Israel will increase its support from Egypt and perhaps even create a situation where Cairo intervenes on its side on some level.

 At a minimum, thousands of Egyptian volunteers, mobilized by the Brotherhood, might fight on its side, money would be raised in Egypt on its behalf, and large amounts of arms would flow across the border.  Then, too, international public opinion could be mobilized against Israel with tales–often phony–of atrocities as happened last time. And the Palestinian Authority (PA), ruling the West Bank, could be shamed and subverted. While the PA can claim to be delivering some prosperity–which the West thinks is all people care about–Hamas can deliver heroism and jihad.

Thus, a dangerous crisis is being developed that could bring renewed war within two years and possibly far less time.  It’s a crisis for which U.S. and European policy is totally unprepared. And their most likely response–demands for a ceasefire and criticism of Israel–would benefit Hamas.

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Bibi’s Choice

How Israel should handle pressure for a Palestinian state

Elliott Abrams

Weekly Standard, April 11, 2011, Vol. 16, No. 29

Jerusalem

With the Great Revolt of 2011 shaking Arab capitals, Israel briefly seemed a Middle Eastern Switzerland when March began. There were no demonstrations, there was no dictator to protest, and there had been three years without terror. Gone were the once omnipresent security guards at restaurants, challenging you before you entered with a careful look and the question “Do you have a weapon?” Then on March 11, terrorists savagely murdered five members of a family in the settlement of Itamar, and on March 24, a Palestinian bomber brought back the old days: one dead, dozens wounded at a bus stop in Jerusalem. Israel’s short vacation from history had ended.

That vacation had been partial, to be sure. Hamas and other terrorist groups had periodically lobbed rockets and mortars from Gaza into Israel, though here too the pace and range of the shots was suddenly climbing. And no doubt many terrorist attacks were foiled by steady police work. But the confrontation with the Palestinians was stalled, frozen, during the two Obama years. The leader of the PLO, Palestinian Authority president Mahmoud Abbas, has spent these years touring the world, avoiding any serious engagement with Israel. He has been a happy man: Travel is less stressful than the difficult work of state-building, which is left to Prime Minister Salam Fayyad; the lack of negotiations means Abbas avoids the controversial compromises a genuine negotiation would entail; and his refusal to negotiate has been arranged and defended by the Obama Doctrine that “settlement activity” is the true obstacle to Middle East peace. For it has been American policy since January 20, 2009, that Palestinians need not come to the table unless there is a 100 percent Israeli construction freeze in Jerusalem and the settlements.

The Obama administration abandoned that doctrine last November, and its champion, George Mitchell, ever since has been an invisible man. No policy has been proposed by the White House to replace its calamitous belief in the construction freeze delusion, at least not yet. But Israelis are sure something is around the corner and are debating whether to wait—or to act.

They fear two developments. The first is a Quartet Plan: a statement by the United States, the United Nations, Russia, and the European Union via the Middle East Quartet that proposes the outline of a final status arrangement. The Israeli nightmare has the leading nations of the world demanding terms about borders, security, and Jerusalem with which Israel cannot live—and then finding Israel further isolated and demonized. The EU is leading this Quartet effort, but every Israeli official with whom I spoke said the United States is waving the Europeans on and hiding behind them.

The second potential disaster is a Palestinian effort at the U.N. General Assembly in September, where the “State of Palestine” would be recognized on “1967 borders” and Israel’s presence in the West Bank would become the basis for a further expansion of boycotts, demonstrations, and delegitimization campaigns. These campaigns are well underway and especially in Western Europe would gain great strength from such U.N. action, it is argued.

Now, these fears may not pan out. What if the Quartet proposes new Israeli-Palestinian negotiations based on its outline, but the Palestinians—true to the Obama Doctrine of 2009-2010—yet again refuse to come to the table unless there is a total construction freeze? Palestinian intransigence would deliver Israel from its dilemma. European diplomats claim that Abbas has sworn he will negotiate if the Quartet Plan is sufficiently generous, a clever position that maximizes European incentives to buy his cooperation with language that leans further and further toward Palestinian demands. But unless and until the Quartet acts, no one can know for sure.

Israel may also be saved by moves toward “Palestinian unity,” meaning the replacement of the Fayyad cabinet with one consisting of technocrats who represent both Fatah and Hamas. Under the terms that have been discussed, security in the West Bank would remain exclusively in the hands of the PA security forces, while Gaza would remain under Hamas. Such an arrangement could benefit the PA because it would regain a presence in all the nonsecurity ministries in Gaza and begin to reestablish itself there. But the American relationship with the PA relies on the absence of Hamas from the government and the presence of an honest and effective prime minister in Fayyad. A Hamas role will raise immediate legal issues under our antiterrorism laws as well as political problems: Will the White House really demand that Israel negotiate with a coalition that includes terrorist groups? Will Congress, and even European and Arab aid donors, fork over cash if Fayyad is not there to guarantee that it will not be stolen?

Here again the outcome is uncertain. Under the Palestinian Basic Law, Fayyad’s time to form a new cabinet has already run out, been extended, and run out again, and Abbas must now ask someone else to attempt to form a government. But the Basic Law has been ignored a thousand times and may be again, and Abbas has good reason to worry about any kind of unity government—for if there is unity and cooperation, what is the excuse for delaying parliamentary and presidential elections, both of which appear to inspire no enthusiasm among Abbas and his old cronies in the Fatah party?

So on the international scene and within Palestinian politics, Israel cannot be entirely sure what it will soon face. Much more important, no one can say with assurance where things are heading in Cairo, Amman, Beirut—or now even Damascus. Many Israeli officials therefore counsel waiting, or “watchful waiting,” or “letting the dust settle,” or a dozen other terms that all mean “Israel should do nothing.” This is hardly a moment for bold steps, they argue.

For Prime Minister Benjamin Netanyahu, the problem of predicting in whose hands the key Arab states (and their armies) will be tomorrow morning is compounded by politics in Jerusalem and Washington. In Jerusalem, any bold move could destroy his coalition, leading Foreign Minister Avigdor Lieberman and his Yisrael Beiteinu party to bolt. Lieberman may want to do so soon anyway, wishing to act before his expected indictment this year on a variety of financial charges. Numerically, those Knesset votes could be replaced by the greater number of seats (28 versus 15 for Lieberman) held by the Kadima party, a natural partner for Likud should Netanyahu decide on some initiative, but most Israeli observers think this a doubtful outcome. Netanyahu and Kadima leader Tzipi Livni have been attacking each other regularly in the past year, so personal relations are shot. And with Netanyahu now two years into his term, Livni may wonder why she should rescue him and be his foreign minister when in another year she might be his successor as prime minister instead. Some analysts argue that if Netanyahu undertook a big initiative Livni would have to support it, perhaps from outside the government: She could say she would not use votes of confidence to bring him down as long as some agreed plan was under way. But it doesn’t take a genius to see why Netanyahu fears being in that position, his political fate dependent on a party and a person—even if she is serving as his foreign minister—itching for his collapse. So Netanyahu is thinking. In early March his spokesmen talked of a major speech soon, perhaps delivered in Washington, but then backed away from the plan. A big, bold step is attractive to Netanyahu, but not one that turns out to be politically suicidal.

“Bibi is torn,” one adviser to the Israeli government told me. “He understands the camp saying the momentum is strongly against Israel now, saying U.N. action to recognize a Palestinian state against Israel’s wishes could be dangerous. He understands pressure will grow, isolation may grow, boycotts in Europe may grow. He knows we could be a lot worse off in a year than we are now. But he knows what he wants to prevent, not what to do to prevent it. He has no real policy. He’s just like Obama.”

And Obama is a critical factor here. Entirely missing is a relationship of confidence between the United States and Israel that might foster boldness or risk-taking. In a situation in late 2003 where negotiations were dead in the water and diplomatic initiatives he viewed as dangerous were surfacing, Ariel Sharon acted: He decided to get out of Gaza. But in reaching and implementing that decision he had the full support of George W. Bush, with whom he carefully negotiated a series of supportive statements and pledges.

Sharon decided to act without an agreement with the Palestinians: “I will take these new steps as unilateral steps; I don’t want to be in their hands,” he told me at the time. The theory was simple: If there is no real negotiating partner, try to shape Israel’s future yourself. Don’t wait, and don’t limit yourself to what the Palestinians will agree to right now. But Sharon asked Bush for what he called “ideological compensation” to make up for the lack of actual compensation from the Palestinians for his moves. There would be no peace treaty, no Palestinian concessions, no abandonment of claims by the PLO; instead there was Bush’s endorsement of several critical Israeli positions in his April 14, 2004, letter to Sharon. There Bush addressed both the refugee and settlement issues. He stated that Palestinian refugees had no “right of return” to Israel and would have to find a future and a solution in the eventual state of Palestine, and he argued that a return to the 1949 armistice lines—a term he used in preference to “1967 borders”—was unrealistic given the existence of the major settlement blocks. To Sharon these statements by the president of the United States were critical gains for Israel, and they were soon endorsed by resolutions in both houses of Congress.

But those statements have been forgotten and abandoned by the United States, treated by the Obama administration as if they were some kind of private gesture by Bush in a personal note to Sharon. This devaluation of solemn pledges among allies has been a huge Obama mistake, for it undermines the value not only of past American pledges but of his own future words as well and makes Israel far less likely to take risks for peace.

So Netanyahu faces a series of difficult choices with few safety nets in view. Old partners like Mubarak are gone; domestic politics presents the usual Israeli field of battle (President Bush once described the Knesset as a “shark tank”); and the Obama administration is universally viewed in Israel as unsympathetic and unhelpful. Netanyahu can be forgiven for hesitating, hoping that some Palestinian error will save him or that he will find a magic solution that will meet all his needs, avoid risks, preserve his coalition, and escape international censure.

But Israel has not survived into 2011 by such a posture, and it should act—not wait for the EU, the U.N., the Palestinians, or the Americans. If there is a Quartet plan, Israel should accept it unless it is hopelessly and irredeemably biased and should demand immediate negotiations with the Palestinians—not because they will succeed but as a means of shifting pressure away from Israel. Several Israeli officials told me they feared the Quartet would endorse “1967 borders,” or “1967 borders with agreed swaps,” at least as a basis for negotiations. It is impossible that the Quartet would endorse “1967 borders,” for Americans and even the Europeans understand this would put the Western Wall inside Palestine, an absurd result. The swaps formula is manageable: Israel should reply to it by saying, “Okay, then we all agree, just as President Bush said in 2004 there will be no return to the 1949 Armistice lines. We are glad to see the Quartet acknowledging this basic truth.”

But Israel should not be frozen in fear of a Palestinian declaration of independence or recognition at the U.N. and should in fact head it off. Perhaps the next country to recognize an independent Palestine should be Israel.

This is, after all, a declared Israeli policy goal. As early as June 2003, Sharon said it at the Aqaba Summit: “Israel, like others, has lent its strong support for President Bush’s vision .  .  . of two states—Israel and a Palestinian state—living side by side in peace and security. .  .  . It is in Israel’s interest not to govern the Palestinians but for the Palestinians to govern themselves in their own state.” His successors Olmert and Netanyahu have also endorsed this outcome. It is obvious that Israeli recognition would immediately devalue that Palestinian diplomatic campaign aimed at racking up additional endorsements each week, and could allow Israel to help define what “recognition” means anyway. For example, does Israel “recognize” Syria, a regime with which it has been in a state of war since the day it came into existence? “Recognizing” that Syria exists as a state eliminates none of the disputes between Israel and Syria. Many of the countries that have “recognized” Palestine have used different verbal formulas in doing so and mean different things by them, and Israel’s own formula would make that fact even clearer and therefore more confusing.

Israel should say that with this new state of Palestine it has a million practical issues to discuss, beginning with grave border disputes but continuing from customs issues to the management of the Allenby Bridge to possible use of Mediterranean ports. Personal status issues are dangerous and complex: What is the situation of Israelis in areas the state of Palestine views as its own? Is it the Palestinian position that the new state must be Judenrein, a position President Abbas has repeatedly taken? Israel should immediately challenge that position in every possible forum, for it is an indefensible racist view that the EU for one will have to denounce. Israel should demand immediate negotiations on all these complex matters, and remind the world that the dozens of statements “recognizing a Palestinian state” actually do nothing to advance the parties toward the resolution of the issues they face. In fact, commencement of practical negotiations on some of these issues between Israel and “Palestine” might lessen their appeal as great causes and turn them from emotional claims into tedious and detailed bargaining positions.

But this is diplomatic gamesmanship to combat diplomatic gamesmanship. Protecting Israel’s interests may start with clever diplomacy but cannot end there. If Israelis are convinced they must separate from Palestinians, who should “govern themselves in their own state,” they should begin to change the pattern of their presence in the West Bank. There is a wide consensus in Israel that separation from the Palestinians is right, and safer, and in Israel’s long-run interest: Since the second intifada the dream of living together in peace has been dead, but the goal of living apart in peace is not. Yet current Israeli policy treats separation as a prize the Palestinians must win through concessions at the negotiating table, as if it were in the Palestinians’ interest but not Israel’s. That is a self-defeating stance, incurring growing penalties in international isolation and condemnation while moving Israel no closer to its desired goal. Israel should start to disentangle itself from governing the West Bank and the Arabs who live in it, and if this cannot be achieved through negotiations with the Palestinians it should be achieved through Israeli-designed unilateral steps that maximize Israeli security interests. One example: passage in the Knesset of a compensation law buying the home of any settler who wishes voluntarily to move back behind the security fence, whether to Green Line Israel or a major settlement. Another: turning additional areas within the West Bank over to the PA for normal daily governance.  Such moves, which signal an intention to change the ultimate pattern of Israeli settlement in the West Bank, do not require abandoning the IDF’s security role there. Nor do they require or accept a total settlement freeze, which would be counterproductive: Whatever the wisdom of a freeze in outlying settlements that will eventually become part of Palestine, to freeze construction in the major blocs that will remain parts of Israel is to send exactly the wrong message.

Israeli officials should explain the policy to the Obama administration and the Europeans (among whom some consequential leaders, like German chancellor Angela Merkel, are still friendly to Israel): It looks like final status negotiations are not on, and anyway they may take forever or may fail. So Israel will act, trying to shape a better future for itself without harming the Palestinians. We won’t wait for them, but nothing we are doing closes off possibilities for future agreements. In fact, reaching those agreements will become easier over time, not harder, if Israel begins to act now. Israel should use as its set of principles the Bush letter of April 14, 2004, in essence demanding that the United States adhere to pledges made about the key issues. No “right of return” for Palestinian “refugees” except to the new state of Palestine; secure and defensible borders for Israel; no full return to the 1949 lines, given the new realities on the ground; final borders to be mutually agreed; Israel as a Jewish democratic state. But Netanyahu will have to act as well as speak, telling both Israelis and foreigners what he will do to begin to shape an outcome where there are no Israelis in over 90 percent of the West Bank. He can maximize the ability of Israel’s friends and supporters, not least in this country, to support Israel if he acts with boldness and principle to guarantee the future safety of the Jewish state.

Netanyahu will also need to explain that when acts of terror emerge from the West Bank they will evoke the air and land responses needed to keep Israel safe and keep those territories from terrorist control. In the long run, it is difficult to see a secure Palestine without some link to Jordan, though it may take years to emerge. Whether that is in the end a “dual monarchy” arrangement—one king, two parliaments, two prime ministers, with the formal creation of a Jordanian-Palestinian entity—or a security deal allowing for a significant Jordanian role in trilateral security arrangements among Palestine, Israel, and the Hashemite Kingdom, remains to be seen, but no such options should be discarded.

Netanyahu, who quit his position of finance minister under Ariel Sharon when Sharon began the disengagement from Gaza, now finds himself in a remarkably similar spot. In addition to the coalition troubles he faces, he has a very tough political problem within Likud. Moreover, he must face the settler lobby and decide whether to challenge it now. He should, for at bottom he has a message that the vast majority of Israelis and indeed the vast majority of settlers accept: that the security of the State of Israel is paramount. Zionism aims at a Jewish democratic state, which in turn requires a territory where Jews are the majority. That was the logic of partition in 1948, and it remains the logic behind separation from the West Bank and the 2.5 million Palestinians who live there. Zionism also taught self-reliance, acting to create facts rather than relying on luck or fate or someone else’s benevolence to do the job.

The Palestinians never miss an opportunity to miss an opportunity, Abba Eban famously said, and their political division and terrorist leaders may save Israel yet again from extremely difficult decisions. But most Israelis understand that relying on Palestinian errors to protect themselves is dangerous: Israel cannot win itself a secure future by watching and waiting and avoiding action. Israel’s future requires separation from the Palestinians, and neither the upheavals in Arab capitals nor the presence in Washington of the least friendly president in decades changes that.

Elliott Abrams, senior fellow for Middle Eastern studies at the Council on Foreign Relations, was a deputy national security adviser in the George W. Bush administration

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The Palestinian UN Gamble - Irresponsible and Ill-Advised

Alan Baker

Jerusalem Issue Briefs
Vol. 10, No. 34    April 3, 2011 

  • The Palestinian leadership has announced its intention to abandon the negotiation process and to unilaterally seek a UN resolution that will impose a solution upon Israel. Facing a possible veto in the Security Council, the Palestinians are aiming to impose a UN resolution through the General Assembly "Uniting for Peace" procedure, which they hope will be supported by the UN member states.
  • While such a resolution would not have the authority to alter the legal status of the territories, the negative consequences of such a course of action would nevertheless serve to void the very basis of the peace process. It would undermine the legal existence of the Palestinian Authority and violate commitments by Yasser Arafat to settle all issues by negotiation,
  • Such unilateral action outside the negotiation process would constitute a fundamental breach of the 1995 Israeli-Palestinian Interim Agreement, thereby releasing Israel from its reciprocal commitments.
  • Such unilateral action would undermine the international community's reliance on Security Council Resolutions 242 and 338 which form the foundation of all the agreements between the parties. It would also place into question the integrity and credibility of any Security Council resolutions or agreements resolving conflicts between states.
  • It would render as meaningless the signatures of the major powers as witnesses to previous negotiated agreements. It would also be incompatible with provisions of resolutions and agreements requiring negotiated solutions to the Jerusalem and refugee issues.


Palestinian Leaders Say the Peace Process Is Over

The international community has recently witnessed a series of widely publicized and authoritative declarations voiced by Palestinian leaders, according to which "the current peace process as it has been conducted so far is over" (Palestinian Authority Foreign Minister Riad Malki, March 22, 2011), and "the Palestinian leadership institutions (PLO and Fatah) have decided to submit a request to the UN for recognition of a Palestinian state within the 1967 borders, with its capital in East Jerusalem" (Sa'eb Erekat - AFP, March 20, 2011).

These declarations join an earlier plan by Palestinian Authority Prime Minister Salam Fayyad, announced in August 2009, to unilaterally declare a Palestinian state upon completion of the preparations for Palestinian governing institutions by September 2011. 


A "Uniting for Peace" Resolution?


In the face of a probable U.S. veto of any further attempts by the Palestinian observer delegation to the UN to attain a Security Council resolution recognizing a Palestinian state, the Palestinians are aiming to bring about the adoption of a "Uniting for Peace" resolution in the September 2011 session of the UN General Assembly. This resolution would be based on a procedure established in 1950 at the initiative of then-U.S. Secretary of State Dean Acheson in the context of the Korean crisis as a means of overcoming a lack of unanimity among the permanent members of the Security Council which was preventing the Council from fulfilling its duty to maintain international peace in the event of a perceived "threat to the peace, breach of the peace or act of aggression."1

In such a case, the General Assembly "shall consider the matter immediately" in an emergency special session with a view to adopting a General Assembly resolution that could recommend collective measures and other possible action to deal with a perceived threat to international peace and security.

Emergency special sessions of the General Assembly have been convened under this procedure in over ten instances, including the Korean crisis (1950-1953), the Suez crisis (1956), Hungary (1956), Congo (1960), Afghanistan (1980), and Namibia (1981). The procedure has frequently been used regarding Middle East issues, as in 1967, 1980-82, and in the 10th emergency Special Session which, at the behest of the Palestinians and Arab states, has in fact been continuously active since 1997 to this very day. 

Clearly, the factual and legal situations regarding each case are unique and thus cannot be seen as indicative of the outcome or content of any possible future "Uniting for Peace" resolution. In this light, the legal and political background to any Palestinian attempt to unilaterally declare a state and to have it recognized by the UN is quite different from any previous use of the "Uniting for Peace" procedure.

A General Assembly resolution adopted through the "Uniting for Peace" procedure would not provide the General Assembly with any powers beyond the recommendatory powers that it exercises in any other routine resolution. It would not be a mandatory resolution, but could only recommend collective or individual actions by states. It would not have the power to change the status of the territories, nor, in and of itself, to alter Israel's status vis-à-vis the territories.

Voiding the Oslo Agreements


The projected action by the Palestinians of declaring void the agreed-upon negotiation process, and proceeding to a unilateral process with the approval of the UN, could have a number of very negative consequences for the Palestinians and for the peace process, as well as for the international community.

With respect to the Palestinians:
The Palestinian action would be a clear violation of the assurance given by Yasser Arafat in the first formal contact between Israel and the Palestinians, in his exchange of letters with Israeli Prime Minister Yitzhak Rabin in 1993, according to which "all outstanding issues relating to permanent status will be resolved through negotiations."2 By leaving the negotiating table, taking unilateral action, and seeking to have the UN impose an outcome on Israel, the Palestinians are in fact undermining the very basis of the "peace process" and of Arafat's commitment.

The Palestinian action would be a clear violation of Article XXXI (7) of the 1995 Israeli-Palestinian Interim Agreement by which the parties undertook not to "initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations."3 Since there is not yet any outcome to the permanent status negotiations, the Palestinian unilateral action runs directly against this commitment and renders it void, and as such opens up the option for Israel to undertake its own unilateral actions regarding the status of the territories, should Israel consider this to be necessary.

In generating a fundamental breach of the Interim Agreement, the Palestinians would be responsible for this agreement's demise. Since the agreement serves as the legal basis and source of authority of the Palestinian Authority itself, its institutions, its parliament, courts, the office of its president, the president himself, and all powers and responsibilities, the PA leadership would, in fact, be placing in question the very legitimacy of their own existence, with all that that would imply.

Voiding the Credibility of the International Community

With respect to the peace process and the international community:
The Palestinian action of seeking to impose a solution through the UN would be incompatible with the terms of Security Council Resolutions 242 (1967) and 338 (1973). Resolution 2424 specifically calls upon the parties to agree upon "secure and recognized boundaries," and thus, by implication, not to impose boundaries outside such an agreed process. Further to this, Resolution 3385 calls for "negotiations...between the parties concerned...aimed at establishing a just and durable peace in the Middle East."

By seeking to bypass these resolutions through action in the UN with the support of the international community, the Palestinians are basically obliging the member states of the UN to remove the foundations from the entire peace process which are based entirely on those two resolutions, as stated in all the agreements and memoranda signed between the parties and witnessed by members of the international community. It is questionable if the members of the international community could agree to be party to an action undermining such central and important Security Council resolutions that they themselves initiated and adopted.

Bypassing and voiding Resolutions 242 and 338 would also have consequences on the yet-to-be-conducted peace negotiations between Israel and its neighbors Syria and Lebanon, by removing the central factors around which such peace negotiations are intended to take place.

The precedent that this will create could have serious consequences for the credibility of other Security Council resolutions that determine outcomes of other disputes in the world, and render such resolutions completely voidable at the whim of any group of organizations or states that can recruit a majority in the General Assembly.

Since the leaders of the U.S., EU, Russia, Norway, Egypt and Jordan are signatories as witnesses to the 1995 Interim Agreement, it may be asked how such states could support a Palestinian action in the UN that is clearly intended to undermine and frustrate that agreement. What value would there be to states and organizations signing as witnesses to important international documents if no credibility, reliability, or integrity are attached to such witnessing?

Impact on Jerusalem

The international community has consistently refused to recognize Israel's right to establish its capital city in Jerusalem pending a negotiated agreement on the status of the city. Hence, diplomatic missions are not located in Jerusalem, Israel's capital. In light of this, one might ask how member states of the UN will be able to support a Palestinian resolution affirming a Palestinian right to establish its capital in Jerusalem.

This would be a clearly one-sided act by the international community in violation of all declarations and commitments directed toward a negotiated settlement regarding Jerusalem. Furthermore, it would undermine the commitment between Jordan and Israel in Article 9 of the Jordan-Israel Peace Treaty, according to which: "In accordance with the Washington Declaration, Israel respects the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem. When negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines."6


Impact on the Refugee Issue

Similarly, if, as the Palestinians have been intimating, they will seek to include a provision in a "Uniting for Peace" resolution affirming and imposing the right of return of the Palestinian refugees, this would, in fact, conflict with the relevant provision of Resolution 242 calling for "achieving a just settlement of the refugee problem."7 Assuming that the "refugee problem" refers also to the issue of Jewish refugees resulting from the Middle East crisis, then the unilateral determination regarding Palestinian refugees only would be discriminatory and violate Resolution 242.

It would also violate the relevant undertakings in the Oslo Accords, specifically the 1993 Declaration of Principles on Interim Self-Government Arrangements (Article V(3)) which determines that the final status issues to be negotiated (and not imposed by the UN) "shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest."

Imposing a UN determination regarding the refugee issue would be incompatible with and undermine the agreement between Jordan and Israel in Article 8 of their 1994 bilateral Treaty of Peace, according to which the refugee issue will be dealt with "in negotiations, in a framework to be agreed, bilateral or otherwise, in conjunction with and at the same time as the permanent status negotiations."8

The potential confusion, disorder, and substantive damage of a Palestinian-motivated UN resolution - to the Palestinians themselves, to the peace-negotiation process, and to the credibility and reliability of the United Nations and international community in general - is likely to be immeasurable. While the beginnings of such a process might be clear, there can be no foreseeing the final outcome and the concomitant consequences.

The question remains whether the members of the UN who are being drawn by the Palestinians into this irresponsible and ill-advised exercise are fully aware of the damage it may cause.


Notes

1. http://www.un.org/en/ga/sessions/emergency.shtml

2. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Israel-PLO+Recognition+-+Exchange+of+Letters+betwe.htm

3. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT.htm

4. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/UN+Security+Council+Resolution+242.htm

5.  http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/UN+Security+Council+Resolution+338.htm

6. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Israel-Jordan+Peace+Treaty.htm

7. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/UN+Security+Council+Resolution+242.htm

8. See note 6 above.

*     *     *

Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, is former Legal Adviser to Israel's Foreign Ministry and former Ambassador of Israel to Canada. He is a partner in the law firm of Moshe, Bloomfield, Kobo, Baker & Co. He participated in the negotiation and drafting of the various agreements comprising the Oslo Accords.

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