Hussein Ibish
The Atlantic (Editorial)
July 27, 2011 - 12:00am

For most of 2011, Palestinian leaders have been privately and publicly speculating about potential statehood initiatives at the UN General Assembly meeting in September. The PLO may present some plan in effect asking the UN to recognize Palestine as an independent state, which wouldn't make it so, but it would put Israel and the U.S. in a very awkward position. These ideas have been opposed by both Israel and the United States, which have described them as "unilateral," and met with a mixed response among European states. To date no clear plan or strategy has been put forward but language of a draft resolution could be unveiled as early as Thursday.

In recent months, Palestinians have floated a number of ideas about what they might try to do at the UN meeting and what they hope to achieve. As President Mahmoud Abbas keeps insisting, it seems Palestinians would prefer to resume negotiations with clear terms of reference. With neither negotiations nor clear terms thus far forthcoming, however, and with time quickly running out, a UN initiative of some sort looks increasingly likely. The political and diplomatic results will depend on what, exactly, the Palestinians propose.

Despite persistent claims by both the Israeli right and the Palestinian left, the Palestinian leadership in Ramallah is not content with the status quo, in spite of the fact that its rule in "Area A" of the occupied West Bank is, for now, secure. The Palestinian Authority and Palestine Liberation Organization leadership likely know that if their long-term strategy of securing Palestinian statehood, mainly through negotiations and diplomacy, is seen as a permanent failure, they will be finished in Palestinian politics. They need only look towards Gaza, where Hamas was elected, to see the alternative national leadership waiting in the wings. An Islamist take-over of the Palestinian national movement, they know, would have dire consequences for the cause of independence.

Many Israelis and Americans are frustrated at the impasse in peace talks. So too are the Palestinian people and leadership, for whom the special conditions of occupation and the ongoing Israeli settlement project make the status quo particularly alarming. Following the rapid breakdown of direct negotiations last year and the Obama administration's failure to secure even a three-month extension of Israel's partial and temporary settlement moratorium -- even with an astoundingly generous package of inducements -- the PLO concluded that they could not continue to rely primarily on a peace process that requires Israeli enthusiasm and American determination.

Palestinians had hoped that a convergence of bottom-up state-building and top-down diplomacy, led by Prime Minister Salam Fayyad, would be the key to independence. Left on its own, the state-building plan has been little more than a development project under occupation. This has given the leadership a sense of urgency that has impelled its turn towards possible statehood initiatives at the UN.

The most widely discussed option is for Palestinians to apply to the Secretary General for full UN membership, leading to a referral to the Security Council. If the Security Council approved the request, it would be forwarded to the General Assembly where it would require a two-thirds majority, which Palestinians would almost certainly get. But the United States has made it clear that it intends to veto any such resolution in the Security Council, making full UN membership for Palestine impossible at present.

Another option under discussion would be for Palestinians to seek a General Assembly resolution under the "Uniting for Peace" resolution 337 of 1950. This was an American-led initiative to overcome persistent USSR vetoes of Security Council resolutions regarding Korea. However, Uniting for Peace resolutions do not address UN membership, but rather are concerned with a "threat to the peace, breach of the peace, or act of aggression." They are a way to authorize use of force, sanctions, and other coercive measures by the UN General Assembly in spite of a Security Council veto. It is very difficult to see how such a resolution would advance the cause of Palestinian membership in the UN. Boycotts and sanctions have been in place in many contexts, including the Middle East, without such a resolution, and there is no indication that it would have any practical impact on either Palestinian UN membership or coercive measures aimed at Israel by other member states.

The most recently floated idea is that Palestinians could apply for non-member state observer status, as opposed to the PLO's present observer status as a non-state mission. Theoretically, this would require a 50 percent-plus-one vote in the General Assembly, a tally Palestinians could likely easily achieve. However, such a change in status would make Palestine neither a member state of the UN nor a state with practical independence. Abbas and others have said the goal is to gain a more even footing with Israel diplomatically and to negotiate over the occupation not of undefined territory, but the territory of another state. Whether such a change of status in the UN would achieve this result is highly questionable.

But there are real reasons to pursue non-member state observer status. In the UN's history, other than the Vatican,16 states have had held that status, and all 16 eventually became members. It could also provide Palestine with access to the International Criminal Court, possibly allowing it to accede to the Statute of Rome and become a member of the Assembly of State Parties. This is no doubt among the most important of Israel's concerns about such a move, against which it has threatened unspecified unilateral retaliation.

Like many countries engaged in conflict, Israel is potentially liable for "war crimes" which includes unlawful use of force against civilians and property, most notably with regard to the last war in Gaza. But the Statute also defines a "war crime" as, "The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" which could easily be applied to Israel's settlement activities in the occupied Palestinian territories.

Despite Israel's continuous insistence that these territories are "disputed" rather than occupied, the Security Council holds that the territories captured in 1967 are indeed occupied and Israel is the occupying power. Article 49 of the Fourth Geneva Convention states that such settlement of occupied territories is unlawful and a human rights abuse.

Another potential ICC vulnerability for Israel is "the crime of apartheid," which the Statute defines as "inhumane acts ... committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime."

However, because Palestine would not have the clearly defined borders necessary to join the ICC as a state, and since Israel is not a party to the Statute, Israelis could not be prosecuted by the ICC based on their nationality, or for their actions in areas that are not in the territory of a state that is party to the Statute. In January 2009, following the war in Gaza, the PA formally recognized the jurisdiction of the ICC, implicitly asking for it to exercise its authority in areas the PA considers under its authority, including Gaza. The ICC "accepted the declaration without prejudice" to its applicability, but made no clear determination, apparently because of the nebulous nature of Palestinian statehood. Non-UN-member state status may or may not improve the chances of a clear ICC acceptance of jurisdiction in any territories claimed as part of the Palestinian non-member state.

The Palestinian leadership appears divided on these three options, including the prospect of seeking non-UN-member state status. Those with deep reservations are said to include PLO Secretary-General Yasser Abed Rabbo and Fayyad, among others, who are concerned with the potential consequences of such a move, especially a cutoff of American aid, as Congress has threatened. The United States is the single largest donor to the PA, providing at least $400 million per year. A losing confrontation with the United States in the Security Council could be disastrous for for Palestinian prospects. The U.S. veto of last year's resolution on settlement activity effectively killed the issue for the time being and left Israel with a free hand on settlement ever since. Would Palestinians really want to risk statehood in the same way?

There are other risks. Israeli retaliation could include annexation of parts of the West Bank, for example, or abrogation of the Oslo agreements. A failed UN initiative, or one that "succeeds" without improving the daily lives of Palestinians under occupation, could lead to an explosion of popular anger in the West Bank. Even if this were to begin as a nonviolent movement, because the occupation is a system of control and discipline, Israeli forces are likely to use force even against large crowds of unarmed people, and there are many Palestinian factions committed to violent resistance that would not fail to take advantage of chaos. The situation could rapidly spiral out of anyone's control.

Israel's proposed response to these options has been to form a block of about 30 states in the General Assembly opposed to a Palestinian initiative. It would be small but comprised of most of the large western powers and Japan. They would present this as not just a coalition of the major world powers but of the community of "civilized countries." Even this could prove a de facto victory of sorts for Israel and Prime Minister Benjamin Netanyahu, no matter what the rest of the General Assembly decides to do.

Many Palestinians therefore hope that renewed negotiations would make the UN initiative moot. But this prospect is receding quickly, especially since both the Middle East Quartet and the European Union are so internally divided on the issue. These dangers underscore the need to find an alternative compromise that would avert the negative consequences of an initiative at the UN, which would produce largely symbolic value and very harmful practical consequences. One such option would be to try to find a widely acceptable option to upgrade the status of the PLO mission at the UN with additional privileges but without non-member state status. This might be especially appealing if it were combined in some way with a restatement of President Barak Obama's vision of talks based on the 1967 borders with mutually agreed upon land swaps and an additional statement that the international community is committed to a two-state outcome and will accept no other resolution of the conflict.

All parties have a clear incentive to work quickly to find a way around a confrontation in September that would benefit no one and could lead to unmanageable consequences. Whatever the formula, the Palestinian leadership and people must be provided with a clear incentive not to pursue a UN initiative that is unacceptable to other key players. Otherwise, Palestinian leaders, lacking any other diplomatic steps forward, may feel that their hand is being forced. Simply climbing down from their proposed plans, without a credible explanation for their public, would be politically untenable, in spite of the obvious dangers ahead.


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