Hussein Ibish
Ibishblog (Blog)
July 29, 2011 - 12:00am

I’m going to look at what looms ahead potentially at the United Nations in September, because that seems to be the most immediate diplomatic and political context, from a Palestinian perspective anyway, and has huge repercussions.

First of all, I’d like to put this whole conversation in its context, at least the way that as I understand it, and also the way the Palestinian leadership and a lot of Palestinians who are talking about some kind of U.N. initiative in September, understand it.

The first point is that while it’s certainly true that there are a lot of Israelis and Americans and Europeans and others who are frustrated at the lack of progress diplomatically, the lack of viable, working peace process or any negotiations, Palestinians live under occupation. And they uniquely find the status quo not only untenable but unbearable, intolerable. And that has very profound implications for Palestinian leaders and the Palestinian political scene, because while it is frequently alleged on the Israeli right and on the Arab left that the leadership in Ramallah of the PLO and the PA is content with the status quo because their rule in Area A of the West Bank is fairly stable and relatively unchallenged, this is, I think, completely wrong.

Over the medium and long term, they’re not content at all, because they understand that if their policy and their program of achieving Palestinian statehood and independence through – primarily through diplomacy and negotiations, augmented by state-building and other measures is seen by the public as having permanently failed, they will be finished in Palestinian society, that they don’t have a future beyond that approach. And when that approach is shelved, people will look elsewhere. And who they’d look to is not mysterious. A lot of people posit the emergence of a third force – that could happen – but right now, the alternative to the PLO and the PA is sitting there in Gaza. We know exactly who it is, what they say, what their agenda is. And I think we can speculate about the consequences to the Palestinian national movement of an Islamist takeover of that cause.

So the status quo, in fact, is totally unacceptable to the Palestinian leadership in spite of whatever stability they have in the areas that they control in the West Bank and despite of these accusations. The breakdown in diplomacy after the direct talks failed and particularly after the United States was unable to get Israel to agree to a three-month extension of its partial temporary settlement freeze moratorium, in spite of a very attractive and generous package of inducements, led, I think, the Palestinian leadership to conclude that the process as it’s structured now is simply dysfunctional, it’s simply not working for them; and if they continued to rely primarily on – for their long-term goals on a process that is dependent on Israeli enthusiasm for making an agreement and American determination, that really they were surrendering themselves too much to a process that they couldn’t control and in which they didn’t have sufficient initiative or agency.

So there was this tremendous desire to find an alternative formula, an alternative path forward diplomatically, while at the same time continuing to stand strongly against violence and these other principles that they are committed to. And I think also there’s a kind of subtext here that’s important to appreciate, which is that this frustration over the past couple of years with Prime Minister Netanyahu, with his cabinet and with the American role – not with the Obama administration particularly but with the American role generally – has led many Palestinian leaders to want to find a way of demonstrating to these two parties that it has actually viable and maybe even powerful alternatives, that in other words, it’s not completely dependent, that it has other options and second-best scenarios, so to speak. So this is another impulse, I think, that’s very important.

Now, the other really crucial thing to understand, to contextualize these ideas, is that the official position and, I think, the real position of the PLO leadership, as continuously emphasized by President Abbas, is that they prefer negotiations to any kind of U.N. initiative, and it’s understandable, as I’ll explain, because virtually every idea about approaching the U.N. carries with it significant dangers and cost. So it’s completely understandable that from a Palestinian point of view, this is perceived as a kind of leverage to get negotiations restarted if they possibly can. In fact, today, Abbas’ quote is this is: negotiations is our first, second and third choice. This is literally what he said. So he’s really trying to emphasize how much they would like to negotiate.

And what they’re asking for, looking for, are clear terms of reference, which have not been forthcoming, and a framework for the negotiations, which also has not been forthcoming. They’re interested in President Obama’s speech and the framework that was suggested by it: talks based on the 1967 borders with mutually agreed-upon land swaps and focusing – although this makes both parties uncomfortable – on borders and security first. They’re potentially open to that.

There were two extras, two little fillips thrown in by the president for both parties: one, for the Israelis, that the Palestinians ought to recognize Israel as a Jewish state, whatever that means, which I think is the right answer to that request – well, what does that mean? Please provide a definition. And I think that ought to at least make the request a little clearer. And for the Palestinians, a full and phased withdrawal of all Israeli forces from the territories that will become a Palestinian state. That’s fairly new. That’s a new formulation anyway, from the United States. And it was important.

But nothing has been achieved to create terms of reference or a negotiating framework out of that vision. And as a matter of fact, the Quartet at its last meeting was unable to reach any consensus on this. It was apparently three to one over this Jewish state question and maybe some other divisions. And the European Union is also rather badly divided, with its last meeting issuing a rather anodyne statement.

So not only has the West not produced a clear, working framework or set of terms of reference or anything like that; I think it’s fair to say that Western policy is extremely divided, unusually divided, on this subject. Really, the role of the Quartet until now has been to give international backing to American-led initiatives. And that’s failed to be produced. I don’t think it’s ever happened since the founding of the Quartet, frankly. So you have on top of everything else a kind of breakdown in the coherence of the Western approach to the specifics of negotiations, which are essential to restarting them. And that only pushes the Palestinians further toward the United Nations. However, none of the options, as I say, is cost-free to say the least. And I just want to look at each of the three main ones that have been considered or discussed publicly.

When they first started talking about this in public and people started speculating about it in public, the terminology that was usually used was that the Palestinians would look for recognition from the U.N. in September, which is meaningless, because the U.N. doesn’t recognize states. States recognize each other. The U.N. has member states. So it was assumed that what Palestinians would do – and it’s still widely assumed what Palestinians would do is submit an application to the secretary-general to be referred to the Security Council, which is required for a recommendation to the General Assembly and a two-thirds vote by the General Assembly, which would make a potential state, a member state, of the United Nations.

I don’t think there’s much doubt the Palestinians could get the two-thirds majority in the General Assembly, but there’s also no doubt that the United States will veto this in the Security Council, and so it won’t happen. And there is a significant potential cost to a confrontation with the United States over the question of statehood in the Security Council, which I think is putting it rather mildly. I’ll illustrate it only by reminding you of the veto cast last year on the question of settlements, which effectively killed that issue, because ever since then, Israel has had in effect a kind of a free hand on settlements. It announces settlements all the time, and there’s virtually no international response. The last thing I heard was Catherine Ashton, the EU foreign policy chief saying she was "disappointed" by some very provocative announcement – which is the mildest possible language – and even muted Palestinian responses.

So for the time being, that sort of shelved the issue. Now, I really think it behooves everyone to think very carefully about repeating that potentially on the issue of statehood. I mean, the issue of settlements is bad enough. So a confrontation with the United States in the Security Council over the question of statehood carries with it simply enormous political and diplomatic costs for the Palestinians, which is why I think it’s less likely than likely, in spite of the political pressure to do it.

The second thing that was talked about quite a lot was some kind of a resolution in the General Assembly under General Assembly Resolution 337, the so-called Uniting for Peace Resolution from 1950, that was designed to get around vetoes by a Security Council member. It was prompted by American frustration with continuous USSR vetoes in the late ‘40s on the question of Korea. And this particularly animated the Israeli press because it permits member states to take various coercive actions to meet breaches of the peace or acts of aggression and whatnot. But its practical implications seem very, very nebulous because there already are states that have been practicing sanctions and boycotts against each other in all kinds of conflicts without any 337 Resolution, and that includes the Middle East Conflict. And it doesn’t go to the question of statehood or the question of membership. It seems entirely off point, frankly, and without practicality. So we haven’t really heard much about that since people looked at it carefully.

The idea that’s dominating the conversation now, at least in public, is the idea of a Palestinian application, either instead of a move in the Security Council to request full U.N. membership recommendation to the General Assembly or after it, would be a request directly to the General Assembly for non-member state status. Right now, the Palestinian representation in the U.N. is the PLO observer mission, which is not a non-member state. It’s a political entity, observer mission. And there are a number of those, in particular the EU and the Holy See.

And that would require, as I understand it, 50 percent plus one, which the Palestinians would certainly get. And this is appealing in some ways and also not appealing in some other ways and carries very significant costs if it’s pursued. The first thing that it wouldn’t do, of course, is it wouldn’t establish an independent state of Palestine. This just would be kind of a declaration by the U.N., by the General Assembly – that's all.

I think it’s hard to imagine it accomplishing the goal that President Abbas and others keep sort of suggesting it might. I mean, they don’t really put it in the context of non-member state status, but this is how I take it anyway, of getting on a more equal footing with Israel in the diplomatic register. And particularly, there’s an emphasis on wanting to negotiate about the future of the territory of another state, not the territory of an undefined area under military occupation. I am not sure that such a vote in the General Assembly would actually accomplish that in practice.

Let me tell you, however, about what it might achieve. What it might do is first, as at least some people are hoping, is possibly give the Palestinians access to the International Criminal Court. It’s, I guess, conceivable, since I can’t see anything that absolutely precludes a Palestinian entity that is a non-member state in the general assembly at least trying to accede to the Statute of Rome and become a part of the assembly of parties at the International Criminal Court. It’s theoretically possible.

But there are a couple of problems with that. And first of all, would this status actually be taken as real state status, especially when it comes to the question of territory? And the question of territory is very important for the ICC, because Israel is not a party to the Statute of Rome, which means that Israeli citizens cannot be prosecuted based on actions they take within Israel or because of their status as Israeli nationals.

What the PA tried to initiate in January of 2009 with a letter to the ICC was an authorization to the court to have jurisdiction or request that the court exercise jurisdiction in the territories nominally or supposedly under the control of the PA, including Gaza – this really was kind of a reference to the Gaza War – because if the PA or Palestine were regarded as a state by the ICC, Israel could be liable for actions committed within the territory that is assumed or recognized to be under the control of that state, if any. So you see the importance of territory here. So this non-member state might not be understood to actually control territory in any kind of sovereign way, so it might become extremely complicated.

However, I do think this has been one of the guiding concerns of Israel about all of this, because the Statute of Rome has several elements that might be seen as very threatening and alarming to the Israelis, should they ever fall under it. All belligerent parties are potentially liable to war crimes such as, you know, unlawful use of force against civilians or property or whatnot. But there are two things, two passages that might apply – that might particularly apply to the Israelis.

One is that the Statute of Rome specifically lists settlement activity and the transfer of population into an area under military occupation as a war crime. This must be alarming to the Israelis because there’s no doubt – the Security Council has reaffirmed many times that this is an area – the West Bank, East Jerusalem, and the Gaza Strip and the Golan Heights for that matter, are under Israeli occupation and that Israel is the occupying power. So this is a concern.

There’s also a crime called crime of apartheid, which is described roughly as a system of discrimination favoring one ethnic group over another, with the intention of perpetuating that system. That last part might be the out there, but I think if you looked at any sort of political system or social system anywhere in the world, probably the system that Israel operates under the occupation falls closest to meeting that definition than any other. It’s obviously a vulnerability.

As I say, it’s not at all certain or even likely that such a recognition, or such status accorded, by the General Assembly would actually give Palestinians direct access to the ICC or give the ICC, in its own mind, jurisdiction over the territories it claims. But that’s one possibility that’s been discussed. The ICC, when they received the letter in ’09, made no determination. They received it without prejudice, and they never came to any conclusion about it. Whether this would help them do that – although statehood was obviously an issue, territory was obviously another issue for them – whether that would resolve this issue or not is very much in question.

The other thing that appeals, I think, to Palestinians about this idea is that there have been 16 non-member states in the history of the U.N., not including the Vatican, the Holy See, which is currently the only non-member state. And if you allow for states that have united – Vietnam and Germany – all 16 of those are now member states of the United Nations. And this history must be, at least in an aspirational sense, very appealing to the Palestinians. If a state of Palestine can become a state observer – and the Vatican has never wanted to become a member state – and became the latest state that intends ultimately to become a member, it might be, they would hope, difficult to prevent that in the future.

There are costs. I’ll try to explain these significant costs. First is Israeli unilateral retaliation, which they’ve threatened. They’re currently talking about revoking or abrogating the Oslo Agreements, whatever that might mean – possible annexation, who knows. There’s American retaliation. Congress has threatened the cutoff of aid. And the U.S. is the single biggest donor annually to the PA, not if you include all the EU, but alone. That’s a significant amount of money that’s at stake here, plus general relations with the United States, which is very important.

Finally, the Israelis have the idea of countering any Palestinian majority in the General Assembly with a group of 30 states that would be small in number but represent the most powerful, influential countries: most of the West plus Japan. And they would present this, in effect, or maybe even overtly as the camp of the so-called “civilized world,” and claim that all these countries in Asia, Africa and Latin America might be with the Palestinians, but, you know, the important countries, the “civilized world” or something like that, they’re with us. And this might be another kind of victory for Israel and Prime Minister Netanyahu.

So, all these options carry with them very serious costs. And all parties, including the Palestinians, have a very serious day-after problem; what do they do the day after? And particularly, from a Palestinian point of view, if any of these measures is seen as a diplomatic “success,” but nothing changes on the ground for Palestinians and because of Israeli retaliation the loss of U.S. aid or other measures, things actually get worse as a consequence for people’s daily lives, plus the frustration, there is a potential for an outbreak of popular anger.

Now, people look at the nonviolent movement in the West Bank and the nonviolent nature of a lot of the Arab uprisings and hope – and I hope so too – that if there is another explosion of anger, that it would take a nonviolent form. But the occupation is the system of control and discipline. I do not think the Israelis have many options of dealing with a sustained campaign of nonviolence other than the use of force eventually. And there are many Palestinian factions who are totally committed to armed struggle and violence and would certainly take advantage of that kind of situation. So how long it could stay nonviolence, even if it started in a nonviolent way, is extremely questionable and would be a headache for the Israelis and the PA as well.

So there are very powerful incentives, which is the subject of this panel, to resume negotiations, for everyone, but such talks might be indirect. Even providing a framework, even providing a road map or especially providing terms of reference that is seen to be meaningful might be enough to stave off any kind of train wreck or confrontation.

And the most obvious way out is for everyone to agree that Palestinians would seek a mission upgrade, not a change of status exactly, to keep the PLO observer mission as the Palestinian presence in the U.N. but with upgraded rights and privileges, sort of EU-minus, since they probably can’t aspire to have all the privileges of the EU without provoking some kind of politically damaging, diplomatically damaging confrontation, but they could get more rights and responsibilities and privileges than they have now. That would be a kind of diplomatic victory.

I think the bottom line is that the Palestinian leadership politically and diplomatically needs an incentive not to do this. They need a political reason not to do this. They certainly need something they can turn to their public and say: This is why we decided not to. If they’re left with absolutely nothing, they’re going to be in an extremely difficult political situation and also diplomatic one. And that might precipitate something that would harm – a confrontation that would harm all parties and that would be best avoided.


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