What the ICJ ruling on Kosovo could mean for Palestine

The year 2009 saw a renewed push, albeit a stunted one, for Palestinian statehood. Palestinian Prime Minister Salam Fayyad gained considerable attention in the West for his plan to oversee construction of state infrastructure from the ground up, and for his announcement that this would lead to a declaration of independence within two years. There has been notable progress, with significant growth both in the Palestinian economy and its governmental and security infrastructure. Given the current political climate in Israel, however, it seems unlikely that a bilateral peace agreement will be reached by Fayyad’s deadline. If negotiations don’t yield the results the Palestinian Authority (PA) is seeking, will it take the bold move of declaring statehood unilaterally? The Palestinians tried this gambit before, unsuccessfully, in the pre-PA days.

The success or failure of such a move largely hinges on the international community’s (and in particular, a few key players’) willingness to recognize Palestinian sovereignty against Israel’s wishes. To gain recognition as a member of the United Nations, it would require the support of at least 96 countries including all permanent members of the UN Security Council (UNSC).

A number of analysts have already noted similarities between the case of Palestine and that of Kosovo, which unilaterally declared its independence from Serbia two years ago next week. Though remaining nominally under UN administration under the terms of UNSC Resolution 1244, to date Kosovo’s independence has been recognized by 63 countries, including the United States and many European countries. Its status remains uncertain however, and due to opposition from Russia and China it has little hope of becoming a UN member-state.

In response to Kosovo’s declaration of independence, Serbia has called on the International Court of Justice (ICJ) to rule on the legality of this move. The effects of the ICJ’s advisory opinion, which is expected later this year, are not likely to change things on the ground; where it may have an effect is to influence the international community’s willingness to accept Kosovo’s sovereignty, potentially leading to greater legitimacy and UN membership.

Recognizing the implications of the decision, both sides have vested themselves seriously in the proceedings. Serbia has argued that Kosovo’s independence violates Serbia’s territorial integrity and the terms of Resolution 1244. Kosovo has argued, inter alia, that Resolution 1244 never envisioned a return to full Serbian sovereignty and that the history of violent persecution of Albanians by Serbs, which came to a horrific peak under Slobodan Milosevic, justifies its claim to self-determination on the grounds of protecting the human rights and civil rights of a minority group. This argument is somewhat tenuous, as it could potentially open the door to dozens of other separatist groups seeking independence and implicitly offer legal recognition to those who would seek to achieve nationalist goals by fostering ethnic violence. I would not venture to speculate yet as to the decision of the court, but as the first case of secession to be decided by the ICJ it is sure to have implications for other separatist groups, including the Palestinians.

If the ICJ determines Kosovo’s secession to be legal, it seems likely that a Palestinian declaration of independence will closely follow suit. The two cases bear many similarities: both have been marked by decades of ethnic conflict and persecution, both saw a disenfranchised ethnic group pushing for autonomy in a territory that historically was shared but where it currently constitutes a majority, both are areas of particular concern for the international community, both Serbia and Israel have symbolic nationalist reasons for wanting to hold onto their breakaway territories, and both conflicts have so far proven irresolvable without an imposed or unilateral solution.

Moreover, thanks to Fayyad and those who came before him, the Palestinians already have the benefit of numerous state or quasi-state institutions, and far broader international support than Kosovo does. When the PLO previously declared Palestinian statehood in 1988, the state of Palestine was recognized by close to 100 countries. Today, the number would be much higher, particularly as many European countries have recently expressed a readiness to accept a unilateral Palestinian declaration of independence. Moreover, unlike in 1988, today all major powers – including the United States – have expressed their commitment in principle to a Palestinian state.

Such a state is most probably going to emerge, one way or another. Regardless of the ICJ’s decision on Kosovo, it is unlikely that the Palestinians will wait forever for a peace agreement with Israel. Palestinian President Mahmoud Abbas and others have long been seeking a more prominent role for international institutions, and particularly the ICJ, in their standoff with Israel, and a favourable ruling in this case will certainly bolster their position.

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