Abbas, Badinter Commission, geneva conventions, icc, ICCPR, Israel, Montevideo Convention, Palestine, peace process, PLO, Security Council, Self-Determination, settlements, UN Charter, United Nations
Last week, culminating two years of intensive state-building efforts, Palestine Liberation Organization Chairman Mahmoud Abbas formally applied to the United Nations for the admission of the state of Palestine as its newest member. While the outcome and consequences of this controversial bid are yet to be seen, I wish here to consider its legal implications and particularly the third-party obligations to which it gives rise.
The international community has repeatedly affirmed its commitment to Palestinian self-determination. In general terms, its normative obligations to the Palestinian people can be divided into three categories. First, there is a moral duty, arising both from humanitarian interest and from the international community’s exceptionally pronounced role in the protracted conflict between Israelis and Palestinians, to advance peace and reconciliation between the two parties. Second, there is a general legal duty, stemming from the preambles of the UN Charter and the International Covenant on Civil and Political Rights to promote respect for the Palestinians’ human rights, which have been recognized as including the collective right to self-determination. Third, there is a specific legal duty, rooted in the Geneva Conventions, to protect the rights of Palestinians living under Israeli occupation by ensuring Israeli compliance with international humanitarian law (IHL).
Effects of UN recognition on the parties’ compliance with international law
Israeli settlements in the West Bank, often built on stolen private land, have for 44 years increasingly curtailed non-Jewish residents’ access to justice, civil rights, and public resources, creating a situation that several Israeli leaders, including former prime ministers Barak and Olmert, have compared to apartheid. At a time when peoples across the Middle East are rising up en masse against oppressive regimes, it is clearer than ever that the status quo in Palestine is both morally intolerable and logistically untenable.
Common article 1 of the Geneva Conventions obligates all states to “ensure respect for the present Convention in all circumstances.” According to the authoritative commentary of Jean Pictet of the International Committee of the Red Cross, it follows from this that states should endeavour to bring Contracting Parties who violate their obligations “back to an attitude of respect for the Convention.” This “attitude of respect” contrasts starkly with the cavalier indifference consistently demonstrated by Israel with regard to the settlements, which is perhaps best characterized by the 1967 remark of Defense Minister Moshe Dayan: “Settling Israelis in occupied territory contravenes, as is known, international conventions… but there is nothing essentially new in that.”
There is little international contention that Israel’s settlement project violates art. 49(6) of the Fourth Geneva Convention. This the legal position of every country in the world aside from Israel — even the Harper government in Canada, which Israeli foreign minister Avigdor Lieberman has referred to as Israel’s best friend in the world, has affirmed (albeit after much hemming and hawing) Canada’s longstanding position that “Israeli settlements in the occupied territories [the Golan Heights, the West Bank, East Jerusalem, and the Gaza Strip] are a violation of the Fourth Geneva Convention.” This was the unanimous legal finding of the International Court of Justice across its majority and dissenting opinions in the 2003 Wall reference. It was even the legal position of the Israeli govenment’s own legal advisor and justice minister at the time that settlement construction began in 1967.
Far from fulfilling its legal obligation to bring Israel back from its attitude of blatant disregard to one of “respect” for the Geneva Conventions, much of the world, including Canada, has adopted policies which signal implicit acquiescence to Israeli violations of IHL. For example, while the European Union excludes products manufactured in Israeli settlements from preferential import tariffs under its separate trade agreements with Israel and the Palestinian Authority, the Canada-Israel Free Trade Agreement continues to accord preferential treatment to such products. The Canadian government also gives tax credits for donations that help settlement construction.
Palestinian UN membership would do much to encourage Israeli compliance with IHL, especially by granting Palestine access to the International Criminal Court. Should Palestine choose to accede to the Rome Statute (with the caveat that this would necessitate Palestinian compliance with IHL as well, and potentially expose many Palestinian actors to war crimes charges themselves), and should the ICC accept jurisdiction over settlement crimes (as it likely would, non-retroactively, on the basis of complementary territorial jurisdiction given that Israeli courts have deemed the overarching legal question non-justiciable), Israeli officials involved in settlement construction, up to and including the prime minister, could conceivably face prosecution for war crimes in the Hague. Pursuing war crimes charges against Israeli officials would surely prompt retaliatory measures from Israel, but the looming threat — even if not acted upon — would exert massive pressure on Israel to discontinue settlement construction (as it committed to doing in 2003) and stand a good chance of succeeding where 18 years of negotiations have failed. Given other countries’ failure to pressure Israel to halt its settlement activity, enabling the Palestinians themselves to do so through international legal forums would satisfy the art. 1 obligation to promote compliance with the Geneva Conventions, and is therefore a good legal reason to support the UN bid.
Effects of UN recognition on the legal status of Palestine
Contrary to popular belief, statehood is not an attribute bestowed upon entities at the leisure of the UN. The most widely-accepted legal definition of statehood, stemming from the Montevideo Convention of 1933, requires states to have (in order of importance from least to greatest) a permanent population, defined territory, effective government, and the capacity to enter into international agreements. Of importance to note with regard to the second point is that border disputes do not disqualify an entity from statehood. According to the constitutive theory of statehood, statehood arises vis-à-vis other state actors when satisfaction of the aforementioned criteria is recognized at a bilateral level — that is, if Venezuela or the Arab League recognize Palestinian fulfillment of the Montevideo criteria (i.e. the existence of a Palestinian people, territory, and government) and establish international relations with it, than Palestine legally becomes a state vis-à-vis Venezuela or the Arab League.
According to self-determination theorists (a subset of the constitutive school) it is also important to consider just what type of state Palestine would be. Would it be democratic? Tolerant of minorities? Self-determination theorists argue that if the answer to these questions is negative, recognition should not be extended to it even if it meets the Montevideo criteria — a view which is gaining prominence in international legal thought. For example, in 1992 the Badinter Commission initially declined to recognize the newly-formed state of Croatia, citing constitutional shortcomings regarding the protection of minorities. This trend in international law signals a far greater concern for states’ domestic affairs than that exhibited by the drafters of the Montevideo Convention, and could pose problems for Palestine’s bid for recognition. Among other concerns in this regard (mirrored as they may be in Israel) are the Palestinian government’s denial of Jews’ historic connection to Judea, laws categorically banning the sale of land to Jews, and the Palestinian ambassador to the UN’s recent comment to the effect that he sees no room in a Palestinian state for Jewish citizens (currently 510,000 Jews live in the West Bank and East Jerusalem). The UN might — and should — seek to clarify Palestine’s stance on minority rights and democratic accountability before extending it recognition as a state.
If an entity acquires statehood status vis-à-vis the UN it gains access to a wide range of international institutions such as the ICC and the ICJ. There are two ways for an entity to acquire statehood status vis-à-vis the UN: one is through full membership — which is the most robust form of international recognition — and the other through a declaratory resolution of the General Assembly. Acquiring membership requires a super-majority of nine votes at the Security Council, no veto by any of the five permanent members, and a two-thirds majority of 129 votes at the GA; it is also conditional upon acceptance of the UN Charter. If Palestine’s bid for UN membership fails, as it is believed that it will, the PLO will likely seek a special GA resolution, passed by a simple majority, declaring Palestine to be a state and granting it access to a range of international forums.
Even this would be a diplomatic victory for the PLO, by modifying the conceptual framework through which its conflict with Israel is viewed. Instead of treating Palestinians’ exercise of their right to self-determination as a concession to be granted by Israel, it would reframe the negotiations as a dialogue between sovereigns over borders and security. Simply legitimating use of the word Palestine in popular discourse has already been an incalculable moral victory.
Effects of UN recognition on the legal rights of Palestinians
Oxford law professor Guy Goodwin-Gill argues that it is legally problematic for the PLO to seek to replace itself as the “sole legitimate representative of the Palestinian people” with a Palestinian state, as the Palestinian people represented by the PLO comprises a large and scattered diaspora. By redefining the Palestinian people as territorially limited to the West Bank and Gaza Strip, the PLO would be leaving the majority of its constituents bereft of international representation without their consent — arguably violating a fiduciary duty to represent their unresolved legal claims against Israel.
I find this reasoning uncompelling. There is no conceptual problem with the state of Palestine granting citizenship to and/or acting on behalf of all Palestinians who are currently represented by the PLO, much as the state of Israel often claims to represent all Jews. While the PLO’s efforts to seek recognition of a Palestinian state east of the 1949 armistice lines do indeed limit its ability to seek the repatriation of Palestinian refugees west of the Green Line, the PLO is entitled to set its own priorities. Invoking the Universal Declaration of Human Rights, Goodwin-Gill argues that the PLO has no legal authority to effectively waive the rights of its constituents without their approval; however, democratic legitimacy has never been an accepted prerequisite for UN representation.
Effects of UN recognition on the legal status of the Israeli occupation
A common misconception is that international affirmation of Palestine’s statehood would render the Israeli occupation illegal; in fact, it would have no bearing on its legal status whatsoever.
Occupation, under IHL, is not a crime. Proponents of the view that the Israeli occupation is illegal base their arguments in jus ad bellum, arguing that Israel’s possession of the occupied territories resulted from a crime of aggression. I disagree with this assessment; in my view, an analysis of the events leading up to the war which begat Israel’s conquests — in particular Egypt’s threats against Israel, its deployment of troops, and its expulsion of UN peacekeeping forces days before the war broke out — tends to support Israel’s contention that its attack against Egypt on June 5, 1967 and its ensuing war with Jordan and Syria were legitimate acts of self-defense.
Accordingly, Israel’s initial occupation of the West Bank and Gaza was legal, and it remains legal until the Palestinian people have reasonably reassured Israel that its withdrawal would not jeopardize its security (regrettably, Israel has never indicated the circumstances under which it would consider this criterion satisfied). This is not to deny that grave violations of IHL and international human rights law have been and continue to be perpetrated by the military regime, but the illegality of such acts should not be confused with that of the occupation itself.
Barring the unlikely prospect of military intervention, there is nothing the UN or anyone else can do that would obviate the need for Palestinians to negotiate a withdrawal with Israel by addressing its security concerns.
Effects of UN recognition on Palestine’s bilateral negotiations with Israel
The main criticism of the Palestinians’ UN move is that it will accomplish nothing, as at the end of the day the Palestinians need to achieve independence from Israel, not from the UN. Critics claim that the PLO is not trying to build a state, but merely weaken and sideline Israel, and that UN recognition would reinforce Palestinian rejectionism by creating the semblance of an alternative to direct negotiations.
There is little doubt that the UN initiative will increase international pressure on Israel and improve the Palestinians’ bargaining position. However, this in turn may actually help move the peace process forward, in much the same way as the domestic and international consequences of the limited-aims war waged by Syria and Egypt against Israel in October 1973 generated sufficient pressure on Israel for it to make the concessions necessary for peace with Egypt — concessions it had been unwilling to make beforehand. As things stand now, Israel holds virtually all the power in its relationship with Palestine, and there is a general consensus among its allies as well as its enemies that Israel simply lacks incentive to move forward with talks. Personalities ranging from former US president Bill Clinton and European heads of state to Netanyahu’s own father have publicly intimated that the Israeli prime minister is more interested in obstructing negotiations than advancing them. Under the patronage of Netanyahu and his political allies, the Israeli settler population has nearly tripled in the last 18 years alone and continues to grow, and there is unanimous international consensus that the creation of such “facts on the ground” is anathema to peace talks. Israel’s international isolation, which is at a more pronounced level than it has been since the 1970s, makes it particularly susceptible to outside pressure to make the concessions deemed necessary for talks to move forward.
Other arguments have been made against the Palestinian initiative. Some suggest it might lead to violence, others that there is nothing inherently desirable about creating a Palestinian state that will likely be poor, undemocratic, intolerant of minorities, lacking in civil liberties, and embroiled in internal and external conflict. Israelis have very legitimate fears that Palestinian statehood will threaten their security, and Palestinians have very legitimate fears that it will prejudice refugees’ rights. Nevertheless, in light of the impasse that has brought negotiations to a standstill, the massive power imbalance between the parties, the parties’ declared preference for a two-state framework for resolving the conflict, and the near-certainty that a continued deadlock would result in renewed violence, I would view UN recognition of Palestinian statehood as a decidedly positive development from the perspective of advancing the peace process.
Israel, the PLO, and the UN having all accepted the two-state framework, the Palestinians are now urging the international community to stand by it in deed as well as in word by according Palestine the same recognition as any other nation. As the UN bid appears to be the most viable option for advancing negotiations, ensuring respect for the Palestinians’ individual and collective human rights, and promoting compliance with international humanitarian law, it can easily be argued that countries have both a moral and legal duty to support it. On the other hand, it leaves all of the core issues unresolved, and current trends in international law suggest that new states should be obliged to meet minimum thresholds for democratic legitimacy and the protection of human rights which it is not clear that Palestine has yet achieved. At the end of the day, to be sure, countries’ decisions on whether or not to recognize Palestinian statehood will be based overwhelmingly on political factors; yet one might hope that legal considerations such as those I have sought to address here will also play a role in the debate.
 According to a report compiled by the Israeli NGO B’tselem, 21% of the built-up area of Israeli settlements is on land that the Israeli govenment recognizes as privately-owned by Palestinians, in contravention of Israeli law and court rulings. See By Hook and Crook: Israeli Settlement Policy in the West Bank (2010).
 Cited in Gorenberg, G. The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 (Times Books, 2006).