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Jerusalem Center for Public Affairs
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The Palestinians’ Dubious UN Move

Filed under: International Law, Israel, Palestinians, Peace Process, Resolution 242, U.S. Policy
Publication: Dore Gold Articles

Israel Hayom


PLO Chairman Mahmoud Abbas has again declared his intention to carry out his plan to gain U.N. recognition of a Palestinian state with the opening of the U.N. General Assembly this past week. However, it is not entirely clear how the Palestinians will execute their plan this year, after last year’s effort to gain U.N. membership failed in the U.N. Security Council. There is also a certain degree of reluctance among Palestinian officials to proceed with these initiatives. At the end of August, the Palestinian foreign minister, Riad Malki, stated that the Palestinians were putting their efforts at the U.N. on hold for now.

In contrast, Saeb Erekat, the PA’s chief negotiator issued a statement that the Palestinians were going ahead and requesting that the U.N. General Assembly upgrade their status from a “non-state observer” to a “non-member observer state.” Unlike U.N. membership this can be achieved through a simple majority of the 193 members of the General Assembly. A second part of this initiative, according to Erekat, is to set the territorial outlines of a future Palestinian state along the pre-1967 lines. But there are serious reasons to question what exactly the Palestinian leadership will actually gain by taking this step. Moreover, the Palestinians themselves will likely pay the price for this capricious action that Erekat appears to be advancing, and Abbas is adopting, especially if the U.S. Congress blocks all U.S. aid as a result.

Legally, the upgrade of the Palestinian observer mission at the U.N. to a mission representing “a non-member observer state” does not create a Palestinian state in any case. New states, like Kosovo or South Sudan, are established when their national leaders declare their independence, their new status is formally recognized bilaterally by other states, and then they seek U.N. membership. Becoming a “non-member observer state” involves a technical change of status that even the experts in the legal department of the U.N. can barely explain. The translation of this highly technical diplomatic term into Arabic in the Palestinian press will undoubtedly underwhelm everyone who hears about it for it will not leave the population of the West Bank with the sense that any real change in their status was achieved. Undoubtedly, Hamas will make this very point, as it mocks Abbas over what exactly he accomplished.

Last year, on May 16, 2011, Abbas wrote an op-ed in The New York Times in which he tried to explain why he was seeking U.N. membership. Revealingly he admitted that he was seeking “internationalization of the conflict as a legal matter, not as a political one.” He wrote that he hoped to take Israel to international courts. The Palestinians started this process in Jan. 2009, when the PA Minister of Justice submitted a declaration to the Prosecutor of the International Criminal Court (ICC), Moreno Ocampo, recognizing its jurisdiction in “the territory of Palestine.” The PA Justice Minister did not explain what the boundaries of this area were.

The PA declaration was issued in accordance with a procedure reserved only for states that seek the involvement of the ICC on an ad hoc basis, thereby requiring the prosecutor to decide whether the PA qualified as a state. After three years of considering the Palestinian declaration, this past April, Ocampo decided that he did not have the authority to decide whether the PA was a state and that the decision would rest with the U.N. secretary-general, who would need to consult with international bodies, like the U.N. General Assembly.

Undoubtedly, the Palestinians are hoping that their upgrade at the General Assembly could be used to grant the Palestinian Authority the standing with the ICC that it has sought. But it would be a mistake for them to assume that this standing would be automatically conferred. Would the secretary-general go along with this? Last week, Ban Ki-Moon said that the “aspiration of the Palestinian people to join the United Nations … has been long overdue.” But he added that “these processes should come out as a result of negotiated settlements of the Middle East peace process.” Moreover, Palestinian initiatives at the ICC would be a double-edged sword. Since the PA is seeking that its standing as a state include the territory of the Gaza Strip, it would assume legal responsibility for rocket attacks on Israeli civilians by Hamas, which are war crimes.

Finally, Palestinian officials are hoping that a U.N. General Assembly upgrade of the status of their observer mission can be used to help predetermine the pre-1967 line as the international border of a future Palestinian state. Abbas and his advisers have apparently been disturbed by the Israeli characterization of the West Bank as “disputed territory,” where Israel also has legitimate territorial claims and not just the Palestinians. As a result, they would seek to include a reference to the pre-1967 line as part of any upgrade resolution in the General Assembly and make it sacrosanct.

On this point, the Palestinians might succeed in influencing a majority of U.N. members, including many European states, but not the U.S. or Israel — and not the Israeli public, which understands more than ever that a full withdrawal to the pre-1967 line would threaten Israel’s security, given the rise of Islamist regimes in the region and the chaos spreading in the Arab world.

Moreover, the pre-1967 line was never an international border and is formally known, in fact, as the 1949 armistice line. Just before the outbreak of the Six-Day War, it was the Jordanian ambassador to the U.N. who declared before the Security Council that the 1949 Armistice Agreements “did not fix boundaries.” On this basis, U.N. Security Council Resolution 242, adopted after the Six-Day War, did not demand that Israel fully withdraw to the pre-war armistice line and instead called on the parties to establish new borders that would be “secure and recognized.”

Over the years, Resolution 242 became the cornerstone of the entire Arab-Israeli peace process and served as the basis of all Arab-Israeli peace treaties. On Sept. 1, 1975, the U.S. provided written assurances to Israel that it would oppose any initiative to change Resolutions 242 and 338 in ways which are incompatible with their original purpose. Yet Palestinian advocates of an upgrade at the U.N. this fall are hoping that a General Assembly resolution they wish to propose can undermine and even neutralize a well-established resolution of the Security Council.

In short, the proposals being considered by the Palestinians for upgrading the status of their U.N. mission are of dubious value. The technical change in status they hope to gain will not be understood beyond the walls of the U.N. and hence provide minimal political gain for the Palestinian leadership with their street. A resolution of this sort will not automatically place the Israeli-Palestinian conflict within the jurisdiction of international courts as the advisers of Abbas are hoping. Nor can its language on borders replace Resolution 242. It is a strategy that will ultimately backfire for it will remind key players in the international community that the Palestinian Authority does not want a negotiated peace with Israel, leading the U.S. and even the EU to question why they should continue to invest in it at all.