What will the Palestinians gain from new UN status?
The International Criminal Court, The Hague. Access to its powers is one of the PA’s stated hopes and Israel’s stated objections. Picture show computerised image of bespoke new ICC; building work began this year.
November 30, 2012
On 29 November 2012, the United Nations General Assembly voted to upgrade the status of the Palestinians to that of a “non-member observer state”.
It follows a failed bid to join the international body as a full member state in 2011 because of a lack of support in the UN Security Council.
Here is a guide to the move’s likely significance.
What were the Palestinians asking for?
The Palestinians have long sought to establish an independent, sovereign state in the West Bank, including East Jerusalem, and the Gaza Strip – occupied by Israel during the 1967 Six Day War. The 1993 Oslo Accord between the Palestine Liberation Organisation (PLO) and Israel led to mutual recognition. However, two decades of on-off peace talks have since failed to produce a permanent settlement. The latest round of direct negotiations broke down in 2010.
Palestinian officials have since pursued a new diplomatic strategy: asking individual countries to recognise an independent Palestinian state with borders following the ceasefire lines which separated Israel and the West Bank before June 1967.
In September 2011, Mahmoud Abbas, the president of the Palestinian Authority (PA) and chairman of the PLO, sought full member-state status at the UN based on pre-1967 frontiers. But the bid effectively stalled two months later after Security Council members said they had been unable to “make a unanimous recommendation”. Mr Abbas then submitted a downgraded request to the General Assembly for admission to the UN as a non-member observer state – the same position that the Vatican holds. Previously, the PLO only had “permanent observer” status.
The change allows the Palestinians to participate in General Assembly debates. It also improves the Palestinians’ chances of joining UN agencies and the International Criminal Court (ICC), although the process would be neither automatic nor guaranteed. If they are allowed to sign the ICC’s founding treaty, the Rome Statute, the Palestinians hope prosecutors would investigate alleged crimes against humanity and war crimes.
What was the general process?
The chances of the Palestinians obtaining non-member observer state status were high – a resolution need only be passed by a simple majority at the 193-member UN General Assembly, and there is no threat of veto as there would be at the Security Council. According to the PLO, more than 130 countries already grant the Palestinians the rank of a sovereign state. Palestinian officials had said they hoped to win the votes of 150 to 170 countries at the UN to show the isolation of the US and Israel on this issue. In the event, 138 countries voted in favour.
President Abbas addressed the General Assembly on 27 September and said his government would seek the UN upgrade in the current session. He said he realised that “progress towards making peace is through negotiations between the PLO and Israel”, acknowledging international concerns about future talks. “Despite all the complexities of the prevailing reality and all the frustrations that abound, we say before the international community there is still a chance – maybe the last – to save the two-state solution and to salvage peace,” he added.
After Mr Abbas laid out his intentions, his aides consulted other countries before drafting a resolution. It was not tabled until after the US presidential election.
The Palestinians’ earlier attempt to gain full member-state status failed because it had to be approved by the 15-member UN Security Council. In the face of strong lobbying by Israel’s close ally, the United States, it could not secure the nine votes it would have required. In any case, as a permanent member of the council, the US was expected to use its veto power to stop the bid.
Palestinian officials insist they have not abandoned their application to become a full UN member state, saying it is suspended for the moment.
Is this symbolic or will it change facts on the ground?
Getting recognition of Palestinian statehood on the pre-1967 ceasefire lines has largely symbolic value. Already there is wide international acceptance that they should form the basis of a permanent peace settlement.
The problem for the Palestinians is that Israel’s Prime Minister, Benjamin Netanyahu, rejects these territorial lines as a basis for negotiations. He has described them as “unrealistic” and “indefensible”. He says that new facts have been created on the ground since 1967: about half a million Jews live in more than 200 settlements and outposts in the West Bank including East Jerusalem. These settlements are considered illegal under international law, though Israel disputes this. Mutually-agreed land swaps have been discussed in previous talks as a way to overcome this problem.
The Palestinians argue that admission even as a non-member observer state at the UN will strengthen their hands in peace talks with Israel on core issues that divide them: the status of Jerusalem, the fate of the settlements, the precise location of borders, the right of return of Palestinian refugees, water rights and security arrangements. The Palestinians present the step as necessary to protect their right to self-determination and a two-state solution.
The draft resolution “expresses the urgent need for the resumption and acceleration of negotiations within the Middle East peace process, based on the relevant United Nations resolutions, the Madrid terms of reference, including the principle of land for peace, the Arab Peace Initiative and the Quartet Roadmap, for the achievement of a just, lasting and comprehensive peace settlement between the Palestinian and Israeli sides that resolves all outstanding core issues”.
Israel says that any upgrade of the Palestinian status at the UN would pre-empt final-status negotiations. The Israeli prime minister’s office reacted to the decision with the following statement: “This is a meaningless decision that will not change anything on the ground. Prime Minister Benjamin Netanyahu has made it clear that there will be no establishment of a Palestinian state without a settlement that ensures the security of Israel’s citizens… By going to the UN, the Palestinians have violated the agreements with Israel and Israel will act accordingly.”
What legal action could the Palestinians consider?
In April, the prosecutor of the ICC rejected a 2009 declaration by the Palestinian Authority unilaterally recognising the court’s jurisdiction. The court said in a statement it could not act because Article 12 of the Rome Statute established that only a “state” could confer jurisdiction on the court and deposit an instrument of accession with the UN secretary general and the Palestinian status at the UN at the time was that of an “observer”.
In instances where it was controversial or unclear whether an applicant constituted a “state”, it was the practice of the secretary general to follow or seek the General Assembly’s directives on the matter, the statement added.
While Palestinian chances of joining the ICC would be neither automatic nor guaranteed as a non-member observer state, Palestinian officials have indicated they will make a new attempt in light of the 29 November vote, which allows them in principle to accede to the ICC.
“Those who don’t want to appear before international tribunals must stop their crimes and it is time for them to become accountable,” the chief Palestinian negotiator, Saeb Erekat, recently told reporters.
They must first deposit an instrument of accession with the UN Secretary General stating they want to become party to the Rome Statute.
If approved, the ratification would come into effect on the first day of the month following a 60-day holding period.
In general, ratification gives the ICC jurisdiction for events in the future, not the past. The ICC said it was studying the legal implications of the 29 November General Assembly vote.
Technically a state joining the ICC also has the option of granting jurisdiction retroactively to the date when the treaty came into force – on 1 July 2002.
So the Palestinians might seek to have the ICC investigate war crimes allegations from the 2008-2009 Gaza war, as well as the most recent conflict in Gaza.
According to the Reuters news agency, Mr Netanyahu has privately expressed concern that Palestinians might accuse members of his government of crimes against humanity including the forced displacement of populations by establishing settlements on occupied territory.
Why has this happened now?
The main reason is the impasse in peace talks. Ahead of the original UN bid, the Palestinians pointed to the September 2011 date that US President Barack Obama had laid out at the General Assembly a year before as the deadline to achieve a two-state solution. The Quartet of Middle East peace negotiators – the US, European Union, Russia and UN – had worked towards the same deadline. A later statement by the Quartet called for an agreement by the end of this year.
Despite the lack of progress on restarting direct negotiations with Israel, Palestinian leaders argue that they have succeeded in building up state institutions and are ready for statehood. The World Bank has said the same, although it has expressed concern about whether the economies of the West Bank and Gaza are strong enough to support a future state.
Last year, the full UN membership bid easily won the support of ordinary Palestinians who had been energised by uprisings in other parts of the Arab world. Although there was disappointment at what followed, a decisive vote by the UN Educational, Scientific and Cultural Organisation (Unesco) in favour of admitting the Palestine as a member state in October 2011 helped to compensate. This was broadly seen as a step towards strengthening the Palestinians’ position at the UN, although it led to the US suspending funding for Unesco.
How does this fit with previous declarations?
In 1988, the late Palestinian leader, Yasser Arafat, unilaterally declared a Palestinian state within the pre-June 1967 lines. This won recognition from about 100 countries, mainly Arab, Communist and non-aligned states – several of them in Latin America.
UN acceptance of Palestine even as a non-member observer state would have greater impact as the UN is the overarching world body and a source of authority on international law.
Who supported and opposed the latest UN option?
So far this bid has failed to excite public opinion in the occupied territories in the same way as in 2011 and the build-up to it has been more low-key. It is backed by Mr Abbas’s Fatah movement, which controls Palestinian Authority-run parts of the West Bank, and was agreed with representatives of other groups in the PLO.
It was initially criticised by senior figures in Hamas, the rival Islamist group which governs the Gaza Strip. However, following the recent eight-day Israeli military offensive on Gaza, Hamas’s political leader, Khaled Meshaal, said he “welcomed” the effort. The militant group, Islamic Jihad is also said to have given its unofficial support. “There is not a single party or faction that is not onboard,” senior PLO official Hanan Ashrawi told journalists on 28 November.
Within the wider region, the 22-member Arab League has endorsed the approach.
The main opposition came from Israel. Looking to dissuade President Abbas from his plan, it has threatened to withhold crucial tax revenues it collects on behalf of the PA and restrict movements of its officials from the West Bank. On 14 November, a position paper leaked from Israel’s foreign ministry also proposed “toppling” Mr Abbas if Palestine’s bid for UN non-member observer state status was approved. Israeli foreign ministry spokesman Lior Ben Dor said that if President Abbas continued with the bid, he would be in breach of the 1993 Oslo Accord, under which the PA was established.
In the past few days, Israeli officials have indicated that immediately after the vote sanctions would be introduced against the Palestinians. However, they say Israel will not take irreversible steps and will not act to bring down the PA. Only if the Palestinians use their upgraded UN membership to press cases at the International Criminal Court will Israel consider more drastic steps, they add. Speaking to the BBC about the UN bid, deputy Israeli foreign ministry spokeswoman Ilana Stein said: “It is mainly a declarative move, the question is what will the Palestinians do with it. Depending on what steps they take, Israel will act accordingly.”
The US, a major donor nation to the PA, could also impose some financial penalties. After Palestine was admitted to Unesco, Washington cut funding to the organisation under legislation dating back to the 1990s. This mandated such a step if any UN agency granted full membership to Palestine before a permanent peace settlement.
Reports before the vote said that Israel had attempted to negotiate with the US over the wording of the UN General Assembly resolution. There were attempts to gain guarantees that the Palestinians would not go to the ICC. However, on the eve of the vote, Mrs Ashrawi insisted: “We have not succumbed to blackmail or pressure.”
Some European nations which provide large amounts of aid to the PA are worried that the Palestinians’ UN strategy could prove risky. Only nine out of the 27 EU member states recognise Palestine bilaterally. Out of those which do not, France voted for the bid, and Germany and the UK abstained. The UK has requested “certain assurances or amendments” from the Palestinians, including a commitment not to pursue “ICC jurisdiction over the Occupied Territories at this stage”. The Palestinians described the conditions as “unrealistic”.
Update:November 28, 2012
[The initiative of the Chairman of the Palestinian Authority, Mahmoud Abbas, to turn to the United Nations General Assembly requesting to upgrade the Palestinian Authority’s status in the UN to a “non-member observer state” follows the Palestinian bid to the UN Security Council in September 2011, asking to admit Palestine to the UN as a state – a request that was not yet discussed by the Council.]
As in the previous bid, this, too, is a political move intended to increase and enhance international recognition of a Palestinian state within the 1967 ceasefire borders. This move raises many questions regarding its potential implications, in general, and on the state of human rights in the region, in particular. As a human rights organization, ACRI does not take a position on peace-process policy questions. However, since the political changes in the region may have significant implications with regards to specific human rights questions, we tried to outline some of the expected impacts on human rights issues in this context. To read a similar briefing published by ACRI ahead of the previous Palestinian UN bid in September 2011, click here.
1. How is the current initiative different from the previous one?
In September 2011, the Palestinian Authority requested the UN Security Council to admit Palestine to the UN as a state. Turning from an entity into a “state” is not a result of a UN membership nor is it conditioned upon it. However, being admitted to the UN means gaining wide international acknowledgement of the existence of a Palestinian state. According to Article 4(2) of the UN Charter, in order to be admitted as a UN Member State, the request must be supported by the Security Council, where each of the permanent members has veto rights, as well as to win a two-thirds majority in the General Assembly vote. As noted above, this request was not yet discussed by the Council and is not likely to pass the veto obstacle. Therefore, the Palestinian Authority decided to turn to the alternative channel of upgrading its status in the General Assembly. A Security Council decision is not required in order to receive the status of a “non-member observer state” – only the support of the UN General Assembly. This move does not grant UN membership status, but it does serve the purpose of gaining wide international recognition.
2. What is the meaning of being upgraded in the UN to the status of an “observer state”?
3. Would the current UN initiative change Israel’s status in the West Bank and in the Gaza Strip? How about an Israeli recognition of a Palestinian state in temporary borders (Areas A and B)?
As for the Gaza Strip, the official Israeli position is that since this disengagement, the Israeli occupation of Gaza has ended. However, many in the international community reject this stance and maintain that the laws of occupation still apply and obligate Israel in matters that are still under its control. It is possible that that the recognition of a sovereign Palestinian state could lead to a re-examination of the international position regarding the status of the Gaza Strip.
4. Would this initiative have an effect on the validity of the Oslo Accords?
5. What are the implications of this move on the Palestinian state’s responsibility for human rights violations?
6. Would this move lead to the involvement of new international enforcement mechanisms?
Should Palestine be recognized as a state, it could become a party to international courts of law (the International Court of Justice and the International Criminal Court). This could create new mechanisms to enforce Israel’s obligations to respect the human rights of Palestinians, and at the same time to enable the enforcement of the Palestinian state’s obligations.
International Court of Justice in The Hague (ICJ) – The ICJ addresses the responsibility of states, not of individuals. It is the leading and most important international judicial body. Both sides must agree that a dispute be brought before it.
International Criminal Court (ICC) – The International Criminal Court deals with individual responsibility for acts defined as international crimes (war crimes, crimes against humanity, and genocide). Should the Palestinian state become a party to the ICC, this court would have jurisdiction over actions carried out in the context of the Israeli-Palestinian conflict: first, on Palestinians suspected of committing international crimes; and, second, on Israelis suspected of offenses within the territory of the Palestinian state. This jurisdiction would be applied directly and continuously, as opposed to the current situation, but only on crimes or suspected crimes that were committed after the Palestinian state becomes a party to it, should it be recognized as such according to the Statute of the Court.
7. What are the implications of this initiative on Israeli settlements?
8. What are the implications of this move on the Palestinian state’s responsibility to prevent terrorism and threats?