[Dr. Aaron Lerner - IMRA: If the Netanyahu administration hadn't announced
some settlement activity in response to the UNGA vote it would have found
itself quickly locked into an open ended settlement freeze. The move now,
whatever its cost, served to make clear that PM Netanyahu's assertion that
the vote would not have any effect was not just rhetoric.]

Israel's Response to UN Recognition of a Palestinian State
INSS Insight No. 389, December 3, 2012
Sharvit Baruch, Pnina
http://www.inss.org.il/publications.php?cat=21&incat=&read=10663

On November 29, 2012 the United Nations General Assembly approved the
Palestinian request for recognition of Palestine as a non-member "observer"
state.

Substantive claims can be made to contest the legal basis of the Palestinian
claim to statehood. Before an entity may be called a state it must meet
certain conditions, including the establishment of effective governance over
a certain territory and population. The Palestinians themselves, however,
claim that the area of the West Bank is de facto under Israeli occupation.
In addition, it cannot be claimed that the Palestinian government in
Ramallah has control over the Gaza Strip. Therefore, a valid claim could be
made that the Palestinian entity does not meet the criterion for effective
governance. Moreover, the Palestinian Authority has avoided declaring itself
a state. While the PLO issued such a declaration in 1988, it was evident at
the time that the PLO met none of the criteria for statehood, and most of
the world ignored the declaration. It could now be claimed that absent a
current formal declaration of statehood by the Palestinians themselves,
there is no place for recognition from the UN.

Clearly, however, political considerations alone, rather than legal
reasoning, shaped the position of most of the voting nations. Some of the
nations voted as expected, in line with their automatic support of any
resolution supporting the Palestinians as well as any resolution opposing
Israel. Others voted for the resolution to express their dissatisfaction
with the lack of progress toward resolution of the Israeli-Palestinian
conflict.

With the UN recognition, the Palestinians are able to seek participation in
international organizations and treaties open only to states. In addition,
they are able to resubmit to the prosecutor of the International Criminal
Court (ICC) the request to investigate allegations of all war crimes in the
West Bank and the Gaza Strip on the basis of the previous prosecutor’s
opinion, which stated that UN recognition of a Palestinian state would
provide sufficient grounds for a Palestinian request for such an
investigation. This is liable to raise the issue of the legality of the
settlements in context of the relevant paragraph in the court’s
constitution. The request would likely refer to all the events since July
2002 (when the ICC constitution entered into force), although some have
countered the validity of a retroactive case. It should be pointed out that
an ICC investigation would cover all actions by all parties, that is,
including those by the Palestinians.

At the same time, it is unlikely that General Assembly recognition of a
Palestinian state will lead to any change in the reality in the territories,
first and foremost given the continued IDF presence in the area and the
existing limitations on the PA. Legally too, there will be no practical
change: UN recognition means that "Palestine" is seen as a state, but a
state still – according to most if not all countries in the world – under
Israeli occupation. The test of occupation is a factual test, based on the
question of who has effective control of the area. The recognition of a
Palestinian state will not change this reality, and therefore Israel will
continue to have both the rights and obligations of the occupier (at least
in all that pertains to the West Bank; it is debated whether the Gaza Strip
remains under Israeli occupation). In addition, there are limitations on
both sides rooted in mutual agreements, and while there is controversy as to
their legal status – and the possibility exists that Israel might revoke
them – it seems that the international community would likely continue to
view them as binding.

Against this background, it appears that the answer to how Israel should
react to the General Assembly resolution to recognize a Palestinian state is
to focus on the international arena rather than on practical steps on the
ground. As demonstrated below, however, the two are related.

Regarding the international community, Israel must minimize the possible
damage that an upgrade in the PA’s status could cause by working in various
organizations – for example, the International Civil Aviation Organization,
the International Telecommunications Union, and others – to make sure that
Israeli interests are not at risk. This needs to be in conjunction with
intensive diplomatic activity, as a significant rise in the scope and
intensity of Palestinian claims against Israel can be expected. It is also
necessary to work with the ICC, directly or indirectly, to allay the concern
about legal action against Israeli citizens. While it is clear that the ICC
is not eager to get involved in this charged conflict and deal with
explicitly political issues, it would probably face pressure to open such
investigations. Israel's main message to the international community must be
to avoid actions liable to complicate resolution of the conflict, e.g.,
actions that widen the gap in the Palestinian population between
expectations and fulfillment or measures that add obstacles to a conflict
that is already complex enough. It would also be appropriate to consider how
to use the positive implications of the recognition of a Palestinian state,
e.g., by pointing out the Palestinian responsibility for what develops in
its territory.

Regarding the domestic arena, as mentioned above, the concept of a
Palestinian state has no viable possibility of generating practical changes.
Therefore, the response to the PA should be passive, ignoring the change
that is meaningless from Israel’s point of view. In this context, two points
are important: first, actions liable to topple the PA – e.g., cutting off
funds and severing contact on important issues – run counter to Israel’s
interests. Israel has no desire to control some two million Palestinians
again, run their day-to-day affairs, see to their education, healthcare, and
welfare needs, and so on. Toppling the PA would return the responsibility to
Israel. Second, legally (and one could also say morally) Israel has
obligations to the Palestinian population in the West Bank by virtue of
controlling it (whether one contends that Israel is an occupying force or
that Israel is there because of sovereign right, as posited in the report of
the committee headed by Justice Edmond Levi’s). Steps damaging the welfare
of the Palestinian population or constituting collective punishment of the
Palestinians are illegal.

As for decisions regarding the expansion of settlements, the legal reasoning
raised against them is not changed by the UN recognition, nor are the
arguments based on political considerations, which view the settlement
expansion as an obstacle to future reconciliation. However, the Palestinians
will have a stronger status and additional forums to sound condemnations,
and therefore the criticism over such actions can be expected to intensify.

The international and domestic levels are related: the more Israel acts in a
way that harms Palestinians in the West Bank or is perceived as narrowing
the chances of a political agreement, the more it will further reduce its
chances of success in the international arena.

Finally, an analysis of the practical ramifications of UN recognition of a
Palestinian state is not complete without addressing the potential impact of
a renewal of Israeli-Palestinian negotiations. Clearly direct talks can help
reduce tensions on the ground and might help to manage the conflict, if not
to resolve it. Yet there is also significance to negotiations in the
international arena. The international community could be more easily
persuaded not to take actions in international forums that are detrimental
to Israeli interests if this could give negotiations a chance to progress.

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