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Wednesday, December 5, 2012
The Palestinian UN Upgrade: Setting Things Straight

...any references in all of the many UN resolutions to “occupied Palestinian
territories” are nothing more than an irresponsible prejudgment of an issue
that has been agreed between the Palestinians and Israel to be settled in
negotiations between them.

The Palestinian UN Upgrade: Setting Things Straight
Alan Baker, December 5, 2012
Jerusalem Issue Briefs Vol. 12, No. 29 5 December 2012
http://jcpa.org/article/the-palestinian-un-upgrade-setting-things-straight/

-The UN upgrade resolution has neither created a Palestinian state, nor did
it grant any kind of statehood to the Palestinians. General Assembly
resolutions, including the Palestinian upgrade resolution, can neither
determine nor dictate international law or practice.

-The areas of Gaza and the West Bank (Judea and Samaria) have never been
determined in any legal document or agreement to be sovereign Palestinian
areas. Both Israel and the Palestinians entertain claims over the areas in
dispute

- After the Palestinian upgrade resolution, neither the status of Israel in
the territories, nor that of the Palestinians, has changed in any way. The
new claim voiced by the Palestinian leadership that Israel became,
overnight, an occupant of Palestinian sovereign territory is without any
basis.

-None of the agreements signed between Israel and the Palestinians contain
any limitation on building in the areas under their respective jurisdiction.
The attempt by the Palestinian leadership to isolate the settlements issue
and to turn it into a precondition for further negotiation undermines any
chance of a return to viable negotiations.

-The International Criminal Court (ICC) is not obliged to follow the
recommendations of the UN General Assembly. The ICC has attempted, up to the
present, to avoid having its independent juridical character politicized or
otherwise compromised.

-Futile attempts to initiate criminal charges against Israel and its leaders
do not portend any willingness on the Palestinians’ part to create the
ambience of mutual trust and confidence necessary for a resumption of
sincere and genuine negotiations.

Now that the dust has settled on the Palestinian UN upgrade bid; now that
Palestinian President Mahmoud Abbas (Abu Mazen) has received his applause
and cudos from the UN Plenary, from the Europeans, and from many Israelis as
the hero and savior of the Palestinian people; now that the UN General
Assembly has returned to its regular and wasteful agenda of repetitive,
pointless, and inane resolutions; now that some Israeli legal and non-legal
commentators are already forecasting that Israeli leaders, officials,
officers, and settlers are about to be put on trial before the International
Criminal Court for war crimes and crimes against humanity; now that
Palestinian lawyers are busy preparing their criminal charges against
Israel – now it is perhaps the time to place things in their correct
proportion and to face the legal and political truths, without misleading
exaggeration, imaginative embellishment, wishful thinking, and false
predictions.

No Palestinian State Has Been Created

The UN upgrade resolution1 has neither created a Palestinian state, nor did
it grant any kind of statehood to the Palestinians. The UN does not have the
legal and political power to establish states. It merely upgraded the
observer status of the PLO’s UN representation to that of a
non-member-state-observer for internal purposes within the UN and its
constituent organs and agencies.

General Assembly resolutions, including the Palestinian upgrade resolution,
can neither determine nor dictate international law or practice. They cannot
obligate any state or organization to act or to accept what they recommend.
They are nothing more than non-obligatory recommendations expressing the
political view of the states that voted for them. Thus, this resolution
constitutes one more General Assembly recommendatory resolution on Middle
East issues, added to the hundreds of such resolutions that have already
been adopted by the General Assembly and that abound in the annals of the
UN.

In the same way that previous politically-motivated and one-sided
resolutions on the Middle East generally, or regarding Jerusalem,
settlements, borders or refugees in particular, have neither practically
affected nor influenced the actual situation on the ground, and have not
affected in one iota the actual negotiating process, so the present
resolution, referring to the Assembly’s vision of a Palestinian state within
“the pre-1967 borders,” will have absolutely no affect or influence on the
situation on the ground between Israel and the Palestinians, which can only
be influenced as a result of direct negotiations and agreement between them.

The Palestinians Are Not in a Position to Declare Statehood

The internationally accepted requirements for statehood include, among other
things, a unified territorial unit and responsible governance of its people,
and capability of fulfilling international commitments and
responsibilities.2 Furthermore, the UN Charter requires that a state seeking
membership in the UN be “a peace-loving state” that accepts and is willing
and capable of carrying out the obligations of the UN Charter.3

Clearly, the Palestinians have far to go until they can honestly admit to
realizing these very basic qualities and requirements for statehood. With
Hamas/Iran-ruled Gaza and the Fatah-ruled West Bank still at ideological and
military loggerheads with each other, while thousands of rockets are
periodically, intentionally, and indiscriminately fired from Gaza into
Israel’s towns and villages in stark and willful violation of the norms of
international humanitarian law, and thousands more are still stockpiled for
future use by the terror organizations openly and proudly operating in Gaza,
no logical observer could reasonably endorse Palestinian readiness for
statehood, let alone UN membership.

The UN Term “Occupied Palestinian Territories” Has No Basis in Law and Fact

The areas of Gaza and the West Bank (Judea and Samaria) have never been
determined in any legal document or agreement to be sovereign Palestinian
areas. UN Security Council Resolutions 242 (1967)4 and 338 (1973)5 called
for a negotiated settlement of the conflict between the states concerned,
and pursuant to that, Israel and the PLO agreed to settle all the relevant
issues regarding the fate of the areas in question by negotiation between
them.6

Both Israel and the Palestinians entertain claims over the areas in dispute,
the Palestinians basing their claims on long-time residence and the right to
self-determination, and Israel basing itself on long-standing historic and
indigenous claims,7 including the chain of documents originating in the 1917
Balfour Declaration,8 through the League of Nations British Mandate,9 and
the UN Charter. However, notwithstanding these claims, both sides have
committed themselves in the 1993-5 Oslo Accords to negotiate between them
the permanent status of the areas.10

Thus, any references in all of the many UN resolutions to “occupied
Palestinian territories” are nothing more than an irresponsible prejudgment
of an issue that has been agreed between the Palestinians and Israel to be
settled in negotiations between them. It is indicative of nothing more than
wishful thinking on the part of those states voting in favor of it. Such
resolutions have not and cannot determine the sovereignty of the areas in
question or the state or authority to which such areas belong.11

Thus, the legal status of the territories that has prevailed up to now, as
agreed upon between Israel and the PLO in the Oslo Accords, continues to
prevail after the Palestinian upgrade resolution. Neither the status of
Israel in the territories, nor that of the Palestinians, has therefore
changed in any way. The new claim voiced by the Palestinian leadership that
Israel became, overnight, an occupant of Palestinian sovereign territory is
without any basis.

The Settlements Issue Is a Negotiating Issue, Not a Precondition

From the start of the peace-process negotiations, it was agreed between the
parties, and accepted by the international community in witnessing and
endorsing the Oslo Accords, that the issue of settlements would be one of
several issues to be negotiated in the permanent status negotiations.12 None
of the agreements signed between the parties contain any limitation on
building by the parties in the areas under their respective jurisdiction.13

The attempt by the Palestinian leadership to isolate the settlements issue
and to turn it into a precondition for further negotiation, as well as
threats to initiate action regarding settlements in the International
Criminal Court, undermine and prejudice any chance of a return to viable
negotiations.

The sooner the Palestinians demonstrate a capability and willingness to
return to the negotiating table, the sooner the issue of settlements will be
amicably solved and removed from the bilateral and international agenda.

The Palestinian “Threat” to Initiate Charges in the International Criminal
Court Is Legally and Politically Doubtful

A central aspect of the Palestinian campaign for acknowledgment of statehood
in the UN has been the premise that UN recognition would enable them to
initiate charges against Israeli leaders, officers, and officials in the
International Criminal Court (ICC) in The Hague. This premise has received
considerable prominence in the international media, and even more so in
Israel. Even some Israeli jurists have added their voice to this curious
premise and have even gone so far as to list the potential war crimes for
which Israelis could be charged.14

However, this premise is highly questionable for several reasons. The ICC is
neither a UN Organ nor a Specialized Agency, and is not obliged, as are the
specialized agencies and other bodies within the UN system, to follow the
recommendations of the UN General Assembly. It is an “independent, permanent
judicial institution” as determined in its relationship agreement with the
UN.15

The 1998 ICC Statute provides that the court’s jurisdiction may be activated
only by states, and that a state party to the ICC Statute may initiate
charges.16 In fact, in January 2009, the Palestinian Authority turned to the
ICC in a formal letter declaring its readiness to accept the ICC’s
jurisdiction on the “territory of Palestine.” However, in his decision of
April 2012,17 the ICC Prosecutor announced that his office did not have the
competence to determine whether the term “state” could be applied to the
Palestinian Authority. He added that “competence for determining the term
‘State’ within the meaning of article 12 [of the ICC Statute] rests, in the
first instance, with the United Nations Secretary General who, in case of
doubt, will defer to the guidance of the General Assembly. The Assembly of
States Parties of the Rome Statute could also in due course decide to
address the matter in accordance with article 112(2)(g) of the Statute.”

It is questionable if the Secretary-General will take up this “hot potato”
handed him by the ICC Prosecutor. He is not obligated to do so.

In considering the issue of whether the Palestinians could be considered a
state for the purposes of approaching the ICC, the fact nevertheless remains
that even after the UN General Assembly’s latest upgrade resolution, the
Palestinians are no more a state than they were before adoption of the
resolution. Thus, it remains highly unlikely that the Court, the Assembly of
States Parties or the UN Secretary-General, if functioning properly and
legally and without political manipulation, would be able to accept
Palestinian complaints against Israeli officials.

As an independent juridical institution, in keeping with the purposes for
which it was established, and with a view to protecting its absolute
objectivity, the ICC has attempted, up to the present, to avoid having its
independent juridical character politicized or otherwise compromised. The
attempts by the Palestinians to politicize the ICC and turn it into a
whipping-body against Israel and its leadership would doubtless cause
considerable damage to the court and prejudice its continued credibility and
viability.

Conclusion

Any solution to the Middle East issues, including the achievement of
Palestinian statehood, cannot be imposed by UN General Assembly resolutions,
whatever majority they may command and however many times they may be
repeated.

As has been universally acknowledged by the Security Council and by the
parties themselves in the various peace treaties and other agreements signed
between them, only genuine and bona fide negotiations will produce the
sought-after solution and permanent settlement, including opening the route
to Palestinian statehood.

Creating false hopes among the Palestinian population, while perhaps
catering to the self-serving interests and purposes of its leadership
generally, and Mahmoud Abbas in particular, will only result in frustration
and disappointment, once it becomes evident to all that nothing has changed,
or is likely to change, until the Palestinian leadership is capable of
representing all Palestinians in negotiation with Israel.

Similarly, futile attempts to initiate criminal charges against Israel and
its leaders do not portend any willingness on the Palestinians’ part to
create the ambience of mutual trust and confidence necessary for a
resumption of sincere and genuine negotiations.

* * *

Notes

1. A/Res/67/19, 26 November 2012,
http://unispal.un.org/unispal.nsf/0080ef30efce525585256c38006eacae/181c72112f4d0e0685257ac500515c6c?OpenDocument

2. Article 1, 1933 Montevideo Convention,
http://www.cfr.org/sovereignty/montevideo-convention-rights-duties-states/p15897

3. Article 4, UN Charter,
http://www.un.org/en/documents/charter/chapter2.shtml

4.
http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/240/94/IMG/NR024094.pdf?OpenElement

5.
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/UN+Security+Council+Resolution+338.htm

6. See exchange of letters between PLO Chairman Yasser Arafat and Israeli
Prime Minister Yitzhak Rabin, 9 Sept. 1993, in which Arafat promised “The
PLO commits itself to the Middle East peace process, and to a peaceful
resolution of the conflict between the two sides and declares that all
outstanding issues relating to permanent status will be resolved through
negotiations.”
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Israel-PLO+Recognition+-+Exchange+of+Letters+betwe.htm

7. See also the United Nations Declaration on the Rights of Indigenous
Peoples, http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

8.
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/The+Balfour+Declaration.htm

9.
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/The+Mandate+for+Palestine.htm

10.
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT.htm

11. See the chapter by this author on “Israel’s Rights Regarding Territories
and the Settlements in the Eyes of the International Community,” in Israel’s
Rights as a Nation State in International Diplomacy (Jerusalem Center for
Public Affairs, 2011), http://jcpa.org/book/israels-rights/

12. See Article 5 of the 1993 Israel-PLO Declaration of Principles (commonly
known as “Oslo 1”),
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Principles.htm,
and the PLO-Israel 1995 Interim Agreement,
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT.htm

13. To the contrary – Article 27 (Planning and Zoning) of Annex III (Civil
Affairs) to the 1995 Palestinian-Israeli Interim Agreement specifically
enables each respective party to conduct the requisite planning, zoning and
construction activities in its respective areas,
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT+-+Annex+III.htm#app-27

14. Eyal Gross, “Following UN Recognition of Palestine, Israel Could Be
Forced to Defend Itself at The Hague,” Ha’aretz, 2 Dec. 2012.

15.
http://www.icc-cpi.int/nr/rdonlyres/916fc6a2-7846-4177-a5ea-5aa9b6d1e96c/0/iccasp3res1_english.pdf

16. See Articles 12-14 of the Statute of the ICC
http://untreaty.un.org/cod/icc/statute/romefra.htm

17.
http://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf

===================================================

About Alan Baker

Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the
Jerusalem Center for Public Affairs, is former Legal Adviser to Israel's
Foreign Ministry and former Ambassador of Israel to Canada.

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