If one wants to understand what could happen at the United Nations this
September, one need look no further than the words of Palestinian Authority
President Mahmoud Abbas in a New York Times opinion piece from
“Palestine’s admission to the United Nations would pave the way for
the internationalization of the conflict as a legal matter, not only a political
one,” Abbas wrote.
“It would also pave the way for us to pursue claims
against Israel at the United Nations, human-rights treaty bodies and the
International Court of Justice.”
Currently, most of the debate around the
Palestinian bid for unilateral statehood has centered on its impact on potential
negotiations, should they resume.
Language inserted into any UN General
Assembly resolution could make it even more difficult for Israel to arrive at a
two-state solution that is not based on pre-1967 lines.
In particular it
could harden Palestinian resolve not to compromise on a two-state solution based
on a return to that border.
But for Israel, there is a second and very
relevant issue that emerges from September, and that is the potential legal
dangers posed to Israel by any move that would increase the type of state rights
Palestinians could exercise, even in advance of formal statehood.
one month to go before the opening of the high level portion of the 66th United
Nations General in New York on September 20, the battle lines between Israel and
the Palestinians are fairly well drawn.
Most pundits can already predict
If the Palestinians seek membership at the United Nations
through the Security Council, they will likely lose, because it is expected that
the US will veto that bid.
But if Palestinians seek a declaration of
statehood through the General Assembly, they will likely win, as they already
have the support of a majority of the 193- member body.
Assembly, however, cannot on its own confer UN membership or grant statehood.
Statehood can be declared anywhere, and it is dependent on criteria, which is
independent of the United Nations.
Typically, the accepted definition of
statehood comes from the Montevideo Convention of 1933, which spoke of four
criteria for statehood: a permanent population; defined territory; government;
and the ability to enter into relations with other states. A public display at
the UN of states on behalf of Palestinian statehood would help boost the
Palestinians along that fourth point.
But in many respects, the
Palestinians already enjoy some of the de-facto benefits of statehood, including
embassies in capitals around the world. According to the non-governmental jurist
group Al-Haq, based in Ramallah, 117 states have already recognized
That number is expected to have gone up to over 130, as of
For the Palestinians, a September declaration at the UN would
give them an emotional boost and have a diplomatic and political
But unless the Palestinians are given full membership status at
the United Nations, they won’t achieve one of their more significant objectives:
the full rights which can be conferred in the international arena only through
the United Nations and the International Courts.
This step is important
for the Palestinians who want to use these rights as an additional tool to push
Israel to leave the West Bank.
Among the rights the Palestinians have
sought, is the ability to purse Israelis legally for war crimes before the
International Criminal Court, a right which they can exercise only if they are a
Here, unlike the September showdown at the UN, it’s unclear
what the outcome will be. Lawyers and diplomats can speculate, but they cannot
say for sure what impact, if any, moves at the UN in September would have on the
Already in 2009, the Palestine National Authority Minister of
Justice applied to the ICC to be recognized as a state before the court. A
ruling on the request has yet to be made. Such a ruling would be unnecessary if
the UN Security Council would grant the Palestinians full-membership
The Palestinians, however, are hoping that in September they can
make use of a small side step to expand their rights both at the United Nations
and before the ICC.
To do this, they are likely to ask the UN General
Assembly to upgrade their status from an “observer” to an “observer state” – a
move that is independent of the UN Security Council and needs only the approval
of a majority of the 193-member states.
They are hoping that an “observer
state” status at the UN would strengthen their case before the ICC to be
recognized as a state.
A report on the issue, published by Al-Haq at the
end of last month, spoke of the observer-state status as the most likely outcome
in September, and its possible impact on an ICC ruling.
most Palestine could achieve through the UN admission procedure, in light of the
likely US veto at the Security Council, is a General Assembly resolution
recommending the recognition of Palestine’s statehood; and or granting it the
status of ‘observer state.’” As evidence of the unchartered nature of this
maneuver, it noted that such status was based purely on practice, and that there
are no provisions for it in the UN Charter.
Others who have had this
status include Switzerland, which was then granted full membership in 2002, and
the Holy See (the Episcopal jurisdiction of the Catholic Church in Rome) which
still has it. The Holy See, which has the closest legal bearing on the
Palestinian endeavors, can sign international treaties as a result of this
The upgrade to state observer, according to Al- Haq, “is
nevertheless an important adjustment that would provide Palestine with further
political leverage, and confirm its rights as a state within the UN
Al-Haq noted that an observer state status could provide access
rights to international organizations and treaties. Importantly, he added, he
could facilitate access to the ICC.
“Palestinians would also gain further
political leverage to pressure the international community to comply with its
responsibility to bring Israel’s violations of international law to an end –
including by strengthening the possibility to get the UN to define the
Israel-Palestine conflict as a ‘threat to international peace and security’ in
order to allow for the use of UN collective measures against Israel,” said
In the past months,, Israel has focused its attention of
soliciting the support of European countries, and those which are major powers
on the international stage, in hopes that if they opposed any Palestinian
initiatives at the UN General Assembly, it would lessen its
However, Even they acknowledge that there is little they can do
to halt the legal implications of a shift in status.
When queried by The
Jerusalem Post, the ICC said they could not comment on the matter in advance of
Dore Gold, a former Israeli ambassador to the UN, noted that
while a change in status could advance the Palestinian case at the ICC,
Palestinian statements regarding their intention to pursue Israel legally before
the court might sway the ICC not to approve their application.
might fear that its stature would be “deeply injured” if it is seen as a
political tool by which to attack Israel, Gold said.