Diplomacy: Making case against Palestinian statehood

A Foreign Ministry paper highlights PA’s stand that residents of W. Bank, Gaza refugee camps won't get citizenship in future Palestinian state.

October 14, 2011 16:57
The Jenin refugee camp

Jenin 311 R. (photo credit: REUTERS)

Some eyebrows were raised in September when Prime Minister Binyamin Netanyahu was not seated behind Israel’s desk in the UN General Assembly when US President Barack Obama addressed the gathering.

Odd, some said, that Netanyahu – in New York for the meeting – did not feel compelled to be in the audience when Obama spoke, delivering what turned out to be the most pro-Israeli address of his tenure. Foreign Minister Avigdor Lieberman was there to applaud, to be sure, but not Netanyahu.

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Netanyahu, instead, was during that moment meeting with Colombian President Juan Manuel Santos.

In normal times, opting for a tête-à-tête with the leader of Colombia over showing respect to the president of the United States, would seem a rather unusual choice. But these are not normal times, at least not at the UN where a Security Council committee of experts is expected to present their initial findings next week on whether “Palestine” should become the 194th UN member state.

The time-slot that Obama spoke in was the only time Santos had available for a meeting with Netanyahu, and the US administration – as keen as Israel that seven Security Council countries either vote against or abstain on the PA’s statehood measure so Washington does not have to use its veto to block it – reacted with understanding to Netanyahu’s nonattendance. Colombia was the only South American country that did not follow Brazil’s lead last year and recognize a Palestinian state.

The meeting with Santos, according to diplomatic officials, went very well, with Netanyahu emerging with a sense that Bogota – with close ties both with Jerusalem and Washington – would not support the Palestinian effort.

Palestinian Authority President Mahmoud Abbas, however, is not convinced, and this week flew to Colombia to meet with Santos and press his bid, trying to sway that country to join China, Russia, India, South Africa, Brazil and Lebanon in the Security Council in supporting the move. He needs nine of 15 Security Council votes in order to trigger a US veto, a move that – while not having much practical meaning since the motion would fail because of the US veto – would give him an important moral and symbolic victory.

From Colombia, Abbas flew to Paris and a meeting with French President Nicolas Sarkozy. His foreign minister, Riyad al-Malki, was scheduled to go to Portugal and Bosnia-Herzegovina, two other Security Council nations.

France, while calling for the UN General Assembly to upgrade the Palestinians from observer to non-state member has so-far balked at supporting the full member bid through the Security Council.

One Western diplomat told The Jerusalem Post that in the final analysis all four EU countries on the Security Council – the permanent members France and Britain, as well as temporary members Germany and Portugal – will not support the bid.

Bosnia-Herzegovina, an EU “potential candidate state” not keen on splitting ranks with the body it wants to join, is expected to follow what the other EU countries do. Add in the US and Colombia, and the move is blocked. And that is even before the votes of Gabon and Nigeria are counted in.

At least on paper.

In the three weeks since Abbas announced his bid, he and Malki – perhaps a signal that the Palestinians are not as confident in winning the nine necessary votes as they say they are – have been peripatetic, travelling from country to country to win over votes. Netanyahu and Lieberman, on the other hand, have over the last few weeks been largely sedentary, leaving the work to Israel’s envoys and ambassadors.

Israel’s leaders met the heads of the Security Council countries at the UN, and Lieberman visited Bosnia-Herzegovina twice over the last year. But Netanyahu and Lieberman are not currently engaged in any personal full-court press.

What Lieberman did do this week, however, was circulate a document to Israel’s representatives abroad drawn up by the ministry’s legal department that succinctly outlines the legal arguments against granting the Palestinians’ UN state membership.

This paper will serve as a basis for legal arguments against the move.

“The Palestinian request for membership in the United Nations, which was submitted to the Secretary-General on September 23, 2011 implies that a Palestinian state already, somehow, exists,” reads the document.

“The request asked to build upon this supposedly existing status to request membership in the United Nations. However, based on both traditional and contemporary legal and tangible tests, it is clear that while one day the Palestinian state could come into existence, today the Palestinian entity has not achieved the status of statehood.”

The six-page document obtained by the Post argues that “from a legal perspective, currently, the Palestinians fail the traditional test for statehood” and do not meet at least two of the four prerequisites for statehood accepted in international law: a permanent population and a defined territory.

The document cites even those supporting Palestinian statehood as saying they are currently not ready. For instance, one Oxford professor, Guy Goodwin-Gil, wrote a legal opinion for the Palestinians saying that “Until such a time as a final settlement is agreed [between Israel and the Palestinians], the putative State of Palestine will have no territory over which it exercises effective sovereignty, its borders will be indeterminate or disputed, its population, actual and potential, undetermined... While it may be an observer state in the United Nations, it will fall short of meeting the internationally agreed criteria of statehood.”

Regarding the issue of a state representing a permanent population, the Foreign Ministry’s paper argues the Palestinians have been ambiguous about “which group of people would constitute the permanent population of their state.”

“The Palestinians seem to be seeking to establish a new state and at the same time preserve the status of Palestinians living in the diaspora as so-called ‘refugees,’” according to the paper.

“As part of this effort, they have presented contradictory positions, wanting to continue to represent all Palestinians on refugee related claims, but, at the same time, stating that they do not intend to grant citizenship to members of the Palestinian diaspora. This internal contradiction – as a state can only represent the claims of its own citizens – necessarily leads to ambiguity on the population issue.” The document argues that the refugee issue is one of the core issues that need to be resolved in any final status agreement.

“By establishing a state, the Palestinians could offer citizenship to all Palestinians, thus ending their refugee problem, as all of the Palestinian diaspora could have a state of nationality,” the paper reads. “However, in a recent interview in the Lebanese newspaper, The Daily Star, Abdullah Abdullah, Palestinian ambassador to Lebanon, said that the new Palestinian state would not recognize refugees living in the West Bank and Gaza as citizens and would ‘absolutely not’ be issuing Palestinian passports to refugees.” In other words, Palestinians living in West Bank and Gaza refugee camps – in places such as Balata, Dehaishe, Kalandiya, Bureij and Nuseirat – would not become citizens of the new Palestinian state.

According to the document, the current “vocal internal disagreement” among Palestinians themselves on who would constitute the citizens of a future Palestinian state undermines “one of the basic criteria of statehood.” Regarding the need for an aspiring state to have “effective control” over the territory it claims as its own, the report argues it is “difficult” to say the Palestinians “meet the most basic test of effective governmental control of the territories they are claiming within their state.”

Hamas, the paper states, continues to exercise full control of the Gaza Strip, and Israel effectively retains full control over the 60% of the territory in the West Bank classified as Area C.

“Despite the signing by Fatah and Hamas of a so-called “Reconciliation Agreement” in May 2011, nothing has changed in practice,” the paper states. “Palestinian Authority leadership, which submitted the UN request for membership, is completely excluded from responsibility in Gaza and retains no control” there.

To illustrate the point, the paper points out that all security authorities and police in Gaza are controlled by Hamas. Even Abbas himself has been unable to visit there since Hamas seized control in 2007.

In addition, the PA cannot hold elections there since Hamas has “repeatedly prevented visits of electoral commissions to Gaza to allow for preparations for an electoral process.”

The document further illustrates the lack of PA control over Gaza by pointing out that Palestinian state building measures enacted by Prime Minister Salam Fayyad, including judicial and legal reforms widely praised by the international community, “have been limited exclusively to the West Bank.” The paper also argues the Palestinian economic dependence on international aid and its need for Israeli practical and logistical support in economic matters shows it does not effectively control the territory it claims for its state, and also raises questions about the future state’s viability.

In addition to more traditional criteria for statehood, recently additional criteria have been added that should be considered before granting statehood status, the paper argues, such as whether the demand for recognition is based upon a lawful claim, and whether the new state would be both willing and able to abide by international law and protect human rights.

Regarding a lawful claim of statehood, the paper says “it is a generally accepted principle that in order to qualify for recognition, a state must emerge from an agreed and legal process and not by taking advantage of its own violation or breach of an international rule or agreement.” This is clearly not the case here, the document asserts, since a unilateral Palestinian bid for statehood – bypassing negotiations with Israel – is a breach of the 1995 Interim Agreement that determined that “all final status issues (including borders, Jerusalem, settlements, security, refugees and water) are to be settled by Israel and the Palestinians in a negotiated and mutually-agreed manner, and that neither party is to act unilaterally to change the status of the West Bank or Gaza.”

In addition, the paper stated various international frameworks from UN Security Council Resolutions 242 and 338 all the way up through the Road Map and recent Quartet declarations “are built upon the principle that resolution of the conflict and peace is to be achieved through negotiations between the two parties and the conclusion of a mutually-agreed settlement. Therefore, the current Palestinian bid for recognition as a state should be rejected as based upon a breach of accepted and binding legal and political frameworks.”

As to a commitment to international law, human rights and global peace, the document asserts that an aspiring state’s willingness and ability to undertake peaceful relations and observe international law is a prerequisite for statehood recognition and is seen as such by the UN’s own charter.

“With Hamas, a recognized terrorist organization, continuing to violently control the Gaza Strip, the Palestinians clearly do not meet the UN Charter criteria,” the document asserts. “Hamas is certainly not ‘peaceloving,’ and so long as the terrorist organization, which continues to call for Israel’s destruction, remains in exclusive control of the Gaza Strip, there is no way that the Palestinian leadership will be able to carry out the UN Charter’s most basic obligations as they are unable to control the terror activity of Hamas.” Furthermore, the PA cannot guarantee basic universal rights and freedoms.

“The current state of human rights and freedom of speech in the Gaza Strip, the silencing of political opposition (including the violent crackdown on Fatah representatives) and the dysfunctional judiciary in the Gaza Strip all point to limitations on the ability of the Palestinians to guarantee compliance with international law,” the paper states.

And finally, the document asserts, “recent statements have called for the omission of Jews in a future Palestinian state. In late May, President Abbas told the Arab League that such a state should be free of all Israelis. On September 1, the PLO representative to the United States was quoted that no Jews should live in this state as ‘it would be in the best interest of the two people to be separated.’ This position underlines a basic lack of tolerance and democratic values and a current failure to protect and uphold universal legal norms and principles.”

Those are Israel’s arguments. The degree to which they are resonating abroad, however, remains an open question.

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