Now that the dust has settled on the Palestinian UN upgrade bid; now that
Palestinian President Mahmoud Abbas has received his applause and kudos 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.
THE UN upgrade resolution has neither created a Palestinian
state nor granted 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 observer
state for internal purposes within the UN and its constituent organs and
agencies.
GA 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 GA recommendatory resolution on Middle East issues, added to the hundreds
of such resolutions that have already been adopted by the GA 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 effect 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
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.
Furthermore, the UN Charter requires that a state seeking membership in the UN
be “a peaceloving state” that accepts and is willing and capable of carrying out
the obligations of the UN Charter.
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 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) and 338 (1973) called for a negotiated settlement of the conflict between
the states concerned and, pursuant to that, Israel and the PLO agreed to settle
through negotiation all the relevant issues regarding the fate of the areas in
question.
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, including the chain of documents originating in
the 1917 Balfour Declaration, through the League of Nations British Mandate and
the UN Charter. However, notwithstanding these claims, both sides have committed
themselves in the 1993 to 1995 Oslo Accords to negotiate between them the
permanent status of the areas.
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 the two nations.
It is indicative of nothing more than wishful thinking on the part of those
states voting in favor of it. Such resolutions have not determined and cannot
determine the sovereignty of the areas in question or the state or authority to
which such areas belong.
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.
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.
None of the agreements signed between the parties contain any limitation on
building by the parties 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, 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.
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 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 voices to this curious
premise and have even gone so far as to list the potential war crimes for which
Israelis could be charged.
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 GA. It is an “independent,
permanent judicial institution” as determined in its relationship agreement with
the UN.
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. 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
17, 2012, 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 whether 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 GA’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, 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-boy against Israel and its leadership would doubtless
cause considerable damage to the court and prejudice its continued credibility
and viability.
ANY SOLUTION to the Middle East issues, including the
achievement of Palestinian statehood, cannot be imposed by GA 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 bona fide negotiations will produce the sought-after
solution, 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.
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.
|