IN THE TWO YEARS SINCE PRIME MINISTER Benjamin Netanyahu came to power, the
Palestinians seem to be making all the diplomatic running. “We are now in the
home stretch for freedom,” Palestinian Authority (PA) Prime Minister Salaam
Fayyad declared in mid-April after donor countries meeting in Brussels
unanimously affirmed that the governing authority he heads was ready for the
transition to full-fledged statehood.
A few days earlier, Robert Serry,
the special UN coordinator for Middle East peacemaking, had given his
imprimatur: In the areas where the UN is most engaged, he said, “governmental
functions are now sufficient for a functioning government of a state.” The UN
seal of approval on governance coincided with World Bank and International
Monetary Fund reports on the Palestinian economy, both of which concluded that
the Palestinian Authority is now capable of running an independent
Then in late April, catching most observers by surprise,
PAPresident Mahmud Abbas overcame another major hurdle when his Fatah party,
which rules the West Bank, signed an agreement with the breakaway Hamas
government in Gaza, recognizing his authority over all Palestinian
Although Israel argues that having a terrorist presence in
government should disqualify any Palestinian moves for statehood, the political
reunification of the West Bank and Gaza under Abbas’s presidency has brought the
Palestinians closer to meeting the conditions for statehood outlined in the 1933
Montevideo Convention – that is, having the capacity to govern a permanent
population in a defined territory and to conduct foreign relations. The move
thus swept away arguments that with Gaza under Hamas, Abbas did not represent
all Palestinians or control sufficient Palestinian territory.
the spring of 2011, the Palestinians seemed to have mustered a critical mass of
support in the international community for recognition of a state in the West
Bank and Gaza based on the 1967 borders.
The only question is whether it
will come unilaterally, via a request for membership of the United Nations in
September, or in coordination with Israel, via an eleventh hour breakthrough in
the long-stalled Israeli-Palestinian peace process.
The procedure for UN membership entails a two
step process: First the 15-member Security Council must recommend acceptance of
the would-be new member state; then the membership must be approved by a
two-thirds majority of “those present and voting” in the 192-member General
In the Palestinian case, the sponsors are almost certain to run
into an American veto in the Security Council. Under normal UN procedure that
would be enough to quash the Palestinian move. But there is a loophole,
established, ironically, by the Americans themselves.
In November 1950,
to overcome deadlock in the Security Council over the Korean crisis, US
secretary of state Dean Acheson initiated a circumventing procedure known as
“uniting for peace.” Passed as General Assembly Resolution 377, it stipulates
that in cases where the Security Council fails in its duty to maintain world
peace because of differences among the five permanent members, the matter at
hand can be referred directly to the General Assembly.
In the event of an
American veto, this is the procedure the Palestinians intend to invoke. But will
it be enough to assure them UN membership? The Palestinians say yes. Israeli
legal experts insist that without prior Security Council backing, any General
Assembly resolution, even if it is the outcome of a “uniting for peace” session,
will be nothing more than a nonbinding declaration with no validity under
ABBAS MAINTAINS THAT HE WOULD RATHER achieve statehood
through talks with Israel. But he says he has little faith that this will happen
with the Netanyahu government, which refuses to accept the basic principle of
two states based on the 1967 borders.
Therefore, since last October, when
American-initiated peace moves again broke down, Palestinian diplomacy has been
steaming ahead on the UN option. Abbas reckons that by mid-May he will have
already sewn up over 140 for-certain yes votes in the General Assembly, well
beyond the two thirds majority (128 with all present and voting) he
In its campaign to undercut the Palestinian move, Israel argues
that the moral weight of any General Assembly resolution will depend not only on
sheer numbers, but on the international standing of the states that support it.
As a result, much of the Israeli effort against the declaration of Palestinian
statehood is directed at the European vote.
In a lightning visit to
Berlin in early April, Netanyahu was apparently successful in convincing German
Chancellor Angela Merkel to vote against. In May, he intends to make similar
visits to London and Paris. For now, both Britain and France apparently lean
towards supporting the Palestinian move. “Recognition of the state of Palestine
is one of the options which France is considering with its European partners,
with a view to creating a political horizon for re-launching the peace process,”
French UN Ambassador Gerard Araud declared in late-April.
officials say Netanyahu is considering three main options to counter the
Palestinian plan: Persuading as many states as possible to vote against in both
the Security Council and the General Assembly; getting the Palestinians to
remove references to borders and Jerusalem from the recognition text, on the
understanding that Israel will then join the entire international community in
voting for Palestinian UN membership; coming out with a major peace plan that
would preempt the need for a Palestinian UN move by paving the way for a
negotiated two-state solution.
Whatever step or combination of steps
Netanyahu chooses, close coordination with Washington will be crucial. Indeed,
only the US could persuade the Palestinians to drop the territorial reference
and/or come up with terms of reference for renewed peace talks.
PALESTINIAN UN INITIATIVE raises profound legal and diplomatic
it prove to be the “diplomatic tsunami” that Defense Minister Ehud Barak
predicting? Can Israel realistically do anything to stop it? Will it
the legal framework of the Oslo process, leaving Israeli- Palestinian
in a state of legal chaos, as some assert? Will it mean the end of the
process, as others warn? And what if Israel remains in the West Bank
Palestine becomes a recognized UN member state? Will it be a case of one
illegally occupying another? And if so, will the Palestinians be able to
international sanctions against Israel? And could this lead to an
South Africa-style syndrome, gradual intensification of sanctions over
until remaining in the territories becomes untenable for Israel? On the
hand, if all bets are off, could Israel annex the large settlement
an entrenched Israeli presence in the West Bank trigger a new round of
and terror with a heavy death toll and an erosion of hard-won diplomatic
economic gains on both sides? And finally, given the potentially
consequences for both sides, what are the chances the parties will pull
from brink, and, despite everything, agree to settle their differences
negotiating table? Israeli legal experts argue that the Palestinian case
weaker than it seems at first glance. Alan Baker, former legal adviser
Foreign Ministry, argues that without a Security Council recommendation,
Palestine will not be able to become a UN member state.
rules and regulations, acceptance by the General Assembly alone will not
enough, he insists. “It will be no more than a repeat of the resolution
by the General Assembly in November 1947, recommending that there be a
and an Arab state in Palestine. There is nothing new here,” he tells The
“Nevertheless, it will probably have huge PR value. The
Palestinians have very cleverly turned this into a huge existential
legally speaking, it will be nothing more than another anti-Israel
Baker maintains that the UN can’t simply foist
borders and a joint capital on Israel. These things, he says, will
ultimately have to be negotiated
between the parties, along with the other outstanding permanent status
Moreover, by trying to get the international community to unilaterally
their positions on Israel, Baker contends that the Palestinians are in
breach of the 1995 Oslo Interim Agreement, which set up the Palestinian
Authority, the presidency and the parliament, on the understanding that
remaining differences would be resolved through negotiations. “The
approach to the UN violates the Interim Agreement, and in so doing
the legal basis of the PA and all the other Palestinian institutions,
the potential for legal chaos,” he avers.
In Baker’s view, this
Palestinian unilateralism has wider international ramifications, since
render UN resolutions 242 and 338, which call for a negotiated peace,
“If the UN circumvents its own resolutions in such a
cavalier fashion, what value is there to any future UN resolution
solve crises in former Yugoslavia, Rwanda, Darfur or anywhere else? All
to do is to organize an automatic majority in the General Assembly on a
for peace resolution and you are free of all your prior commitments,” he
Most significantly, Baker totally rejects the claim that once
Palestine is recognized as a UN member state, Israel will turn overnight
occupier of disputed territory to illegitimate invader of a neighboring
Indeed, he maintains that Israel is technically no longer an occupier,
rather is in the territories by legal agreement with the Palestinians as
transitional power until the land is divided between them.
terms of the 1995 Interim Agreement, we have a license from the PLO to
during the course of negotiations, and when we reach a permanent
will pull back according to whatever that new agreement stipulates,” he
“It’s like when Israel signed the peace treaty with Egypt in 1979 and
in Sinai in 1982. But between 1979 and 1982, Israel was no longer
occupier because it was there with Egypt’s consent. The same goes for
1995 agreement with the Palestinians.”
Baker, who was closely involved in
the drafting of the 1995 agreement, contends that there is nothing in it
limits the time Israel can remain on the territories as the transitional
and he insists that any Palestinian attempt to invoke sanctions against
because of its continued presence will have no legal foundation
Therefore, because of what he says is the intrinsic weakness of their
Baker believes the Palestinians may still drop the idea of approaching
the UN in
If, however, they don’t, Baker has some advice for the prime
minister: “I would go to the Americans and say, get the Palestinians to
references to borders and Jerusalem and we’ll vote in favor. That would
sting out of the whole thing. It would become a nonissue,” he states.
PALESTINIANS ARGUE THAT THEY HAVE BEEN forced into the UN gambit by a
recalcitrant Israeli government that refuses to engage in serious peace
“Our preferred option is to negotiate a peace settlement with the
we cannot be held hostage to the status quo by an Israeli government
prefers dictation to negotiation,” Saeb Erekat, former chief Palestinian
negotiator tells The Report.
Contrary to Baker’s view, Erekat argues that
once the UN recognizes the state of Palestine in the 1967 borders,
no longer be able to define the West Bank as “disputed territory.”
will be a state under occupation. And there are real consequences for
states that occupy other nation states. Just read the UN Charter,” he
According to Erekat, the Palestinians will easily be able to get
the 128 votes they need for an assured two thirds majority in the
Assembly. He points out that 137 nations supported a recent
Palestinian-initiated resolution against Israeli building in the West
settlements, and he is confident that considerably more will vote for
Moreover, the former chief negotiator strongly
denies that getting UN approval for a Palestinian state would undermine
peace agreements. On the contrary, he says, it would enshrine the
solution implicit in the Oslo process. “We are not asking for Israel’s
from the UN. We are asking for the state of Palestine to be added to the
live side by side in peace and security with Israel. And I think Israel
have been one of the first to take the moral high ground and recognize a
Palestinian state in the 1967 lines,” he insists.
Some analysts maintain
that the Palestinians are no longer interested in peace talks, confident
can achieve their goals through international pressure on an
delegitimized Israel. Others hold that the UN gambit is at least partly a
of putting pressure on Israel to negotiate. Erekat insists that if
building in the settlements and puts a serious peace offer on the table,
Palestinians will more than happy to reengage.
SO WILL NETANYAHU PUT THEM
TO THE TEST AND come out with a far-reaching Israeli peace plan in his
awaited address to the US Congress scheduled for late May? According to
officials, Netanyahu was considering announcing a pullback from part of
Bank as a gesture of goodwill. He was also contemplating a call to the
world to join Israel in an international peace parley along the lines of
1991 Madrid Conference.
But after the Fatah-Hamas reconciliation and the
ongoing upheaval in the Arab world, the inclination in the prime
inner circle seems to be to put the emphasis on Israel’s security needs
increasingly volatile and unstable region.
Zalman Shoval, a former
ambassador to the US, now serving as the prime minister’s special envoy
to the US and Europe, says that for both Palestinian and regional
Netanyahu will underline the need for a long-term Israeli military
the Jordan Valley, a demand the Palestinians reject as encroaching on
Shoval counters that developments in the Arab world and the
possibility of Palestinian terror from the West Bank make it
“After the American troops leave Iraq, Iran will try to turn
it into a zone of influence and who knows what will emerge in Syria. We
find ourselves facing as serious a threat on our eastern front as we did
20 years ago,” he tells The Report.
Shoval acknowledges that the
government is concerned about the Palestinian approach to the UN,
because it could fuel efforts to delegitimize Israel. But he insists
will not change things on the ground. “Will it force Israeli soldiers to
their camps in the territories? Will it make hundreds of thousands of
live around Jerusalem illegal? I don’t think so,” he avers.
the Palestinians take unilateral steps, Shoval warns that Israel could
example, it could apply Israeli law to the large settlement blocs, which
insists would become part of Israel-proper in any territorial
although the Palestinians might try to use a UN resolution on Palestine
basis for sanctions against Israel, Shoval does not think they will get
far. “At the end of the day, who will decide on these sanctions? The US
Europeans won’t go along with anything like that. Indeed, in the US and
European countries, boycotting Israel economically is actually illegal,”
Opposition politicians and peace activists are less sanguine.
Both Kadima and Labor party leaders warn that Netanyahu is leading
Israel down a
slippery slope towards diplomatic isolation. And Shaul Arieli, a leading
of the dovish Geneva Initiative, sees even darker scenarios. He
Palestinian membership of the UN will unleash a host of negative
including economic and cultural boycotts, regional anti-Israel moves and
possibly even terror against Jewish targets abroad.
even further, Arieli, an expert on the territorial issue with the
says that in a meeting with peace activists in early April, Abbas told
once a Palestinian state is recognized, he sees no point in further
with Israel. At that point, Abbas said, he would simply press the UN to
its decisions, including Israeli withdrawal to the 1967 lines.
words: Israel could find itself with a Palestinian state on its doorstep
under pressure to withdraw from the West Bank, without having secured
any of its
declared basic interests, which include retention of the large settler
the Jewish neighborhoods in East Jerusalem, demilitarization of the
state, resolution of the refugee issue, Palestinian agreement on end of
and finality of claims.
Instead, the Palestinians would trigger a process
eventually forcing Israel to withdraw empty-handed.
“I don’t want to
exaggerate. I don’t see international use of force against Israel. But,
South Africa in the 1980s, I do see sanctions. And as soon as they begin
bite, the Israeli people, most of whom don’t care about the territories,
start exerting pressure on the government to leave,” Arieli tells The
In Arieli’s view, the only rational thing for Israel to do in the
circumstances is to negotiate terms for its withdrawal from the West
the Palestinians. In that way, vital interests could be secured.
should the Palestinians engage, if by internationalizing the conflict,
achieve their goals without having to make concessions to Israel?
Arieli, the sanctions route would take many years and much could change
interim. Fatah could lose its preeminence in the PLO to Hamas. Major
programs could be compromised. Abbas could miss his chance of going down
history as the man who delivered Palestinian statehood.
points to another crucial time constraint: the Fatah- Hamas agreement to
elections in a year. That, he says, leaves Israel just one year to wrap
peace deal. “If it does, it would put Hamas on the spot. Hamas would
decide whether or not it accepts the agreement or gets into a standoff
PLO, the legitimate representative of the Palestinian people, on the eve
elections,” Arieli argues.
For Arieli, the imminent establishment of a
Palestinian state is inevitable, with or without Israel’s input. The big
question, in his view, is whether the Netanyahu government will have the
to take some of the diplomatic play away from Abbas, Fayyad and company
safeguard Israel’s vital interests.