The Legal Fiction of Palestinian Statehood

Following last year's failed attempt by the Palestinian Authority (PA) to gain admission to the United Nations as a full member state via UN Security Council vote (known as the Unilateral Declaration of Independence, or UDI), PA President Mahmoud Abbas has announced another upcoming attempt at statehood recognition. Today, Abbas will request that the UN General Assembly vote to upgrade the status of the Palestinians to non-member state from the current status of observer entity.

Ultimately, the move is a back-door route to achieve statehood recognition and has been deemed a "mistake" by the U.S. State Department that will derail the process toward a peaceful two-state solution with Israel. Unlike the Security Council, whose members can veto the bid as the United States threatened to do last year, no such veto power exists in the General Assembly, and the request for upgrade will likely pass thanks to the PA's automatic anti-Israel majority in the General Assembly. While an affirmative General Assembly vote would neither be legally binding nor create a Palestinian state on the ground, it would constitute a rejection of international law by an entity tasked with upholding it and present a host of real-world implications.

First, the move constitutes a breach of the PA's obligations under the Oslo Accords, signed by Abbas in 1993 on behalf of the Palestinian Liberation Organization (PLO). Oslo lays out the agreed upon process to be followed in reaching a two-state solution: bilateral negotiations between the Palestinians and Israel, rather than unilateral action. As such, Israel's Foreign Ministry has alerted foreign governments that, if the bid is successful, Israel would be released from its obligations under Oslo and might seek to oust Abbas from his position.

Further, as it exists today, the Palestinian entity fails to meet the qualifications specified in Article 1 of the 1933 Montevideo Convention, widely viewed as constituting the definition of a sovereign state in international law. Per Article 1 of the Convention, a state possesses a "permanent population," "defined territory," "government," and "capacity to enter into relations with the other states."

The Palestinian entity lacks a permanent population. For one thing, it maintains the contradictory position that a majority of Palestinians are "refugees" and has prevented their permanent settlement. Moreover, the "refugees" aim to "return" to a different state, rather than establishing permanent residence where they presently live. This raises an important question: what purpose would a Palestinian state serve if Abbas would disallow Palestinians to settle there?

The would-be Palestinian state also lacks a defined territory, as the formalization of boundaries is the subject of ongoing negotiations. Abbas is putting the cart before the horse, claiming the existence of a legal state before achieving the requisite attributes of one.

Additionally, to enter into relations with other states, a government must exercise actual authority over its population and territory. The PA's exercise of control over the West Bank is reliant on (and limited by) its agreement with Israel, Oslo. By breaching Oslo, the PA is effectively relinquishing whatever control it has been granted. Conversely, Hamas, designated as a terrorist group by the United States and EU, exercises full control—albeit brutal control—over the Gaza Strip to the exclusion of the PA. Indeed, Abbas was merely a bystander during the ceasefire talks between Hamas and Israel following the recent eight-day conflict, aside from a reported telephone call to Hamas prime minister Ismail Haniyeh after the ceasefire took effect to "congratulate him on Hamas's victory and offer condolences for the martyrs." The PA lacks any ability to bind Hamas or a UN-recognized Palestinian state to anything.

Still, acceptance of Abbas's bid will likely influence Hamas to advance a similar position that it should also be granted statehood recognition. We may ultimately see a bifurcated Palestinian “state” surrounding Israel. To the west, a state under the authority of an Islamist terror regime that recruits its own children to become suicide bombers and that is being rearmed by Iran to recommence hostilities. To the east, a state whose leader, Abbas, exercises no control over his own citizenry. It is unclear what peace this will achieve, if any. Rather, such an arrangement would further divide the Palestinian people and reward Hamas’s acts of terrorism with UN legitimization.

Under international law, no Palestinian state exists. This is a fact. While the UN has its own rules concerning membership, it lacks the authority to create a sovereign state on the ground. A General Assembly vote labeling Palestine as a state would be yet another instance of the UN’s repeated attempts to redefine legal terms for political reasons. We saw this politicized lawfare when the UN redefined the legal meaning of a Palestinian "refugee" by including descendants of persons displaced, a definition never before or after used to describe refugees of any other origin. The vote may even send the signal to intergovernmental organizations with observer status, such as the Organization of Islamic Cooperation, to start pushing for statehood recognition and the associated privileges, regardless of the fact that they are not states in any sense of the word.

The Palestinian efforts to seek statehood status at the UN has nothing to do with actually creating a state on the ground. Since the Palestinians were granted full membership at UNESCO last year, in violation of the agency's own constitution, the PA has expressed its intent to manipulate UN organs to engage in legal attacks against the Jewish state of Israel. In a 2011 New York Times op-ed, Abbas admitted that an upgraded UN status would "pave the way for the internationalization of the conflict as a legal matter, not only a political one [and would] pave the way for [the PA] to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice."

Pursuant to Abbas's expressed intention, he has attempted to manipulate the International Criminal Court (ICC), where ICC Chief Prosecutor Luis Moreno-Ocampo has given the wink-nod to the Palestinians to assist him in creating the legal fiction of a Palestinian state in order to justify exerting ICC jurisdiction over Israel. After the PA filed a complaint against Israel with the ICC, Moreno-Ocampo disregarded the plain language of the court's Rome Statute—which limits jurisdiction to complaints brought by "states"—and wasted court resources for three years before reaching the obvious decision that the ICC lacked jurisdiction to pursue the case. Moreno-Ocampo went so far as to solicit analysis from governments and organizations on the seemingly open-and-shut question of whether the ICC had jurisdiction over the PA, reviewing over 300 submissions as of May 3, 2010. That the UN has no legal authority to create a state further demonstrates the absurdity of Moreno-Ocampo's endeavor. Now, with the prospect of statehood recognition by the General Assembly, Moreno-Ocampo and the PA will likely be unobstructed by the issue of jurisdiction.

Many have expressed concern that the bid for upgraded status is not a reflection of what is happening on the ground, but strictly a lawfare tool aimed at manipulating legal organs to condemn Israel for its defensive maneuvers in Operation Cast Lead and Operation Pillar of Defense. However, If the PA uses its upgraded status to become a party to the Rome Statute, it would simultaneously constitute acceptance of the court's jurisdiction, rendering the PA vulnerable to prosecution for crimes committed against its own people. 

At the end of the day, an affirmative vote by the General Assembly will not create a Palestinian state nor improve the situation faced by the Palestinian people. Instead, it will damage the rule of (international) law, the UN's supposed commitment to protecting it, and the pursuit of a peaceful solution to the conflict, effectively prolonging the plight faced by both Palestinians and Israelis.

Brooke Goldstein is a New York-based human rights attorney and award-winning filmmaker, as well as the founder and director of The Lawfare Project and the Children's Rights Institute. Benjamin Ryberg is an attorney and Director of Research at The Lawfare Project.


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