Categorized | Palestine Affairs

Palestine in 3D: The state, politics, and international law

NOVANEWS

 


Many, including analysts of Palestinian affairs and onlookers alike, await the end of current negotiations with Israel. Some are skeptical, others are hopeful. But almost everyone agrees: the status quo is not durable.

Despite this, we continue to find a leadership incapable of making durable decisions, simply driven by the heat of momentary, so-called victories in three dimensions throughout its history: militant, political, and diplomatic.

A recent victory of the diplomatic kind is the new status accorded to the PLO at the United Nations General Assembly. Today, we are a non-member Observer State of the United Nations. Gaining the new status has also gained us a fair share of intricate legal debates, appropriately so.

Little was said from the Palestinian side, however, once this new status was achieved. After all, it seems that our leadership has confined the role of international law to a mere bargaining card for the negotiating table with Israel.

The scenario goes something like this: should Israel negotiate in bad faith, we will be able wave the threat of pursuing international jurisdiction over crimes committed on our soil.

But can we?

The answer is not a definite yes, nor is it a definite no. Noting the debate surrounding the issue is nonetheless worthwhile. Particularly because in April of this year our leadership reportedly decided to pursue international legal efforts should negotiations fail, albeit with rumors of possible delay surfacing recently.

Statehood vs. UN Membership

Any sovereign state can exist without being a UN member, as was the case with Switzerland prior to joining the organization. Being a UN member does not necessarily establish statehood. This distinction is because of different criteria concerning statehood and UN membership.

The UN membership criteria is summed up in Article 4(1) of the UN Charter: “Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.”

Palestinian leadership has repeatedly stated that we are peace-loving and, in the heat of the moment, gave a misguiding impression of what really happened on Nov. 29, 2012.

Others suggest that to exist as a state, Article (1) of the Montevideo Convention must be fulfilled: “The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.”

A simple look at Palestinian affairs inevitably leads to the conclusion that our fulfillment of each of these criteria are at best debatable.

While there is a defined Palestinian population, most of it is considered stateless and is not governed by Palestinian state institutions; the borders of Palestinian territory remain undefined, pending a resolution with Israel according to previous PLO-Israeli agreements; those of us who reside in the relevant territories are governed by two regimes (Hamas and the PLO), neither of which truly constitute a government; and unless we consider the PLO a state, it can be said that, up to the point of acquiring the new status, no Palestinian State body has entered into relations with other states.

UN Resolution 67/19 and the PLO’s Role

Beyond the distinction between statehood and UN membership, the resolution according a new status to the PLO has an intriguing point that is worth highlighting.

The new status is given “without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization in the United Nations as the representative of the Palestinian people, in accordance with the relevant resolutions and practice.”

It is possible that preserving the role of the PLO can hinder Palestine’s legal standing. Are we the only people who exhibit symptoms of legal schizophrenia at the United Nations?

Because the PLO remains the sole actor representing us on the international stage, the new status provides little, if any, concrete legal grounds for the birth of a Palestinian state. Meanwhile, international law is not concerned with questions of internal affairs, including questions of legitimate representation or lack thereof.

It remains up to us to determine whether the PLO is indeed our sole and legitimate representative.

International Legal Jurisdiction and Retroactivity

It is evident that the recent activity of the PLO was merely political, filled with international legal question marks that remain unanswered. Is pursuing international legal jurisdiction the answer? Not necessarily.

In 2009, following the aftermath of Israeli aggression during Operation Cast Lead, our leadership recognized the jurisdiction of the International Criminal Court, inviting investigation and prosecution of crimes committed on Palestinian soil since July 1, 2002.

The Court’s answer then was clear: it is contingent upon the “relevant bodies at the United Nations or the Assembly of States Parties” to legally judge if Palestine qualifies as a state “for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court.”

Today, with a new acquired status, the case is not fully promising. Even if our statehood is confirmed through recognition from more states, international legal jurisdiction requires signing and ratifying relevant statutes that go both ways. Many Palestinians could be the subject of investigation.

Also, inviting jurisdiction over certain territories but not others could complicate the matter further on the political front. Over what territory exactly could a Palestinian authority invite international jurisdiction — the Gaza Strip, the West Bank (Area A, B, or C), or East Jerusalem?

Lastly, an issue that will certainly ignite contentious debates is that of retroactivity. Over what period is jurisdiction applicable —before or after the relevant statutes have been ratified?

Ultimately…

The questions are intricate. The answers will rely on the international legal establishment, irrelevant of political circumstances. Subsequently, the decisions of either the International Criminal Court or the International Court of Justice will be legal, not political.

Acquiring a new status necessitates acquiring a deep understanding of its legal duties and rights beyond momentary decisions. More importantly, given the little success of the militant and political dimensions, we are better off arranging our home behind a single democratically elected leadership to enhance our standing.

Otherwise, once again, Palestinian efforts stand the risk of becoming the laughing stock of skeptics and enemies alike.

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