Raining on the parade

With Palestinians in their thousands dancing in the streets of Ramallah and Gaza and even Beirut, what better time could there be to rain on the parade?

First, the silver lining. According to Professor of international law at the University of Illinois College of Law and author of Palestine, Palestinians, and International Law, Francis A. Boyle,

This can be the start of a 'Legal Intifadah' by Palestine against Israel:

1. Palestine can join the Rome Statute for the International Criminal Court and file a Complaint with the ICC against the illegal settlements and settlers, who are committing war crimes;
2. Palestine can join the Statute for the International Court of Justice, sue Israel at the World Court, and break the illegal siege of Gaza;
3. Palestine can join the Law of the Sea Convention and get its fair share of the enormous gas fields lying off the coast of Gaza, thus becoming economically self-sufficient;
4. Palestine can become a High Contracting Party to the Four Geneva Conventions [this deals with the laws of war];
5. Palestine can join the International Civil Aviation Organization and gain sovereign, legal control over its own airspace;
6. Palestine can join the International Telecommunications Union and gain sovereign legal control over its own airwaves, phone lines, bandwidths.

Meanwhile, back on planet Earth, we've already seen Belgium rescind its universal jurisdiction legislation and the UK watering theirs down precisely to insulate Israeli war crimes suspects from arrest.  

World Court decisions only apply with the explicit consent of the parties, as we learned in 1984, when it found against the US for mining Nicaraguan harbours. Furthermore, the only avenue for enforcing ICJ findings is through the UN Security Council. And guess who wields a veto there. The Security Council has never authorised enforcement of a World Court decision under Chapter VII of the United Nations Charter. 

Under Article XIV of Annex I to the 'Israeli-Palestinian Interim Agreementon the West Bank and the Gaza Strip' (Oslo 2), ' Zone L will be open for fishing, recreation and economic activities' and nothing in the text precludes gas extraction. As the map shows, most of the Gaza Marine Field lies within Zone L.  (In case you're interested – I was - here's a link to Map 8, referred to in the Annex.) Anyway, Israel is not a party to the UN Law of the Sea Convention and has repeatedly demonstrated its contempt for it with impunity.   

So if Israel has not complied with its own agreement and isn't even subject to the relevant treaty, why would anyone expect them to suddenly change their tune just because the notoriously antisemitic UN General Assembly recognises Palestine as a non member 'state'? After all, Israel is currently in dispute with Lebanon, a full UN member state, over access to Mediterranean petroleum deposits. In any case, I don't envisage The International Community™sending a fleet into the Mediterranean to enforce Palestinian mineral rights.

In much the same vein, will Palestine's membership of the ICAO preclude Israeli drones from buzzing over Gaza? Will the Palestinian Air Force be able to shoot them down without fear of Israeli reprisals?

All in all, should the State of Palestine enter into the conventions Boyle suggests, the principal beneficiaries are likely to be international lawyers who can spend the next several decades litigating in toothless international courts while Israel does as it pleases. What's with these professors of International Law™, anyway? 

One of the curious things you find in reports of this achievement is words to the effect of, 'the U.N.’s highest policy-making body Thursday voted overwhelmingly to elevate Palestine from an “observer” to a “non-member state”', as Thalif Dean of IPS wrote yesterday.  Or 'The resolution lifts the Palestinian Authority's UN observer status from "entity" to "non-member state"', in the words of Michael Brissenden.

In reality, as I read it, there is another bright spot. 'The General Assembly...',

Decides to accord to Palestine non-member observer State status in the United Nations, 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;. [my emphasis]

In other words, they are treating 'Palestine'. the new non member state, as a separate entity from the PLO, which is still regarded 'as the representative of the Palestinian people'. So it may not be strictly accurate to write, like Bron Tau, 'The United Nations voted Thursday to upgrade the Palestinian status from "nonmember observer entity" to "nonmember observer state."'

Every report I've read systematically conflates 'Palestine' with 'the Palestinians', erasing the absolutely crucial distinction between the 4.3 million Palestinians resident in the West Bank and the Gaza Strip and the more than 7 million living elsewhere (3 million+ registered with UNRWA in Jordan, Lebanon and Syria, over 1.5 million in 'Israel proper', and 2.5 million elsewhere). Even the prominent Middle East expert, Juan Cole, falls into, 'The United Nations General Assembly voted overwhelmingly to accord Palestine the status of “Observer State” on Thursday...Continental Western Europe and Scandinavia were almost unanimous in supporting the Palestinians'. And so does the resolution itself. Not that the unelected quisling Palestinian National Authority (PA) has any claim to represent the interests of those in the occupied territories, but they can't even offer a pretence of representing the majority of Palestinians.

This lies at the heart of the problem. As Joseph Massad wrote in 2010,

...By transforming the PLO, which represented all Palestinians in the Diaspora and in Israel and the occupied territories, including East Jerusalem, into the Palestinian Authority (PA) which could only hope to represent Palestinians of the West Bank and Gaza, constituting one third of the Palestinian people, the Oslo agreements engineered a major demographic reduction of the Palestinian people...

The insidious part of this process is how the PA, conscious of this transformation, continues to speak of the "Palestinian people," which had been reduced through the Oslo accords to those West Bank and Gaza Palestinians it now claims to represent.

The UN recognition of 'Palestine' further entrenches this dangerous conceit. That's why I was surprised to read of Palestinian refugees celebrating in Beirut, and unsurprised to find nothing about such celebration in Nazareth, Haifa or Beersheba.

At the same time, the resolution is absolutely explicit that what it's all about is the Two State Solution™, which solves nothing for the majority of Palestinians who don't live in 'Palestine', as now defined, and little for those who do. 

What the General Assembly actually resolved on the 'International Day of solidarity with the Palestinian People', after recalling this, stressing that, taking other things into consideration and reaffirming lots of stuff, was that it

1. Reaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967;
2. Decides to accord to Palestine non-member observer State status in the United Nations, 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;
3. Expresses the hope that the Security Council will consider favourably the application submitted on 23 September 2011 by the State of Palestine for admission to full membership in the United Nations;
4. Affirms its determination to contribute to the achievement of the inalienable rights of the Palestinian people and the attainment of a peaceful settlement in the Middle East that ends the occupation that began in 1967 and fulfils the vision of two States: an independent, sovereign, democratic, contiguous and viable State of Palestine living side by side in peace and security with Israel on the basis of the pre-1967 borders;
5. Expresses the urgent need for the resumption and acceleration of negotiations within the Middle East peace process based on the relevant United Nations resolutions, the terms of reference of the Madrid Conference, including the principle of land for peace, the Arab Peace Initiative and the Quartet road map to a permanent two-State solution to the Israeli-Palestinian conflict for the achievement of a just, lasting and comprehensive peace settlement between the Palestinian and Israeli sides that resolves all outstanding core issues, namely the Palestine refugees, Jerusalem, settlements, borders, security and water;
6. Urges all States, the specialized agencies and organizations of the United Nations system to continue to support and assist the Palestinian people in the early realization of their right to self-determination, independence and freedom;
7. Requests the Secretary-General to take the necessary measures to implement the present resolution and to report to the Assembly within three months on progress made in this regard.

One of the problems with this formulation, beyond the fundamental problems with partition I described in 'How many states?', is the construal of 'self-determination' as simply ostensible political independence. Is it conceivable that the Palestinian people as a whole, or even just those living in the West Bank and Gaza, might 'freely determine theirpolitical status'  by deciding that they prefer to exercise the full rights of citizens in the country that has, after all, ruled them for the past 45 years? Or perhaps they have other ideas of their own?

Another is the 'urgent need' for a return to The Peace Process™, which has brought the occupied Palestinians more and more Jewish 'settlements', house demolitions, roadblocks, extrajudicial executions..., while Israel remains utterly intransigent on their 'preconditions' regarding 'outstanding core issues, namely the Palestine refugees, Jerusalem, settlements, borders, security and water'. I hasten to add that this intransigence is not just an artifact of the execrable Likud government, but reflects publicopinion pretty faithfully. 

It would also seem that the General Assembly's vision is somewhat impaired when they write of 'an independent, sovereign, democratic, contiguous and viable State of Palestine'. A glance at a map, even with my compromised eyesight, reveals that 30 km of hostile territory separates the Gaza Strip from the West Bank. One hears talk of 'transportational contiguity', but even in the implausible scenario that a corridor between the enclaves could be secured from interruption at Israel's whim, about half of Israelis would not countenance a tunnel, more than half, a bridge, and only 8% think it's important at all. Notwithstanding their explicit undertakings in the Oslo Accords and the Agreement on Movement and Access, Israel has never been that keen on 'the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved'. 

We may gain some insight into the kind of thing the UN General Assembly has in mind when they speak of contiguity and viability by examining a map of their 1947 partition plan, discussed a little more below.

You often hear mention of Israel's 'pre-1967 borders', but it's alarming that the UN General Assembly believes these exist, as Israel has always made a point of refusing to define any borders. Ironically, in their article opposing the resolution, 'The Legal Fiction ofPalestinian Statehood', Brooke Goldstein and Benjamin Ryberg Breitbart opine, 

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."

Obviously, the reason the State of Palestine has no defined territory is precisely because of Israel's insistence on keeping its options open, which actually raises doubts about whether Israel itself qualifies as a 'state' in terms of Montevideo. Another little irony in their analysis, if I can dignify it as such, is the assertion that 'the move constitutes a breach of the PA's obligations under the Oslo Accords', which technically expired in 1998 and Israel has violated in almost every particular.

The reference to 'the principle of land for peace' is particularly noisome, when

The only land that has ever been on offer, if it really was on offer at all, is land acquired by military conquest in June 1967. The principal import of the famous UNSC Resolution 242 is not creation of a Palestinian state, a matter that it never even mentions, but to emphasise ‘the inadmissibility of the acquisition of territory by war’. So the land that Israel would be relinquishing, if it were ever really going to relinquish land at all, is land that was never rightfully Israel’s in the first place. It was territory acquired by war. Not really very much of a sacrifice. And lest we forget, the entity euphemistically known as ‘Israel proper’ which resides within the 3 April 1949 armistice line with Jordan commonly referred to as Israel’s ‘border’, incorporates a considerable amount of territory also acquired by war in 1948-49. But that probably doesn’t matter, because after all, United Nations General Assembly Resolution 273 (III) decided on 11 May 1949 ‘that Israel is a peace-loving State’. (I hasten to add that Jordan’s occupation of the West Bank for the next 18 years was also illegitimate and at the expense of the Palestinians who were supposed to get that land and more under the UN’s ill conceived December 1947 partition resolution (181). Ill conceived though it may have been, 181 did quite sensibly provide for international control of . Both Israel and Jordan grabbed bits of the proposed ‘corpus separatum’.)

Beyond one side of the equation of ‘land for peace’ being a bit bogus, as the land doesn’t really belong to Israel, is the other subtext. The suggestion is that since the Israelis are offering to give land, it’s the Palestinians who have to deliver the peace. That, in turn relies on the presumption that it’s the Palestinians who insist on violence and that Israel is the passive victim. Israel is willing to make painful sacrifices of its land if only those vicious Palestinians would leave them in peace. In reality, of course, it is the Palestinians who are the colonised people and on the receiving end of most of the violence. Palestinian violence, while demonstrably counterproductive, is wholly reactive. Amazing how they can pack all that into an innocuous little phrase, but then the Israeli hasbara ‘propaganda’ machine are no amateurs.

And the General Assembly has elevated this grotesque caricature to a matter of principle.

Interestingly, one of the things the General Assembly recalled was 'its resolution 181 (II) of 29 November 1947', which for all its legion faults offered the 'Arab state' some 45% of Mandatory Palestine, more than double the derisory 22% encompassed in 'the Palestinian territory occupied since 1967'.  

Among those who think it's a good idea for Israel to continue to exist with a Jewish majority, you'd think there was little to object to in the resolution. After all, as then Prime Minister Ehud Olmert pointed out in 2007, 'If the two-state solution collapsed, he said, Israel would "face a South African-style struggle for equal voting rights, and as soon as that happens, the state of Israel is finished. The Jewish organisations, which were our power base in America, will be the first to come out against us because they will say they cannot support a state that does not support democracy and equal voting rights for all its residents," he said.' 

But then, it is mildly critical of Israel, it refers to an occupation, makes no explicit allowance for retention of 'facts on the ground', does not endorse Israel's right to defend itself or deny Palestine's and doesn't demand that the State of Palestine 'recognise Israel's right to exist as a Jewish and democratic state'.

Ultimately, it's hard to disagree with US Ambassador to the UN, Susan Rice, 'The Palestinian people will wake up tomorrow and find that little about their lives has changed'.