There are two issues here which may be a source of confusion for the uninformed observer: Independence and statehood. The United Nations can grant neither, for the simple reason that the UN can do no more than what its member states are willing to do.
In the case of Palestine, only Israel, the occupying power, can grant independence to Palestine. As far as statehood is concerned, only states that are members of the international community can recognise Palestine as a state. This can be done on an individual basis or collectively through the UN General Assembly. In fact, the recent Palestinian request to the UN does not seek independence. It pursues recognition as a state and some form of membership in the UN.
This has angered Israel and the US, who see the Palestinian initiative as a unilateral act designed to isolate Israel and pursue legal actions against it in other UN agencies.
Last week, Palestinian President Mahmoud Abbas wrote to US President Barack Obama, assuring him that the Palestinian quest for a non-member state representation at the UN is an understandable action designed to advance the legitimate rights of the Palestinian people. The Palestinian application is strategically intended to avoid the UN Security Council, where Washington threatened to veto it. It seeks to take advantage of the precedent of the Uniting for Peace Resolution, which allows the UN General Assembly to exercise extraordinary powers if the UN Security Council is deadlocked on an issue that endangers world peace. However, Palestinian membership of the UN is not such an issue.
Moreover, the International Court of Justice (ICJ) ruled in the Admission case (1950) that the UN Charter had entrusted the Security Council with an important role and that the General Assembly could not diminish that role by admitting new members without recommendation from the Security Council.
In short, going down that road is fraught with pitfalls. The Palestinians say they may be ready to settle for something less than a full membership, such as a non-member state representation, which achieves the goal of recognition of Palestinian statehood. But is this goal worth the alienation of the US, the indispensable guarantor of an eventual peace settlement? Is it worth the added hostility of Israel — the necessary if reluctant partner of such a settlement?
These questions become all the more relevant when we recall that to a large degree, Palestinian statehood and its attendant rights to independence, equality and peaceful coexistence are already recognised. Why has the Palestinian leadership not capitalised on this reality to achieve then what it claims its UN application will accomplish now? In fact, recognition of the Palestinian collective and individual rights has been largely legally recognised, but politically essentially under-utilised.
The Mandate system established by the League of Nations after the First World War classified Palestine as a “Class A” mandate whose independence was provisionally recognised, pending the rendering of administrative assistance by the Mandatory Power — England. After the Second World War, the UN General Assembly, by resolution 181 (1947) recommended the partition of Palestine. The resolution provided the juridical basis for the establishment of Israel; as it did for the establishment of Palestine. If Palestine was not established it was not because it lacked legitimacy or juridical foundation.
Moreover, the Palestinian National Council, meeting in Algiers in 1988, proclaimed an independent Palestinian state in the West Bank and Gaza with occupied East Jerusalem as its capital. If independence was not achieved it was not because the international community refused to recognise Palestinian right to statehood. By 2010, more than 100 countries had reportedly recognised the state of Palestine.
In addition, some important European countries have granted the Palestinian delegations in their capitals a status normally reserved for states — that of diplomatic missions and embassies. These countries include France, England, Ireland, Italy, Norway, Denmark, Spain and Portugal. And thus when Palestinian leader Mahmoud Abbas argues before the UN General Assembly that Palestine meets the international law criteria for statehood (permanent population, defined territories, government and capacity to enter into relations with other states), he is preaching to the converted.
One of the stated goals of the Palestinian leadership in pursuing a formal declaration of statehood is the ability to seek legal remedies against Israel at the International Criminal Court (ICC).
Palestine has recently been admitted to the UNESCO with overwhelming support from member states. There is no reason why it cannot join the ICJ by acceding to the Rome Statute. It would then seek the indictment of Israelis for war crimes committed on Palestinian territories.
Such indictments, the 2004 International Court of Justice finding that the occupation and the Jewish colonies are illegal under international law, and the series of UN General Assembly resolutions affirming the Palestinian people’s inalienable rights, will constitute legal instruments for the resolution of the conflict.
Similar legal instruments helped the UN isolate South Africa and achieve Namibian independence. But the analogy with the Palestine conflict is erroneous. That is because the success in Namibia was facilitated by legal instruments, but was largely the result of political consensus with no superpower protecting the occupier. While the Palestinians have unquestionably suffered a gross injustice, the degree to which their legitimate rights have been recognised by the international community is larger than what a UN application suggests. Twenty years of negotiation with the Israelis, with the international community largely on the Palestinian side, have produced no result. The Palestinian people are entitled to know why.
Adel Safty is distinguished visiting professor and special adviser to the rector at the Siberian Academy of Public Administration, Russia. His book, Might Over Right, is endorsed by Noam Chomsky and published in England by Garnet, 2009.
