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Q&A: Implications of the recognition of Palestinian statehood

How is this Palestinian Authority UN statehood bid different from last year’s? What’s an observer state? What does it mean for Oslo, or for the settlements? The Association for Civil Rights in Israel has the answers.

Flags of member nations flying at United Nations Headquarters. (photo: UN / Joao Araujo Pinto)

The Chairman of the Palestinian Authority, Mahmoud Abbas, recently announced that on 29 November [today] he intends to turn to the United Nations General Assembly, requesting to upgrade the Palestinian Authority’s status in the UN from an “observer entity” to a “non-member observer state.” This initiative follows the Palestinian bid to the UN Security Council in September 2011, asking to admit Palestine to the UN as a state – a request that was not yet discussed by the Council.

As in the previous bid, this, too, is a political move intended to increase and enhance international recognition of a Palestinian state within the 1967 ceasefire borders. This move raises many questions regarding its potential implications, in general, and on the state of human rights in the region, in particular. As a human rights organization, ACRI does not take a position on peace-process policy questions. However, since the political changes in the region may have significant implications with regards to specific human rights questions, we tried to outline some of the expected impacts on human rights issues in this context. To read a similar briefing published by ACRI ahead of the previous Palestinian UN bid in September 2011, click here.

1. How is the current initiative different from the previous one?

In September 2011, the Palestinian Authority requested the UN Security Council to admit Palestine to the UN as a state. Turning from an entity into a “state” is not a result of a UN membership nor is it conditioned upon it. However, being admitted to the UN means gaining wide international acknowledgement of the existence of a Palestinian state. According to Article 4(2) of the UN Charter, in order to be admitted as a UN Member State, the request must be supported by the Security Council, where each of the permanent members has veto rights, as well as to win a two-thirds majority in the General Assembly vote. As noted above, this request was not yet discussed by the Council and is not likely to pass the veto obstacle. Therefore, the Palestinian Authority decided to turn to the alternative channel of upgrading its status in the General Assembly. A Security Council decision is not required in order to receive the status of a “non-member observer state” – only the support of the UN General Assembly. This move does not grant UN membership status, but it does serve the purpose of gaining wide international recognition.

2. What is the meaning of being upgraded in the UN to the status of an “observer state”?

The “observer state” status is not anchored in the UN Charter; rather, it is based on previous UN decisions. Currently, only the Vatican enjoys this status. In the past, states were allowed to become a party to international conventions, including conventions on human rights. An observer state is also permitted to become a party to international organizations and to hold hearings before the International Court of Justice in The Hague (ICJ), and its status with the International Criminal Court (ICC) might also change.

3. Would the current UN initiative change Israel’s status in the West Bank and in the Gaza Strip? How about an Israeli recognition of a Palestinian state in temporary borders (Areas A and B)?

Following the Oslo Accords, many Israelis share the view that Israel is no longer responsible for the West Bank and Gaza. However, de facto Israel today still has control over the West Bank as well as over certain aspects of life in Gaza.

In the framework of the Oslo Accords, Israel transferred specific authorities to the Palestinian Authority, but it still holds all governing powers in the West Bank, including full control over Area C (62% of the West Bank), Jerusalem, water sources, civil and military control over the airspace, civil and military control over all border crossings, entry to and exit from the West Bank, and more.

The recognition of a Palestinian state by the UN, or an Israeli recognition of Areas A and B as a state, will have no bearing on Israel’s standing as an occupying power according to international law. “Occupation” is a legal definition that applies to territories in which a foreign military force is able to exercise complete or partial military control and civil-administrative control over the infrastructure and daily lives of the local residents. The laws of occupation oblige the occupying power with regards to responsibility to the civilians in the territory under its control. Occupation is not a function of a permanent military presence, but of the ability to effectively control the territory. This legal definition does not differentiate between the occupation of a territory recognized as a state and a territory that is not recognized as such, and therefore the legal status of the territory is irrelevant and as long as Israel has effective control over these territories it will continue to be considered an occupying power.

As for the Gaza Strip, the official Israeli position is that since this disengagement, the Israeli occupation of Gaza has ended. However, many in the international community reject this stance and maintain that the laws of occupation still apply and obligate Israel in matters that are still under its control. It is possible that that the recognition of a sovereign Palestinian state could lead to a re-examination of the international position regarding the status of the Gaza Strip.

4. Would this initiative have an effect on the validity of the Oslo Accords?

A Palestinian initiative to achieve recognition as an observer state is a unilateral measure that contravenes these accords and opens the door to a declaration of their non-validity or revocation. However, the absolute revocation of the Oslo Accords is not a necessary outcome. In the past, despite repeated violations of the Interim Agreement, neither party to it has announced their revocation. The question of the validity of the agreements and maintaining their frameworks is now, as before, subject to the decisions and the de facto actions of both sides.

5. What are the implications of this move on the Palestinian state’s responsibility for human rights violations?

Recognition of a Palestinian state could open the door for it to become a party to international conventions, including conventions on human rights. Should the Palestinian state become a party to these conventions, it would be obligated to uphold standards of international law and respect for human rights. These obligations would apply first and foremost to the citizens under its rule, but there are also implications for its obligations toward Israelis, including settlers. Furthermore, the Palestinian state would be subject to international mechanisms that monitor the implementation of these human rights conventions. Claims regarding violations of human rights by the Palestinian state could be adjudicated in various international forums – for example suspicions of torture conducted by Palestinian governmental bodies or on their behalf (see more on this below).

6. Would this move lead to the involvement of new international enforcement mechanisms?

Should Palestine be recognized as a state, it could become a party to international courts of law (the International Court of Justice and the International Criminal Court). This could create new mechanisms to enforce Israel’s obligations to respect the human rights of Palestinians, and at the same time to enable the enforcement of the Palestinian state’s obligations.

International Court of Justice in The Hague (ICJ) – The ICJ addresses the responsibility of states, not of individuals. It is the leading and most important international judicial body. Both sides must agree that a dispute be brought before it.

International Criminal Court (ICC) – The International Criminal Court deals with individual responsibility for acts defined as international crimes (war crimes, crimes against humanity, and genocide). Should the Palestinian state become a party to the ICC, this court would have jurisdiction over actions carried out in the context of the Israeli-Palestinian conflict: first, on Palestinians suspected of committing international crimes; and, second, on Israelis suspected of offenses within the territory of the Palestinian state. This jurisdiction would be applied directly and continuously, as opposed to the current situation, but only on crimes or suspected crimes that were committed after the Palestinian state becomes a party to it, should it be recognized as such according to the Statute of the Court.

7. What are the implications of this initiative on Israeli settlements?

If the Palestinian state would become a party to the International Criminal Court, the issue of Israeli settlements could become an issue of international criminal law. This, under the article in the Statute of the Court stating that the transfer, whether direct or indirect, of the population of the occupying power into occupied territory constitutes a war crime. This could potentially open the door to the prosecution of Israelis responsible for establishing or expanding settlements.

8. What are the implications of this move on the Palestinian state’s responsibility to prevent terrorism and threats?

Should the Palestinian state be recognized, this would enhance its responsibility to prevent terror and threats coming from its territory. This depends, of course, on the extent of control it has and the means available to it, since there is no responsibility without authority – but there similarly cannot be authority without responsibility. The Palestinian state would be obligated to take the necessary steps to prevent human rights violations by government authorities and official bodies. Thus, arbitrary killing of civilians and the launching of rockets on a civilian population in Israel could be submitted for deliberation both by the relevant UN committees and by the International Criminal Court.

Established in 1972, ACRI is Israel’s oldest and largest human rights organization and the only one dealing with the entire spectrum of rights and civil liberties issues in Israel and the Occupied Territories. This Q&A was originally published on ACRI’s site. Read more about ACRI here and follow ACRI on Twitter and Facebook.

What Palestinian statehood means for ICC jurisdiction over Israeli crimes

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    1. rose

      Quite basic this report. In any case could be useful to remind that Israel itself was established after a recommendation of the General Assembly (56 states at the times, in big percentage subdued to the will of US and URSS), not a decision of the Security council.

      Reply to Comment
      • Kolumn9

        It should then also be useful to remind that the UNGA resolution would have proven entirely irrelevant had Israel lost its war for independence and had its territory occupied by the Arab states.

        Reply to Comment
        • aristeides

          There is little likelihood that the territory of Palestine would have been “occupied by the Arab states.” Almost certainly a Palestinian state would have been established.

          The question is whether the UN would have accepted that state as it did the state of Israel, despite its blatant refusal of UN conditions.

          Reply to Comment
          • Kolumn9

            Last time I checked some territory was in fact occupied by Arab states and I can state with absolute certainty no Palestinian state was established.

            With nearly equal certainty I can tell you that had Israel lost the war of independence, the state of Palestine would have been accepted regardless of its adherence to UN resolutions.

            Reply to Comment
          • aristeides

            So which is it? Arab-occupied Palestine or independent UN-recognized Palestine?

            I find it hard to believe that Arab victory in 1948 could have led to an occupation of the territory. I think popular sentiment would have insisted on the formation of a state.

            The issues would have been who would have greatest influence over that state, as some would have liked it as a puppet.

            Reply to Comment
          • Kolumn9

            I find it hard to believe that you forget that the West Bank was not controlled by Israel in 1948. Where was the popular sentiment in 1949 that should have led to the formation of a Palestinian state at that point?

            If the Arab states won I have no idea whether Palestine would be partitioned between Jordan and Egypt or apply as an independent state to the UN. What I am entirely certain of is that whatever happened the prior decisions and resolutions of the UNGA would have been entirely ignored, as they were by both Jordanians and Egyptians between 1948-1967.

            Reply to Comment
        • rose

          Kolumn you look a sincere supporter of the “law of the jungle”.
          For your knowledge no one asked to the pals anything. Not Balfour, not the “white man’s approach” of the league of nations, nor the UN.
          The fact that 2000 pals could be part of the Army of the holy war or the Arab Salvation Army did not make million of persons guilty. Moreover guilty for what? For daring to react to the stealing of their homes?
          You live in a “bubble”; you just want that these pals continue to live in their cages without making too much noise.

          Reply to Comment
          • Kolumn9

            The law of the jungle is what reigns in the jungle. I neither support it or oppose it. I just accept it as a reality.

            My point is that the Arabs rejected the partition plan, rejected the acceptance of the partition resolution and the Arab states invaded Israel in order to eliminate it. The UNGA did not intervene to stop them. Israel’s survival and eventual recognition had little to do with what happened at the UNGA.

            I suppose your argument is that there was wide-ranging acceptance of the partition plan on the side of the Arabs and there were just a few bad apples that supported the wholesale slaughter of the Jews. Fascinating.

            Reply to Comment
          • rose

            Kolum, good to know. Af for me and the rest of the civilized world, “the law of the jungle” is a low level way of thinking for low level human beings.
            It was rejected by the Arab states, but – in contrast to mainstream narrative – never by a representative body of the Palestinian people. “There was no democratically elected Palestinian Arab leadership…The governments of the Arab states rejected partition but they certainly did not represent the Palestinian Arabs, who were at the time still under British rule (as were we). As a matter of fact, during the (1948) war there was no effective united Palestinian Arab leadership, nor was there anything even remotely resembling a united Palestinian fighting force”.
            And again:
            Leave the bubble, join the rest of the world.

            Reply to Comment
          • Kolumn9

            Ah, yes, you and the ‘civilized world’. I think I have read such arrogant self-righteousness before. I suppose it would be the same ‘civilized world’ that gave us the wonderful 20th century, along with Iraq and Afghanistan. I suppose the drones killing thousands of people world-wide are the modern representatives of the leader of this ‘civilized world’ just as missionaries and colonial troops once used to be. You are so right. My low-level brain has a hard time with such highfalutin ideals popularized by the strongest military powers of the day who also happen to be the world’s biggest arms producers and whose intelligence agencies and drone armies make the world their playing field. I bow to your superior powers of perception.

            As to the Palestinian thing.. Can you point me to any Palestinian leader, representative or otherwise that supported the partition plan? And while you are at it, what would be the legitimate reaction of a state that achieved wide-ranging international legitimacy after it was attacked by the surrounding Arab armies which completely disregarded the UNGA resolutions in conjunction with local militias with universal local support and made it clear as day that their objective was the total destruction of said state? And don’t give me that crap about the war being one-sided. 6,000 Jews didn’t die during the Israeli War of Independence because they had overwhelming superiority.

            Your real world is a mirage kept cleverly alive by American aircraft carrier groups, drones and well financed intelligence agencies. This, and not your high-minded ideals is the underlying law of the world and it corresponds more closely to the law of the jungle than anything you might believe. If the rest of the world wishes to live in this illusion, let them, but it is no place for those exposed to the law of the jungle.

            Reply to Comment
          • Rose, Ezekiel 18:12 and Jeremiah 31:29 deny punishment by blood and so collective punishment. Your Declaration of Independence affirms justice “as envisioned by the Prophets.” I am beginning to think that an argument against collective punishment can be made from within the Declaration. I say this being no Believer.

            Reply to Comment
    2. This was a good, “just the facts ma’am” summary. Thanks for posting it.

      Just at first glance, it looks like the Palestinians have more to lose than to gain by this move.

      Reply to Comment
      • Kolumn9

        Yup, it will be very entertaining to watch the celebrations in Ramallah.

        Reply to Comment
        • aristeides

          Like the monkeys in the zoo?

          Reply to Comment
          • rose

            touchè, aristeides

            Reply to Comment
      • rose

        I used in my first post the word “basic” in relation to this report. perhaps was misleading and offensive. it was not my intention. I do apologyze

        Reply to Comment
    3. Dr.Mohammed Alsorgholi

      مبروك لأبناء الشعب الفلسطيني قبول فلسطين بصفة عضو غير مراقب في الامم المتحدة … و عقبال قبولها دولة كاملة العضوية على كامل التراب الفلسطيني

      Congratulation for our Palestinian people for the temporary UN membership, and hopefully soon the permanent membership and liberation.

      Reply to Comment