Britain to Support Palestine’s UNGA Resolution?

by Kevin Jon Heller

The United Nations General Assembly is set to decide Thursday whether to upgrade Palestine to “non-member state” status, on par with the Vatican. The resolution will almost certainly pass, given that more than 130 states have already recognized a Palestinian state. The interesting question is whether powerful Western states will vote in favor of the resolution. France has already indicated that it will. And now the BBC is reporting that, if the Palestinians accept certain conditions, it will support the resolution as well:

On Monday night, the government signalled it would change tack and vote yes if the Palestinians modified their application, which is to be debated by the UN general assembly in New York later this week. As a “non-member state”, Palestine would have the same status as the Vatican.

Whitehall officials said the Palestinians were now being asked to refrain from applying for membership of the international criminal court or the international court of justice, which could both be used to pursue war crimes charges or other legal claims against Israel.

Abbas is also being asked to commit to an immediate resumption of peace talks “without preconditions” with Israel. The third condition is that the general assembly’s resolution does not require the UN security council to follow suit.

The US and Israel have both hinted at possible retaliation if the vote goes ahead. Congress could block payments to the Palestinian Authority and Israel might freeze tax revenues it transfers under the 1993 Oslo agreement or, worse, withdraw from the agreement altogether. It could also annex West Bank settlements. Britain’s position is that it wants to reduce the risk that such threats might be implemented and bolster Palestinian moderates.

The second and third conditions seem reasonable — if ultimately meaningless. The article notes, though, that the Palestinians are resisting Britain’s insistence that an upgraded Palestine not join the ICC and ICJ. And rightfully so: the demand is simply another permutation of the idea that the Palestinians should accept a state that does not actually enjoy the perquisites of statehood. (To be clear: I remain completely opposed, on political grounds, to the ICC investigating the situation in Gaza.) It is also hard to see how a promise not to join the ICC and ICJ could be enforced, should Palestinian leadership ever change hands.

http://opiniojuris.org/2012/11/26/britain-to-support-palestines-unga-resolution/

19 Responses

  1. Response…political grounds? Explain.

  2. Ygh,

    I have no doubt that both Israel and the Palestinians have committed serious international crimes.  But I also believe it would be suicidal for the ICC to wade into the most politicized conflict in history — virtually guaranteeing that the US would revert to its previous hostility and that all of the Court’s other work would be ignored by the media and the international community. The Court’s long-term legitimacy is more important than any individual investigation, no matter how deserving of investigation a situation might be.

    (I would also caution the Palestinians to be careful what they wish for.  Joining the ICC would be a good idea, but referring the situation in Gaza might not be.  From a legal perspective, the OTP would have a much easier time prosecuting deliberate Palestinian rocket attacks on Israeli civilians than prosecuting disproportionate Israeli attacks on and Israeli collective punishment of Palestinian civilians.)

  3. I think it is obvious  that the British conditions will be entirely unacceptable to the Palestinians. Therefore, I don’t think the British offer to support the Palestinian push for observer status is not a real one

  4. “the demand is simply another permutation of the idea that the Palestinians should accept a state that does not actually enjoy the perquisites of statehood”.
    That reasoning is a bit odd. Brittain’s vote in favour would be an expression of recognition of Palestine’s statehood, whereas attaching conditions to their vote would be a permutation of the idea that Palestine is not a state. Besides this contradiction, it seems highly unsatisfactory to take the conditions of statehood as all-conclusive. History has shown that UN membership (and thus “statehood”) has been conferred on territories that obviously do not meet the Montevideo criteria, and while recognition is widely said to be declaratory practice shows it has an constitutive effect especially in cases where meeting the criteria is doubtful. The criteria are nothing more, nothing less than a starting point for analysis of statehood, but certainly not the end of that analysis.

  5. RJ1983,

    That was not what I meant.  A basic perquisite of statehood is the right to ratify treaties.  Britain is conditioning the recognition of Palestine as a state on the Palestinian’s willingness to forego the ratification of the Rome Statute and the ICJ statute.  That should be unacceptable to the Palestinians.

  6. My apologies, I now see I read it too quickly without having had the required amounts of coffee and immediately jumped to conclusions. Your “Rightfully so” refers to the Palestinian’s resistance, rather than to the British insistence (the latter is indeed unacceptable). 

  7. Kevin, thanks for highlighting this. Catherine Ashton had been reported as suggesting similar conditions as part of EU policy on recognizing Palestine in 2011 so it’s not a surprise to see Britain at this now. I know I tend to go on but there’s a few points I’d like to throw in the mix.
    If Palestine does get a strong GA resolution acknowledging that it’s a state, and Abbas & co do decide to approach the ICC, then there’s several options before them. Jurisdiction could be given to the Court by means of an article 12.3 declaration going back to as far as 2002, or Palestine could ratify the Statute and become a full state party, deciding instead to trigger jurisdiction from some future point, say February 2013.
    If the former, then keeping in mind the quantity and quality of evidence that has been gathered by Palestinian, Israeli, and international NGOs, as well as fact-finding missions, UN and otherwise, over the past decade, much of which must already have been submitted to the Court, I can’t see why allegations of war crimes or crimes against humanity regarding Israeli actions in Gaza couldn’t be addressed by the OTP.
    However that may be though, taking jurisdiction as beginning in February 2013, perhaps the threat of the ICC investigating future attacks by either side might actually deter Israel from repeating its assaults on Gaza. We’d still have the occupation and thus an international armed conflict, so it’s not that Israel couldn’t kill Palestinians, it’s just that they’d have to do so in line with the rules of war. Hardly an inspiring outcome but it’s the limit of what IHL offers. If the Palestinians get their act together on the random nature of their armed attacks and ensure they’re not targeting civilians, and Israel conducts itself in line with IHL and likewise doesn’t target civilians, then there’s a possibility that the ICC will have played a role in minimizing the violence of the conflict.
    If that’s all wishful thinking though, then I’d suggest that the violence in the Gaza district of Palestine isn’t necessarily where the ICC would have its primary role to play. From whichever date ICC jurisdiction is triggered, the OTP should find it quite straight forward to address the most pervasive war crimes that have long shaped this conflict, namely by investigating and prosecuting in line with Rome art 8.2.b.viii, the war crime of an occupying power transferring, directly or indirectly, its civilians into occupied territory. 
    Israel’s settlement policy and practice in the West Bank and Jerusalem may not be a spectacular atrocity in comparison to the repeated attacks on Gaza, but in terms of impact on human rights they have been, and remain, the source of innumerable violations of Palestinian rights, and ultimately are one of the key tools in denying the Palestinians their right to self-determination. It might be a novel development for the ICC Prosecutor to consider settlement policy as being of such a nature that when considering ‘gravity’ it could take precedence over widespread violence against the person, but bearing in mind the nature of the occupation of Palestine, then I’d suggest it could be that such might be the most appropriate line of investigation and prosecution to be followed. It need not, indeed should not, be the exclusive line of inquiry, but establishing the evidence necessary to build such a prosecution(s) would hardly be difficult given that the transfer of settlers into the occupied territory is a central pillar of Israeli state policy and a defining feature of the occupation.
    A word too about Britain’s attitude on this issue. The idea that Palestine would be recognized as a state on the condition that it refrain from engaging with the international legal framework is inherently gross. The only practical benefit of a positive GA vote would be that the Palestinians could rely on the rights and duties under international law that every other state shares. If you neuter that then there’s not much point is there. The practice since at least the establishment of the UN has been that recognition of new states is dressed up in the rhetoric that bona fide engagement with, commitment to, and respect for international law is one of the basic conditions for recognition. Premising recognition of statehood on a condition that you absent your new state from rights or responsibility under international law is to make a mockery not just of the process of statehood, but of the very notion of human rights. In essence, it would appear that the British government wishes for Palestine to satisfy itself with some form of Mandate status whereby any genuine exercise of sovereignty or independence remains dependent on the say-so of the parliament in London.
    I hope the Palestinians explicitly condemn this British idea, go for the resolution, receive the support of the GA, and immediately engage with the ICC. If this means proceeding without the support of the US or Britain, or indeed inviting active hostility from these powers then so be it. Concerns about the Court’s long-term legitimacy are understandable but given that most of the world is appalled by the nature of Israel’s actions in Palestine and the impunity accorded to individual Israeli (or US, or British etc etc) political and military leaders, it is not unreasonable to suggest that long-term legitimacy could be increased by the Court seeking to prosecute those responsible. Fact of the matter is that it literally is suicidal for the Palestinians not to turn to every mechanism that exists in order to achieve their rights and to continue to struggle to end the occupation.
    For now proponents of international criminal justice should be enthusiastically supporting the Palestinians and gearing up to support the Court in taking on this conflict in the face of opposition from Israel and its allies. Whatever about thinking pragmatically, its really not an option to tell victims of conflicts in regions where the US has a particular interest that they must suffer on for the greater good, in the hope that at some unimaginable point in the future the US will undertake a radical change in policy. 

  8. Is anyone aware of a precedent of an entity claiming to have the qualification of a state (overall – Indipendence ) and to be totally occupied by another state at the same time, or is it another invention the Palestinians can register as a patent ?

  9. Liron,

    The Sahrawi Arab Democratic Republic claims to be a state even though the territory of Western Sahara is occupied by Morocco. It is a member of the African Union and it has diplomatic relations with 51 states. Also, the Montevideo Convention does not stipulate that a state must have effective control of its territory. A state does not loose legal personhood when its territory is occupied. The Convention simply requires that a state have “defined territory”.

  10. Zach – What is the “defined territory” in this case?

  11. To the best of my knowledge, the 1967 borders are the defined territory according to the draft resolution.

  12. Is there any practical impact from that?  For instance, the 2000 and 2001 discussions between the PA and Israel involved some potential changes to the 67 borders and, of course, you have the whole issue of Jerusalem and the Temple Mount.

  13. Zach,
    Thank you for the precedent you mentioned. I will look into it. As to the qualification for statehood, I agree a state does not loose it’s legal personhood if occupied. However, this is true when that state had the legal status of a state to begin with, before the occupation, which is not the case of Palestine. In my opinion, it is senseless to speak of a “government” that does not govern the relevant territory. It is simply an oxymoron. Moreover, some scholars have noted that the rational directing the Montevideo qualifications is Indipendence. Occupation and Indipendence can not coexist.
    As to the defined territory and the question of borders: the 1967 lines are actually the 1948-1949 armistice lines. All Arab states insisted to include in these agreements a clear stipulation that these lines are not borders. Maybe, politically, they should be, but legally they are not. The same way that maybe Palestine should be a state but at the present, it is not. Eventually, after the UN ceremony will end, the Palestinians will realize that the only way to achieve their goals is throughdielectric negotiations  and agreement with Israel, not through coercion.

  14. For some reason I couldn’t proof my comment.
    Second line: its legal
    Eight line: independent (twice)
    Second line from the bottom: through direct negotiations.
    I beg you pardon.
     

  15. Liron – I hope you are right about the negotiations but based on what I’ve read here I think it is more likely to kill any slim chance of reaching a settlement if the 49 armistice line becomes considered the real border.  Any PA leader inclined to negotiate will never politically be able to give up anything on its side of the 49 line and no Israeli leader can ever accept the Temple Mount and Jewish Quarter being under PA sovereignty after what happened the last time it was under Arab rule before the 67 War.

  16. Well Mark, perhaps I am more optimistic than you. I believe that if there is a will, there is a way. If both sides will adopt a discourse of recognition and emphaty to the other side’s scars, aspirations and concerns, rather than look for outside support for unilateral steps, things can be different. Jerusalem is indeed a tough nut to crack, but some creative suggestions were already offered. It was reported in the past that former Israeli PM Olmert suggested a “vertical” delineation at Tempel Mount, so Palestinians will have soveriegnity over Al-Aqsa while Israel will be sovereign underground, where the relics of Jewish history lies. Of course, if Palestinians will insist to continue to deny the historical connection of the Jewish people to this land and refuse to acknowledge Israel as the nation state of the Jewish people, it will be hard to make progress.
    Perhaps this is a unique attribution of the Palestinian national liberation movement: the only movement of this kind I know that simultaneously demands self determination and deny another people the same right. Still, I hope the Palestinians will be ready to change this attitude. 

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