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The Palestinian Position

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About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

Few conflicts are as fraught with public opinion and historical background as that of the Israeli-Palestinian turmoil. Despite centuries of negotiations, battles, and casualties, Palestine’s quest to receive universally accepted statehood is far from complete. With no specific guidelines as to what constitutes a state, countries and organisations have taken it upon themselves to make the final decision. For example, the British parliament voted in October 2014 that Palestine’s statehood should be recognised. This decision has no real effect, but does signify the UK's stance:

[T]his House believes that the Government should recognise the state of Palestine alongside the state of Israel, as a contribution to securing a negotiated two state solution.

On the other side of the Atlantic, the US is adamant that recognising Palestine in the international sphere would be counterproductive. US Ambassador Samantha Power has stated that state recognition would not take into account Israeli interests:

It would undermine efforts to get back to an atmosphere that makes it possible to achieve two states for two people.

In December 2014, the UN Security Council voted down the Palestinian statehood proposal. The vote was only one short from adoption; nonetheless, the US stated it would have exercised its veto authority had the vote succeeded. The UK abstained from the vote, despite the symbolic parliamentary decision made only two months earlier. States are clearly unsure of how relevant their opinion is in these matters, and who should have the final say.

Statehood recognition is an amazingly vague area of international law. Qualifications have been laid down in the past, as will be discussed later, but it is the interpretation of these customs which baffles us all. The determination of Palestinian statehood appears to lie with no one in particular, leaving the legal obligations of Palestine up for debate. Should Palestine be recognised as a state, it would be free to join a vast number of international institutions, organizations, and courts. Defending Palestine’s interests and legitimacy in the international sphere would be far more conceivable. It is not a purely symbolic matter.

An extremely brief history of the Israeli-Palestinian conflict

For centuries, the Middle East has been the centre of conflicts originating from religion, territories, and empires. This is especially pronounced within Israel and Palestine. The territorial disputes at play can be traced back to ancient times, but the specific conflict we are concerned with arose in 1948 when the Jewish State of Israel was proclaimed by the UN. In essence, the decision was made to deal with the international movement of Jews during World War II. The proclamation caused a division of territory amongst the Arab states, with many Palestinians becoming displaced themselves. Other Arab states such as Egypt, Jordan, Lebanon, and Syria fought to regain territories such as, for example, the Gaza Strip and the West Bank.

Numerous attacks and wars involving these states ensued. For example, the 1967 Middle East War involved six days of hostilities between Israel, Egypt, Jordan and Syria. The Gaza Strip, the Sinai, the Golan Heights, and the West Bank all became Israeli territory. As a result of the conflicts, the UN estimated that a further 500,000 Palestinians were displaced. The proclamation of Israel was designed to combat the displacement of Jews. The ultimate consequence was the displacement of others.

The Palestine Liberation Organisation (PLO) was established in the 1960s to provide the Palestinians with an international voice. The PLO represents Palestine at a global level, promoting Palestinian interests within international organisations such as the UN. The primary objective of the organisation is to secure Palestine’s independence, with East Jerusalem as its capital. It is this objective which the Security Council of the UN voted against last month.

The UN has recognised Palestine on an international level in the past, just not to the extent that the PLO wished for. In 2012, the UN General Assembly voted to raise Palestine from a ‘non-member observer entity’, to a ‘non-member observer state’. Palestinians are still not able to vote at the General Assembly, but are entitled to join international bodies such as the International Criminal Court. It is the same status that is held by the Vatican City State. Mahmoud Abbas, President of the Palestinian Authority, stated that:

We did not come here seeking to delegitimize a State established years ago, and that is Israel; rather we came to affirm the legitimacy of the State that must now achieve its independence, and that is Palestine.

This is of course a noble goal, but it does fail to take into account the interests of the Israelis. In order to prevent further displacement of the Palestinians, Abbas would in turn displace the Israelis by claiming what had been their territory. History would indeed repeat itself, regardless of the moral legitimacy of such a goal.

Palestine’s latest effort: The International Criminal Court

The 2014 Palestinian statehood resolution would have essentially granted Palestine the statehood it dreamt of. The resolution would have ended occupation of Israeli troops in Palestinian territory by 2017, granted Palestine the right to self-determination, and declared West Jerusalem the capital city of Palestine. Those who blocked the resolution, the US and Australia, did so under the premise it would be counter-productive, one-sided, and a rushed attempt at peace.

In response to the dismissal, President Abbas set about other methods of recognition, which did not specifically involve US consent. By signing the Treaty of Rome, he reinstated Palestine into the international agenda. This included joining the International Criminal Court (ICC) on 1st January 2015. Palestine currently hopes to bring Israeli officials to justice for war-crimes committed in Gaza last summer. Of course, war crimes have been committed on both sides, and Palestine must equally be prepared to fulfil this international legal obligation. Should an Israeli official be brought to Court, Israel is likely to respond by bringing a Palestinian official to Court (and so on). The interests of justice must prevail. Those who have committed war crimes, and grave breaches of the Geneva Conventions, should undoubtedly face criminal charges. However, if the charges are brought about in a hostile way, which is how it currently appears, it is likely to have dire consequences.

The US and Israel have termed Palestine’s application to the ICC a ‘nuclear option’. Holding Israeli officials accountable will result in huge sanctions, and thus reduce the likelihood of Israel and Palestine reaching any sort of peaceful settlement in the future. An agreement between the two states will be necessary in order to be able to work towards an effective independent Palestine, especially since they currently both claim Jerusalem as their capital. Not ensuring an agreement will likely only result in further armed conflicts.

Even if President Abbas were to utilise the ICC with regard to Israelis’ war crimes, the likelihood of a successful claim is arguably slim. This is due to the high volume of claims the Court receives. Parties to the Treaty of Rome, as well as the Security Council, have the option to refer particular crimes to the Court. A prosecutor will determine the validity of the claim, and then transfer it to a Pre-Trial Chamber. If the charges are confirmed, the case will be assigned to a Trial Chamber, who will issue a final decision. The process is evidently lengthy. In total, 21 cases in 9 situations have been brought before the ICC. These include situations in Uganda, Libya, and Kenya, to name but a few. The lengths of these cases span years. It is not clear how far Palestine’s claims will go within the ICC, or what sort of timeline is involved.

The Gaza conflicts have previously been the subject of a preliminary investigation by the ICC. Following a 2011 UN report, stating that the Israelis’ actions were ‘unreasonable and unnecessary’, the ICC investigated a particular Israel raid on a Gaza-bound Flotilla. The Prosecutor of the ICC concluded that:

The potential case(s) likely arising from an investigation into this incident would not be of "sufficient gravity" to justify further action by the ICC. The gravity requirement is an explicit legal criteria set by the Rome Statute.

There is clearly a great deal of hurdles for Palestine’s claim to overcome in the pursuit of justice, and so using the Court to further establish Palestinian statehood legitimacy could be a worthless move.

President Abbas is additionally under pressure from the Palestinian public to use the ICC for actual statehood goals (in other words: against Israel’s settlement policy). Israeli occupation of various Middle Eastern territories has resulted in the creation of ‘settlements’. These communities have vast Israeli populations of up to thousands of inhabitants. The largest, Ma’al Adumim, is located in the West Bank with a population of approximately 40,000 Israelis. They are considered to be one of the biggest threats to Palestinian statehood, due to their increasingly permanent nature. The settlements could potentially fall under Article 8 of the Treaty of Rome, which prescribes that the ‘unlawful transfer or deportation or unlawful confinement’ constitutes a war crime. Nonetheless, this is extremely likely to trigger a defensive move from the uprooted Israelis. Not only would Palestine fail to receive recognition from the UN, but would also fail to receive recognition within its claimed territory.

A right to statehood?

Palestine has failed to receive the desired recognition from the UN, and efforts to establish itself within the international sphere may also prove redundant. Does this mean Palestine is unsuitable for statehood? Or is this merely demonstrative of external factors, such as the difficult relations with Israel?

One attempt to stabilise statehood requirements can be found in the Montevideo Convention (1933). Signed by 20 countries in North and South America, the Convention codifies qualifications for legally valid statehood. Although not ratified worldwide, the Convention is recognised as customary international law; it is internationally accepted as outlining general principles, to be applied by Courts and Organisations such as the UN.

Article 1 of the Convention declares:

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.

Nevertheless, these guidelines are not strictly applied. Libya, for example, is recognised as a state despite having more than one government. It has been suggested that a more important condition for statehood is the people’s right to self-determination, meaning the Palestinians should have the right to choose whether they belong to a State or not. If the people of Palestine believe in the legitimacy of statehood, it would reinforce the effectiveness of the state. Unfortunately, the right to self-determination is not reality quite yet, and the decision is still left to States. Even if the Convention was applied strictly, it is unclear as to whether or not Palestine would qualify. As of yet there are no defined borders or capital, two separate security forces are at play, and its foreign policy powers are limited. Flexibility appears to be granted in instances such as Libya, but with much at stake regarding the Israeli-Palestinian conflicts, the UN appears to be unwilling to budge on this occasion. There is no automatic right to statehood.

Article 24 of the Charter of the United Nations states:

In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security.

All members of the United Nations, which includes the fifteen members of the Security Council, signed the Charter. It establishes that the Security Council as a whole has the right to determine the legitimacy of Palestinian statehood. Nine votes are required for a resolution to be successful, such as the Palestinian resolution. In making this decision, it is not just the Montevideo qualifications that will be examined, but rather the overall context.

The Israeli-Palestinian situation is indeed one which concerns international peace and security. Despite whether or not I believe Palestine is principally owed statehood, and I do, we cannot pretend it would not have serious consequences for those currently residing in Israeli settlements. What would be a justice for one side would be an injustice for the other. The best way forward would therefore appear to be better negotiations between Israel and Palestine. As of yet, Palestine has essentially refused peaceful negotiations with Israel, perhaps feeling that negotiations would further legitimise the Jewish state. A compromise may have to be made with regards to territories and the Palestinian capital. Nevertheless, any statehood which arises from these circumstances is likely to be far more peaceful, and far more permanent.

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Tagged: Armed Conflict, Criminal Law, Human Rights, Religion

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