Last week I attended a discussion on the Palestinian Authority’s statehood bid at the UN by Susan Akram, a Boston University School of Law professor who is a leading expert on refugee issues and international law. Akram delivered a withering assessment of the PA’s statehood campaign at the UN. She focused her lecture on contrasting the PA’s strategy with Namibia’s, demonstrating how Nambia managed to achieve independence despite its initial designation by the UN to be one of the least likely colonial mandates to attain the status necessary for statehood, and despite a prolonged occupation by apartheid South Africa. Nambia and its supporters filed a steady stream of submissions to the International Court of Justice, winning decisions that confirmed the illegality of South Africa’s occupation while demanding sanctions on South Africa. Thus Nambia established a legal framework guaranteeing that any UN resolution granting it statehood would also establish its full independence.
In contrast, the PLO and PA accepted the formula of a negotiated land for peace, allowing the UN Security Council to relegate Resolution 194, the right of return resolution that guarantees individual, inalienable Palestinian rights, to “final status” talks (the UN’s acceptance of Israel as a member state in 1949 was contingent on its fulfillment of Res 194). Since Israel’s occupation of Palestine began, the Palestinian Authority has made only one request for an advisory opinion from the ICJ, when in 2004 it challenged Israel’s right to build the separation wall across the Green Line. Though the PA received a favorable ruling, it did nothing to enforce the ruling — no mobilization of civil society or demand for sanctions. In fact, despite the ICJ’s recommendation, the PA rejected the Palestinian civil society call to boycott, divest from, and sanction Israel.
Akram said the PA’s failure to enact a strategy of “soft and hard law” had left an array of questions about the upcoming Palestinian statehood resolution unresolved, casting serious doubt on the whole endeavor. She enumerated some the key unresolved issues:
1. What do the 150 UN member states who vote for the resolution do with the recommendation? Do they afford Palestine full representation or representative status? Where will their embassies be? Since Israel will refuse to allow foreign embassies in East Jerusalem, will they instead be in Ramallah, and if so, does that mean that Ramallah is the future capitol of a Palestinian state? Will passports be issued to Palestinians and will they receive full consular intervention if they require it abroad?
2. What will be the recognized population of Palestine? Will it include Palestinians in the diaspora? In the West Bank and Gaza? Inside Israel? The refugees? If it does not include the refugees, do they then lose the legal right to return to their property and land confiscated by the state of Israel? None of these questions have been answered and the consequences are enormous.
3. If Palestine will be considered a legitimate state on the diplomatic front, it will not have relations with states that refused to recognize it. That means it would not have relations with the United States. How does that impact Palestine’s status at the International Court of Justice or the UN, where the US and Israel could prevent its admission to the Human Rights Council?
4. What can Palestine do to enforce the withdrawal of Israeli settlements and its territorial integrity in the absence of Israeli withdrawal and the backing of the US? The issue of enforcement has not been addressed through the statehood resolution.
5. Even if new avenues open for legal recourse against the Israeli occupation, Israel does not recognize the International Court of Justice’s authority and the United States will block any efforts to bring Israeli defendants to the ICJ for crimes they committed against Palestinians. So in real terms, what can Palestine do? Further, if Palestine becomes a member of the UN, it could table and introduce resolutions, but does this represent a change in the observer status the PLO has enjoyed since 1974? It does not.
6. Do Palestine’s security forces become a legitimate military force with all the benefits that it entails? Can they purchase arms as all state military forces do? If Israel refuses to accept members of the Palestinian military as legitimate soldiers than the status quo of captured Palestinian soldiers being treated as terrorists remains.
The consequences of statehood without real independence are enormous, Akram said. In the absence of a strategy based on hard and soft law, the PA’s statehood resolution bid could be an exercise in futility. While Namibia relied on a protracted legal battle for 40 years along with armed struggle and a political/media strategy to lay the foundation for its independence, Akram warned that the outcome for Palestine is highly uncertain.