PALESTINE’S APPLICATION TO THE UNITED NATIONS
AND ITS IMPACT ON THE PROTECTION OF CIVILIANS
Diakonia IHL Resource Centre
Conference Report 2011
PALESTINE’S APPLICATION TO THE
UNITED NATIONS AND ITS IMPACT ON
THE PROTECTION OF CIVILIANS
Conference Report 2011
Diakonia IHL Resource Centre
Do you want to learn more about International Humanitarian Law?
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Published by:
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www.diakonia.se/ihl
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© Copyright 2011 Diakonia IHL Resource Centre
All Rights Reserved
Diakonia IHL Resource Centre encourages use of information contained in this
Conference Report but requests that full citation to the respective author and to
the source and be made.
Cover Picture: © UN Media Centre - 2011
Designed by: Marwan Hamad, InterTech, Ramallah
Disclaimer
With regard to the text of the interventions of the 12 July 2011, reproduced
with the authorization of their authors in this document, the editor wishes to
acknowledge that the views, opinions and positions expressed throughout this
publication are those of the respective authors and not of Diakonia or any of the
partners that helped to bring this publication together.
The documents herein were reproduced based on the information available as of
the 12 July 2011 and, as such; do not encompass the political developments that
have occurred since.
Acknowledgement
We must first thank our excellent experts and conference
speakers: Yara Jalajel, Professor Yuval Shany, Valentina Azarov
(Al Haq) and Attorney. Limor Yehuda (ACRI), whose insightful
contributions make up this report. The Diakonia IHL Resource
Centre also wishes to thank The Norwegian Refugee Council
(NRC) for co-hosting this session, as well as the one hundred
energetic participants who have shown keen interest in this topic
and have helped to fuel a healthy debate.
Diakonia works together with partners from
the civil society in both Israel and the occupied
Palestinian territory:
Al Haq, Law in service of the man,
www.alhaq.org
Al Mezan Centre for Human Rights,
www.mezan.org
B’Tselem, the Israeli Information Centre for
Human Rights in the Occupied Territories,
www.btselem.org
Mossawa Centre, the Advocacy Centre for
Arab Citizens in Israel,
www.mossawacenter.org
The Association for Civil Rights in Israel,
(ACRI)
www.acri.org
Table of Contents
List of Acronyms Used .................................................................................. ii
Foreword ...................................................................................................... 1
Biography of the panellists ........................................................................... 2
Introduction ................................................................................................. 4
The Palestinian Options and Strategies to Address the United Nations in
September by Yara Jalajel ............................................................................ 9
More Clarity and/or Ambiguity? The Legal status of the Palestinian Territories
after the Planned Declaration of Independence by Prof. Yuval Shany ........... 11
Demystifying Misconceptions: The Implications of Palestine’s September
Options and International Accountability by Valentina Azarov .................... 17
Possible Implications of the Recognition of Palestinian Statehood, by Atty.
Limor Yehuda ............................................................................................. 21
Annexes ..................................................................................................... 34
I. Al-Haq’s Questions & Answers on Palestine’s September Initiatives at the
United Nations ............................................................................................ 35
II. Further Readings .................................................................................... 49
i
List of Frequently Used Acronyms
ACRI
Association for Civil Rights in Israel
ICC
International Criminal Court
ICJ
International Court of Justice
IDF
Israeli Defence Forces
IHL
International Humanitarian Law
IHRL
International Human Rights Law
NLR
No Longer Resident (procedures)
NRC
Norwegian Refugee Council
oPt
Occupied Palestinian Territory
PA
Palestinian Authority
PLO
Palestinian Liberation Organization
UN
United Nations
UNGA
United Nations General Assembly
UNSC
United Nations Security Council
US
United States
ii
Foreword
Earlier this year, much speculation arose about “September” and
Palestinian diplomatic manoeuvres vis-a-vis the United Nations
(UN). Due to a lack of clarity and understanding among the
general public and pundits of concepts such as sovereignty,
statehood and UN procedure, “September” and “Statehood” have
been used almost inter-changeably in recent months.
The lack of clarity has become an issue in itself, increasing
speculation about what this bid and statehood mean and inspiring
a number of interesting academic opinions. However, the focus
on the upcoming September bid risks overshadowing the realities
on the ground. The reality of occupation and the plight of the
civilian population seemed to drift into the background. The
Diakonia IHL Resource Centre and NRC felt that it was important
to ensure that the primary focus remained on those most directly
affected. This desire underlined the decision to convene the
session on July 12, 2011 and compile this report.
1
Biography of the panellists
Attorney Limor Yehuda joined ACRI in 2004 and worked on
violations of human rights in the Occupied Palestinian Territory,
such as freedom of movement, the separation barrier, human
rights violations in Hebron, Palestinians’ access to their
agricultural lands, lack of enforcement of the law, and security
forces’ accountability.
Since 2009, Ms. Yehuda has been the Director of ACRI’s Human
Rights in the Occupied Territories Department. Prior to joining
ACRI, she served as a legal assistant in Israel’s Supreme Court
and as an assistant for the national inquiry committee that was
established following the Versailles Disaster. She completed her
legal internship at the District Attorney’s Office in Jerusalem.
Ms. Yehuda holds an LL.B. and an LL.M from the Hebrew University
in Jerusalem.
Prof. Yuval Shany is the Hersch Lauterpacht Chair in International
Law at the Law Faculty of the Hebrew University of Jerusalem.
He also currently serves as a board member in the International
Law Forum at the Hebrew University, a director in the Project
on International Courts and Tribunals (PICT), a member of the
steering committee of the DOMAC project (assessing the impact
of international courts on domestic criminal procedures in mass
atrocity cases) and as a senior research fellow at the Israel
Democracy Institute.
Professor Shany has taught in a number of law schools in Israel,
and has more recently served as a research fellow in Harvard
and Amsterdam Universities. In addition, Professor Shany has
been a visiting professor at the Law Schools of Georgetown,
Michigan, Columbia universities and the Faculty of Law of the
University of Sydney. His fields of interest include international
law, international human rights law, international humanitarian
law; international courts and tribunals.
Shany has degrees in law from the Hebrew University (LL.B, 1995
cum laude), New York University (LL.M., 1997) and the University
of London (Ph.D., 2001).
2
Valentina Azarov is a legal researcher with the Palestinian human
rights organization Al Haq. She is also a lecturer in International
Law and Human Rights and the Chair of the Human Rights
Program in the Bard Honours College at Al-Quds University in
Jerusalem.
Valentina worked as a legal researcher at HaMoked – Centre for
the Defence of the Individual in East Jerusalem. Her research and
teaching interests lie in the fields of international humanitarian
law, and in particular the law of occupation, international human
rights law, public international law, the law on the use of force
(jus ad bellum) and international refugee law. Valentina has
prepared casework for Bail for Immigration Detainees (BID) and
the London Detainee Support Group, both asylum rights NGOs
in London, as well as advocacy work for the International Action
Network on Small Arms (IANSA) in Nigeria.
She obtained her LLB in European Legal Studies (with Honours)
from the University of Westminster in London, UK, and has
completed the Certificate of Transnational Law under the LLM
in International and European Law at the University of Geneva,
in Switzerland. She also holds a Certificate in Development
Economics, from Birkbeck College, University of London.
Yara Jalajel is a Palestinian from East Jerusalem. She is a legal
advisor for the Palestinian Ministry of Foreign Affairs and has
provided legal advice on the statehood file and the UN bid to the
Palestinian leadership and relevant PNA institutions.
Yara was previously employed by the Palestinian Ministry of
Economy and has spent time teaching at the University of La
Sorbonne in Paris. She is also a bureau member of the Union of
Palestinian Students in France, as well as a member and Deputy
General Secretary of the Francophone Alliance.
In 2000, she obtained her ‘baccalaureate’ from the Lycée Français
of Jerusalem and pursued Law studies in France. She holds a
MA in EU Comparative Public Law and is a PhD candidate in
Comparative Constitutional Law.
3
Introduction
The objective of the IHL Session held on 12 July 2011 – as may
be ascertained from the theme of the event – was to focus
reflection on the civilian population in the occupied Palestinian
territory (oPt). Given the speculation surrounding the plans of
the Palestinian authorities in applying to become a member of
the United Nations, the Diakonia IHL Resource Centre felt that
it would be beneficial to host a range of views on whether such
an application could (or would) result in enhancing the situation
of the Palestinian population living under Israeli occupation
since 1967, in accordance with international humanitarian and
international human rights law.
By focusing on the UN application, the session does not purport
to exclude discussion on statehood; but actually included
some interesting points on the issue. Whether the declaration
of Statehood by the Palestine National Council of 1988 and the
subsequent recognition of that declaration by some 120 other
states makes Palestine a sovereign state may have repercussions
on the protection of the civilian population under military
occupation. On the other hand, it might not, since the status
of military occupation persists and therefore the situation of
the civilian population remains unchanged. To us at the IHL
Resource Centre, it is the application for membership to the UN,
rather than the discussion on statehood, that is more relevant
to the search for enhanced protection of the civilian population
under IHL.
It has been said that the Palestinian initiative to seek membership
of the UN reflects a major change in that it adds a multi-lateral
paradigm to the bi-lateral character that has dominated peace
negotiations. Whether this helps the peace process, and therefore
enhances the protection of civilians, or the end of the occupation,
remains to be seen. Regardless, there seems to be little doubt
that the process(es) since 1967, which have been largely bilateral, have not only failed, but have actually worsened the
situation of the civilian population under occupation.
4
Since 1967 there have been no less than 25 “plans”, “proposals”,
“processes” and other initiatives.1 During this time, in spite of
this consistent search for peace, the situation of the Palestinian
population has worsened. For instance, the Oslo Accords have
been misused to pursue measures that are in violation of IHL,
which include major breaches, quite the contrary to their avowed
objective as an interim step on the path to a durable peace.
Since 1967 there have been at least seven major conflicts causing
widespread death and destruction.
Expropriation of land,
construction of settlements, transfer of population into, and
out of, the occupied territories, have continued – all in breach
of international humanitarian law, some constituting grave
breaches.
According to B’Tselem, so far, 913,000 dunum (including 23,378
dunum in East Jerusalem)2 of land has been expropriated. The
Internal Displacement Monitoring Centre reports that between
129,000 and 160,0003 Palestinians were displaced between 1967
and 2008. According to a report in Ha’aretz on 11 May 2011,
“Israel has used a covert procedure to cancel the residency status
of 140,000 West Bank Palestinians between 1967 and 1994, the
legal advisor for the Judea and Samaria Justice Ministry’s office
admits, in a new document obtained by Ha’aretz. The document
was written after the Hamoked: Center for the Defense of the
Individual filed a request under the Freedom of Information
Law.” Similar practices are said to continue in the context of the
so-called NLR (No longer Resident) procedures. The time line
below gives an idea of the concurrent placing of settlements and
settlers in the occupied territories.
The military occupation of 1967 remains a reality facing the civilian
population. Israel remains the occupying power in the West Bank,
including East Jerusalem, the Gaza Strip and the Syrian Golan
Heights. The Palestine Authority is not a sovereign government
since Israel retains ultimate overall control over these territories,
even where Israeli forces do not have a permanent presence.
See time-line in Annex II
http://www.btselem.org/settlements/taking_control, http://www.btselem.org/jerusalem/land_
expropriation_statistics.
3
http://www.internaldisplacement.org/8025708F004BE3B1/(httpInfoFiles)/6501E8A04E7EB9DE
C12578C3006B3C2F/$file/opt_overview_June2011.pdf.
1
2
5
The statement of the Prime Minister of Israel to the President of
the United States on 20 May 2011 that Israel “cannot go back to
the 1967 lines — because these lines are indefensible; because
they don’t take into account certain changes that have taken place
on the ground, demographic changes that have taken place over
the last 44 years”, underlines the failure of the initiatives over
the years to protect the civilian population - in other words, the
denial of the protection afforded by IHL and, as a consequence,
by IHRL.
The presentations at the IHL Session that form the substance
of this publication, vary widely in their nature and their scope.
Since the session, the situation has continued to evolve, and
there are aspects that continue to emerge that will deserve
further reflection. We hope that the totality of these contributions
constitutes a useful basis for reflection on our proposed theme.
We look forward to other events convened by our colleagues
on this issue. As for the Diakonia IHL Resource Centre, we will
continue to pursue any avenue consistent with IHL that would
accelerate the end of the occupation and therefore the restoration
of the rights of the people of Palestine. The speakers at the IHL
session in this booklet have provided an important contribution
to the discussion on this delicate issue. Their reflections are of
great value in stimulating discussion and provoking ideas.
Whether the shift to a multi-lateral paradigm will change this
negative trend of IHL violations remains to be seen. History
has shown that the bi-lateral dimension has not contributed to
the enhancement of an IHL regime. The key question remains
whether Palestine membership of the UN will accelerate the end
of the occupation.
Diakonia IHL Resource Centre
6
Plans, Agreements, Wars, People and Land Since 1967
4
7
4
Figures on number of settlements and settlers are from B’Tselem, By Hook and by Crook: Israeli
Settlement Policy in the West Bank, July 2010. P (9-10). These figures do not include the over 100
so-called ‘illegal outposts’.
8
The Palestinian Options and Strategies to Address
the United Nations in September
By Yara Jalajel,
Legal advisor, Palestinian Ministry of Foreign Affairs.
The objective of this intervention is not to reveal the official positions
or decisions that have been taken concerning the Palestinian UN
option. Rather, this intervention will try and provide a coherent and
clear picture of what alternatives actually exist for Palestinians. In
other words, I hope to provide a framework for the debate.
The Palestinian objective is to obtain full membership at the
UN. Palestinians would seek membership in order to ensure the
benefits from full representation as a state, regardless of bilateral
recognitions. This will also provide Palestinians with the capacity
to sign, ratify and accede all international Conventions and gain
full membership in international organisations. Moreover, this will
allow the use of multilateral forums to define the existing rights of
the Palestinian people and strengthen the Palestinian institutions.
Full membership also ensures that the territory occupied in
1967, including East Jerusalem, will be internationally recognized
as the territory of the state of Palestine, providing clear terms
of reference for negotiations. It also places the conflict in a
more multilateral framework that permits the resumption of
negotiations on more balanced basis, and creates an alternative
to the Palestinians in case those negotiations failed.
Full UN membership requires a long procedure that can take
several months or years. Article 4 of the UN charter states that:
“Membership in the United Nations is open to all other peace-loving
states which accept the obligations contained in the present Charter
and, in the judgment of the Organization, are able and willing to
carry out these obligations. (…) The admission of any such state to
membership in the United Nations will be effected by a decision of the
General Assembly upon the recommendation of the Security Council.”
While the recommendation of the United Nations Security Council
(UNSC) is binding,5 a negative vote by one or more permanent
9
5
International Court of Justice (ICJ) opinion 1950.
members in the UNSC may delay or obstruct the procedures.
The United Nations General Assembly (UNGA) cannot by itself
offer full membership at the UN, according to the current status of
international law, without prior recommendation from the UNSC.
The UNGA resolutions are not legally binding to Israel, or to any
other state. Hence the purpose of seeking a UNGA resolution is
mainly moral and political.
Still, a resolution from the UNGA in the upcoming regular session
could achieve several goals, such as inviting member states to
recognize the State of Palestine on the 1967 borders, to upgrade
the status of Palestine in the UN to a “non member observer
state”6, and to invite/ welcome the State of Palestine to admission
to UN membership. Moreover, a UNGA resolution could open the
way for various UN bodies and organisations to admit Palestine
as a full member.
Palestinians can either opt for such a UNGA resolution before
the application for full membership is made to the UNSC or after
the application is made. This means that the application can be
sent preferably before the UNGA regular session begins, but not
necessarily by the end of July, in is called the ‘parallel strategy’.
The parallel strategy has several advantages: it builds upon the
international momentum that Palestine has thus far; it permits
the maximization of Palestinian gains in September; and it applies
pressure on the UNSC to recognize Palestinian application for full
UN membership. However, there is a risk that, by the time the
UNGA session begins in September, the Palestinian application
will have already been rejected by the UNSC.
On the other hand, if Palestine was to opt for a UNGA resolution
before submitting the application for full membership, it can
lower the current pressure on the Palestinians. However, the
risk of this option is that it weakens the Palestinian position by
showing a lack of commitment or seriousness in getting the full
membership. This, in turn, could lead to losing the international
momentum necessary to back the Palestinian application once
the procedure is initiated.
6
Palestine is currently a “non-State observer”.
10
More Clarity and/or Ambiguity?
The Legal status of the Palestinian Territories after
the Planned Declaration of Independence
By Prof. Yuval Shany,
Hersch Lauterpacht Chair in Public International Law, Hebrew University
The upcoming declaration of statehood by Palestine – whether
it claims a new state, reaffirms the 1988 Palestinian Liberation
Organisation Declaration or merely seeks admission to the UN
as a ‘state’ – raises a number of questions under international
law. In this short paper, I will deal with two principal questions:
Can Palestine become a state under international law? And
what may be the implications of a successful Palestinian bid for
statehood?
Objective conditions for statehood: Do they matter?
As it is well known, the conditions for statehood under customary
international law are codified in the 1933 Montevideo Convention.
This Convention mentions four cumulative and inter-linked
conditions – population, territory, effective government and
capacity for foreign relations (sometimes understood as an
independence test). In theory, a political entity seeking to define
itself as an independent state that meets the four Montevideo
conditions is a state under international law. The question
can therefore be raised as to whether Palestine meets these
conditions.7
In actuality, the Montevideo conditions are of little significance
in international relations. First, international practice suggests
that recognition by other states, the subjective view of third
states on whether statehood exists (or should exist), may be as
important as “objective statehood”. Hence, Somaliland or Taiwan,
which have all of the requisite objective attributes of statehood,
are not regarded as states by the international community and
are unlikely to be anytime in the near future; whereas political
entities with dubious levels of effective governance, such as
11
7
To my mind, the question is not an open-and-shut one. At least under Oslo Accords, the PA
exercises only limited powers of government over only a small chunk of territory. I would lean
towards the position that it meets the Montevideo criteria – though just barely, but there are obviously other views on the matter.
Somalia or Yemen, are regarded as full-fledged states and
engage in extensive diplomatic relations. The fact that more
than 100 states accepted the 1988 Palestinian Declaration of
Independence – notwithstanding the fact the PLO did not control
any piece of territory at the time – is also indicative of the gap
between state practices and the Montevideo conditions.
In practical terms, it should be acknowledged that subjective
recognition may be more important, at least in some respects,
than objective existence. Where virtually all states recognize a new
state – the question of whether or not it meets the Montevideo
conditions becomes largely moot. If it is treated internationally
as if it were a state, then for most practical purposes it is. In the
reverse situation, a “real” state that others are not ready to treat
as one, can make very little use of its objective statehood.
To be sure, states sometimes decide on whether or not
to recognize a new state, inter alia, after considering the
Montevideo conditions; but these are hardly the only or even the
dominant legal considerations. Moreover, legal considerations
are often overridden by political considerations – this is not
wholly inappropriate as the dominant view in international law
is that there exists no duty to recognize new states. In other
words, recognition is based on individual state discretion. In
fact, self-determination has emerged as the touchstone of
most legal analyses of recognition decisions: political units
established pursuant to what appears to be a valid application
of the self-determination principle tend to be recognized (e.g.,
decolonization); whereas political units established in a manner
conflicting with this principle and its limits under international
law tend not to be recognized (e.g., secessionist movements
whose claims of independence threaten the territorial integrity
of existing states). I have little doubt that on the basis of those
criteria, Palestine would be recognized by a large majority of
states.
Still, in the case of Palestine, what may emerge at the end of the
day is a state of uncertainty. At this point in time, it looks as if
political dynamics will lead to an outcome where most states
will recognize the nascent state of Palestine and engage them in
bilateral relations, but others will refuse to do so. Hence, much
like with Kosovo (which garnered 76 recognitions), Palestine
12
may find itself treated as a full-fledged state by some members
of the international community, but as a non-state entity by
others. Also like Kosovo, some international organizations may
admit Palestine as a member-state, whereas other would not.
Most significantly perhaps, one can predict that as long as a
permanent member of the Security Council (the US) opposes
Palestine’s admission to the UN, it will be impossible for it to
join the organization - although the UNGA may call upon other
states and organizations to recognize Palestine and support
its admission to other multilateral treaties and organizational
frameworks.
The second reason why the legal analysis of the conditions
for statehood is not of critical importance is that the status
of statehood is not of critical importance in many areas of
international relations anyway. As a non-state entity, Palestine
already enjoys broad diplomatic relations with more than a 100
countries, has non-state observer status at the UN, is a member
of the Arab League and much more. Furthermore, it is generally
accepted that Palestine already has rights and obligations under
international law. Palestine may already sign agreements, must
respect human rights and negotiate their position vis–a-vis
international resources, such as the continental shelf. Palestine
may also possibly authorize the International Criminal Court (ICC)
to exercise jurisdiction over crimes committed in its territory
already. Consequently, the move towards fuller statehood,
which a new declaration of independence or a request for UN
membership could signify, will accelerate development along the
road to statehood which is already occurring, and will perhaps
clarify the status of Palestine along the spectrum between nonstatehood to statehood. While this would lead to a change in
Palestine’s ability to enjoy their rights and adhere to obligations
under international law, such a change may not be as dramatic
as many believe it will.
Implications - Clarity/Ambiguity
13
Generally speaking, I believe that the move towards full Palestinian
statehood will help in clarifying the rights and obligations of
Palestine under international law. Currently, it is less than clear
which norms apply to Palestine as a quasi-state. In addition,
it is not clear to what extent the Israeli occupation affects the
availability and exercise of such norms by Palestine. A move to
formal independence may offer greater legal clarity on both of
these fronts.
First, a widely accepted Palestinian state would provide a
stronger basis under international law for invoking its rights and
obligations. For example, it would be easier to object to Israeli
raids into Palestinian held territories, as well to militant activities
against Israel originating from inside such territories, on the
basis of the prohibition of the use of force under the UN Charter
and the 1974 Definition of Aggression8. It would also be easier
for Palestine to object to other Israeli activities in the West Bank
and Gaza on the basis of a sovereign right to territorial integrity
and the non-interference principle which protects it. At the same
time, it would be easier to make human rights claims against
the PA (including perhaps demands to protect Israelis situated in
areas subject to their control). Even now, in all such cases, rights
and obligations may be invoked by Palestine or against it – but
such an invocation is currently mired in legal confusion about the
nature of Palestine and international law’s scope of application to
entities of such a nature. This ‘background noise’ may disappear
in the aftermath of Palestinian independence.
Statehood may also confer immunity on Palestine and senior
Palestinian officials from legal proceedings in the domestic
courts of foreign states9. As an independent state, Palestine may
also find it easier to request that the international community
intervene to protect its interests; for example through the
invitation and deployment of international peacekeeping forces
in the Palestinian territories or UN rapporteurs’ visits. In addition,
international courts, such as the ICC, could begin to exercise
jurisdiction over the OPt, at least in prospective cases that arrive
after statehood is accepted.
Another possible implication of Palestinian statehood for the
legal analysis of the situation involves the debate over the
question whether all or parts of the Palestinian controlled areas
are still occupied. To my mind, after Palestinian independence
8
Note that the International Court of Justice (ICJ) advisory opinion on the Wall suggested that the
prohibition on the use of force and the right to self-defence under the Charter do not apply to
the Israel-Palestine conflict
9
Legal claims against the PA, which have been ongoing in the US and Israel, were based on the
theory that Palestine is not a State
14
is accepted, it would be harder to sustain that those areas from
which Israel would withdraw – and which it does not administer on
a daily basis – are still deemed ‘occupied’. Occupation is closely
associated with the capacity to exercise the power of governance.
While having the potential for effective control over areas from
which another sovereign has been excluded may suffice for
occupation law purposes, where no power vacuum exists –
that is, when another independent state is actually governing
the area, the tendency to regard another state as an occupier
is reduced – notwithstanding the fact that the state in question
may reassert its authority at any time it chooses (otherwise, the
US could be deemed the world’s occupier). Part of the resistance
to Israel’s “end of occupation” claims can be attributed, I think,
to the suspicion associated with ceding control to non-sovereign
entities. Ceding control to a sovereign state is much more
acceptable.
This development will also, I believe, increase overall legal
certainty. It will relieve Israel of responsibilities it cannot
realistically assume anyway (law and order in areas A, ensuring
proper education in Gaza etc.), and will underscore Palestinian
obligations in this regard. Still, where I do see a major source
of legal difficulty is with the status of the Oslo Accords. Israeli
Foreign Minister Avigdor Lieberman has already threatened to
revoke the agreements if Palestinian statehood is proclaimed and this is legally plausible, as the Oslo Accords can only be
understood in the context of an interim process leading up to
a final status arrangement, such as statehood. I should note,
however, that in my view, the agreements are not formally valid
anymore and, although both parties have accepted to continue
and act in accordance with some of their key provisions, the
political framework in which they existed has long since collapsed.
The implications of such a development are unclear – how would
the renunciation of the Oslo framework – which on the ground
serves as a point of reference for actual practices on the part of
Israel and the Palestinians – affect the sharing of competencies in
Area B? What would be the fate of the Palestinian naturalization
arrangement? Who will control the electro-magnetic fields in
the West Bank? Could the Palestinians start exercising criminal
jurisdiction over Israelis? It appears that in all these practical
issues we are headed into territory which is largely uncharted.
15
So, alongside some areas of increased legal certainty that
Palestinian statehood may entail, especially in the long run, we
are also right to expect, at least in the short-term, considerable
confusion and legal uncertainty.
16
Demystifying Misconceptions: The Implications of
Palestine’s September Options and International
Accountability
By Valentina Azarov,
Legal Researcher, Al-Haq
Palestine’s September options and their anticipated implications
are expected to create some kind of ‘legal tsunami’ or ‘train wreck’
(in the words of Israeli politicians). In fact, things are much less
dramatic when it comes to their legal effects. The confusion and
exaggeration of the legal effects of these steps is a product of an
inaccurate use of terminology and legal notions, such as statehood,
declaration of independence and ‘UN recognition’. I will attempt to
very briefly demystify a number of the common misconceptions and
instead ‘call the child by its name’ in order to better understand
what ‘good’ can come out of these upcoming initiatives.
The plans for September, which are not at all about a Unilateral
Declaration of Independence, nor solely about UN membership –
and include application to a plethora of international organisations
and treaties, are largely political moves to bring the Palestinian
cause to the forefront of the international arena. Practically
speaking, the most Palestinians can hope to get out of the UN
admission procedure as such – in light of the likely US veto – is a
UNGA resolution recommending the recognition of Palestine as a
state, and/or granting it ‘observer state’ status, like in the case
of Switzerland, before it became a full member.
Israel and its supporters have claimed that the Palestinian
government is engaging in unilateral manoeuvres. Turning to
the international community is neither a political nor a unilateral
move. The essence of this move is to effectuate a paradigm shift by
‘internationalizing’ the conflict (not in the IHL sense, that is) and
reconfiguring it from a binary and ‘zero-sum’ situation between
Israel and the Palestinian government in the oPt (which is fully
under the authority of Israel), into a multilateral conflict (where
actors are not changed but diversified). Firstly, this is an important
occasion to further ‘explain [and expose] the Palestinian cause
fully and properly to the entire world’10. Furthermore, this would
allow Palestine to be on a footing of ‘equal formality’ with Israel,
17
10
Khalidi, Rashid, 2011.
putting it in a stronger political position vis-à-vis the international
community to fulfil its obligation to bring Israel’s violations to an
end. UN ascension will mean that Israel will now be occupying and
violating the rights of a UN ‘state observer’.
Although at face value the initiation of such UN processes has
given rise to certain questions concerning the ‘State of Palestine’,
the September options do not, in purpose or effect, draw on
or pretend to bring about any determinations with regard to
Palestine’s statehood status. In other words, the question
of whether Palestine is or is not a state in international law is
neither invoked nor answered through these processes. To begin
with, the existence of a state is not a legal issue – it is a purely
factual and political matter. There is no objective litmus test for
statehood in international law (despite the varying debates) and
the prominent position is that the ‘numbers game’ (of how many
states have recognised Palestine) does not have legal bearing
on the determination of statehood status. The final say is with
each country to recognise Palestine as a state, either explicitly
or implicitly by entering into relations with Palestine – indeed, a
somewhat unhelpful tautology.
Moreover, statehood and UN membership are entirely separate
matters – one does not imply the other. By seeking UN admission,
Palestinians do not claim a right to Statehood – but rather the rights
flowing from an existing Statehood status. Palestinians are also not
claiming a right to sovereignty or independence – they are claiming
the means to actually exercise them. A common misconception
here is that occupation affects statehood. This is not at all the
case – statehood is not dependent on occupation! Occupation
has the effect of limiting the Palestinians’ ability to exercise their
independence; it does not, however, offset statehood.
What cannot be overemphasized is that the September initiatives
will not result in any erosion of rights, because there is no
exercise of rights as such, nor any change in the situation of
occupation11. Since the path that the Palestinian government has
chosen is largely procedural, none of the upcoming steps will
bring about any legal adjustments – it will not end the occupation
itself! These options also do not prejudice the future exercise
Note, Article 47 of the Fourth Geneva Convention on the inviolability of protected persons’
rights
11
18
of Palestinians’ national rights, namely the refugees’ right of
return, which is part and parcel of the exercise of the right to
self-determination. These are rights that are exercised by the
people, not by a state, and do not stand to be compromised by
decisions on the admission or recognition of the state.
However, certain indirect legal effects could flow from the eventual
admission of Palestine to certain international organisations and
treaties, as well as the overall increase in political legitimacy
and legal personality (rights and obligations). Two main gains
can be asserted from the upcoming strategy, both related to the
access to accountability mechanisms for Israel’s violations of
international law, which currently subsist in a climate of impunity
where (to use the infamous phrase) justice is held hostage by
the politics of the ‘negotiations table’ and the misnamed ‘peace
process’. These developments can be classified in a two-fold
manner: (1) further possibilities to adjudicate claims of violations
of international humanitarian and human rights law; and (2)
the possibility to gain further influence over the international
community’s willingness to put an end to Israel’s violations.
Firstly, Israel’s violations of international law are widely
recognized, and are only questioned on a pro forma basis (as
a pure formality with no substantive value). The accession to
international organisations and treaties will provide access to
new international forums and justice avenues, including the UN
human rights treaty bodies and special procedures. This will also
facilitate access to the International Criminal Court - where a
favourable impact of even a UNGA resolution (recommending
the recognition of Palestine) is expected on both Palestine’s
declaration under Art 12(3) of the Rome Statute and Palestine’s
prospective ratification of the Rome Statute. Another option that
would become more feasible with the strengthening of Palestine’s
position in the international legal order is the requesting an
advisory opinion from the ICJ on the illegal character of Israel’s
occupation, resulting from its violations of the international
prohibitions of apartheid and colonialism.
19
Palestinians would also gain further momentum to pressure the UN
to define the Israel-Palestine conflict as a ‘threat to international
peace and security’ in order to invoke the use of UN sanctions
(similar to the cases of Kuwait and Namibia). As a result, foreign
governments and donors who continue to fail to confront the
occupation as such (which is the overarching constraint to any
further development) – and instead support hollow, cosmetic
state-building projects – could be held politically accountable
for their choices.
Figuratively speaking, Palestine’s September options are an
exercise in filling the ‘barrel’ of ‘UN diplomatic political pressure’
until the point where it tips the ‘apparatus of international political
will’ and results in collective action. It can also be described as a
process of ‘accumulation of legitimacy’ through acts of ‘assertion
of sovereignty’12. Since the Palestinians’ assets at present are
primarily legal, turning to the UN means using them to accelerate
access to international accountability mechanisms and pushing
the international community to fulfil its obligations to protect the
Palestinian people and ensure the unimpeded exercise of their
right to self-determination.
12
Kattan, Victor, 2011
20
Possible Implications of the Recognition of
Palestinian Statehood13
By Atty. Anne Suciu and Atty. Limor Yehuda14
The Association for Civil Rights in Israel (ACRI)
Introduction
The Palestinian initiative planned for September 2011, in which
a request will be made to admit Palestine to the UN as a state
within the 1967 borders, or to be recognized as a state by the UN
members, is a political and diplomatic move whose implications
in general and for the human rights of those in the region are hard
to foresee. These implications will largely depend upon decisions
made by the Israeli, Palestinian, and international political
echelons as well as activity on the ground. Although chances
appear slim that Palestine will be accepted for UN membership,
in light of the United States veto in the Security Council, the very
recognition of Palestinian statehood by a decisive majority of UN
Member States would have significant repercussions.
If Palestine is recognized as a state, this would open the way for
it to become party to international conventions and international
courts. Becoming a state party to these could provide Palestine
with new tools to enforce Israel’s obligations to uphold Palestinian
human rights. In addition to the rights afforded by international
recognition of Palestinian statehood, this new status would
obligate it to meet standards of international law, deepening the
obligation of Palestinian governing authorities to uphold human
rights, and heightening its duty and responsibility to prevent
terrorism and threats that originate from within its territory.
In this paper, we outline issues that will arise as a result of this
initiative, focusing on those with potential repercussions for the
human rights of those living in the region. 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 regard to specific
human rights questions, we have created this briefing to outline
some of the expected impacts on human rights issues.
21
13
14
This paper was used by the speaker as a basis for her statement at the 12 July IHL session.
Our thanks to Atty. Eliav Lieblich for his assistance in preparing this document
Recognition of a Palestinian State
Conditions for Recognition of a Palestinian State
According to the traditional formulation of customary international
law, an entity must meet four criteria set out in the Montevideo
Convention of 193315 for it to be considered a state: a permanent
population, a defined territory, effective government over the
population, and the capacity to enter into relations with other
states.
The Montevideo Convention reflects the declarative model
of the recognition of states, in which the act of recognition
acknowledges the existence of the state, but is not what bestows
statehood upon it. The existence of a state is, thus, a matter of
fact: An entity that meets the four criteria is a state, and does not
require the recognition of other states. The difficulty, of course,
is that without an act of recognition by other states, it cannot fully
realize its sovereignty.16 According to the constitutive model, on
the other hand, the act of recognition by other states is what
bestows statehood.17
Already today, no significant argument appears to counter
the claim that the Montevideo criteria have been met by the
Palestinian entity. But even in the case that a dispute does arise
over the question of whether Palestine meets the Montevideo
criteria, particularly the doubt raised by Israel about the existence
of effective government,18 this does not eliminate the possibility
that Palestine would receive widespread recognition. In modern
international law, the Montevideo criteria are not the only criteria
of statehood. In current practice, political and moral principles
are key to the guidelines for recognition, and these include the
right to self-determination, protection of the rights of minorities,
and others.19
Convention on the Rights and Duties of States (Montevideo Convention), 26 December 1933.
As in the case of Somaliland, which meets the criteria of the Montevideo Convention, but is not
recognized by the international community.
17
Thomas D. Grant, The Recognition of States, 2-12 (1999)
18
Israel’s position as stated in the Foreign Ministry website (dated 30 June 2011) is that the Palestinian Authority does not have effective control over most areas of the West Bank, and no effective
control whatsoever over the Gaza Strip, where Hamas governs.
19
James Crawford, Recognition of States in International Law, 99-101 (2007).
15
16
22
Considering the broad international support for the Palestinian
right to self-determination, and the fact that the territories in
the West Bank and Gaza are not part of the sovereign state of
Israel, there is a real possibility that most UN Member States will
support recognition of Palestinian statehood even in the absence
of perfect fulfilment of the formal criteria of the Montevideo
Convention.
Nevertheless, in light of the fact that Israel, as well as other
states, are not expected to recognize Palestinian statehood at
this stage, the question of the existence of a Palestinian state will
not remain free of doubts, and its ability to realize its sovereignty
will be limited.
Admission to the UN
Admission to the United Nations confers various advantages
upon the Member States, but membership in the UN is not a
condition for the existence of statehood.20
According to Article 4(2) of the UN Charter, membership in the UN
is affected by a two-thirds majority vote in the General Assembly
upon the recommendation of the Security Council. In the absence
of a Security Council recommendation, the General Assembly is
not empowered to admit Palestine to UN membership.21 In light
of the United States’ position on this unilateral action by the
Palestinian Authority, and American veto power in the Security
Council, it appears that the Palestinian Authority’s chances of
becoming a UN member are slim.
An alternative possibility is winning the support of the General
Assembly. A General Assembly vote is an opportunity for the
international community to express, in a coordinated way, a
collective view about the status of Palestine, which would carry
significant weight in international discourse. This means that even
The state of Taiwan, for example, is not a member of the UN; Switzerland joined the UN only
in 2002, although it was a recognized state and functioned in every respect as a state for many
years prior.
21
According to an Advisory Opinion of the International Court of Justice (1950), “The admission of
a State to membership in the United Nations, pursuant to paragraph 2 of Article 4 of the Charter,
cannot be effected by a decision of the General Assembly when the Security Council has made
no recommendation for admission…” (“Advisory Opinion: Competence of the General Assembly
for the Admission of a State to the United Nations,” ICJ Reports, 3 March 1950, p. 4, http://www.
icj-cij.org/docket/files/9/1883.pdf ).
20
23
if Palestine does not gain UN membership, it could be recognized
as a state according to international law, and the General Assembly
could invite it to be party to various international conventions.22
The Normative Framework that Would Apply to
the West Bank
Application of the Laws of Occupation
According to the laws of occupation, statehood is irrelevant in
determining whether a territory is occupied or not, and therefore
recognition of a Palestinian state per se would not affect Israel’s
standing in international law as an occupying power.
The accepted interpretation of international law is that the laws
of occupation apply to territories in which a foreign military force
is able to exercise effective control over the lives of the local
population. Occupation is not a function of a permanent military
presence, but of the ability to control the territory in the sense
that a conquering power is able to engage in governance activity
of a territory.23
In the current situation, Israel controls the territory of the West
Bank and many aspects of life in the Gaza Strip. With regard to
the West Bank, subject to specific powers that Israel transferred
to the Palestinian Authority and allows it to exercise in the
framework of an Interim Agreement, it is Israel that holds all
governing powers, 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.
Gaza
Following Israel’s disengagement from the Gaza Strip in the
summer of 2005, the IDF regional commander declared the end
Such as the International Covenant on Civil and Political Rights (see Article 48), the International
Covenant on Economic, Social, and Cultural Rights (see Article 26), and the Convention on the
Elimination of All Forms of Racial Discrimination (see Article 17).
23
Orna Ben-Naftali and Yuval Shany, International Law between War and Peace, pp. 138-139
(2006) (Hebrew); HCJ 102/82 Tsemel v. Minister of Defense, PD 37 (3), 365, 372-374; von Glahn,
The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation, p. 28-29 (1957).
22
24
of Israeli military rule over Gaza. The official Israeli position is
that ever since this disengagement, Israel has no control over
what transpires in Gaza and therefore the Israeli occupation of
the Gaza Strip has ended, as have Israel’s legal obligations toward
the Gaza population in accordance with the laws of occupation.24
However, the question of whether Israel is an occupying power
of Gaza is a matter of controversy. Many in the international
community, as well as international jurists, reject Israel’s official
stance, as exemplified in the position of the UN SecretaryGeneral,25 the views of jurists,26 and reports by human rights
organizations.27 Others claim that after the disengagement,
Israel no longer has the ability to exercise effective control on
which the status of an occupying power is predicated.28
It is possible that, with regard to the status of the Gaza Strip,
recognition of a sovereign Palestinian state could lead to a reexamination of this position.
We note that regardless of whether Gaza is still under Israeli
occupation or not, Israel bears legal responsibility for what takes
place in the Gaza Strip from various perspectives, both in light
of its current control over the Gaza border crossings (with the
exception of the Rafah crossing), airspace, and territorial waters,
and in light of its previous control and neglect.
For details of this position, see the website statement of the Military Advocate General, “Legal Aspects of IDF Operations in the Gaza Strip”, online at http://www.law.idf.il/935-4489-he/
Patzar.aspx (Hebrew). According to HCJ 9132/07 al-Bassiouny v. the Prime Minister (2008), ever
since Israel’s disengagement from Gaza, the law of occupation no longer applies to Israel’s relationship to Gaza, although Israel bears obligations there by virtue of the law of armed conflict, the
degree of control Israel exercises over Gaza’s border crossings, and the fact that Gaza is almost
entirely dependent on Israel in the wake of many years of military occupation.
25
“Situation of human rights in the Palestinian territories occupied since 1967: Note by the
Secretary-General”, UN Doc. A/61/470, 27 September 2006, para. 7. Available online at http://
domino.un.org/ UNISPAL.NSF/22f431edb91c6f548525678a0051be1d/2e64a5d7f563f5468525
720a0052603d.
26
Nicholas Stephanopoulos, “Israel’s Legal Obligations to Gaza after the Pullout”, Yale Journal of
International Law, vol. 31, 524 (2006); Mustafa Mari, “The Israeli Disengagement from the Gaza
Strip: An End to Occupation?” Yearbook of International Humanitarian Law, vol. 8, 356 (2005).
This position was also adopted by Prof. John Dugard, the UN Special Rapporteur for the Occupied
Palestinian Territories, in “Report of the Special Rapporteur on the Situation of Human Rights in
the Palestinian Territories Occupied since 1967”, Implementation of G.A. Res. 60/251 of Mar. 15,
2006, U.N. Doc. A/HRC/4/17 (2007).
27
Gisha, Disengaged Occupiers: The Legal Status of Gaza, January 2007.
28
Yuval Shany, “The Law Applicable to Non-occupied Gaza: A Comment on Bassiouni v. the Prime
Minister of Israel”, Israel Law Review, vol. 42, 2009; Yuval Shany, “Binary Law Meets Complex
Reality: The Occupation of Gaza Debate,” Israel Law Review, vol. 41, 2008; Yuval Shany, “Faraway,
so Close: The Legal Status of Gaza after Israel’s Disengagement,” Yearbook of International Humanitarian Law, vol. 8, 2005.
24
25
Area A
Israel has previously expressed the view that the territories
transferred to the control of the Palestinian Authority, namely Area
A, are no longer its responsibility, and therefore it is no longer
responsible for safeguarding the human rights of Palestinians
living in these areas.29 However, unlike the situation in Gaza,
Israel has not, to this day, declared the end of the occupation of
Area A territories.
According to the Interim Agreement, Israel continues to be
responsible for security in all areas of the West Bank, including
Area A. Even in practice, Israel demonstrates its control in various
ways, including search and arrest operations within Area A,
adjudication in Israeli military courts of Palestinian residents of
Area A suspected of security offenses,30 and exclusive jurisdiction
of Israelis within the territories (including Area A31) who are
suspected of offenses.
The Military Court of Appeals has reiterated that the entire territory,
including Area A, remains under the belligerent occupation of
Israel.32 The court ruled that the entire region constitutes “a single
territorial unit,” that the regional commander has authority over
the entire area, and that the military commander’s authority for
Area A was never comprehensively revoked, only limited by the
Interim Agreement. In another case, it stated that:
“Also de facto, the IDF’s continuous control over Area A
cannot be denied, as even when IDF soldiers were not
physically present in the area, they controlled it to a large
Second Periodic Report of the State of Israel under the International Covenant on Civil and
Political Rights, para. 8, UN Doc. CCPR/ISR/2001/2 (2001); Second Periodic Report of the State
of Israel under the International Covenant on Economic, Social and Cultural Rights, para. 6-8, UN
Doc. E/1990/6/Add.32 (2001).
30
According to Article 7(d) of the Order Regarding Security Provisions, a military court has jurisdiction over cases in Area A in which Palestinians are suspected of an offense that harmed or
was intended to harm the security in that area. The IDF commander has the authority to rule that
a specific act constitutes an offense even if it took place in Area A, if it affects the security of the
area or of the State of Israel (2533/07 Military Prosecutor v. Ahmad Issa, 27 September 2007).
31
According to the Interim Agreement (Chapter 1, Article 3), Israel retained exclusive jurisdiction
over offenses carried out by Israelis in Area A. The Palestinian Authority has no authority to arrest
Israelis even if they are suspected of carrying out an offense in Area A, but only to detain them
until the arrival of a joint patrol.
32
Military Prosecutor Appeal – Judea and Samaria 2016/07 Issa (Ajouli) v. Military Prosecutor, 16
May 2007; Appeals – Judea and Samaria 3924/06 Sa’adi v. Military Prosecutor, 17 October 2007.
29
26
extent through other means. In light of this, according
to international law, the military commander of the area
retains security powers pursuant to his basic obligation to
ensure the public order in areas under his control.” 33
In summary, the question of the recognition of a Palestinian state
itself has no effect upon the degree of Israeli control over the West
Bank, or upon Israel’s status as the occupying power. In light of
the small size of Area A territories and their non-contiguity, like
islands within Area C under Israel’s full control, even if Israel
changes its patterns of activity in these territories and even if it
declares the “end of occupation” in them, we believe they still
cannot be viewed as independent territories
The Oslo Accords (the Interim Agreement)34
A Palestinian initiative to achieve recognition of Palestine as an
independent state is a unilateral measure that contravenes this
agreement, and opens the door to a declaration of the nonvalidity or revocation of the accords. However, the absolute
revocation of the accords is not a necessary outcome. Despite
repeated violations of the Interim Agreement, neither party to
the agreements to this day has announced their revocation. The
website of the Military Advocate General presented this view:
“The question of the validity of the Interim Agreement
first arose soon after the outbreak of the armed conflict
in Judea, Samaria, and the Gaza Strip […] Despite the
great question mark that has hovered over this issue ever
since, no side so far has officially declared that it views the
Interim Agreement, or parts of it, as null and void. In fact,
both sides have by and large continued to uphold some of
the provisions of the Interim Agreement and to implement
them in practice.”
And following the disengagement from Gaza, it noted,
“[…] With the exception of arrangements that became
irrelevant or inapplicable as a result of the changes in the
Appeals – Judea and Samaria 3924/06 Sa’adi v. Military Prosecutor, 17 October 2007. Ruling by
Military Court Vice-President, Lt. Col. Benichou.
The Interim Agreement on the West Bank and the Gaza Strip, from 1995.
33
27
34
factual and legal reality, attention should continue to be
paid to the Interim Agreement as a legal source [defining]
relations between the two parties.” 35
Thus, it appears that the validity of the agreements, and the
existence of relevant arrangements based on them, continues to
be contingent upon the decisions and actions of the two sides. Of
course, any decision made by either side about this would have
significant ramifications for many matters currently regulated by
the agreements.
Another critical point in this context relates to the status of the
Palestinian Authority. Since its founding, the PA has drawn its
authority from the Interim Agreement. If Palestinian statehood
is recognized, the source of this authority will change, and the
Palestinian government will draw its authority from the existence
of the state.
Changes in the Legal and InternationalInstitutional Framework
Becoming a Party to International Conventions
If Palestine is recognized as a state, this will allow it to become
party to various international conventions, including human
rights covenants and trade agreements, and to join international
organizations. The main human rights conventions do not require
UN membership as a condition for becoming party to them. Many
are open to any state invited by the UN General Assembly:
The International Covenant on Civil and Political Rights
(ICCPR) – This covenant does not require UN membership as a
condition for ratification, but does require an invitation from the
General Assembly (para. 48)
The International Covenant on Economic, Social, and Cultural
Rights (ICESCR) (Article 26)
The Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) (Article 17)
“Legal aspects of IDF operations in the Gaza Strip”, Military Advocate General, available online
at http://www.law.idf.il/935-4489-he/Patzar.aspx (Hebrew).
35
28
Other conventions allow states to become party to them on
easier terms (without an invitation from the General Assembly):
the Convention on the Rights of the Child (CRC); the Convention
on the Elimination of All Forms of Discrimination against Women
(CEDAW); the Convention against Torture (CAT); and the Geneva
Conventions and additional Protocols.
The consequences of a Palestinian state becoming party to these
conventions are, above all, the obligations that these would impose
on the Palestinian state vis-à-vis those under its authority, and
it’s becoming subject to UN monitoring mechanisms, such as the
committees that monitor implementation of these conventions.
Becoming party to these conventions could also affect its relations
with Israel and the settlers.
Becoming a Party to International Courts of Law
Another channel of activity that would be open to Palestine,
if it is recognized as a state, is joining various international
organizations, including international courts of law:
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 in
terms of prestige and of jurisdiction.36 According to Article 35
of the Statute of the Court, UN membership is not a condition
for access to the ICJ. Thus, even if Palestine does not gain UN
membership, it can become a party to the Statute of the Court
and join it.
ICJ jurisdiction is not obligatory, in the sense that the default is
that 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). The ICC was established in order to prevent a situation
in which an individual suspected of an international crime will
not be brought to justice because the state linked with that crime
avoids prosecuting it.
29
36
M. Shaw, International Law, p. 960 (2003).
Hence, the ICC does not prosecute a case when the relevant state
actor exercises appropriate jurisdiction. The ICC may exercise
jurisdiction in any of three cases:37 (a) when the said act took
place in the territory of a state party; (b) when the act was
committed by a citizen of a state party; or (c) when the Security
Council referred the matter to its Prosecutor.
Article 125(3) of the Rome Statute states that the ICC is open
to all states that ratify and submit the Rome Statute to the UN
Secretary-General. Here, too, nonmembership in the UN does not
prevent a state from becoming party to this court. Switzerland,
for example, was admitted to the UN only in 2002, but ratified
the Rome Statute in 2001. Given broad-based recognition of
statehood, Palestine will be able to ratify the Rome Statute and
become party to the International Criminal Court.
The innovative aspect entailed by Palestine becoming party to
the ICC is that this court would now 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. As noted, the ICC would not prosecute
a case if the relevant state exercised appropriate jurisdiction,
i.e., properly investigated the case and brought it to trial when
required.
The Issue of Settlements
One of the dramatic repercussions that will ensue from
recognition of a Palestinian state concerns its becoming a party to
the International Criminal Court. In this context, special attention
should be given to 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.38 This means that the issue of settlements would become
an issue of an international criminal tribunal, which would open
the door to the prosecution of Israelis responsible for establishing
or expanding settlements.
ICC Statute, Article 12-13.
ICC Statute, Art. 8(2)(b)(viii). In the document “Elements of Crimes” of the International Criminal
Court, the following note was introduced concerning Article 8: “The term ‘transfer’ needs to be
interpreted in accordance with the relevant provisions of international humanitarian law” (footnote 44).
37
38
30
Bear in mind that the Advisory Opinion of the International Court
of Justice concerning the Separation Barrier states that, as an act
that strengthens the settlements and makes them permanent,
the construction of the barrier in the segments that surround the
settlements constitutes an illegal act and violates Article 49(6) of
the Geneva Convention.39
East Jerusalem
Published information indicates that the planned initiative for
recognition of a Palestinian state will also relate to the borders
of the Palestinian state, to be defined according to the 4 June
1967 boundaries (the “Green Line”). This area includes East
Jerusalem.
The territory of East Jerusalem, as distinct from other parts of
the West Bank, was annexed to Israel, and the “law, jurisdiction,
and administration of the state” were applied to it.40 However,
although internal Israeli law defines East Jerusalem as part of
the state, this has been rejected by the international community,
which views this territory as part of the area held by Israel as an
occupying power.41
The significance of this is that, from an international perspective,
the laws that apply to East Jerusalem are the same laws that apply
to the rest of the West Bank. This means, for example, that the
authority of the International Criminal Court will also extend to
Israel’s actions in East Jerusalem (such as the construction of
new neighbourhoods).
Launching Military Operations
As noted, Israel’s status as the occupying power of the West Bank
territories is not expected to change as a result of the act of
recognition itself. As an occupying power, Israel will continue
to have the option for use of force, within the bounds of what
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, para. 122, 9 July 2004; para. 9 of Justice Buergenthal’s judgment.
In accordance with para. 11B of the Law and Administration Ordinance 1948. This provision was
added to the Law and Administration Ordinance 1967 (in Amendment of the Law and Administration Ordinance (no. 11) 1967). Also see para. 5 of the Basic Law: Jerusalem, Capital of Israel; and
HCJ 1661/05 Gaza Coast Regional Council v. Israeli Knesset, PD 59 (2), 481, 512-513 (2005).
41
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, para. 70-78, 9 July 2004.
39
40
31
is permissible and not permissible according to the laws of
occupation.
This is not the case, however, with respect to territories where it
is claimed that Israel has ended its role as an occupying power. In
these territories, to justify the use of force and prior to launching
a military operation, it appears that Israel would have to prove
that all conditions of self-defence apply: a significant armed
attack has occurred (which was interpreted as the use of force
significant in scale42); there is an immediate necessity to use
force and there is no possibility to use alternative means; and
the response is proportionate and relative.
Prisoners of War
Recognition of Palestinian statehood and its becoming party
to the Geneva Conventions could obligate Israel to modify its
treatment of Palestinian combatants, who are part of the regular
forces or acting in the name of the state, and to recognize them as
entitled to prisoner-of-war status according to the Third Geneva
Convention.43 This status carries with it various protections,
above all legal immunity from criminal charges because of their
participation in combat.44
Until now, Palestinians who are apprehended are treated as if
they are civilians unlawfully engaged in combat,45 and they are
detained or imprisoned by Israel in a criminal proceeding in the
framework of administrative detention or the incarceration of
Unlawful Combatants Law.
Nicaragua v. United States, 1986, ICJ 14 paras. 187-201.
Only a combatant is entitled to prisoner-of-war status. Article 4 of the Third Geneva Convention
lists two categories of combatants – (1) members of all the armed forces of a party to the conflict;
or (2) members of an irregular army, provided they fulfil four conditions: (a) they are commanded
by a person responsible for his subordinates; (b) they have a fixed, distinctive sign recognizable
at a distance; (c) they bear arms openly; and (d) they conduct their operations in accordance with
the laws and customs of war. Upon fulfilment of these conditions, they too would be entitled to
prisoner-of-war status. It should be emphasized that for combatants to be recognized in this
category, they must distinguish themselves from the civilian population by an identifying sign
and bearing arms openly.
44
Orna Ben-Naftali and Yuval Shany, p. 162 (2006).
45
Orna Ben-Naftali and Yuval Shany, p. 164 (2006). According to the Kassem ruling in Israeli
Military Court (1969), the combatants of the Popular Front for the Liberation of Palestine do not
represent the government of Jordan or any other state, and therefore are not entitled to protection under the Third Geneva Convention (Ramallah Military Tribunal 4/69 Military Prosecutor v.
Kassem (Selected Rulings of the Military Courts in the Administered Territories, vol. 1, 19691970, 402)). The High Court of Justice also stated that the organizations operating in the West
Bank should not be deemed organizations to which the Third Geneva Convention applies (HCJ
2967/00 Batya Arad v. Israel Knesset, 54 (2), 188, 190 (2000)).
42
43
32
Responsibility of a Palestinian State for Human
Rights Violations
Recognition of a Palestinian state and its becoming party
to international conventions and courts of law will impose
obligations on it and subject it to international mechanisms that
monitor the implementation of the human rights conventions.
These obligations apply first and foremost to the citizens under
its rule, but there are also implications for its obligations toward
Israelis, including settlers.
The Palestinian state will be obligated – both according to the rules
of state responsibility (“Responsibility of States for Internationally
Wrongful Acts”) and by virtue of its obligations to uphold human
rights – to take the necessary steps to prevent human rights
violations by governmental bodies and official organizations.
It may also bear responsibility for threats by organizations and
citizens who operate from within its territory against Israelis or
settlers, subject to the extent of its control and the means of
action at its disposal.
One outcome of its becoming party to international conventions
and international courts is that claims regarding violations of
human rights by the Palestinian state could be adjudicated in
various international forums. Among other things, should the
Palestinian state not take the necessary measures to investigate
and prosecute individuals suspected of perpetrating international
crimes, the matter could be referred to the International Criminal
Court. Thus, for example, the suspicion of torture conducted by
Palestinian governmental bodies or on their behalf, the arbitrary
killing of civilians, the shooting of rockets toward a civilian
population in Israel, and the holding hostage of Gilad Shalit,
could be submitted for deliberation both in the relevant UN
committees and in the International Criminal Court.
33
Annexes
Annex I
Al-Haq’s Questions & Answers on Palestine’s
September Initiatives at the United Nations
20 July 2011
Ref. no. 249/2011
This paper seeks to answer some of the common questions that
have arisen recently in the context of the upcoming initiatives
of Palestinian representatives at the United Nations (UN). The
questions concern four main issues: (i) Palestine’s September
initiatives; (ii) Palestine’s statehood status in international law;
(iii) the procedure for admission as a Member State of the UN;
and (iv) the potential implications of these initiatives. In providing
answers to these questions, Al-Haq has adhered to a strict
application of international law and contemporary legal practice,
including the relevant rules of international humanitarian law.
I. Palestine’s September initiatives
1. What are the Palestinian leadership’s plans for September?
The Palestinian representatives had initially expressed the
intention to issue a (unilateral) declaration of independence along
the 1967 borders in September, 2011. This would have amended
the Declaration of Independence issued by the Palestine Liberation
Organisation (PLO) in 1988,46 which remains the most recent
basis for Palestine’s statehood. The 1988 declaration is based on
the UN General Assembly Resolution 181, also known as the UN
Partition Plan of 1947, which is considered the most authoritative
instrument for Palestine’s international legitimacy.47
The plan to issue a declaration was changed to a series of
initiatives that consist of applications for membership in
international organisations, including but not limited to the UN,
The Declaration of Independence was made by the Palestine National Council of the Palestine
Liberation Organization (PLO) on 15 November 1988, during its 19th session in Algiers <http://
unispal.un.org/UNISPAL.NSF/0/6EB54A389E2DA6C6852560DE0070E392> accessed 16 July
2011.
47
See for instance, J. Crawford, The Creation of States in International Law (2nd ed.) (Oxford University Press, Oxford, 2006).
46
35
and the ratification of different international conventions and
treaties, including the Geneva Conventions and different human
rights instruments. In parallel, Palestine is looking to obtain
further recognitions of its statehood from individual states.48
2. What can be expected from the September UN initiatives?
The September initiatives are an important way to enhance
Palestine’s prospects for acceding to international treaties,
especially human rights instruments, such as the two
International Covenants on Civil and Political Rights (ICCPR)
and on Economic Social and Cultural Rights (ICESCR). Palestine
could also prospectively become a member of some international
organisations, both within and outside the system of the UN.
Practically, the most Palestine could achieve through the UN
admission procedure, in light of the likely US veto at the Security
Council, is a General Assembly resolution recommending the
recognition of Palestine’s statehood, and/or granting it the status
of ‘observer state’ at the UN, as discussed below.
II. Palestine’s statehood status in international law
1. Is Palestine a State under international law? What is the
international community’s position with regards to Palestine’s
statehood?
Over the years, Palestine has been treated as a state by the
majority of states and international organisations.49 In its
capacity as non-state observer at the UN, Palestine has been
accorded rights reserved for states by the Security Council and
the General Assembly, amongst other UN bodies.50 For instance,
the UN Secretariat has also indirectly acknowledged Palestine’s
statehood by accepting its instruments of adherence on road,
Information obtained from consultations with Palestinian Authority’s Ministry of Foreign Affairs,
legal advisers, 28 June 2011 (minutes of the meetings are on-file with Al-Haq).
The European Union for example deals with Palestine on the basis that it is a State, having
concluded the 1997 Euro-Mediterranean Interim Association Agreement with Palestine and acknowledging Palestine’s statehood at the European Court of Justice in 2010, where it used the
word “state” in reference to Palestine. Brita GmgH v Hauptzollamt Hamburg-Hafen, European
Court of Justice, Case C-386/08 (25 February 2010) para. 58. See further J. Quigley, The Statehood of Palestine: International Law in the Middle East Conflict (Cambridge University Press, New
York, 2010) 180-181.
50
Ibid.
48
49
36
maritime, and rail transport concluded under the auspices
of the Economic and Social Commission for Western Asia, of
which Palestine is a member country.51 Palestine has also been
conducting international relations, economic and diplomatic,
with individual and groups of States for many years.
However, as a whole, the existence of a state is not a legal issue,
rather one based on purely factual and political matters. The
difficulties with the questions concerning Palestine’s statehood
result from the fact that statehood is an indeterminate status
under international law. It cannot be ascertained by using
an objective test with a clear set of legal criteria; neither the
Montevideo Convention, nor the varying theories on recognition
are helpful in determining statehood status. Moreover, questions
concerning the exact parameters of a state, including its borders,
are unrelated to the question of whether it is or is not a State,
and their impending resolution is not a barrier to statehood.52
Statehood can be understood mainly in terms of state practice
vis-à-vis the entity concerned, including its admission as a
member of international organisations or accession as a party to
international treaties and conventions. Each country decides for
itself whether to recognise the entity as a state, either explicitly
or implicitly by entering into relations therewith. This does not,
however, have an effect on the determination of the entity’s
status in international law.
At the end of the British mandate in Palestine, the UN General
Assembly resolution 181 of 1947 had already provided for the
creation of two states, one Arab, one Jewish.53 This, amongst
other pertinent past and contemporary facts, should be seen as
supportive evidence of the international community’s perception
and practice in relation to Palestine’s statehood. It is equally
important, in this regard, to understand the obligations owed
by the international community to the Palestinian people with
regards to ensuring the exercise of their independence.
See the official website of the UN Economic and Social Commission for Western Asia <http://
www.escwa.un.org/members/map.asp>.
See generally, I. Brownlie, Principles of Public International Law (7th ed.) (Oxford University
Press, New York, 2008) 69-95.
53
See for a further discussion of the Partition Plan and international law see N. Elaraby, ‘Some
Legal Implications of the 1947 Partition Resolution and the 1949 Armistice Agreements’, 33 Law
and Contemporary Problems 1 (1968) 97-109.
51
52
37
Palestine’s statehood has recently been discussed at length
following the submission of the Palestinian declaration under
Article 12(3) of the Statute of the ICC, as a State that is not a
party to the Statute, transferring jurisdiction to the Court over
international crimes committed in Palestine. The declaration
sparked a debate over Palestine’s statehood amongst scholars,
national legal bodies and different groups that examined whether
Palestine is, for the purpose of the Statute or otherwise, a State
under international law.54 If adopting a functional approach to
the objectives of its work, the ICC should accept Palestine’s
declaration on the grounds that Palestine is indeed a state for
the purpose of the Rome Statute.55
2. Does the fact that Palestine is under occupation affect its
statehood status?
Statehood is not affected by belligerent occupation; nor does
occupation negate or offset statehood in legal terms. Statehood
is not dependent on occupation, which only has the effect of
limiting the ability of a state to exercise its sovereignty and
independence. During occupation, the sovereignty over the
territory remains at all times with the local population. The
sovereignty and independence of the Palestinian people, as well
as their cardinal right to self-determination, have been affirmed
by numerous UN resolutions, as well as by official statements
made on behalf of individual states.
3. What effects can recognition have on the status of an entity
under international law?
The prominent position in international law is that the number of
recognitions an entity has obtained does not have legal bearing
Summary of submissions on whether the declaration lodged by the Palestinian National Authority meets statutory requirements, ICC website <http://www.icc-cpi.int/menus/icc/structure%20
of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/palestine/summary%20of%20submissions%20on%20whether%20the%20declaration%20lodged%20by%20the%20
palestinian%20national%20authority%20meets> accessed 17 July 2011. See also, UCLA School of
Law, Human Rights and International Criminal Law Online Forum, ‘Gaza Jurisdiction Question:
Does the Prosecutor of the ICC have the Authority to Open an Investigation into Alleged Crimes
committed in the 2008-2009 Gaza Conflict?’ <http://uclalawforum.com/gaza> accessed 17 July
2011.
55
M. Kearney, ‘Palestine and the International Criminal Court: Asking the Right Question’, UCLA Human Rights & International Criminal Law Online Forum. J. Quigley, ‘The Palestine Declaration to the
International Criminal Court: The Statehood Issue’, Rutgers Law Record (2009). Memo by J. Quigley
submitted to the ICC on 20 May 2010 <http://www.icc-cpi.int/NR/rdonlyres/D3C77FA6-9DEE-45B1-ACC0 B41706BB41E5/281978/Quigleyadditionalsubmission1.pdfb> accessed 16 July 2011.
54
38
on the determination of statehood. Recognition is a declaratory
act and implies only the acknowledgement of the legal fact that
an entity is a state.56 A refusal to recognise Palestine is a political
act, which does not have any legal bearing on its statehood status.
Similarly, a declaration of independence is only an invitation for
states that is meant to trigger recognition.57
Most states, including Israel, have recognised Palestine and the
sovereignty of the Palestinian people, either explicitly or implicitly,
through relations therewith. So far, about 117 states have explicitly
recognised Palestine, and the Palestinian representatives predict
they will have obtained over 130 recognitions by September 2011.
Although recognition does not constitute statehood as such,
it substantiates Palestine’s statehood providing it with further
means to gain more rights and obligations in the international
legal order.58
4. Is the question of Palestine’s statehood relevant to the
September initiatives?
Although at face value, Palestine’s UN options have given rise
to certain questions concerning their statehood status, the
“September options” do not, in purpose or in effect, draw on or
pretend to bring about any determinations with regard to this
question. In other words, the question of whether Palestine is
or is not a State under international law is neither invoked nor
answered through these processes.
As such, neither UN membership nor further recognition of
Palestine as a state can legally determine whether it is a state
– each state and international organisation will have the last
say on whether they choose to treat Palestine as a state. This
depends wholly on political will and the legitimacy that each one
of them chooses to attribute to Palestine, and not on an objective
determination on the basis of international legal standards.
J. Crawford (n 2) 17-28 and J. Quigley (n 4) 219-252.
Al-Haq consultation with Dr. J. d’Aspremont, Associate Professor of International Law and Senior
Research Fellow of the Amsterdam Center for International Law at the University of Amsterdam, on
statehood and Palestine’s status in international law, 18 May 2011 (notes on-file with Al-Haq).
58
V. Kattan, ‘A State of Palestine: The Case for UN Recognition and Membership’, Al-Shabaka,
Policy Brief, May 2011 <http://al-shabaka.org/policy-brief/politics/state-palestine-case-unrecognition-and-membership> accessed 16 July 2011.
56
57
39
The issue at stake in the context of the “September initiatives” is
not statehood as such, but a strategy to strengthen Palestine’s
position in the international legal order, through their
unequivocally recognised rights and obligations under public
international law, and enhance its ability to exercise such rights
by bringing international claims.59
III. UN admission procedure
1. What is the procedure for admission as a Member State of
the UN?
The procedure for being accepted as a member of the UN begins
when a state submits an application to the Secretary-General
stating its adherence to the UN Charter. Thereafter, the 15member Security Council must make a recommendation that
requires nine yes votes and no veto by a permanent member.
Only then can the General Assembly vote on membership, which
must be approved by a two-thirds majority.
The Security Council is composed of five permanent members with
veto power: China, France, Russian Federation, the United Kingdom
and the United States; as well as ten non-permanent members60:
Bosnia and Herzegovina (2011), Germany (2012), Portugal (2012),
Brazil (2011), India (2012), South Africa (2012), Colombia (2012),
Lebanon (2011), Gabon (2011), and Nigeria (2011).61
US President Obama has expressed the intention of the US to veto
a Security Council recommendation on Palestine’s admission as a
Member State of the UN. In the likelihood of a veto at the Security
Council, it is uncertain whether there is an alternative route for
Palestine to achieve UN membership by bypassing the Security
Council (see discussion below).
2. Will the UN admission procedure come to an end if the UN
Security Council is deadlocked by a veto?
The procedure for UN membership, under Article 4(2) of the UN
Charter, requires a nine yes vote at the Security Council before
I. Brownlie (n 7) 69-95.
Parenthesis highlight the year that nonpermanent members will leave their seat.
61
For further information on the UN Security Council see its official webpage <http://www.un.org/
Docs/sc/index.html>.
59
60
40
the General Assembly can conduct a vote on the admission of
a state as a member of the organisation. Therefore, a deadlock
at the Security Council is expected to bring the ‘classical’ UN
admission procedure to an eventual deadlock. Still, some
attempts can be made by the General Assembly to act despite
a negative recommendation by the Security Council, including
exchanges between the two bodies, over the reasons for the
negative recommendation.
It has been suggested that the General Assembly’s ‘Uniting for
Peace’ powers under Resolution 377 could be used to bypass a
deadlock at the Security Council and bring the admission matter
before the General Assembly.62 Since it is highly improbable
that the non-admission of Palestine to the UN can be defined
as a ‘threat to international peace and security’, it is unlikely
that these powers can be invoked. The ICJ Advisory Opinion in
the Admission case in 1950 examined the competence of the
General Assembly in the context of the UN admission procedure,
concluding that the Security Council’s recommendation is indeed
a condition precedent to the General Assembly vote on the matter,
and therefore also to the admission of a state as a member of the
organisation.63
Another option to overcome a veto at the Security Council
involves the possibility of arguing that the admission of a state as
a member of the UN is a procedural, as opposed to a substantive,
matter and therefore the permanent five members of the Security
Council should not be able to use their veto powers to block
applications that have received 9 out of 10 affirmative votes.
Notably, this was not a question that was directly examined in
the ICJ’s 1950 Opinion and could therefore be brought before
the Court by the General Assembly for further examination.
Equally, the minority opinion in the 1950 Opinion added that
the Court should have distinguished between two scenarios:
the first being where the application failed to receive majority
support in the Security Council, and the second being where the
application received the majority approval, but was opposed by
a permanent member. In this latter case, it would not have been
Al-Haq consultation with Dr. J. d’Aspremont (n 12).
Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) ICJ Rep 1950 (3 March 1950) <http://www.icj-cij.org/homepage/index.php>.
62
41
63
permissible, according to the minority opinion of the Court,
for a permanent member of the Security Council to obstruct
the acceptance of a membership request that received majority
approval by the Security Council, and then proceeded to obtain
two-thirds majority support from the voting members of the
General Assembly.64 The grounds for this option continue to be
debated and its prospects remain uncertain.
3. What is the ‘observer state’ status option? What
significance, legal or political, does it have?
In light of the political pressures at the UN, the most that can
realistically be expected to come out of Palestine’s application for
UN membership is a resolution from the majority of states in the
General Assembly recommending the recognition of Palestine’s
statehood and granting it ‘observer state’ status.65
Such status is based purely on practice, as there are no provisions
for it in the UN Charter. As gathered from the Swiss, Austrian,
Finnish, Italian and Japanese precedents, the only requirement
is that the non-Member state of the UN be a member of one
or more specialised UN agencies.66 A simple majority vote in
the General Assembly then seems to suffice to grant the state
observer status.
The upgrade to UN observer state status for Palestine, from nonState observer67, is nevertheless an important change that would
provide Palestine with further political leverage, and confirm its
rights as a state within the UN system. Although to a lesser extent
than admission to the UN as a full member state, the observer state
status would further Palestine’s position vis-à-vis others states,
including Israel and enhance its capacity to claim its rights.
For further discussion of these options see C. Mansour, ‘Palestinian Options at the United Nations’, Institute for Palestine Studies <http://palestine-studies.org/columndetails.
aspx?t=2&id=34> accessed 19 July 2011.
65
Like in the case of Switzerland, before it became a UN member State in 2002, and the present
case of the Holy See.
66
For further information on UN permanent observers and non-Member States at the UN <http://
www.un.org/en/members/aboutpermobservers.shtml> accessed 17 July 2011.
67
In its resolution 3237 (XXIX) of 22 November 1974, the General Assembly granted observer
status to the Palestine Liberation Organization. In its resolution 43/177 of 15 December 1988,
it decided that the designation “Palestine” should be used in place of the designation “Palestine
Liberation Organization” in the United Nations system. See, respectively, UNGA Res 3237 (XXIX)
(22 November 1974) Un Doc A/RES/3237 (XXIX) and UNGA Res 43/177 (15 December 1988) Un
Doc A/RES/43/177.
64
42
4. What could be the value of UN membership (or ‘observer
state’ status) for Palestine?
Despite the important symbolic political value of UN membership
and the recommendation for recognition by the General Assembly,
they do not bear any legal implications as such. Recognition and
UN membership are two different matters. One does not imply the
other. UN membership is not a requirement for statehood; nor
does the General Assembly have the powers to constitute a state.
By seeking UN admission, Palestinians do not claim a right
to statehood, but rather the rights flowing from an existing
statehood status. Neither are Palestinians claiming a right to
sovereignty or independence; they are claiming the means to
actually exercise them.
IV. Implications of Palestine’s September initiatives
1. What are the legal implications?
Certain indirect legal effects could result from the eventual
admission of Palestine to some international organisations and
treaties, as well as the overall increase in political legitimacy and
legal personality. A number of gains can be asserted from the
upcoming strategy pertaining to the access to accountability
mechanisms for Israel’s violations of international law, which
have so far benefitted from a climate of impunity where justice
has been held hostage by the politics of the ‘negotiations table’
and the misnamed ‘peace process.’
The benefits of enhancing Palestine’s international legal profile
can be classified in a two-fold manner: (1) further possibilities to
adjudicate claims of violations of international humanitarian and
human rights law; and (2) the possibility to gain further influence
over the international community’s willingness to put an end to
Israel’s violations.
43
Firstly, the accession to international organisations and treaties
will provide access to new international forums and avenues to
justice, including the UN human rights treaty bodies and special
procedures, to prosecute Israel’s widely acknowledged violations
of international law that have been repeatedly condemned by
members of the International community. This will also facilitate
access to the ICC, where a favourable impact of even a UNGA
resolution (recommending the recognition of Palestine) could
assist both the prospective acceptance of Palestine’s declaration
under Article 12(3) of the Statute of the ICC, and its potential
ratification of the Statute of the ICC.
Another option that will become available is the possibility
of requesting an advisory opinion from the ICJ on the illegal
character of Israel’s occupation, due to its persistent violations
of international law, including the law of occupation and the
prohibitions of apartheid and colonialism.
Palestinians would also gain further political leverage to pressure
the international community to comply with its responsibility
(under the UN Charter, the international Law of State Responsibility
and Common Article 1 to the Geneva Conventions) to bring Israel’s
violations of international law to an end, including by strengthening
the possibility of the UN defining the Israel-Palestine conflict as
a ‘threat to international peace and security’ in order to allow for
the use of collective UN measures against Israel.68
Concurrently, the Palestinian governmental institutions in the oPt
could also be affected by Palestine’s accession to international
humanitarian and human rights law treaties by being subject to
a comprehensive audit for their protection of the rights of the
people under their jurisdiction.
2. What are the political implications?
The political implications that may flow from these initiatives
are manifold, and have often been conflated with the legal ones.
The indirect legal implications discussed above also respectively
bear different political implications for Palestine’s position in the
international legal system, bringing it onto a footing of ‘equal
formality’ with other states. By accruing such legitimacy in the
international legal order, Palestine would be better situated to
claim its rights from the international community, in particular
the means to exercise the right to self-determination.
Similar to the cases of Kuwait and Namibia. See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (Advisory Opinion) ICJ Rep 1970 (21 June 1971) (hereafter: Namibia Advisory
Opinion). See also O. Ben-Naflati, ‘PathoLAWgical Occupation: Normalizing the Exceptional Case
of the Occupied Palestinian Territory (OPT) and Other Legal Pathologies’ in O Ben-Naftali (ed.),
International Humanitarian Law and International Human Rights Law International Human Rights
and Humanitarian Law (Oxford University Press, Oxford/New York, 2011).
68
44
As a result, this is expected to reconfigure the conflict and bring
about a political paradigm shift from a binary and ‘zero-sum’
situation between Israel and the Palestinians into a multilateral
conflict, where actors are not changed but diversified.
3. What are the potential benefits?
A prominent backdrop to the discussion of Palestine’s statehood
is the ongoing, already over four-decade-long, occupation of
Palestinian territory by Israel that amounts to a continuous denial
of the right of the Palestinian people to self-determination. The
international community possesses a wealth of information on
Israel’s ongoing grave and systematic violations of international
law, including violations of the international prohibition of
colonialism and apartheid that establish the inherent illegality
of Israel’s occupation.69 Consequently, states are already under
an unequivocal obligation not to recognise the situation as legal,
not to render aid or assistance and to actively cooperate to bring
an end to Israel’s violations.70
The September initiatives are expected to enhance Palestine’s
position in the international legal order by allowing it to accumulate
further legitimacy and gain a footing of ‘equal formality’ with
other states on the international level. This would permit it to
accelerate ongoing international legal processes as well as gain
further access to international accountability mechanisms to
redress Israel’s violations of international law.
4. Could the September initiatives impact the protection of
civilians in the OPT in terms of the application of international
humanitarian and human rights law?
The law applicable to the oPt is the law of International Armed
Conflict, which applies by virtue of Israel’s occupation of the
Palestinian territory, namely the West Bank, including East
See generally ‘Occupation, Apartheid, Colonialism? A re-assessment of Israel’s Practices in
the Occupied Palestinian Territories under International Law’ (Human Sciences Resource Council,
Cape Town, 2009) <www.hsrc.ac.za/Document-3227.phtml> accessed 17 July 2011.
70
When a serious breach of a peremptory norm occurs, third party States are seen as being under
an obligation towards the international community as a whole (obligations erga omnes) to bring
the violations to an end; as per the international law on state responsibility, namely Articles 40
and 41 of the International Law Commission’s Draft Articles on State Responsibility 2001. See also
Namibia Advisory Opinion (n 22).
69
45
Jerusalem, and the Gaza Strip. The September initiatives,
regardless of their expected results, would not bring about any
adjustment in the legal framework applicable to the oPt, since
it will remain under the effective control and administration
of the Occupying Power, Israel, who is ultimately responsible
for ensuring the Palestinian population’s enjoyment of their
fundamental guarantees under the law of occupation.
The rights guaranteed to the Palestinian population in the oPt by
the provisions of international humanitarian and human rights
law are absolute and cannot be compromised by any change
introduced to the territory or government of the occupied
territory, even by an agreement between the occupying power
and occupied population.71 As such, the admission of Palestine
to international organisations and its accession to international
treaties would not affect the rights guaranteed to protected
persons under occupation.
5. What are the risks involved in initiating the September
options? Can they prejudice the future exercise of Palestinian
national rights and/or the determination of questions related
to borders and refugees?
Since the path that the Palestinian representatives have chosen
is very specific and largely procedural, none of the upcoming
initiatives could bring about any legal change to the current rights
of the Palestinian people, namely the right to self-determination
and the right of return of refugees, which is part and parcel of
the exercise of the right to self-determination. These are rights
that are borne and exercised by the people, not by a state, and,
therefore, do not stand to be compromised nor prejudiced
by decisions on the admission of a state to an international
organisation or its recognition by other states.
Moreover, once Palestine is able to fully exercise its sovereign
rights and independence, namely when the occupation is brought
Article 47 of the Fourth Geneva Convention ensures the inviolability of the rights of protected
persons in time of occupation, stating that “Protected persons who are in occupied territory shall
not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions
or government of the said territory, nor by any agreement concluded between the authorities of
the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole
or part of the occupied territory.”
71
46
to an end, the Palestinian State will need to define and establish
the legal foundations of Palestinian nationality.72 The Palestinian
leadership will then need to carefully examine and define whom
it represents diplomatically in negotiations in order to ensure
that the rights of Palestinian refugees are not undermined.
Therefore, concerns regarding the effects of the admission of
Palestine to the UN along the 1967 borders are of a political
nature and should not be conflated with the legal effects of these
processes. The September initiatives will not result in any erosion
of rights or the ability to exercise them in the future; because
they do not, as such, consist of an exercise of any right, nor are
they guaranteed to bring about any change in the situation of
occupation. What they are meant to achieve is the furtherance of
the claims to provide the Palestinian people with the means to
exercise these rights.73
6. Are the September initiatives an exercise of the Palestinian
people’s right to self-determination?
Statehood and the determination of the borders and government
of an entity are two separate matters. The former, as discussed
above, is not a legal matter; whilst the latter are matters that
are determined by a people in the course of the exercise of their
right to self-determination.
In practice, the exercise of the right to self-determination would
require the popular participation of the Palestinian people as
a whole – including the local population of the oPt, Palestinian
refugees, the Palestinian Diaspora, as well as Palestinian citizens
of Israel. A referendum is the most common practical means
for the exercise of the right to self-determination by a people,
as was the case in Southern Sudan, recently admitted as a full
member of the UN.74 The conduct of a referendum would also
provide further legitimacy and leverage to any initiative of the
See in this respect the seminal work of M. Qafisheh, The International Law Foundations of Palestinian Nationality: A Legal Examination of Nationality in Palestine under Britain’s Rule (Martinus
Nijhoff Publishers, The Netherlands, 2008). See also V. Kattan, From Coexistence to Conquest:
International Law and the Origins of the Arab-Israeli Conflict, 1891-1949 (Pluto Press, New York,
2009) 209-232.
73
J. Quigley (n 4) 251-252.
74
‘UN Welcomes Southern Sudan as 193rd Member State’, UN News Service, 14 July 2011 <http://
www.un.org/apps/news/story.asp?NewsID=39034&Cr=South+Sudan&Cr1> accessed 17 July
2011.
72
47
current Palestinian representatives, if these were intended to
include matters that concern, for instance, the delineation of
territorial borders.
7. Can the September initiatives be seen as constituting a
violation of the agreements between Israel and the PLO,
namely the 1995 Interim Agreements (Oslo Accords)?
The PLO-Israel Interim Agreements (Oslo Accords) are not a
treaty under international law and do not stand to compromise
or adjust any of the rights guaranteed to the occupied Palestinian
population under the Geneva Conventions. As such, these
agreements, concluded between the Occupying Power and the
representative of the occupied population for the administration
of the occupied territory, do not negate the rights and
obligations under international humanitarian and human rights
law. Nor does occupation, as discussed above, negate Palestine’s
statehood status under international law. As such, the right
to self-determination and the sovereignty of the Palestinian
people, which has been reiterated on countless occasions by the
international community, cannot be modified or limited in any
way by the Oslo Accords.
Since the September initiatives are a means to reassert
Palestinian sovereignty and to strengthen Palestine’s position in
the international legal order, on the basis of its already existing
and determined legal status and rights, they do not constitute a
violation of the Oslo Accords, nor bring about any change in the
status of the territory or rights of either party.
48
Further Reading
Annex II
Al Haq, ‘Questions and Answers: Palestine’s UN Initiatives
and the Representation of the Palestinian People’s Rights’, 15
September 2011.
<http://www.alhaq.org/pdfs/QA%20on%20representation.pdf>
Camille Mansour, ‘Palestinian Options at the United Nations’,
Al-Ayyam, 10 July 2011 (in English at Institute of Palestine
Studies)
<http://palestine-studies.org/columndetails.
aspx?t=2&id=34>.
Victor Kattan, ‘Palestinian Statehood: a Turning Point’, Open
Democracy, 6 July 2011 <http://www.opendemocracy.net/
victor-kattan/palestinian-statehood-turning-point>.
Victor Kattan, ‘A State of Palestine: The case for UN
Recognition and Membership’, Al-Shabaka, Policy Brief, May
2011
<http://al-shabaka.org/policy-brief/politics/state-palestinecase-un-recognition-and-membership>.
Victor Kattan, ‘Palestinian Statehood: Individual Nations, not
the U.N., will have the Final Say’, Los Angeles Times, 17 June
2011
<http://opinion.latimes.com/opinionla/2011/06/blowbackpalestinian-statehood-united-nations.html?utm_source=AlShabaka+announcements&utm_campaign=b552cea33a-Media_
Summary_6_28_11_GA&utm_medium=email>.
Victor Kattan, ‘The Case for UN Recognition of Palestine’,
Electronic Intifada, 14 June 2011 <http://electronicintifada.net/
content/case-un-recognition-palestine/10079>.
49
Hélène Michou, ‘Towards Declaration of a Palestinian State?’,
FRIDE (A European Think Tank for Global Action), Policy Brief,
No 79, June 2011
<http://www.fride.org/publication/920/towards-declarationof-a-palestinian-state>.
End the Occupation, ‘FAQ on UN Membership for and
Recognition of the State of Palestine’, US Campaign to End the
Occupation, 7 June 2011
<www.endtheoccupation.org/downloads/unmembershipfaq.
pdf>.
Rashid Khalidi, ‘On the Possible Recognition of Palestine
in the UN’, Jadaliyya, 28 June 2011 <http://www.jadaliyya.
com/pages/index/2002/on-the-possible-recognition-of-apalestinian-state>.
Omar Dajani, ‘September Song’, Foreign Policy,
24 May 2011 <http://mideast.foreignpolicy.com/
posts/2011/05/24/september_song?sms_ss=facebook&at_
xt=4dddaa05187a1958%2C1>.
Valentina Azarov, ‘A Comment on Palestine’s Statehood,
Recognition and UN Membership’, International Law Observer,
22 June 2011
<http://internationallawobserver.eu/2011/06/22/a-commenton-palestine%E2%80%99s-statehood-recognition-and-unmembership/>.
50
Diakonia’s IHL Sessions
Diakonia IHL Resource Centre’s work focuses on the application of
international humanitarian law (IHL) and international human rights law
(IHRL) to specific policies, practices and issues pertaining to Israel and the
occupied Palestinian territory (oPt).
We organise regular IHL sessions on current issues of interest related to the
protection of civilians in the Israeli-Palestinian conflict. The IHL sessions
aim at providing humanitarian and development experts and practitioners,
policy and decision makers, researchers, academics and journalists with
accessible and reliable information on international law and its applicability
in Israel and the oPt.
Because IHL sessions highlight the legal narrative that underpins a current
broader protection-related issue, IHL sessions usually consists of a panel
of 3 or more speakers that provide audiences with a range of angles to
facilitate a multi-perspective discussion and debate.
IHL is a key reference and tool for those who work to increase the protection
of civilians, alleviate human suffering, and promote peace, justice and
development in Israel and the oPt. The objective of the information provided
during the IHL sessions is to increase understanding, as well as to facilitate
policy formulation and operations by other organisations and institutions,
in compliance with international law.
Diakonia is a Swedish development organisation that works together with local partners for a sustainable change
for the most vulnerable people in the world. We support more than 400 partners in nearly 30 countries and believe
in a rights-based approach that aims to empower discriminated individuals or groups to demand what is rightfully
theirs. Throughout the world we work toward five main goals: human rights, democratisation, social and economic
justice, gender equality and sustainable peace.
Diakonia’s IHL Resource Centre
The goal of Diakonia IHL Resource Centre is to increase the respect for and further implementation of international
law, specifically international humanitarian law, in the Israeli-Palestinian conflict. We believe that addressing
violations of IHL and international human rights law helps to tackle the root causes of the humanitarian and
protection crisis in the oPt in a sustainable manner. Our Centre makes IHL expertise available by providing:
•
•
•
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Briefings to groups and organisations on IHL and its applicability to Israel and the oPt;
Tailored in-depth trainings on specific issues and policies relating to IHL;
Legal analyses and ongoing research on current IHL topics;
and Legal advice, consultation and legal review of documents for other actors in the oPt to support
policy formulation and strengthen advocacy with an IHL perspective
Do you or your organisation want to learn more about IHL and its applicability to the oPt? Visit our website: ‘An
Easy Guide to International Humanitarian Law in the occupied Palestinian territory’ at: http://www.diakonia.se/ihl or contact us to set up a general or specialised legal briefing by our legal advisors.
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