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by Stephen Lendman
Wednesday, Sep. 14, 2011 at 5:08 AM
Implications of Palestinian Statehood - by Stephen Lendman
Previous articles discussed likely Palestinian statehood and full UN membership if proper procedures are followed.
They also suggested Palestinian President Mahmoud Abbas will belie his supportive rhetoric by betrayal at the 11th hour.
When the General Assembly meets later in September, we'll know which Abbas shows up - a leader representing his people or an Israeli collaborationist like so often before. Smart money says the latter.
A September Anne Suciu and Attorney Limor Yehuda Association for Civil Rights in Israel (ACRI) paper headlined, "Human Rights in the Occupied Territories: Possible Implications of the Recognition of Palestinian Statehood," explaining future possibilities under statehood.
They depend on what course Abbas and the Palestinian Authority (PA) choose, how Israel and Washington respond, and which side Western, regional, and other countries support.
ACRI agrees that full de jure UN membership is unlikely. Nonetheless, "the very recognition of Palestinian statehood" by a decisive General Assembly two-thirds majority "would have significant repercussions."
In fact, if statehood and full UN membership are granted, Palestine would "become party to international conventions and international courts." As a result, it would have new tools to uphold its rights as do all other recognized nations.
Conditions for Statehood Recognition
ACRI cites four 1933 Montevideo Convention criteria:
• a permanent population;
• a defined territory;
• an effective government; and
• the ability to have diplomatic relations with other states.
In his important book titled, "Palestine, Palestinians and International Law," Law Professor and former PLO legal advisor Francis Boyle also discussed them, explaining that:
• "A determinable territory" doesn't have to be fixed and determinate. Its borders may be negotiated. The new state would be comprised of Gaza, the West Bank and East Jerusalem. Palestinians have lived there for millennia. As a result, they're entitled to all of it (22% of historic Palestine) as their nation state.
• A fixed population as stated above.
• A functioning government. In 1988, Yasser Arafat declared the PLO Palestine's Provisional Government.
• The capacity to have diplomatic relations with other states. Up to 140 nations recognize Palestine, easily enough to qualify. Others haven't because occupation deprives it of effective territorial "control."
Still others disagree, saying Israel isn't in control. It's an occupier. On December 15, 1988, The General Assembly recognized Palestine's legitimacy, according it UN observer status.
Palestine easily satisfies the above criteria. All UN Charter states (including America and Israel) provisionally recognized Palestinian independence in accordance with UN Charter article 80(1) and League of Nations Covenant article 22(4).
Further, as the League's successor, the General Assembly has exclusive legal authority to designate the PLO as Palestine's legitimate representative.
The Palestine National Council (PNC) is the PLO's legislative body, empowerered to proclaim Palestine's existence. According to the binding 1925 Palestine Citizenship Order in Council, Palestinians, their children and grandchildren are automatically citizens of the new state.
In addition, diaspora Palestinians no longer would be stateless. Their right of return would be guaranteed and enforced.
Those living in Israel and Jordan would have dual nationalities. Others in the Occupied Territories would remain "protected persons," according to the Fourth Geneva Convention - until a final peace settlement is reached.
The Proclamation of Independence must then create the Government of Palestine (GOP). As a final step, it should direct the GOP to claim Palestine's right to UN membership. It requires Security Council and General Assembly approval, according to five conditions. Applicants must be:
• a state;
• peace loving;
• accept the Charter's obligations;
• be able to carry them out; and
• be willing to do it.
America provisionally recognized Palestine as an independent nation. According to UN Charter Article 80(1), it's barred from reversing its position by vetoing a Security Council Resolution, calling for Palestine's UN admission.
Any veto would be illegal and subject to further Security Council action under the Charter's Chapter VI. Ultimately, the Security Council only recommends admissions. The General Assembly affirms them by a simple two-thirds majority.
If Washington invokes its Security Council veto, the GA can override it under the 1950 Uniting for Peace Resolution 377.
In days, we'll know what actually happens, its implications and early stage repercussions.
ACRI said an entity meeting the above four criteria qualifies as a state, "and does not require the recognition of other states. The difficulty, of course, is that without....recognition....it cannot fully realize its sovereignty. According to the constitutive model, on the other hand, the act of recognition by others states is what bestows statehood."
However, if it's granted exclusive of recognition by Israel, Washington and other Western states, "its ability to realize its sovereignty will be limited."
At least initially it's true, but that can later change, especially with key allies like China, Russia, Brazil, India, and other major ones - plus the weight of supportive numbers.
ACRI also suggests if two-thirds or more member states afford Palestine recognition, with or without Security Council approval, "the General Assembly could invite it to be party to various international conventions."
Normative Framework Applicable to the West Bank and Gaza
"According to the laws of occupation, statehood is irrelevant in determining whether a territory is occupied or not." As a result, Israel's standing in international law as an occupier may not be affected.
However, as Boyle explained, the League of Nations in 1919 provisionally recognized Palestinian statehood in its League Covenant Article 22(4) and its 1922 Mandate for Palestine - awarded to Britain.
After proclaiming its independence in November 1988, the PNC began working for a comprehensive peace settlement. Its Declaration of Independence accepted the General Assembly's 1947 Partition Plan, thus reaching an historic accommodation for a good faith two-state solution.
It also declared:
• its commitment to the UN Charter's purpose and principles;
• the Universal Declaration of Human Rights (UDHR), policy, and principles of nonalignment;
• its natural right to defend the Palestinian state and to reject "the threat or use of force, violence and intimidation against its territorial integrity and political independence or those of any other state;"
• its willingness to accept UN supervision on an interim basis to terminate Israel's occupation;
• its call for an International Peace Conference on the Middle East based on UN Resolutions 242 and 338;
• its asking for Israel's withdrawal from occupied Palestinian lands, including East Jerusalem;
• its willingness to accept a voluntary confederation between Jordan and Palestine; and
• its "rejection of terrorism in all forms, including state terrorism..."
As a result, on December 14, 1988, the Reagan administration began dialogue. In June 1990, the Bush administration suspended it, alleging the PLO violated its pledge.
From then until now, US administrations call self-defense "terrorism" even though it's an inherent (individual and state) right under "customary international and humanitarian law, including:"
• Article 51 of the UN Charter;
• the four 1949 Geneva Conventions; and
• the 1907 Hague Regulations on Land Warfare.
The PNC accepts them. Israel doesn't, violating fundamental laws with impunity. Other nations are also culpable. Under Geneva's Common Article 1, all countries are obliged to pressure Israel to comply.
America is especially culpable as Israel's paymaster/partner/supplier of weapons, equipment, supplies, generous handouts, loans, grants, and various other benefits.
Without them, Israel couldn't wage aggressive wars or be strong enough to intimidate neighbors. At least not like now. Today no country threatens Israel (or America) despite claims to the contrary.
In contrast, Washington and Israel pose major threats, including to Occupied Palestine.
Nonetheless, the same day the General Assembly recognized Palestine, it called for a UN-sponsored Middle East Peace conference based on the following principles:
• ending Israel's occupation of Gaza, the West Bank and East Jerusalem;
• guaranteeing security for all regional states;
• resolving the Palestinian refugee problem;
• dismantling illegal Israeli settlements;
• placing Palestine under interim UN supervision; and
• requesting the Security Council consider measures to convene an International Middle East Peace Conference.
The PLO was willing to cooperate and negotiate in good faith. It agreed to be flexible, including over Jerusalem's final status. The 1947 Partition Plan called for an international trusteeship administered separately from Jewish and Arab territories.
Israel and Washington blocked efforts from the start. They obstruct regional peace. Without their cooperation they'll be none. This must end. The world community must no longer tolerate it. The fate of millions of Palestinians and Arab peoples are at stake.
Following Israel's summer 2005 disengagement, the IDF regional commander declared Israel's rule over the Territory ended, but it never worked out that way with Israel maintaining control under siege.
As a result, "Israel bears legal responsibility for what takes place" in Gaza, but without international enforcement it's meaningless, as Israel literally gets away with murder with impunity.
Israel transferred area control to the PA. However, its complete West Bank/East Jerusalem occupation continues, so "control" excludes sovereign authority, rendering it meaningless.
Israel maintains responsibility for "security" - code language for real control, including over Area A.
Israel's Military Court of Appeals ruled the entire West Bank/East Jerusalem areas remain under belligerent military occupation as "a single territorial unit."
Unless that changes, Palestinian statehood won't affect Israel's de facto control as an occupying power unless World Court redress is achieved.
ACRI believes independence "contravenes this agreement, and opens the door to a declaration of the non-validity or revocation of the accords." However, absolute revocation needn't happen.
At the same time, Oslo only benefitted Israel, not Palestinians, so revocation would change little, just like Israel's Gaza disengagement afforded no rights, only siege after Hamas was democratically elected.
Changes in the Legal and International/Institutional Framework - Becoming a Party to International Conventions
With statehood comes access to them, as well as the ability to sue Israel at the International Court of Justice (ICJ) for repeated crimes of war and against humanity, as well as other issues.
• regular border infringements and incursions into Palestinian neighborhoods;
• lawless arrests, prosecutions in military tribunals, imprisonment and torture;
• Israel's illegal 44 year occupation;
• land theft to expand settlements;
• Separation Wall to steal up to 12% of the West Bank when completed;
• defined borders for East Jerusalem as Palestine's capital, as well as for the West Bank and Gaza to assure 22% of historic Palestine is retained; and
• other illegal acts under recognized international law.
Palestine could also ask the International Criminal Court (ICC) to prosecute Israeli war criminals - specifically high-ranking government officials and military commanders.
Under the Rome Statute's Article 125(3), all signatory states may use this option. So may non-UN member states by ratifying the Statute.
The ICC restricts prosecutions to instances where states don't exercise appropriate jurisdiction, including proper investigations and trials for individuals believed guilty.
A welter of evidence proves numerous present and past Israeli officials culpable for crimes of war and against humanity, as well as other offenses.
Notably, with statehood come obligations to respect human rights and other international conventions - for its own citizens and those of other states.
Besides benefits, in other words, statehood brings the legal and moral imperative to do the right thing. It also means bearing the full legal burden for failure.
Weighing all pluses and minuses, failure to use all legal procedures and avenues for statehood and full de jure UN membership no longer can be tolerated or delayed.
Doing so now, in fact, constitutes betrayal.
Is that challenging Abbas to do the right thing? You bet it is!
Stephen Lendman lives in Chicago and can be reached at email@example.com.
Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.
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