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UNGA Resolution 6719-Palestinian observer state status

The status of “Palestine” at the United Nations following General Assembly Resolution 67/19. On November 29,2012 the General Assembly of the United Nations adopted Resolution 67/19 concerning the “Status of Palestine in the United Nations”. 138 UN member states voted in favour of the Resolution, 9 voted against (including the United States, Canada, the Czech Republic, and Israel) and 41 abstained. As a result, Palestinian designation at the UN has shifted from an observer “entity” to that of an “observer state”. What does General Assembly Resolution 67/19 actually say? Despite being three and a half pages long, Resolution 67/19 contains only three brief clauses that could be considered substantive in any real sense. First, and by far the most significant among the three, is the decision “to accord Palestine non-member observer State status in the United Nations…” Second is a call to “all States and the specialized agencies and organizations” of the UN to “support and assist the Palestinian people…”; an urging meant to encourage the further inclusion of “Palestine” in various UN programs. And third, the Resolution expresses “the hope that the Security Council will consider favourably…” the application made in September 2011 by Mahmoud Abbas to have “Palestine” admitted as a full member State of the UN – a bid that has so far failed without the need for one of the five permanent members of the Security Council to exercise its veto power to quash the move. Still, in an effort to ensure the issue remains firmly on the UN’s agenda, Resolution 67/19 “requests” that the Secretary-General “take the necessary means to implement the resolution and to report to the General Assembly within three months on progress made…” Equally significant is what Resolution 67/19 does not say. It does not formally declare the establishment of a Palestinian state, neither has the Palestinian leadership opted to do so at this time – preferring to refer to Arafat’s 1988 declaration of statehood. Resolution 67/19 also refrained from enumerating any expanded rights of participation for the Palestinians in the UN system, and at the same time it maintains “the privileges and role” of the PLO in the UN as the “representative of the Palestinian people…”. It also makes no mention of the Palestinian Authority. The text of the Resolution is also rather confusing regarding the question of whether a Palestinian State already exists or whether it is an aspiration. This is undoubtedly a deliberate case of ambiguous drafting, as the Palestinians and their supporters at the UN attempt to establish simultaneously both that “Palestine” already exists and that it is an aspiration the realization of which depends not on the Palestinians but on the international community. The confusion here is compounded by the fact that several of the states that voted in favour of the Resolution emphasized that Palestinian statehood could only be achieved through peace negotiations with Israel, a position clearly implying that “Palestine” does not amount to a State at this time. What are the implications of the Resolution? Had “Palestine” become a member of the UN (a manoeuvre attempted and thus far failed) its membership would have been widely interpreted as implicit confirmation of it being a “State”. But this did not happen and is unlikely to happen as long as one or more permanent members of the Security Council oppose such a development. Whereas UN membership implicitly confirms the statehood of an entity, the same cannot be said of a “non-member observer state”. The latter status is not envisaged in the UN Charter at all, but has evolved through sporadic practice involving a handful of cases. Given the virtual universality of UN memberships for actual states, the fact that the Palestinian entity was not admitted provides a strong argument for it not qualifying as a State. And historically the status of non-member observer states has been granted to entities – such as South Vietnam – whose status at the time was at least unsettled. Furthermore, the preamble of Resolution 67/19 “reaffirms” that 132 UN members had recognized “Palestine” as a State in the past. Would a an addition of six implicit, ambiguous recognitions subsumed in the present Resolution somehow shove the Palestinian entity over the minimal threshold of recognitions necessary to constitute Palestinian statehood? Hardly, even if we were to accept the controversial theory that it is recognition – not the de facto fulfilment of the criteria for statehood codified in the 1933 Montevideo Convention – that creates new states. The significance of the Resolution, such as it may prove to be, will therefore concentrate not in the UN system itself, but outside it; not in the degree of Palestinian participation in the UN, but in other international fora and vis-à-vis multilateral treaties other than the UN Charter. Foremost on the minds of many observers is the question of International Criminal Court (ICC) jurisdiction. Article 12(3) of the ICC statute permits “a State” to accept the exercise of the Court’s jurisdiction over crimes committed, inter alia, within its territory. In early 2009, during Operation Cast Lead, the Palestinian Authority filed a declaration with the ICC stating that it accepts the jurisdiction of the Court for the purpose of detecting, prosecuting, and judging “the authors and accomplices of acts committed on the territory of Palestine [since the entry into force of the Statute of Rome in July 2002]. If “Palestine” is considered by the ICC to be “a State”, it can authorize the ICC to exercise jurisdiction over crimes covered by the Rome Statute and committed on its territory, inter alia, where these crimes were allegedly committed by nationals of states that are not party to the Rome Statute – i.e. Israel. In April 2012 the previous Prosecutor, Luis Moreno Ocampo, issued a statement indicating it would not, for the time being, consider Palestinian allegations, but left the door open to a revision of this position should the UN decide that “Palestine” qualified as “a State” for the purpose of Article 12(3). A new Prosecutor, Fatou Bensouda (a national of Gambia) was appointed in June 2012, and it is unclear whether or not she will follow her predecessor’s direction. Even if she does, a fairly lengthy chain of legal and political obstacles stand in the way of effective Palestinian action against Israel through the ICC. Israel and its allies must be vigilant against this emerging “lawfare” front, but there is no clear and present danger of Israeli nationals being hauled before the ICC. The situation provides Israel and its allies with a reasonable window of time within which to devise legal and diplomatic means of persuading the Palestinians to abandon lawfare and return to the negotiating table.

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Dr. Yitzhak Klein

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