Mark SilverbergThe writer is a foreign policy analyst for the Ariel Center for Policy Research (Israel). He is a former member of the Canadian Justice Department, a past Director of the Canadian Jewish Congress (Western Office), a member of Hadassah's National Academic Advisory Board and a Contributing Editor for Family Security Matters and Intellectual Conservative. He served as a Consultant to the Secretary General of the Jewish Agency in Jerusalem during the first Palestinian intifada. His book "The Quartermasters of Terror: Saudi Arabia and the Global Islamic Jihad." His articles are archived at www.acpr.org.il andwww.marksilverbeg.com.
The two decades that have passed since the signing of the Oslo Accords have proven that the "two-state solution" is an impossibility and that peace with a Palestinian state (west of the Jordan River) is an oxymoron.
This belief was reinforced once again on November 29th when the overwhelming majority of members of the UN General Assembly (UNGA) passed a politically-motivated resolution upgrading the status of the Palestinian Authority (PA) from an “observer entity” to an “observer state” thereby granting it its most significant upgrade in diplomatic status in decades.
Although the UNGA has never had the power or authority to establish genuine legal states other than though non-binding recommendations, even so, by passing such a status-upgrade resolution, both the PA and the UNGA have effectively nullified any chance that may have existed to establish a peace agreement between Israel and the Palestinians.
In doing so, they may also have laid the groundwork for nullifying the Oslo Accords that created the PA and the Paris Protocols - the section delineating economic agreements between Israel and the PA.
According to Article XXXI, Sec. 7 of the Oslo II Interim Agreement from 1995: “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of permanent status negotiations.”
Separate and apart from the fact that the Accords have been honored by the PA more in their breach than their observance for almost two decades, even the act of requesting and receiving a change of status from the UN General Assembly from “non-member observer entity” to “non-member observer state” may well have rendered those Accords null and void should Israel wish to do so.
Neither recognition of Israel as a Jewish state, nor negotiating Israel's security needs, nor any desire to end the conflict with Israel appears in the resolution. In response, the Israelis have several options, the most dramatic of which (as suggested by Foreign Minister Avigdor Lieberman) could involve nullifying the Accords, dismantling the Palestinian Authority (PA) - unlikely as that may be - and annexing the Jewish cities and towns of Judea and Samaria into Israel proper.
To the UN General Assembly, it would seem that the legal conditions required for statehood by the Montevideo Convention (1933) are irrelevant. According to that Convention, a state must possess a defined territory, a government, a capacity to enter into relations with other states, and a permanent population. The Palestinian Authority possesses none of these requirements, although these “minor facts” did not prevent the UNGA from voting for it.
“Palestine” lacks a “defined territory” (which has yet to be negotiated with Israel); a central “government” (40% of its population is ruled by a terrorist organization and the other 60% by an unelected administrative entity that has not held an election in seven years and has no intention of doing so).
It has no “capacity to enter into relations with other states” (Hamas in Gaza is not bound by Abbas's directives, nor is his authority recognized by it, nor is he allowed entry into Gaza, nor can he bind “Palestine” to anything, nor has he honored his commitments in Phase I of the Roadmap which required him to dismantle Hamas and other terrorist groups), and his “state” lacks a “permanent population” since most Palestinians consider themselves not citizens of a new state but temporary residents (“refugees” according to UNRWA) awaiting their return to Israel (as “Palestine”).
As Stephen Rosen wrote recently, this new “state” comprised of Hamas-controlled Gaza and the PA areas has: “two incompatible presidents, two rival prime ministers, a constitution whose most central provisions are violated by both sides, no functioning legislature, no ability to hold elections, a population mostly not under its control, borders that would annex territory under the control of other powers, and no clear path to resolve any of these conflicts”.
Other than grabbing his moment in the sun and moving “Palestine's” UN seat from the Observer section to the “P” section between Panama and Pakistan, Abbas may have opened Pandora's Box by claiming a pyrrhic victory on “statehood” without understanding the consequences of his actions. In doing so, he inauspiciously rebuffed the President of the United States in a manner that will no doubt figure into Obama's future decision-making on his Middle East policies.
But, as in all things, for every action there is an equal and opposite reaction. In this case, the majority of Palestinian Arabs seem to understand very well what's coming up the pipeline. According to a poll published in Ma'an in early November, while an overwhelming majority (84%) of Palestinians supported the UN bid, that support was tempered with 90% believing Israel would enact policies to punish the Palestinians for the maneuver, and over 50% believed that the bid would have a negative effect on the Palestinians in the short-term.
They are absolutely right.
Congress had previously warned the PA that there would be financial consequences in its relationship with the United States should it pursue this issue in the General Assembly. It specifically linked this financial threat to Congressional aid to the PA and to the operation of its office in Washington.
Also at financial risk will be future U.S. funding for every UN agency that “Palestine” joins - funding that, in most cases, amounts to almost 25% of these agencies' budgets. In 2011, the U.S. withdrew funding from UNESCO and others are at risk because of this UNGA vote - including funding for the United Nations itself if Republican Senator Orrin Hatch's amendment to the Defense bill is passed.
Israel also made its decision on how to respond to the UN status upgrade. Construction was announced on 3,000 homes in Jerusalem and the "West Bank" and planning expedited for the area linking Jerusalem and Maaleh Adummim, and this is only the beginning. Prime Minister Netanyahu appears to be taking a page from former Prime Minister Yitzhak Rabin's playbook when Rabin, in 1975, approved large construction projects in Judea and Samaria in response to a UN conference equating Zionism with racism.
So far as the Israelis are concerned, if the Palestinians are unprepared and unwilling to negotiate on the fundamental issues of Israel's security needs and acceptance of Israel as a Jewish state, then there's nothing to discuss. If independence is what the Palestinians want, then independence is what they will get.
Israel is in position to exact a high price from the PA for its UN actions. Translated into goods and services, Israel, if it so wishes, can terminate the supply of numerous services it provides to the PA - water, electricity, fuel, postal services, communications, port facilities and tax collection.
It has already delayed the transfer of hundreds of millions of dollars in tax revenues it has collected on behalf of the PA and applied it against the massive electricity debt owed by the PA to the Israel Electric Corporation and other bodies. Gaza derives at least 40% of its power from Israel's electrical power grid and the PA-controlled areas of Judea and Samaria derive 100% of their electricity from Israel.
Abbas is about to learn that violating the Accords and agreements that created the PA itself has a price, and that price will translate into financial disaster, economic hardship, and a massive loss of honor.
PA corruption and cronyism and its miniscule private sector together with its bloated public service are completely dependent upon Israeli largesse and international foreign aid, much of which is paid as salaries to thousands of its civil servants and security personnel. In fact, 6% of its annual budget is allocated for payments to convicted terrorists in Israeli prisons and to the families of Palestinian “martyrs”, while less than 1% is directed towards higher education.
There are however significant downsides to destroying the PA as punishment for its UN actions. If recent polls are to be believed, Hamas would seize control of the area in a free election. For Israel, its worst nightmare would be the establishment of a genocidal Islamist “state” situated just a few miles from its major population centers. If anything mitigates against the destruction of the PA, this scenario would be it.
Should the IDF withdraw its military forces from the area and should Hamas overthrow the PA in the "West Bank" as it did in Gaza, the Israeli debate would no doubt move from annexation of the Jewish cities and towns of Judea and Samaria into Israel proper, to the re-conquest of the area and its return to pre-Oslo Israeli military control.
Another concern is that Abbas' advisers have already recommended using the PA's new UN upgraded “state” status to bring legal challenges before the International Criminal Court (ICC) against Israeli leaders for their alleged policies and practices in Gaza and Judea and Samaria.
On the one hand, it is doubtful that the PA would have the necessary status to bring such an action. In his speech to the General Assembly, Israel's ambassador to the United Nations, Ron Prosor said that the new status would not enable the PA to join international treaties, organizations or conferences as a state and does “not confer statehood on the Palestinian Authority, which clearly fails to meet the criteria for statehood” (as noted above).
That is, the 1998 Statute of the International Criminal Court (ICC) enables only internationally recognized states that are party to the Statute to refer complaints to the court. According to a Ambassador Alan Baker, writing for the Jerusalem Center for Public Affairs (JCPA): “In the same way Palestinians failed in 2011 to prove statehood when they attempted to obtain membership in the UN in light of the clear lack of national unity and capability of governance and inability to fulfill international obligations of a state, so now in 2012 it would be highly unlikely, even after an upgrade-resolution, that they will be able to prove to the ICC that they are a genuine legal state entitled to initiate complaints against Israeli officials and officers.”
Moreover, the ICC generally does not get involved in countries that investigate themselves through formal, credible judicial reviews as does Israel.
If however, the PA is successful in having the ICC accept jurisdiction, it would likely turn out to be a double-edged sword. Israel could argue with merit that “Palestine” (which nominally includes Gaza as part of its sovereign territory) has committed war crimes against it by preaching genocide against Jews and the Jewish state, sending suicide bombers into Israel over the years, using human shields to avoid retaliatory strikes, and firing missiles into Israeli population centers from Gaza, and that if “Palestine” is a state controlled by the PA, then the PA is responsible for these acts.
That is a case more easily proven than is any case against Israel for having committed war crimes and/or crimes against humanity against Palestinians.
If Abbas chooses to approach the ICC, he had best be careful what he asks for.
In a broader sense, if the Palestinians don't accept that international recognition means they must accept Israel, they should not believe that international recognition means Israel must accept their “state”.