Unilateral Palestinian statehood — real threat or ‘big bluff’?

Pundits agree that PA action in the international arena drove Israel to negotiate; they differ on what’ll happen if talks break down

BY RAPHAEL AHREN, TOI, January 7, 2014,

Notwithstanding the best intentions of US Secretary of State John Kerry, the current round of peace talks between Israel and the Palestinians may fail (shocking, we know). But what happens then? Well, most members of the current Israeli government may be fine with the status quo — the emphatic absence of a Palestinian state — but Palestinian Authority President Mahmoud Abbas has vowed to resume steps to unilaterally advance the PA’s statehood bid, a move Jerusalem is extremely wary of.

Yet Israeli experts disagree whether Israel really has something to worry about. Is it just a “big bluff” (as one international law scholar claimed), or would a unilateral Palestinian statehood bid make it impossible for Israel to ever reach a peace agreement that takes its positions into consideration (as another academic argued)?

To prevent, or at least defer, the unilateral Palestinian statehood campaign — that was one of the main reasons why Prime Minister Benjamin Netanyahu, however grudgingly, agreed to resume direct peace talks with the Palestinians in July 2013. The PA’s commitment to refrain from unilateral steps during the course of the talks was a large factor in the Israeli government’s decision to sit down at the negotiating table — perhaps even more so than Kerry’s relentless pressure.

Last week, after Israeli ministers advanced a bill to annex the Jordan Valley, Saeb Erekat, the PA’s chief negotiator, said that the proper response would be to “seek statehood recognition by the United Nations and other international bodies.” Abbas, however, has promised to remain at the table at least until the April deadline initially set for the talks. But if the current efforts break down without an agreement — and if the past has taught us anything, it’s that the next crisis of faith is generally merely a matter of time — the Palestinians have made it clear that they won’t hesitate to turn to the international community.

“At the end of the day, these negotiations won’t succeed, and Abu Mazen [Abbas] has a strong card in his hand: an appeal to the UN institutions,” said Ahmed Tibi, an Israeli MK who once served as adviser to Yasser Arafat and maintains close contacts with the Palestinian leadership, in an interview last week. “There are more than 60 agencies in the UN, and sooner or later he will turn to them. That will cause a diplomatic confrontation.”

Tibi is certainly not alone in his assessment that the talks will collapse sooner or later. Indeed, most members of Israel’s government are exceedingly skeptical. And yet they agreed to start negotiating. They voted to release Palestinian prisoners. And they risked being blamed for the talks’ failure (including the threat of European Union sanctions), just because the Palestinians promised that they wouldn’t make further moves to be recognized as a state, at least not for for nine months.

But what exactly is Israel afraid of? After all, “Palestine” is already recognized as a nonmember observer state by the United Nations; an overwhelming majority of 138 states supported that move in November 2012 (nine countries opposed and 41 abstained). The chances of a “State of Palestine” being admitted as a full-fledged member of the UN prior to signing a peace treaty with Israel are minimal. The Americans have vetoed such efforts in the past and there are no indications they wouldn’t do it again.

At least, so goes the conventional wisdom. One Israeli diplomatic official warned, however, that there are no guarantees that the US will forever continue to put the kibosh on a Palestinian application for full UN membership.

“If Abbas gets all other members of the Security Council to agree, he might manage to drive the Americans into a corner,” the official said. “Washington might at some point become fed up with being the only country to oppose Palestinian statehood, and embarrassed and fearful of international isolation, it might accede to the Palestinians’ request.”

‘Since the Palestinians joined UNESCO, they hijacked the organization’s agenda and now it’s all about bashing Israel. Their strategy is working’
But even assuming that for the time being the Americans will continue to wield their veto power, the mere fact of Palestinian statehood coming to a vote again and again will slowly have an impact, an Israeli academic specializing in international law said. He recalled that the UN Security Council did not formally condemn South African apartheid because of the British veto, but eventually an international consensus emerged to demand the racist regime’s immediate demise. A similar scenario is plausible vis-à-vis Palestinian statehood, said the academic, who asked to remain unnamed because he didn’t want to be quoted invoking Israeli diplomatic struggles in the context of apartheid.

In the meantime, though, the Palestinians don’t need full UN membership to incriminate Israel on the international stage, an Israeli official said. As soon as they are admitted into the World Health Organization, Habitat or other UN programs, “they could have our arms twisted,” he said.

Before the current round of peace talks commenced, the Palestinians were quite successful in their quest to achieve “incremental recognition,” he said. “Since they joined UNESCO, they hijacked the organization’s agenda and now it’s all about bashing Israel all the time,” added the official, who asked to remain anonymous so he could more freely discuss sensitive diplomatic issues. “All the Palestinians do all day is get yet another condemnation against Israel. And their strategy is working.”

In 2011 UNESCO — the United Nations Educational, Scientific and Cultural Organization — admitted “Palestine” as a full member. Since then, Israeli and Palestinian officials have sparred about UNESCO’s positions and declarations vis-à-vis the Israeli-Palestinian conflict. During a debate at the 37th session of UNESCO’s World Heritage Committee in June, the Jordanian delegation, at the behest of the PA, submitted a resolution slamming Israel over its Jerusalem policies. UNESCO officials at first denied the resolution’s very existence but it was eventually adopted by a large majority.

Scarier, in the eyes of some Israelis, is the prospect of Palestinians turning to the International Criminal Court and suing Israeli leaders for war crimes or crimes against humanity. Joining the Hague-based court is a bit more complicated, because it would expose the PA itself to law suits, and it isn’t clear that membership in the ICC would be in its best interests, the Israeli official said. “We’re not really worried about being condemned by the ICC; they can threaten whatever they want,” he said. Still, he acknowledged, it would be “a major headache” if the Palestinians did try to drag Israelis in front of the court for alleged misdeeds.

“Such a process would involve such besmearing and casting of allegations that would take us a long time to defuse,” the official said. “Not only is it a waste of time, but it’s a declaration of diplomatic war. And if it’s a war, you need to dedicate resources to fighting it, and doing this will prevent us from focusing on other measures to defuse the conflict.”

In 2009, Palestinian Justice Minister Ali Khashan asked the ICC to investigate Israel’s conduct in the West Bank and the Gaza Strip. The prosecutor’s office initially declined the request, noting that the Palestinian Authority was not a state and that consequently the court had no jurisdiction to launch an investigation into acts committed in the territories it claims. After “Palestine” attained nonmember state status at the UN in 2012, the prosecutor’s office released a brief statement saying that it “will consider the legal implications of this resolution.” It has yet to issue a new ruling on the matter.

‘A big bluff and an empty threat’
According to Alan Baker, a former legal adviser to the Israeli Foreign Ministry, the Palestinian threat of a unilateral statehood drive is absolutely nothing to be afraid of.

“This is a big bluff; it’s just an empty threat,” he said. “So the Palestinians will go to the International Health Organization, the International Postal Union and the Civil Aviation Authority. So what? That won’t give them statehood. It won’t make a difference, because Israel is still sitting in Judea and Samaria [the West Bank], and any change can only come about as the result of a negotiation process.”

And there is no cause to fear a Palestinian onslaught against Israel in international forums, averred Baker, a former Israeli ambassador to Canada, as such attacks have been going on for years. “There are 20 or so anti-Israel resolutions at the UN at any given moment, so how is this night different from any other night?”

Palestinian attempts to influence the agendas of UN bodies actually did more damage to the credibility of those international organs than to Israel’s interests, he posited. Many diplomats and parliamentarians have told him, he said, that the international community is becoming “increasingly fed up” with Palestinians trying to appropriate UN organizations for their political purposes and, in the process, distracting those bodies from their actual jobs.

Neither does the specter of an ICC trial against Israel faze Baker. “That’s a completely empty and utterly unrealistic threat,” he said. Even if the court’s prosecutor ruled that “Palestine” could file a complaint against Israeli leaders for war crimes, an investigation would have zero chances of succeeding because the Palestinians would need to prove that the alleged offenses took place on Palestinian sovereign territory. “But the Palestinians themselves agreed [in the 1993 Oslo Accords] that the final status of territories is subject to negotiations.”

Likewise, Israel has nothing to fear from “Palestine” turning to the UN’s International Court of Justice, Baker said. It’s possible that it would be asked to write an advisory opinion on Israel’s actions in the West Bank – as it has in the past – but “there’s no guarantee that it wouldn’t be counterproductive to whoever is asking for it.”

So if Israel has nothing to worry about, in terms of unilateral Palestinian steps toward statehood, why did Netanyahu let himself be pressured into entering peace talks?

The prime minister himself has stated that he wants the talks to lead to a viable deal, and that he is anxious to avoid a single bi-national state between the river and the sea. But he has also made clear his misgivings about Abbas as a partner, and his skepticism that the Palestinian Authority president will adopt the compromise positions that he regards as essential to Israel’s security. So Netanyahu plainly won’t have been surprised, almost six months into the nine-month time period allotted, to be at odds with Abbas over most every core issue critical to a permanent accord.

One senior cabinet minister told The Times of Israel that it was in Jerusalem’s interest to “buy time.” While the talks may ultimately amount to nothing, he suggested, nine months of diplomatic quiet were well worth the effort.

Baker didn’t buy that argument, saying he failed to understand why the American and Israeli governments gave credence to Palestinian threats. “The damage was caused by Kerry, when he said if Israel doesn’t make concessions Israel would be under attack by international community — as if it isn’t already. The Palestinians are laughing all the way to the bank,” he said. “I’m flabbergasted at the naivete that exists within the US administration, but even more so in the Israel government.”

The only possible reason for Jerusalem’s behavior was that Washington might have threatened not to veto a Palestinian attempt to get full UN membership, Baker surmised. “I wouldn’t put it past Kerry, for whom I have absolutely no respect, to make such a threat,” he said.

‘How will IDF soldiers react when their superiors are being accused of war crimes and the like?’

Amichai Cohen, a senior lecturer of international law at Ono Academic College, said that even if international courts are unlikely to condemn Israel, such a scenario wasn’t impossible. At the ICC, for instance, it is the chief prosecutor who makes these decisions based on his own criteria, and he might not take into consideration the views of Israeli experts and pundits. “When assessing a certain risk, you don’t only look at how low the chance is of a certain scenario coming true, you also think about the damage that could be done in the unlikely case that it does come true,” he said.

Less than the threat of censure, the mere idea of Israeli politicians and generals standing trial could inflict great damage on the state, both externally (in terms of reputation) and internally, Cohen continued. “How will IDF soldiers react when their superiors are being accused of war crimes and the like?” he asked. The very prospect of such a scenario does not necessarily mean that Jerusalem should feel pressured to make concessions; there is cause, however, to take the Palestinians’ threats into consideration, he said.

Jerusalem currently does not recognize the Palestinian Authority as a state, he said, and much of the international community understands that a peace treaty will have to be signed between both sides, and that Israel has legitimate demands for any deal. But as soon as the world welcomes “Palestine” as a legitimate member in the family of nations — with or without Jerusalem’s blessings — Israeli claims and arguments against Palestinian statehood will not be heard anymore, Cohen predicted. “We haven’t arrived at that stage yet… but we’re getting there.”

Raphael Ahren is the diplomatic correspondent at The Times of Israel.