Statehood versus ‘facts on the ground’

Palestinians are divided as to the wisdom of applying for statehood at the UN [GALLO/GETTY]

Even if nothing further were to happen, the proposed Palestinian initiative for statehood, combined with the furious negative responses in Tel Aviv and Washington, has given a much-needed visibility to the ongoing daily ordeal of the Palestinian people, whether living under the rigours of occupation, consigned for decades to miserable refugee camps, or existing in the stressful limbo of exile.

The only genuine challenge facing the world community of states and the UN is how to end this ordeal – which has lasted now for 63 years – in a manner that produces a just and sustainable peace. It is the entanglement of geopolitics with this unmet challenge that signifies the moral, legal, and political inadequacy of the contemporary world order.

The Israel-Palestinian conflict, along with the continued presence of nuclear weaponry and the persistence of world poverty, exhibits the failure of international law and morality, as well as of common sense and enlightened realism, to guide the behaviour of leading sovereign states.

In the face of this failure, the frustrations, injustice, and extraordinary suffering experienced by the Palestinian people has come to dominate the moral and political imagination of the world. No issue has generated this level of solidarity among the peoples of the world since the anti-apartheid campaign toppled the racist regime in South Africa more than twenty years ago.

To the surprise of many and the comprehension of few, it is not only Israel that opposes this initiative of the Palestinian Authority (PA). A crucial part of the background is the division among Palestinians as to the wisdom and effects of the statehood initiative at the UN.

Criticism of the bid

Palestinian critics consider the statehood application diversionary and divisive, arguing that it will shrink the dispute to territorial issues, place approximately seven million Palestinian refugees and exile communities in permanent limbo, and allow Israel to treat the outcome of this UN shadow play as the end game in their long effort to transform what was to be a temporary occupation of East Jerusalem and the West Bank into a condition of permanent, if de facto, annexation. 

The question that underlies this debate is whether the diplomatic claim of statehood in this form legitimately represents the Palestinian people in their several dimensions, or merely fulfills, at a price, the ambitions of the PA. In the background is the organisational complexity of the Palestinian community, with the future of the Palestinian Liberation Organisation (PLO) drawn into question.

As Palestine prepares to go before the UN, Israel continues building the separation wall [GALLO/GETTY]

Whereas the councils of the PLO include representatives of the Palestinian diaspora, the PA is a political formation intended to address the circumstances of occupation in the post-Oslo period, and has as its primary goal the promotion of the withdrawal of Israeli occupying forces. To carry out this mission it has been seeking with some success (achieving favourable progress reports from the World Bank and IMF) to demonstrate that it possesses the institutional capabilities needed for stable governance, including maintaining security and preventing anti-Israeli activism.

How this sense of political priorities relates to the claims of refugees confined in camps in neighbouring Arab countries, as well as the several million Palestinians living around the world, seems to be the deepest issue dividing the Palestinian people as a whole. A closely related concern, but one that is more widely appreciated, is the refusal of Hamas to lend support to this initiative, despite the fanfare surrounding the unity agreement brokered by Egypt in early June.  

What Palestinian opponents of the statehood bid most fear is that the issue of representation will be wrongly resolved from their perspective. This issue of representation lies at the political core of the internal Palestinian struggle to achieve their rights under international law, above all to define the Palestinian “self” that is entitled to self-determination.

There are worries among Palestinians living outside of the occupied territories that the statehood bid, whatever its outcome, will have an adverse spillover effect on the still-unresolved representation issue. In addressing this concern, the non-participation of Hamas in this kind of Palestinian diplomacy cannot be ignored, nor can Hamas be dismissed due to its alleged refusal to accept an Israel that lies within its 1967 borders. 

It should be appreciated, without necessarily being accepted as reliable, that Hamas leaders have periodically indicated a willingness to sign onto a long-term coexistence agreement of up to 50 years if Israel withdraws completely to the Green Line that was treated as Israel’s border until the 1967 War.

Such an agreement is highly unlikely to overcome genuine Israeli anxieties or correspond to Israeli perceptions of Hamas and its intentions; furthermore, its implementation would thwart Israel’s territorial ambitions by requiring the dismantlement of the settlements. At the same time, the realisation that what has been tried has not worked suggests that this admittedly imperfect alternative to negotiations in the search for a sustainable peace should not be unconditionally rejected.

Doesn’t Israel want peace?

Against such a background, how can we explain the furious Israeli and US opposition to this Palestinian initiative? Should not Israel and the United States welcome, even encourage, this PA initiative as a way of reducing the conflict to its land-for-peace dimensions, maybe getting rid of the right of return issue once and for all?

Joseph Massad has perceptively analysed the statehood bid as presenting Israel with a win/win situation. Even so, the intensive US efforts to thwart the bid by vetoing or getting a majority to vote against it in the Security Council is easy to understand.

On any question that comes before the UN in which Israeli policy is seriously questioned or its behaviour is subject to criticism, the United States leaps to Israel’s defense, regardless of the merits, whenever necessary using its veto power in the Security Council. This has been true during the Obama presidency on UN efforts to censure unlawful settlement expansion, to carry forward the accountability recommendations of the Goldstone Report, or to allow civil society to break the unlawful blockade that has entrapped the people of Gaza for more than four years.

Casting a veto here or working behind the scenes to cobble together a majority, as the respected international law expert Balakrishnan Rajagopal has noted in a recent column in the Huffington Post, is both politically imprudent and unmindful of UN members’ responsibility to uphold the legal rights of every political community to enjoy the privileges of statehood if it qualifies as a state.

It is a tribute to the UN that the most important of these privileges is now access to the United Nations system with the status of a sovereign state. It should be observed that another highly-regarded international jurist, John Quigley, in a scholarly book published by Cambridge University Press two years ago, argued that Palestine was already a state from the perspective of international law, and had been so recognised by well over 100 governments.

This diplomatic crusade to block Palestinian statehood also undermines confidence in US claims to serve as a world leader promoting the global public good. This primacy of hard-power geopolitics will raise serious questions about the capacity of the UN to serve as a vehicle for the realisation of global justice and to uphold the basic rights of peoples.

‘We the hegemon’

Need we be reminded once again that the inspiring opening words of the UN Charter, “we the peoples”, has always given way to “we the governments”? More starkly since the end of the Cold War, as this controversy sadly highlights, it has been replaced by “we the hegemon”.

We should by now understand that the United States government does whatever Israel wants it to do, but why does Israel seem to mind so much if the Palestinian initiative were to succeed? After all, even the Netanyahu leadership claims it supports Palestinian statehood and the two-state solution.

And if the Palestinian critics of the PA are even partially correct, would not the further territorialisation of the conflict and its narrowing of the negotiating agenda serve Israeli interests?

Some believe the Israeli government is stalling negotiations so that they can create irreversible ‘facts on the ground’ [GALLO/GETTY]

This interpretation seems reinforced by Mahmoud Abbas’ reassurances that PA security forces will prevent any Palestinian violence targeting Israelis, that the path to direct negotiations is more open than ever, and that this initiative in no way is meant to challenge the legitimacy of the Israeli state. Since the events of the Arab Spring, Israel has shown almost no capacity to act in support of its real interests in the region, as exemplified by its botched relations with Turkey and Egypt, and perhaps this response at the UN is just one more illustration. Such an explanation cannot be ruled out, but there are more sinister interpretations that seem more plausible given Israel’s overall pattern of behaviour.

By insisting that only “direct negotiations” can produce statehood Israel is providing itself with a gold-plated pretext for refusing to negotiate at all for years to come. Netanyahu almost comically suggested that the delay could last 60 years. And for what reason? Another line of explanation gives the settler leadership its own veto power, and it has already vowed to carry out provocative “sovereignty marches” into the West Bank during the UN discussions.

In this conflict, time has never been static, or neutral. Each extra day of occupation, refugee status and involuntary exile, in effect, lengthens a prison sentence imposed on the entirety of the Palestinian people. This is bad enough, but, in addition, Israel has taken consistent advantage of the passage of time to expand its unlawful settlements, alter the demographics of East Jerusalem in its favour, build a separation wall found to be a violation of international law by a vote of 14 to 1 in the World Court, and to isolate Gaza from the rest of the Palestinian territories and the world.

‘Creating facts on the ground’

During the Oslo peace process that gave rise to the mantra of direct negotiations or nothing, Israel has more than doubled the settlement population, and steadfastly refuses to impose even a temporary freeze on expansion in the West Bank during negotiations, and has never been willing even to consider a freeze on settlement construction in East Jerusalem.

Israeli leaders talk openly, even boast, about “creating facts on the ground”, more discreetly referred to by Hillary Clinton as “subsequent developments”, and more realistically understood as the ratification of massive illegality. Such a political posture exposes the lie beneath an Israeli claim of a commitment to “direct negotiations” as a path to peace. Direct negotiations for almost 20 years have brought the parties no closer to peace, and arguably have had as their main effect the undermining of the conditions for a sustainable two-state solution.

What direct negotiations have done is to buy time for Israel’s unacknowledged ambitions and to calm international criticisms of this prolonged and cruel occupation.

Unfortunately, however the diplomatic confrontation unfolds, little is likely to be resolved. The charade of direct negotiations remains on the table. Parties on all sides ignore the revelations of the Palestine Papers, published a few months ago by Al Jazeera English, that showed beyond reasonable doubt that even the supposedly more moderate Olmert government of Israel seemed totally disinterested in a resolution of the conflict, even in the face of repeated PA concessions on fundamental issues made in confidential backroom talks at the highest levels.

Add to this the mockery of fairness that arises from allowing the United States to play the role of intermediary, the “honest broker” in such negotiations. Imagine trying to settle a marriage breakup by asking the elder brother of the wealthy husband to arbitrate a fight over assets with his penniless wife. How could such a framework ever hope to achieve peace that is just and sustainable? And what seems deeply flawed in theory has been shown to be even worse in practice. The parties are further from peace than ever: Palestinian rights and expectations have been continuously shrunk as time passes, and the occupation helps to consolidate a permanent Israeli presence.

Gallows humour

In the end, these questions of tactics and principle bearing on the right of self-determination need to be resolved by the Palestinian people.

Neither Israel, the United States, nor even the United Nations can displace this fundamental Palestinian responsibility for selecting a road that they believe will lead to peace with justice. But it is a display of gallows humour to expect most Palestinians to look with favour at the resumption of peace talks under the framework that has been used since the Oslo framework was agreed upon in 1993.

It has repeatedly demonstrated the futility of direct negotiations, especially given the continuing refusal of Israel to make even the most minimal gestures of real commitment, such as suspending settlement expansion indefinitely and dropping their deal-breaking insistence on being confirmed as “a Jewish state”, a claim that flies in the face of the presence in Israel of a Palestinian minority numbering more than 1.5 million.

If Israel is to retain its claim to be a democratic state, it must not insist on such an exclusivist formal identity. There is no way for claims of ethnic or religious exclusivity to be reconciled with the legal, moral, and political promise of human rights that have become the main signifiers of legitimate government at this time in history.     

Richard Falk is Albert G Milbank Professor Emeritus of International Law at Princeton University and Research Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades. His most recent book is Achieving Human Rights (2009).

He is currently serving his fourth year of a six-year term as a United Nations special Rapporteur on Palestinian human rights.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.