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The UN application for the State of Palestine and the future of the PLO

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As expected, rhetoric notwithstanding, the actual application submitted by Mr. Abbas to the UN General Secretary for admission of the “State of Palestine” as a full member in the UN does not contain any clause that may arguably protect the status of the PLO as the sole, legitimate representative of the entire Palestinian people.

For fairness, Abbas did, without doubt, raise the ceiling of his political and legal discourse from -10 to just about +50 (out of a 100). His description of Israel as an apartheid state (twice); his mention of the 1948 Nakba and dispossession; his condemnation of Israeli state terrorism; his endorsement of peaceful resistance (it is not everyday that Abbas even utters the R word!), etc. were all appreciated departures from his usual, lackluster, compromised, low-ceiling discourse, for sure.

Still, the fact remains that the very application for membership undermines Palestinian interests and directly jeopardizes the representation of most Palestinians at the UN and their ability to politically assert their inalienable rights.  While our inalienable rights cannot be voided or extinguished by this or any other “diplomatic” maneuver, our ability to struggle for these rights in international forums will be severely damaged if the PLO is replaced by this imaginary “State of Palestine” at the UN.

Also, nothing has changed about the fact that we do not have a democratically elected leadership that is mandated to speak for all of us. It is more urgent than ever to revive — or what I’ve called, take back — the PLO from the grassroots up by holding free, democratic, representative, inclusive elections for the Palestine National Council (PNC), our parliament in exile, in which every Palestinian is formally represented.

I, therefore, stand by every word I’d written in my opinion column prior to Abbas’s UN speech. I ended that piece saying:

Ignoring the will of the people and potentially sacrificing their basic rights in order to secure some illusory advantages at the “negotiations” table hurts Palestinian interests and endangers the great advances our popular and civil struggle has achieved to date, particularly as a result of the global BDS movement. It would in effect reduce the Arab Spring to a Palestinian autumn.

Going to the UN should be strongly supported by all Palestinians – and, consequently, by solidarity groups worldwide – if done by a trusted, democratically elected, accountable leadership and if it expressly represents the will of the Palestinian people and our collective right to self determination.

Alas, neither condition is met in the current “September Initiative,” which may end up replacing the “194” we’ve always struggled to implement with a “194” that is little more than another irresponsible leap away from accountability and from the inevitable repercussions of the sweeping Arab Spring.

Also, even in his speech, Abbas repeated his religious commitment to the patently futile and damaging “negotiations” and, more crucially, to the most dangerous concession ever made by any Palestinian official — replacing the inalienable right of the Palestinian refugees to return, in accordance with UN res. 194, with the “just and agreed upon solution” adopted in the so-called Arab Peace Initiative under heavy pressures from the US. This formulation effectively gives Israel veto power over our refugees’ return. Not to mention Abbas’s failure, still, to even mention the right of Palestinian citizens of Israel to full equality. He did, to his credit, describe them for the first time as Palestinians, when in the past he used to consider them, more or less, part of Israel’s “domestic issues.”

Finally, Abbas reiterated his opposition to “isolating Israel.” This must go down in the history of national liberation movements (I know, I know!) as the first time an ostensible leader of the colonized rejects any attempt by his own people and those in solidarity with them internationally to isolate the colonizer! I hope Mandela does not get a heart attack from reading this. Gandhi, Che Guevara and many others must be turning like mad in their graves!

It is not for nothing that Israel’s wisest Zionist, Shimon Peres, today called Abbas ”the best Palestinian leader Israel will work with.”

Omar Barghouti
About Omar Barghouti

Omar Barghouti is a Palestinian human rights defender and co-founder of the Boycott, Divestment and Sanctions (BDS) movement. He is a co-recipient of the 2017 Gandhi Peace Award.

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47 Responses

  1. Richard Witty
    Richard Witty on September 26, 2011, 11:16 am

    The process of negotiation is:

    1. Draft a proposal
    2. Seek approval from legislatures
    3. Seek ratification from populous

    There is certainly momentum from the drafting of the proposal, and there certainly is pressure to not abandon a long-worked effort.

    But, to claim that there is no accountability to a proposal that will eventually require popular ratification is a lie. To claim that there is no democracy in the formation of a state, that will prospectively have democratic elections, is a lie.

    And, for an advocate of non-violent resistance to ignore Gandhi’s and King’s theme, of noting that even after the features of exploitation are removed, we will still be neighbors, is immoral.

    The advocacy for Palestinians’ rights is moral. The simultaneous advocacy for Israelis’ safety and security is also moral.

    There are two groups that commonly oppose the PA petition:

    Radical Palestinian solidarity and
    Likud

    An odd common cause.

    • Charon
      Charon on September 26, 2011, 1:56 pm

      Richard, the common cause isn’t that odd when you really think about it.

      Likud probably loves Hamas. Hamas gives them an excuse to prolong the status quo and also blockade Gaza. It gives them a boogeyman that they can and do point to at all times. They love to point to their infamous charter and tell stories of how they pulled out of Gaza and received rockets in return, claiming the same will happen in the WB. It has a former Likudite who allowed them to participate in the elections.

      • Richard Witty
        Richard Witty on September 26, 2011, 10:27 pm

        I’ve been describing likud and Hamas mutual interests for continued conflict as a dance, for a very long time.

      • Chaos4700
        Chaos4700 on September 26, 2011, 10:46 pm

        Mutual? Last time I checked it was Israel that broke cease fires. Overwhelmingly. And Likud is not some aberration. ALL of the ruling parties and coalitions Israel has EVER had have been militant, aggressive and colonization-oriented.

      • Donald
        Donald on September 26, 2011, 11:13 pm

        Likud and Hamas are Richard’s scapegoats. Richard’s ideals are in conflict and the way he resolves the conflict is to imagine a world where good and evil are neatly split–most of the evil in the I/P conflict is on the Arab side, in Richard’s view (not that he will admit it, but it’s clear enough from which side he condemns more harshly), but he does have to admit that there is some evil on the Israeli side, so he puts it all on Likud. The same for the Palestinians–rather than deal with the messy reality, where neither Hamas nor the PA is without sin, he’s got to have a convenient scapegoat.

        Lately, though, I think Richard’s beliefs happen to have put him on the right side in the current UN debate–he sees Abbas as the best possible leader for the Palestinians from his own perspective, and Netanyahu is blowing it, with Obama apparently cheering him on.

      • Richard Witty
        Richard Witty on September 27, 2011, 7:52 am

        You are again projecting of what you imagine my thinking is.

        Better that you put a disclaimer about your ability to mind-read.

        I actually don’t scapegoat. I criticize and describe.

        I’ve consistently expressed admiration for some of Hamas’ efforts, particularly prior social service, before they got somewhat bogged down with governing, and the high taxes that ensue when one has to deliver on both social welfare and defense.

        Good and evil, good and evil.

        Instead, lets deal with human beings, and with tangible issues, and ACTUALLY resolve them.

      • DBG
        DBG on September 27, 2011, 5:17 pm
      • Chaos4700
        Chaos4700 on September 27, 2011, 7:12 pm

        The both of you are shoah deniers. It’s just that you deny shoahs when they happen to Palestinians instead of Jews. There isn’t a week that goes by that Israel isn’t shelling or bombing Gazans. Maybe if you read something other than Israeli propaganda and neocon crusader blogs, you’d know that.

        But it’s not as if either of you CARE about anyone with skin darker than yours.

    • libra
      libra on September 26, 2011, 2:03 pm

      RW: “The process of negotiation is:
      1. Draft a proposal
      
2. Seek approval from legislatures
      
3. Seek ratification from populous”

      Richard, please tell us who are you giving this advice to? The Israelis, who insist negotiation is the only way forward? Or the Palestinians, who you always expect to do all the heavy lifting to secure “the Jewish state”?

      • Richard Witty
        Richard Witty on September 26, 2011, 10:28 pm

        Its not advice. If you read further, its criticism of Barghouti’s conclusion that the PA petition is somehow a violation of Palestinians’ democratic participatory rights.

        Its a strained and uncharitable analysis.

    • RoHa
      RoHa on September 27, 2011, 3:20 am

      Spelling lesson:

      P o p u l a c e ( n. The common people.)

      P o p u l o u s (adj. Thickly populated.)

      Grammar lesson: Coordinating conjunctions should not be followed by a comma, even when they are used to start a sentence.

      This is not a difficult rule to remember.

  2. Gogo
    Gogo on September 26, 2011, 11:17 am

    Exactly.

    • Hostage
      Hostage on September 26, 2011, 4:30 pm

      Exactly.

      Exactly wrong. The text of the Palestine declaration does not appear in the Ha’aertz article. The real declaration does contain provisions regarding the refugees and the PLO:

      Palestine’s application for membership is made consistent with the rights of the Palestine refugees in accordance with international law and the relevant United Nations resolutions, including General Assembly resolution 194 (III) (1948), and with the status of the Palestine Liberation Organization (PLO) as the sole legitimate representative of the Palestinian people.

      See A/66/371–S/2011/592 page 4 of 5 http://www.un.org/ga/search/view_doc.asp?symbol=S/2011/592

      I find it a little far-fetched to suggest that the Palestinian leadership needs a fresh mandate to ask the international community to end the occupation of East Jerusalem, the West Bank, and Gaza – and to recognize Palestinian sovereignty over those areas in line with scores of existing UN resolutions. The Diaspora has no better standing to veto the freedom and independence of others than Obama possesses. Statehood and possible UN membership have always been Phase II milestones, while refugees, final border adjustments, water, and etc. are Phase III Quartet milestones. Why have all of the critics been silent about the so-called danger of statehood for so long? The Security Council adopted the Quartet Road Map terms of reference wayback in 2003.

      Abbas was elected President of the PA by 62 percent of the voters and more importantly he was re-elected as Chairman of the PLO in the elections that were conducted in 2009.
      http://miftah.org/display.cfm?DocId=20425&CategoryId=10

      I subscribe to the views expressed by Mouin Rabbani on the subject:

      Q: How do you respond to those you argue that the current Palestinian leadership lacks legitimacy, either because their electoral terms have expired or because of the blurring of the lines between the PA and the PLO?

      A: Sure, if you look at it objectively, there is no legitimate Palestinian leadership, and that’s as true as it is for the government in Gaza as it is for the government in Ramallah. . . . Now does that mean that any Palestinian holding office is illegitimate and that anything they do is illegitimate? No. That would be going to the other extreme.
      http://www.maannews.net/eng/ViewDetails.aspx?ID=422676

  3. HarryLaw
    HarryLaw on September 26, 2011, 11:41 am

    Just heard Joe Lauria on Antiwar radio he states that a simple majority at the General Assembly would be sufficient for Palestinians to gain non member observer state and entry into various International Agencies etc, this is probably not sufficient since the US could insist on this being an “important question” which would require a two thirds majority in the General Assembly. See rule 83 below,
    Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include recommendations with respect to the maintenance of International peace and security, the election of the non-permanent members of the Security Council, the election of the members of the Economic and Social Council, the election of members of the Trusteeship Council in accordance with paragraph 1c of Article 86 of the charter, the admission of new members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of members, questions relating to the operation of the trusteeship system, and budgetary questions.
    He also states this would automatically give sovereignty rights to Palestinians over territory like its air space and offshore waters etc this is also not correct since in Occupied Territory the True Sovereign is absent and all questions regarding what actually happens in that territory are for the Commanding Officer of the Israeli Defence force and the Head of the civil Administration to decide and must be decided according to the laws of occupation i.e. the 1907 Hague Regulations and the fourth Geneva convention 1949, they merely act as trustees and administrators until the true sovereign returns (a legally constituted government) any breaches of which occur can of course can be brought before the UN and as we have seen unfortunately subject to a US veto. The International Criminal Court is not subject to such a veto and could rule as the World Court did on its advisory opinion on the Israeli wall case, that the settlements are illegal and that they constitute ongoing war crimes [ 15 judges to zero] ICJ 2004. This is why the United States and Israel are panicking.

    • Hostage
      Hostage on September 26, 2011, 3:21 pm

      These questions shall include recommendations with respect to the maintenance of International peace and security, the election of the non-permanent members of the Security Council, the election of the members of the Economic and Social Council, the election of members of the Trusteeship Council in accordance with paragraph 1c of Article 86 of the charter, the admission of new members to the United Nations,

      Correction: Readers can find the rules about General Assembly decisions on important questions in Article 18 of the UN Charter.
      http://www.yale.edu/lawweb/avalon/un/unchart.htm#art18

      The ICC doesn’t decide if settlements in occupied territory are illegal. Article 8 of the Rome Statute establishes that – and it is the reason Israel has never become a State Party. See Statement by Judge Eli Nathan Head of the Delegation of Israel
      http://www.amicc.org/docs/Israel7_17_98.pdf

      The ICC simply investigates and prosecutes individuals responsible for crimes that are subject to the Court’s jurisdiction.

    • unjoe
      unjoe on October 6, 2011, 3:36 pm

      This is a reply to Harry about my appearance on Antiwar.com radio. It was not my opinion that Palestine would become an observer state with a simple majority or that it could then join the ICC, Law of the Seat, International Civil Aviation Organization or other UN agencies and treaties. It is the opinion of the UN officials I interviewed. Full explanation in this piece I published on BoilingFrogsPost.com:

      Why Palestine is Already a State: Shoddy Reporting Misrepresents Palestinian UN Bid
      Wednesday, 28. September 2011

      Palestine is Already a Sovereign State & is Seeking Membership of the UN, Not Statehood
      By Joe Lauria
      A combination of mistakes—whether through ignorance or design—and significant omissions of fact have left the American public misinformed about why the Palestinians went to the United Nations last week and what they are trying to achieve.
      The biggest error repeated across the media in hundreds of headlines and stories is that the Palestinians are seeking statehood at the U.N. In fact, Palestine is already legally a sovereign state and is seeking membership of the United Nations, not statehood. The United Nations does not grant or recognize statehood. Only states can recognize other states bilaterally. The U.N. can only confer membership or non-member, observer state status to already existing states. The U.N. Charter is clear. Article 4 says that only existing states may apply for U.N. membership.
      Last Friday Secretary-General Ban Ki-moon accepted an application for U.N. membership from PLO Chairman and Palestinian Authority President Mahmoud Abbas. Ban sent the application to the Security Council, which began deliberating on it on Monday (Sept. 26).
      The very act of the Secretary General accepting the membership application is an acknowledgement from the U.N. that Palestine is already a state, since only states can apply.
      The Montevideo Convention of 1933 lays out the requirements for statehood: a population living on a defined territory with a government that can enter into relations with other governments. The Palestinians have all three. Though its borders with Israel are not set, other countries with border disputes have been admitted as U.N. members, such as Pakistan and India. Trygve Lie, the first U.N. Secretary-General, also wrote a 1950 memo that states do not need universal recognition to apply.
      Palestine declared its independence on November 15, 1988, a fact found nowhere in the American mainstream reporting of the past week. A Palestinian walked out of the Al Asqa Mosque that day in Al Quds/Jerusalem and read the declaration aloud, much as someone read the American Declaration of Independence to a crowd in the courtyard of the Philadelphia State House on July 4, 1776.
      Almost immediately one hundred nations recognized an independent Palestinian state. Since then 30 more nations have recognized Palestine, some having opened Palestinian embassies in their capitals. This crucial fact too was not reported in the U.S. media. For Palestinians and those countries that recognize them, Israeli troops are occupying a sovereign nation.
      It was the same as when Morocco and then France and other nations recognized an independent United States years before the war against Britain was won. For Americans and those nations recognizing America , British troops became an occupation force, not an army defending British territory.
      The problem for the Americans then and for the Palestinians now is that the occupying nation and the world’s biggest power are not among the 130 who’ve recognized them.
      If there were a United Nations in 1777 the Americans could have applied for membership. And if Britain had a veto on the Security Council then as it does now, it would have blocked that membership.
      Today neither the occupying power, Israel, nor the world’s biggest power, the U.S., recognizes Palestinian statehood. Thus the U.S. has vowed to veto the Palestinians’ membership resolution in the Security Council.
      The U.S. had furiously lobbied to prevent the Palestinians from coming to the U.N. at all, including Congress threatening to cut off all aid. Having failed, Washington is now trying to delay a vote as long as possible while lobbying the several non-permanent members of the Security Council to abstain, or vote against.
      But the Palestinians knew from the start the U.N. process would take weeks and have so far not backtracked on their plan one inch.
      Membership in the U.N. requires a recommendation from the 15-member Security Council, secured with nine votes in favor and no vetoes. If the recommendation passes, the 193-seat General Assembly must approve with a two-thirds majority. Eight votes in favor or less would kill the Security Council membership resolution, sparing the U.S. from a veto that would cost them dearly on the Arab street.
      Brazil, Russia, India, China, South Africa and Lebanon are among the Security Council members who have formally recognized Palestine and are firm about voting in favor. The U.S. isn’t bothering with them. But Nigeria, Bosnia-Herzegovina, Colombia and Gabon have also recognized Palestine and are under extreme American, and in the case of Gabon, French pressure to at least abstain.
      Falling short of eight votes would be an embarrassment for the Palestinians, but the Security Council route is only the first step. After a sure defeat in the Security Council, two options in the General Assembly remain.
      President Abbas told reporters on his plane back home from New York that the Palestinians are willing to wait two weeks for the Security Council to act before going to the next step for membership. That step is to try to circumvent either a U.S. veto or less than nine votes in the Security Council in the General Assembly, employing a Cold War-era resolution known as Uniting for Peace.
      It was introduced by the U.S. in 1950 to get around repeated Soviet vetoes on the Korean War. Francis Boyle, a legal adviser to Abbas, told me he has advised the Palestinian president to take this step. But the Palestinians would have to convince two-thirds of voting Assembly members that Palestinian membership would be a response to a “threat to peace, breach of the peace or an act of aggression” from Israel.
      The U.S. and Israel would fight to keep this off the General Assembly agenda. But Boyle, who cautioned that he does not speak for the Palestinians, told me he thinks the Palestinians have the votes to overcome this.
      Nevertheless, there seems to be a split in the PLO leadership on whether to use Uniting for Peace. Hanan Ashrawi, a PLO executive committee member, says it is still a viable option. But the Palestinians’ U.N. observer, Riyad Mansour, believes any membership bid must legally go through the Security Council first and there’s no getting around it. Abbas’ position on this is not clear. It will be interesting to see if the Palestinians try to use Uniting for Peace and what happens if they do.
      If they decide against it or fail, their third option is to try to become a non-member, observer state, which needs only a simple majority of 97 votes in the General Assembly which the Palestinians clearly have.Becoming an observer state would be more than symbolic. It could reshape the balance of power between Israel and the Palestinians. As an observer state, Palestine could participate in Assembly debates, but could not vote, sponsor resolutions or field candidates for Assembly committees. But more importantly, it would allow Palestine to accede to treaties and join specialized U.N. agencies, such as the International Civil Aviation Organization (ICAO), the Law of the Sea Treaty, the Nuclear Non-Proliferation Treaty (NPT) and the International Criminal Court (ICC), officials said.
      Switzerland joined the ICAO in 1947 when it was still an observer state before becoming a U.N. member in 2002. Denis Changnon, an ICAO spokesman in Montreal, told me the treaty gives members full sovereign rights over air space, a contentious issue with Israel, which currently controls the airspace above the West Bank and Gaza. The Palestinians could bring claims of violation of its air space to the International Court of Justice.
      If Palestine joins the Law of the Sea Treaty it would gain control of its national waters off Gaza, a highly contentious move as those waters are currently under an Israeli naval blockade. Boyle said he has advised Abbas to accede to treaties, including the Law of the Sea. If they do, the Palestinians could challenge the Israeli blockade at the ICJ as well as claim a gas field off Gaza, currently claimed by Israel.
      Even more troubling for Israel and the U.S. would be Palestine joining the International Criminal Court. Ambassador Christian Wenaweser, president of ICC Assembly of State Parties, said in an interview a Palestine observer state could join the ICC and ask the court to investigate any alleged war crimes and other charges against Israel committed on Palestinian territory after July 2002, including Israel’s 2008-2009 Operation Cast Lead war against Gaza that killed 1,400 Palestinian civilians.
      Ashrawi says Israeli settlements in Palestine can be challenged as war crimes in the court as a violation of the Fourth Geneva Convention.
      The Palestinians know they must still negotiate borders, refugees, settlements, the occupation and Jerusalem. Abbas said pushing for U.N. membership did not mean he no longer wants to negotiate. Rather gaining membership or observer state status would give the Palestinians more leverage in those talks, he said.
      In an effort to upstage and derail the Palestinians’ membership drive, just minutes after Abbas and Israeli Prime Minister Benjamin Netanyahu had finished addressing the General Assembly last Friday the so-called Quartet—the U.S., U.K., Russia and the U.N.—announced its vision of a one-year plan for a comprehensive settlement.
      The Quartet dropped its repeated call for a settlement freeze and called for no preconditions for talks. The Palestinians, who are demanding a freeze before negotiations based on the pre-occupation 1967 borders, rejected the Quartet’s plan. Israel then announced 1,100 new settlements in occupied East Jerusalem.
      The Quartet has failed again. Westerners cannot solve this problem. Maybe it’s time to make it the Quintet by adding the Arab League—to give voice to the Palestinians. How to get the U.S. media to become interested in more accurately reporting the Palestinian’s side of the story is another matter.
      # # # #

  4. pineywoodslim
    pineywoodslim on September 26, 2011, 12:26 pm

    It seems to me that any UN member state could move for the enforcement of 194–Palestine, Bolivia, or Japan. I don’t follow the argument that Palestine’s membership in the UN would undercut that.

    Also, and this is where I’m most likely incorrect, didn’t Abbas as head of the PLO bring this membership application on behalf of the PLO? In other words, not on behalf of the PA?

  5. pabelmont
    pabelmont on September 26, 2011, 2:35 pm

    The fact that no nation — not an Arab state, not a South American state, not even Turkey — has sought to bring the law of belligerent occupation before the ICJ (other than the very narrow question of the legality of the wall) shows that USA pressure against such interventions (much like AIPAC’s pressure against pro-Palestine actions by congressmen) exceeds the tendency — if any — in favor of such intervention. Maybe we can see the Palestinian Spring influence this flaccidity.

    • Hostage
      Hostage on September 26, 2011, 3:59 pm

      no nation . . . has sought to bring the law of belligerent occupation before the ICJ (other than the very narrow question of the legality of the wall)

      It isn’t necessary. The Court already ruled that the General Assembly’s Definition of Aggression reflected customary international law in the Nicaragua v United States case. The definition included military occupations for any reason that violates the principles contained in the UN Charter.

      The General Assembly has already invoked its consensus definition in that connection:

      Recalling its resolution 3314 (XXIX) of 14 December 1974, in which it defined an act of aggression, inter alia, as “the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof” and provided that “no consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression”, . . .
      .
      2. Declares once more that Israel’s continued occupation of the Golan
      Heights and its decision of 14 December 1981 to impose its laws,
      jurisdiction and administration on the occupied Syrian Golan Heights
      constitute an act of aggression under the provisions of Article 39 of the
      Charter of the United Nations and General Assembly resolution 3314
      (XXIX);
      .
      3. Declares once more that Israel’s decision to impose its laws,
      jurisdiction and administration on the occupied Syrian Golan Heights is
      illegal and therefore null and void and has no validity whatsoever;
      .
      4. Declares all Israeli policies and practices of, or aimed at,
      annexation of the occupied Palestinian and other Arab territories,
      including Jerusalem, to be illegal and in violation of international law
      and of the relevant United Nations resolutions;

      http://www.un.org/documents/ga/res/39/a39r146.htm

      The 2010 ICC Review Conference adopted the General Assembly’s Definition of Aggression as its definition for the crime of aggression. San Marino became the first state to ratify the ICC aggression amendments. They will enter into effect when 30 states adopt them, but nothing prevents countries from investigating and prosecuting the crime of aggression under the principles of customary international law and universal jurisdiction. After all, the ICC is intended to be a court of last resort.

      • seafoid
        seafoid on September 26, 2011, 5:22 pm

        So, Hostage

        Where do you stand on the settlers’ contention that the San Remo declaration gives them unique territorial rights over all of Erez Israel?

        http://unitedwithisrael.org/give-peace-a-chance/

      • mig
        mig on September 27, 2011, 12:52 am

        Claims ended when State of Israel was formed 1948. Plain and simple. Also ICJ advisory ruling 2004. And funny sidenote :

        http://www.haaretz.com/print-edition/opinion/the-etzion-illusion-1.254774

      • Hostage
        Hostage on September 27, 2011, 7:28 am

        Where do you stand on the settlers’ contention that the San Remo declaration gives them unique territorial rights over all of Erez Israel?

        I’ve written some previous comments on the subject that are still available in the archives. In general I agree with all of the Court decisions and the historical records which indicate that no such right ever existed.

        The text of the San Remo resolution is readily available online. http://www.cfr.org/israel/san-remo-resolution/p15248

        It says nothing at all about territorial rights in Eretz Israel. The preamble of the Mandate that was finally adopted by the League of Nations left the boundaries of Palestine undefined with the exception of the Jordan river. In the absence of explicit terms, it is impossible to argue that the San Remo resolution constituted an agreement between the parties to transfer territorial rights. The UNSCOP Commission report noted that the term “National Home” had no meaning in international law:

        “The notion of the National Home, which derived from the formulation of Zionist aspirations in the 1897 Basle program has provoked many discussions concerning its meaning, scope and legal character, especially since it has no known legal connotation and there are no precedents in international law for its interpretation. See paragraph 141, of the UNSCOP Report to the General Assembly, A/364, 3 September 1947

        The San Remo resolution merely conferred a mandate on Great Britain and gave it a free hand in drafting the necessary terms to implement its own Balfour Declaration with the added caveat that it would not prejudice any of the existing rights of the non-Jewish communities. The Jewish Agency spent the next two decades unsuccessfully lobbying the UK government regarding its own irrelevant interpretation of the Balfour Declaration.

        The travaux préparatoires of the British Foreign Office Committee that was tasked with drafting the Mandate said it did not form the basis for any Jewish claim:

        “It was agreed that they had no claim, whatever might be done for them on sentimental grounds; further that all that was necessary was to make room for Zionists in Palestine, not that they should turn “it”, that is the whole country, into their home.

        — See PRO FO 371/5245, cited in Doreen Ingrams, Palestine Papers 1917-1922: Seeds of Conflict, George Brazziler, 1972, pages 99-100

        A multitude of declassified UK National Archive materials revealed that, in accordance with the terms of the McMahon-Hussein Correspondence and Sykes-Picot Agreement, the four nations that issued the San Remo resolution had no right to dispose of the territory without consulting the Sharif of Mecca and the Arab inhabitants. They certainly couldn’t have transferred better title to the Jews than the one that they themselves possessed. A Royal Commission that looked into the matter in 1939 concluded:

        In the opinion of the Committee it is, however, evident from these statements that His Majesty’s Government were not free to dispose of Palestine without regard for the wishes and interests of the inhabitants of Palestine, and that these statements must all be taken into account in any attempt to estimate the responsibilities which—upon any interpretation of the Correspondence—His Majesty’s Government have incurred towards those inhabitants as a result of the Correspondence.

        http://unispal.un.org/UNISPAL.NSF/0/4C4F7515DC39195185256CF7006F878C

        The British White Paper of 1939 and the Land Transfer Ordinance of 1940 established the boundaries of the Jewish national home. Those policies were upheld in the case of Bernard A. Rosenblatt (petitioner) vs. the Registar of Lands, Haifa ; Director of Land Registration, Jerusalem ; Edmond N. Levy (respondents) (High court case no. 19/47): in the Supreme court sitting as a High Court of Justice ; before the chief justice (Sir William Fitzgerald) and Mr. Justice de Comarmond); hearings on 9th May, 1947 and 12th May, 1947. The Court held that the Balfour Declaration/Mandate were only legally enforceable to the extent that they were incorporated in the Palestine-Order-in-Council or some other municipal law. The Court also held that national legislation overrides any conflicting provisions of the Mandate.

        The Jewish Agency demanded that the UN terminate the Mandate on behalf of the Jewish people. An early Israeli Supreme Court decision in CApp 41/49 Simshon Palestine Portland Cement Factory LTD. v. Attorney-General held that rights under the Mandate ended when it was terminated in 1948.

        In the 2005 Regional Council, Coast of Gaza v. Knesset of Israel case, H.C.J. 1661/05, the Court dismissed the arguments from the petitioners based upon the San Remo resolution and the Mandate and ruled that there was no legal or constitutional “right” for Israelis to settle in the occupied Palestinian territory – and that Israelis are not protected persons there under the terms of the Fourth Geneva Convention. See for example the ICRC extract and synopsis of the report from the Yearbook of International Humanitarian Law on the case – or the discussion about it in the Epilogue of Gershom Gorenberg, The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977, Henry Holt, 2006, pages 363-364. http://www.icrc.org/ihl-nat.nsf/39a82e2ca42b52974125673e00508144/11ec2612fde0f02dc12575bc004a8475!OpenDocument

        The legal analysis in the 2004 ICJ Wall case contained findings that the mandate had been terminated in 1948 and that Palestine was a “former mandated territory” (see for example paragraph 162 on pdf page 133). The Court also concluded that Israel was an occupying power and that all of its settlements had been established in violation of international law. http://www.icj-cij.org/docket/files/131/1671.pdf

        So, every time that the question has gone before a Commission of Inquiry or Court of law the contentions about the San Remo resolution have been examined and dismissed.

  6. HarryLaw
    HarryLaw on September 26, 2011, 5:42 pm

    Harry Law. The Settlers could be regarded as aiding and abetting ,war crimes,with the usual meaning of intent made slightly more difficult to prove with the inclusion of “for the purposes of” by a committee of the ICC, The Israeli leadership individually could be charged for purposfully ordering the commission of a war crime. Even heads of state have no immunity under the ICC statute.

  7. Real Jew
    Real Jew on September 26, 2011, 5:53 pm

    I don’t know why everybody is making such a big fuss about this. Abbas submitting a UN application for statehood is realistically his only option to gain independence at this time. Personally I don’t believe this action will lead to the prevention of PLO representation for the Palestinians. Abbas clearly and unequivocally stated at the UN that the PLO is and always will be the sole voice for the Pals.

  8. simoned
    simoned on September 26, 2011, 6:53 pm

    Omar,

    Do you have the actual application? because I think it does contain something about the PLO.

    • simoned
      simoned on September 26, 2011, 7:03 pm

      What is wrong with English language Palestinian advocacy? Why is it intent on undermining the PLO?

      Here is the actual actual application:

      http://www.un.int/wcm/webdav/site/palestine/users/YousefZ/public/%2823%20September%202011%29%20Application%20of%20the%20State%20of%20Palestine%20for%20UN%20Membership.pdf

      It is insistant that the PLO is the sole legitimate representative of the Palestinian people, several times.

      • Hostage
        Hostage on September 26, 2011, 8:36 pm

        It also leaves no room for doubt that the application is only being made consistent with the rights of the refugees in accordance with resolution 194(III) and international law. Mouin Rabbani addressed the legitimacy of the current crop of Palestinian officials in a recent Ma’an article that is linked to my earlier comment here: http://mondoweiss.net/2011/09/the-un-application-for-the-state-of-palestine-and-the-future-of-the-plo.html/comment-page-1#comment-370074

        The link in my comment is to the official UN document from the UN Journal. It has been formatted, assigned a UN symbol and OCR’d. You can copy and paste text from that version.

        What are your thoughts on Rabbani’s views?

      • simoned
        simoned on September 27, 2011, 5:59 am

        I disagree with Rabbani on one issue. I Don’t think the Hamas government in Gaza has any legitimacy. While I think, unfortunately,
        Abbas has all the legitimacy at present; that legitimacy was passed to him by Arafat.

        Now of course I wish we had real democracy in the PLO and not Arafat’s “democracy of the gun,” but the PLO remains our only achievement and venue for any sort of national movement.

    • Inanna
      Inanna on September 26, 2011, 9:26 pm

      Simone,

      It does mention UNGA 194 but then goes on to include that in the list of things that can be negotiated in the final status negotiations along with Jerusalem, water, border security, and settlements. Basically, it sounds like the PA just wants a stronger hand with which to negotiate. Given the spinelessness shown by the PA in previous negotiations, it’s enough to make me fear about how much more of the farm the PA is willing to give away.

      • Hostage
        Hostage on September 26, 2011, 11:37 pm

        It does mention UNGA 194 but then goes on to include that in the list of things that can be negotiated in the final status negotiations along with Jerusalem, water, border security, and settlements.

        In what way does this differ from the final status issues enumerated in the Oslo Declaration of Principles or the Quartet Road Map? Those are the agreed upon final status issues contained in the international terms of reference regardless of any statehood bid. Of course the PLO wants a stronger hand, but they have explicitly stated that they want to bring the problem back to the UN and the Courts where international law can be applied, not just negotiations.

        Within the UN organization, there are subsidiary organs devoted to the implementation of the inalienable rights of the Palestinian people. It’s simply not possible for the PLO to renounce “inalienable rights” in the first place, no matter how spineless they are.

      • annie
        annie on September 27, 2011, 12:23 am

        It’s simply not possible for the PLO to renounce “inalienable rights” in the first place, no matter how spineless they are.

        that’s my understanding also. according to doyle anyway. either it’s true or not but if they wrote it in, it’s there.

      • Inanna
        Inanna on September 27, 2011, 6:09 am

        You’re right that they are no different from the final status issues under Oslo. That was my point – the PA wants an Oslo where they would have a bit more leverage to get Israeli acquiescence. Sorry if I made that unclear.

        I also agree that there are UN organizations etc that are devoted to the implementation of inalienable rights. I have two points on that. The first is that I don’t see any UN organisation or member country rushing to implement Res 194, even when they had a conference about it in 1952 in Lausanne. In fact, the world community turned a blind eye and the surprised Israelis were extremely pleased. The second is that if the Palestinians agree to sign away some of those rights, then who are any of these UN organisations to say anything. This is why Israel is in my view so keen for the whole ‘Jewish state’ recognition by Palestine – no right of return for Palestinians.

      • Hostage
        Hostage on September 27, 2011, 8:38 am

        The second is that if the Palestinians agree to sign away some of those rights, then who are any of these UN organisations to say anything.

        The application of international law by the Courts within the Oslo DOP framework would prevent that from happening. For example, the ICJ has already ruled that Palestinians have been displaced in violation of Article 49(6) of the 4th Geneva Convention. Article 8 requires that those people be repatriated without any exceptions. The Israeli authorities seized another Hamas PLC representative from the ICRC compound just yesterday. See the official commentary on non-renunciation of rights in regard to repatriation. http://www.icrc.org/ihl.nsf/COM/380-600011?OpenDocument

        I don’t see any UN organisation or member country rushing to implement Res 194,

        There are many examples like that which have led to the progressive development of guidelines for remedies under international law. See for example the declaration on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (General Assembly resolution 60/147 of 16 December 2005) http://www2.ohchr.org/english/law/remedy.htm

        For example, the Jerusalem Post recently reported that Germany has agreed to make payments to Moroccan Jews whose freedom of movement was curtailed by the Axis powers under the Vichy government during WWII.
        http://www.jpost.com/JewishWorld/JewishNews/Article.aspx?id=218113

        Similar measures have been adopted by the government of Israel to collectively punish the inhabitants of the West Bank and Gaza and curtail their rights to freedom of movement. That administrative regime was declared illegal by the ICJ in 2004. The odds against receiving large sums in compensation decades after the fact are statistically astronomical, until after the first such occurrence, e.g. See the Swiss Banks Settlement: In re Holocaust Victim Assets Litigation http://www.swissbankclaims.com/

        There are many trial lawyers who have indicated a willingness to pursue claims against Israel on behalf of Palestinians once the final settlement framework has been established, e.g. http://articles.sfgate.com/2002-07-08/business/17551385_1_israeli-government-israeli-historian-intel/4

      • annie
        annie on September 27, 2011, 9:44 am

        This is why Israel is in my view so keen for the whole ‘Jewish state’ recognition by Palestine – no right of return for Palestinians.

        yes of course that is the point.

      • Inanna
        Inanna on September 27, 2011, 7:38 pm

        Let me clarify again. I am aware of the rights that Palestinians have under international law and I am aware that inalienable rights cannot be renounced. But your responses have not really been germane to my objections, which is that Israel has the power to deny them their rights, and that Israel is determined to keep the current situation brewing until they do renounce their rights. They might be willing to pay a little money to compensate but that is not the same things as implementing their rights under international law. All the cases and the willingness to represent Palestinians that you cite, while admirable, makes little difference to millions of Palestinian refugees still stuck in camps. Many of those principles have existed for years and no amount of litigating around the edges had done anything for a people whose just claims have been denied for decades by Israel.

      • Hostage
        Hostage on September 27, 2011, 10:31 pm

        I am aware that inalienable rights cannot be renounced. But your responses have not really been germane to my objections,

        No, your objections about long-term failure to repatriate or pay compensation to the refugees are not germane. That problem isn’t the result of the application for UN membership.

        The US and Israelis have been opposing Palestinian statehood and membership in UN agencies since 1988 for a very good reason. They have continued to employ that lack of standing to cast doubt upon Palestine’s ability to become a contracting party to the Geneva Conventions and other major human rights covenants. Israel has successfully fended-off attempts by Palestine to accept the jurisdiction of the ICC since January of 2009 using the simple argument that the UN doesn’t recognize it as a State or non-member State.

        It’s time to do something about Israeli impunity. Your misplaced objections about the status of the PLO are irrelevant and counterproductive, since the PLO doesn’t have the necessary legal standing to lift a finger against the State of Israel in an international court.

      • simoned
        simoned on September 27, 2011, 12:00 am

        This is the actual actual text of the declaration sent to the UNSC

        “Declaration

        In connection with the application of the State of Palestine for admission to membership in the United Nations, I have the honor, in my capacity as the President of the State of Palestine and as the Chairman of the Executive Committee of the Palestine
        Liberation Organization, the sole legitimate representative of the Palestinian people, to solemnly declare that the State of Palestine is a peace-loving nation and that it accepts the obligations contained in the Charter of the United Nations solemnly undertakes
        to fulfill them.”

        This is from the letter accompanying the declaration:

        “Palestine’s application for membership is made consistant with the rights 0f the Palestine refugees in accordance with international law and United Nations resolutions, including General Assembly resolution194 (111) (1948), and with the status of the Palestine Liberation Organization (P LO) as the sole legitimate
        representativ of the Palestinian people.”

        Both of these are missed in the Haaretz statement and apparently by Omar.

      • Inanna
        Inanna on September 27, 2011, 6:11 am

        I don’t think they were missed. Those principles where later qualified by being listed as up for negotiations, which I think is what you are missing.

      • Hostage
        Hostage on September 27, 2011, 8:50 am

        Those principles where later qualified by being listed as up for negotiations . . .

        The declaration stated that the application was “consistent with the rights 0f the Palestine refugees in accordance with international law and United Nations resolutions, including General Assembly resolution194 (111) (1948).

        International law is not silent about non-renunciation of the rights of protected persons and neither are the applicable UN resolutions. There is nothing here to justify a tendentious reading.

      • annie
        annie on September 27, 2011, 9:56 am

        simone, do you have a link to the letter accompanying the declaration? and if it accompanies it does it then become part of it? there seems to be quite a lot of buzz the plo would be ‘replaced’ by “the state of palestine” as representing the palestinian people.

      • Hostage
        Hostage on September 27, 2011, 5:36 pm

        simone, do you have a link to the letter accompanying the declaration?

        I provided everyone with a link to the official version from the UN Journal in one of my comments above. It no longer has the old cover letter stating that it will be issued as UN document S/2011/592. It has also been assign a General Assembly number: A/66/371–S/2011/592, Distr.: General 23 September 2011
        http://www.un.org/ga/search/view_doc.asp?symbol=S/2011/592

        The declaration itself is an enclosure to Annex I. BTW, it notes that the PLO is the sole representative of the Palestinian people. The other letter, dated 23 September 2011, is Annex II. It also states that the application is consistent with the status of the PLO as the sole representative of the Palestinian people. If anyone can show me where either of these documents says that status is going to be altered one iota by UN membership of the State of Palestine, I’ll eat my hat.

        If Omar really thought that the PLO was being replaced by the State of Palestine in the UN system, then his suggestion to “take back — the PLO from the grassroots up by holding free, democratic, representative, inclusive elections for the Palestine National Council (PNC)” would be a monumental exercise in futility.

        I don’t think he really believes that, and I damn sure don’t. S/2011/592 makes it abundantly clear that the State of Palestine is only a small part of the “achievement of a just, lasting and comprehensive resolution of the Israeli-Palestinian conflict” – “based on international law and all relevant United Nations resolutions.” This application really doesn’t represent any dire threat to anyone’s rights or UN representation.

    • adamhorowitz
      adamhorowitz on September 27, 2011, 1:20 pm

      Omar sent out a note this morning that addresses this. I’m going to paste it here. Hope this is useful:

      In response to my quick note yesterday (which Mondoweiss has posted) on the Palestinian application for UN membership and the expected damage to Palestinian interests it entails, some readers have inquired whether Annex II to the membership application sufficiently addresses the concerns that many have raised.

      The quick answer is, of course NOT. This is why I’ve ignored it. It is irrelevant.

      I am not a lawyer (at all), but I have some common sense, some logic, and I’ve read enough to remain very alarmed about this whole process.

      Here’s the language from Annex II that is being referred to:

      “Palestine’s application for membership is made consistent with the rights of the Palestine refugees in accordance with international law and the relevant United Nations resolutions, including General Assembly resolution 194 (III) (1948), and with the status of the Palestine Liberation Organization (PLO) as the sole legitimate representative of the Palestinian people.” [Emphasis added]
      http://www.un.org/ga/search/view_doc.asp?symbol=S/2011/592

      During the debate leading to the submission of this membership application, some Palestinian officials had said that they can address the legitimate concerns — arising from replacing the PLO by the “State of Palestine” at the UN — by including language in the application letter that explicitly says that this application for membership is submitted “without prejudice” to the status of the PLO or to the Palestinian right of return, in accordance with UNGA 194. This “without prejudice” phrase was finally not adopted; it was replaced by this “made consistent with,” which does not carry the same weight, clearly. But even the “without prejudice” phrase would have been almost as politically irrelevant in reality, even if it sounds legally more solid.

      You simply and logically cannot actually replace the PLO as the representative of the Palestinian people at the UN by some hypothetical “State of Palestine,” which at best would represent its “citizens” within its “borders” (whatever Israel is kind enough to “concede” to us!), while claiming that such a move is “consistent with” or does not “prejudice” the current status of the PLO. It does, without doubt, and no fancy phrasing can change that.

      After all, this is not about undermining the legality of our rights (they remain valid no matter what), but about the political representation and our ability to assert them in international forums, especially the UN. Removing the PLO from the UN seat thus denies most Palestinians the one voice that can speak for all our inalienable rights.

      If some army general, say, impeaches a president and imposes some other figure instead but writes in the affirmation oath that such a change is done “without prejudice” to the former’s status, what in reality would that mean? The first president, legally, may still claim legitimacy, but he cannot assert any power from the dungeons where he was thrown! The problem is when the said general presents himself as representing the people, no less. That makes the legitimacy claim of the deposed president even more tenuous in front of the world.

      Even if outside the UN the PLO will continue to be regarded by Palestinians as our true legitimate representative, the fact that we have another representative recognized by the UN speaking on our behalf (or at least on behalf of a minority among us) jeopardizes our claim to our comprehensive rights and our political ability to assert them. We cannot have two representatives, one “domestic,” and one at the UN!

      The PLO already enjoys recognition by most of the world. It already has an observer status at the UN. It formally represents the entire Palestinian people and our rights. It has, by proxy, already won an ICJ ruling against Israel’s wall and colonies in the OPT (and did absolutely nothing with it!). Why do we need membership for a hypothetical state that will, without doubt, undermine our struggle for our basic rights by denying most Palestinians any representation at the world’s most important forum?

      Omar

      • Hostage
        Hostage on September 28, 2011, 1:01 am

        You simply and logically cannot actually replace the PLO as the representative of the Palestinian people at the UN by some hypothetical “State of Palestine,”

        Strawman alert. The PLO was one of several national liberation movements that were invited to participate in the business of the UN decades ago in its own right. The status of the PLO as the sole representative of the Palestinian refugees in camps in Iraq, Jordan, Lebanon, Syria and the OPT itself was never effected by the 1988 Algiers Declaration of Statehood nor the 1993 Oslo Accords which established the PA. The current application for membership does not raise the issue of replacing the Permanent Observer Mission of Palestine to the United Nations with a Mission of the “State of Palestine” to the United Nations; or matters falling within the domestic jurisdiction of Palestine, like “citizenship”. Both of the 23 September letters and the enclosed Declaration affirm the status of the PLO as the sole representative of the Palestinian people. FYI the UN doesn’t make those determinations for the Palestinians.

        The Permanent Observer Mission of Palestine to the United Nations published a Response to Arguments that the “September Initiative” regarding Statehood will harm the Status of the Palestine Liberation Organization (PLO) and the rights of the Palestine Refugees. It concludes:

        Thus, whether the two-State solution is achieved or not, in all circumstances, the refugee issue is a core political issue requiring just political solution. This is undeniable and would even be the case in the event that this last ditch effort to achieve the two-State solution fails and we are forced to turn to other alternative solutions, such as the one-State, in which case we would still need to find a just and internationally-supported (particularly in terms of any ultimate compensation mechanism) solution for the plight of the Palestine refugees. Nothing about a September initiative on Statehood would negate this and nor would it negate the role and status of the PLO so long as it is the decision of the people and their leadership to maintain it as the sole legitimate representative of the Palestinian people, and that is indeed the current and longheld position.

        FYI inclusion of the phrase “without prejudice” in legal documents merely reserves a position, but leaves the parties free to adjudicate or negotiate the matter subsequently to decide between two or more positions. The inclusion of the phrase “in accordance with” is a decision which commits the parties to a definite position on the matter that is not subject to subsequent negotiation. So, the inclusion of the phrase in accordance with international law and the relevant UN resolutions, including 194(III), is a safeguarding clause. The Palestinian leadership is trying to bring international law back into the framework and international terms of reference, instead of power politics.

  9. Interested Bystander
    Interested Bystander on September 26, 2011, 11:54 pm

    The idea expressed by Omar Barghouti, that application for state membership puts Palestinians at a disadvantage, is curious. There is, of course, something to this. If a state is declared, all of a sudden a host of issues become unavoidable: who is the legitimate representative of this state, how does it select its leaders, who will have citizenship, what are the rights of citizens? What are the rights of Jews living in this state? Is there a right of return to this state, by whom? How do you enforce the peace in this state? What will your relationship be with your neighbors? How do you raise the funds to support it? How do you attract and develop business? Statehood, in other words, comes with responsibilities. This is true even for a UN declared “phantom state.” Surely it’s easier to avoid these issues and continue to speak of universal rights, to pursue BDS from abroad, and from the safety of university environments. That way you never have to stand for election, and you never have to take responsibility. I admire Abbas, Ashrawi, Fayaad and the Palestinian Authority for attempting to shoulder some this responsibility. I wish them success.

    • Hostage
      Hostage on September 27, 2011, 2:43 am

      If a state is declared, all of a sudden a host of issues become unavoidable: who is the legitimate representative of this state, how does it select its leaders, who will have citizenship, what are the rights of citizens? What are the rights of Jews living in this state? Is there a right of return to this state, by whom? How do you enforce the peace in this state? What will your relationship be with your neighbors? How do you raise the funds to support it? How do you attract and develop business?

      The Algiers declaration and Friday’s declaration answered most of those questions. The basis of legitimacy is resolution 181(II), other UN resolutions, and international law. 181 requires constitutional democracy and contains a declaration on minority rights that was already acknowledged by the General Assembly in a 1988 resolution.

  10. yourstruly
    yourstruly on September 27, 2011, 1:20 am

    whatever the shortcomings in the application for u.n. membership, shouldn’t we look upon this as merely the opening move in the struggle for statehood, with who knows how many additional moves before the dreams of the palestinian people are realized? And that success will be dependent upon the strength, spirit and determination not only of palestinians but of the worldwide justice for palestine movement? hey. we can do this!

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