The State of Palestine – A Hint of Liberation?

It occurs to me that I can’t address the issue of a Palestinian state without addressing my Anarchism. The national struggle is an issue of inevitable debate for many Anarchists who support the Palestinian struggle for liberation. Truth be told, as a local Anarchist, in a time when Palestine is still occupied territory, when asked about the Palestinian bid at the UN for a Palestinian state, I worry mostly about how more violent the Israeli army could get when we demonstrate with the villages. I worry about being denied entry into the occupied territory, in order to get to the demonstrations. I worry about not being able to see my friends, or being prosecuted for attempting to do so.

Many of us- “on the ground” as they say- Palestinians, Anarchists and allies, have been brushing off the reality of a Palestinian-state-positive vote in the UN , because we doubt it’ll change anything ”on the ground.” To those shot at, holding a flag or holding a stick is at best a semantic exercise.

That said, declaring a Palestinian state is not one of those small issues that can be brushed aside, especially because “state” is an internationally accepted legal term. As an Anarchist the idea of an international general assembly, in which whole populations have their say is remarkable to me. Had the United Nations been fashioned after a participatory society model, rather than a hierarchical, neo-liberal, democratic model, maybe it needn’t have had to hang its head in shame. But for now, one must hold the status of a “state”, in order to be recognized as a people- and consequently a person. So in a bid to understand the repercussions of next week, over our lives, more deeply, I’d like to delve into the legal opinions that have been published about the move.

PLO 2011

This isn’t the first time that the Palestine Liberation Organization has launched its vision of a campaign for liberation in the form of a Palestinian state. In fact, on May 12th 1989, in Paris to be exact, under a rather religious and hero-worshiping declaration, a Palestinian state has already been recognized by 92 other states in the framework of UNESCO. In UNESCO’s own words, it is “neither competent nor authorized to assess the criteria for statehood or qualities of the applicant State, any more than it is to verify the credentials of the delegates at certain international conferences” [p. 11]. So even though there’s no legal binding in being recognized by the proverbial education, culture and communications ministry of the UN, the linked document also discusses prior recognition of a Palestinian people and their right for self determination and sovereignty over what is referred to as “Palestinian Territory”, by the League of Nations to Great Britain in 1922. A Palestinian state was also recognized, though in contradiction with the 1922 resolution, many times thereafter; by the United Nations General Assembly res 181 in 1947, the United Nations Security Council res 242 in 1967, United Nations General Assembly res 338 in 1973, and many more (3236 and 3237 of 1974, 3378).

My personal point of view is that it’s unfortunate that the PLO, “the sole legitimate representative of the Palestinian people”, who’s strategy is to align itself with international law, has long forsaken the legally recognized history of the Palestinian people. Even UNESCO was able to get in touch with the passion of liberation more than the Palestinian Liberation Organization [p. 6]:

It is now an unalterably established principle that the people, even where dependent, is the source of sovereignty, which belongs to it, which cannot be transferred from one State to another, and which can only disappear with the destruction of that people.

Speaking of UNESCO’s principles of liberation, the following passage left this little Anarchist wondering whether there is hope yet for the abolition of capitalism [p. 11]:

…a peace based exclusively upon the political and economic arrangements of governments would not be a peace which could secure the unanimous, lasting and sincere support of the peoples of the world, and that the peace must therefore be founded, if it is not to fail, upon the intellectual and moral solidarity of mankind.

Back to the subject at hand, this fascinating archive document, which determines Palestine a factual matter of time and an international obligation, states [p. 11]:

The issue before us is therefore one of admission to membership of an international organization and not one of recognition.

Sure enough, the PLO, in its own jumble of words declares:

Palestine’s membership at the United Nations is an important step towards freedom. An internationally recognized State of Palestine brings Palestinians closer to our goal: ending the occupation, exercising the Palestinians’ inalienable rights, including its right to self-determination and establishing its democratic state on the 1967 borders, with east Jerusalem as its capital, and the return of refugees on the basis of UN resolution 194.

To people familiar with Palestinian liberation issues, the number 194 is very significant, as it represents the right of return. This is Israel’s biggest contention point, as it fears the return of a few million Palestinian refugees that would shift the population balance and create a Jewish minority in the land formerly known as Palestine. However, a current understanding of the racist realities of Israel, indicate to many of us that a partition to a Jewish State and Palestine will create a reality in which the right of return still isn’t granted. All this makes me wonder if the PLO, giving up on the legally affirmed borders of Palestine, is actually giving up the right of return as well.

Goodwill Goodwin

According to Guy Goodwin-Gill, the PLO won’t only be giving up “mandatory Palestine” and the right of return. It will also be giving up its stature as “the sole legitimate representative of the Palestinian people”. Right now, the PLO is the representation of the Palestinian people in the UN (hence the long superlative), but once a Palestinian state is recognized, Palestine will be “the sole legitimate representative of the Palestinian people”.

How does that make a difference?

In contradiction to Goodwin-Gill’s interpretation of Palestinian society, I believe this opens up a window of opportunity for varied voices of Palestinian civil society. Goodwin-Gill fears that Palestinians in the diaspora will not be represented in this new form of Palestinian representation in the UN. I would have to argue that the PLO has not represented the Palestinian refugees since 1973, when the first diplomatic delegate of the PLO to the UK, Said Hammami, started calling for a two-state solution. Goodwin-Gill’s statement that “the PLO… derive their legitimacy from the fact that they represent all sectors of the displaced Palestinian people…” [P. 2, Art. 7] is patently false, seeing as A- Palestinians in the diaspora didn’t vote for them. And B- I don’t want to step on any toes, but the PLO was in fact outvoted a while back in Gaza.

The second aspect of Goodwin-Gill’s report that bothers me (or rather the first), with respect to his good intentions, is the disregarding of the “self” bit, when regarding Palestinian self-determination. It rears its ugly head on the second page:

8. In addition, the possibility of reconfiguring the self-determination unit by substitution, and without the consent of the competent institutions, raises the ‘external’ question of its consistency with the long-standing acceptance of the PLO, by the UN and the international community at large, as the sole, legitimate representative of the Palestinian people.

There’s that long superlative again. As I’ve already established, this superlative has to do with what the UN is willing to recognize as the sole, legitimate representative of the Palestinian people, and not the actual Palestinian people. In contradiction to his stance of concern for the Palestinian refugee in the diaspora, Goodwin-Gill seems to think that the substitution of the PLO- as sole, legitimate representative of the Palestinian people– is a matter of “consent of the competent institutions”, namely the “UN and the international community at large”.

I suggest Goodwin-Gill re-examine his position. Being British, is he in any position to tell the Palestinians that they are “not ready for independence” [not a quote], as his forefathers at the League of Nations to Great Britain did before him [the above report from UNESCO, p. 4]:

Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.

It’s interesting that Goodwin-Gill states the following [p. 3, art. 9]:

Until such a time as a final settlement is agreed, the putative State of Palestine will have no territory over which it exercises effective sovereignty, its borders will be indeterminate or disputed, its population, actual and potential, undetermined and many of them continuing to live under occupation or in States of refuge.

Not only does the League of Nations to Great Britain recognize the independent nation of Palestine way back in 1922, in addition the above UNESCO report of 1989, quotes Charles Rousseau from 1974 (bolds by me):

Mandate A was applied to certain “communities” detached from the Turkish Empire, which had their own political existence and were destined to full independence and which were provisionally subject to the administration of the mandatory Power, whose role was essentially one of guide and adviser. This regime covered Syria and Lebanon (placed under French mandate)and Palestine, Iraq and Trans-Jordan (placed under British mandate). These were genuine States in the full sense of the term (…) whose accession to independence was temporarily deferred’.

So why reinvent the wheel?

Goodwin-Gill’s final assessment is that:

20. The interests of the Palestinian people are at risk of prejudice and fragmentation, unless steps are taken to ensure and maintain their representation through the Palestinian Liberation Organization, until such time as there is in place a State competent and fully able to assume these responsibilities towards the people at large.

Seeing as the Zionist ethnic cleansing of half the indigenous Palestinian population in 1948, and the military occupation of Palestinian territory in 1967, and consequent apartheid policies are the historical reasons for Palestinian fragmentation, one must ask who the hell commissioned this opinion paper?

Israel Recognizes the United Nations

Another legal expert opinion was publicized a week ago by Ha’aretz’s legal correspondent,Tomer Zarchin. Former legal adviser to the Foreign Ministry, Robbie Sabel (that dude who said that the Israeli army flotilla massacre was legal) has finally recognized international laws of war:

The settlements are a prime example of this, since in theory one could say that we are talking about a war crime, that Israel is not investigating it and not bringing those responsible to justice. Thus, the court [Hague] could get involved and investigate.

Obviously still not versed in his field of expertise, Sabel seems to forget that this isn’t theory and that the UN deems the occupied territories occupied, thus it doesn’t matter whether a Palestinian state is declared or not, before the Hague can prosecute.

What’s Sabel’s suggestion as a strategy of deterrence?

It could be that the Palestinians will get caught up in the issue of the settlements, but at the same time, any Palestinian that, say, shot at Israeli civilians would also be subject to the court’s jurisdiction. Undoubtedly Israel could come up with a long list of terrorists that harmed Israelis and were never tried by the Palestinian Authority and turn it over to the court for handling.

Another expert opinion that Ha’aretz sought out was that of Prof. Daphne Richmond-Barak, who’s actually a Dr. (details, details Ha’aretz…), who in 2007 served as legal adviser to the government of Colombia in retaining its grasp on the Nicaraguan Archipelago of San Andrés annexed by Colombia, aided by the USA, under the Somoza regime.  Richmond-Barak and one Nick Kaufman, “international law experts who have worked with the International Criminal Court”, are busying themselves with what Ha’aretz frames as such:

[could] the newly minted “Palestine”… make claims regarding incidents that occurred before it was recognized as a state[?] The court has jurisdiction only for claims made by UN member states…  They may even ask the court to investigate incidents that occurred before 2002, which is when the court began operating, even though as a rule, such claims are not accepted.

For Nick Kaufman of the settler Regavim Advocacy Group [some of their latest exploits can be found at 1,2,3,4], this isn’t just a theoretical issue, as he is now busy trying to get Cast Lead off the table, as Ha’aretz (that “leftist” paper) uncritically discloses:

Kaufman, meanwhile, petitioned the ICC this week on behalf of the Regavim advocacy group, which asked the court to reject the request by the Palestinians in 2009 to investigate events pertaining to Operation Cast Lead in Gaza… the Palestinian intention to declare a state and ask for its recognition now proves that at the time they filed their request with the court, they were not a state. The court thus has no authority to respond to their request and must reject it out of hand.

It may just be about time for the International Criminal Court to raise the bar…

Finally Ha’aretz cares to mention the two attorneys on behalf of the Association of Civil Rights in Israel. It’s worth to mention that Ha’aretz’s focus is in quoting attorney Limor Yehuda only in regards to former legal adviser to the Foreign Ministry, Robbie Sabel’s balance-deterrence theory:

You must remember that Palestinian ratification of the Rome Statute [which created the ICC] will obligate them to uphold human rights − for example, to refrain from torture and avoid firing on Israeli civilians. It is liable to increase both sides’ commitment to human rights.

Had Ha’aretz’s Zarchin cared to actually look into the ACRI issued report, he would have found ample rebuttal for the sloppy theorizing of Robbie Sabel:

According to the laws of occupation, statehood is irrelevant in determining whether a territory is occupied or not, and therefore recognition of a Palestinian state per se would not affect Israel’s standing in international law as an occupying power.

The accepted interpretation of international law is that the laws of occupation apply to territories in which a foreign military force is able to exercise effective control over the lives of the local population.

… In this context, special attention should be given to the article in the Statute of the Court stating that the transfer, whether direct or indirect, of the population of the occupying power into occupied territory constitutes a war crime. This means that the issue of settlements would become an issue of an international criminal tribunal, which would open the door to the prosecution of Israelis responsible for establishing or expanding settlements.

Bear in mind that the Advisory Opinion of the International Court of Justice concerning the Separation Barrier states that, as an act that strengthens the settlements and makes them permanent, the construction of the barrier in the segments that surround the settlements constitutes an illegal act and violates Article 49(6) of the Geneva Convention.

Other interesting information in ACRI’s report do a pretty thorough job in contradicting Goodwin-Gill’s assertion of the criteria of statehood:

In modern international law, the Montevideo criteria are not the only criteria of statehood. In current practice, political and moral principles are key to the guidelines for recognition, and these include the right to self-determination, protection of the rights of minorities, and others.

It also addresses the idea of membership in the UN:

…membership in the UN is not a condition for the existence of statehood. According to Article 4(2) of the UN Charter, membership in the UN is effected by a two-thirds majority vote in the General Assembly upon the recommendation of the Security Council. In the absence of a Security Council recommendation, the General Assembly is not empowered to admit Palestine to UN membership.

In light of the United States’s position on this unilateral action by the Palestinian Authority, and American veto power in the Security Council, it appears that the Palestinian Authority’s chances of becoming a UN member are slim.

An alternative possibility is winning the support of the General Assembly. A General Assembly vote is an opportunity for the international community to express, in a coordinated way, a collective view about the status of Palestine, which would carry significant weight in international discourse.

And many more detailed questions about Gaza, Jerusalem (I do wonder how the Army will impose its “red lines” in central Jerusalem), military action, combating civilians becoming Prisoners of War, and the new state’s governing power’s responsibility towards the human rights of its own citizens. So, with the many issues on the table, will the average Palestinian feel a difference after a Palestinian state is declared in the midst of the current reality? Will we be feeling a hint of liberation?