Palestine: International Law and Politics of State Recognition

It will not come as a surprise to the author that this piece might not be well received in the parts of the world to which it is addressed due in part to the historical hostility exhibited toward the lingering Palestinian cause that had pitted it against the Jewish state of Israel for decades. Indisputably, religious sentiments have strong hold on the emotions of several individuals whose reactions to this peace might be colored by pure sentiments rather than objective assessment of the Palestinian question. An oppressed people denied the benefits of statehood and beholden to the whims and caprices of a conquering neighboring state deserves the goodwill, support and empathies of the civilized world in their quest for justice and space under the sun as every other people similarly positioned across the globe. Therefore, religion must yield its place to the superior force of justice animating the noble cause of men.

The arrival of the Palestinian leader, Mahmud Abbas, at the UN Headquarters in New York City last week for the just concluded UN General Summit, caused quite a stir and profound consternation in both western and Israeli capitals, including Washington, D.C. On the reverse side, however, it naturally elicited huge excitement throughout the Arab world in particular and in general from freedom loving peoples all over the world for reasons that aren’t entirely difficult to fathom.

And quite remarkably, it had prompted an overly embarrassed, jittery Obama administration running scarred, as it were, with goose pimps sprouting all over its body. As a matter of fact, the US president cuts a pathetic picture of one running around literarily with fire on his head, paradoxically over a matter that he should have positioned himself as the protagonist-in-chief bristling with pride and enthusiasm for being the leader that brought change to the Middle East. But Obama blew it, big time for placing himself on the wrong side of history in-the-making.

Why is this happening under the Obama administration? The reader might want to know why would a supposedly “progressive” US president, who had all along been mouthing “change” rhetoric in both domestic and foreign policy positions be running scarred from pillar to post just because the long suffering Palestinian people are demanding UN recognition of their territory as a sovereign state when virtually the whole world had come to that unavoidable conclusion including the US itself a long time ago? Why would the liberation of an oppressed people suddenly become such a huge problem for President Obama?

The answer to the above questions lies in the fact that the Abbas mission to the UN is one that has at least potentially serious political implications for the Obama administration back home, with the US presidential elections just around the corner. For obvious reasons, Obama has his eyes glued onto the millions of Jewish votes in the next elections as they have always gone to the Democratic Party in virtually all previous elections. And this becomes critically important for him personally because his popularity is so low right now. As one black commentator, Gwen Ifill an influential female host of the very popular Public Broadcasting Service (PBS) program, “Washington Week,” chose to put it, Obama’s “sinking political boat” is going down so fast and furious like a rock cast in the ocean, that his political future is, at best, uncertain right now. And that is putting a gloss on it to make it sound a little palatable and less scary, perhaps less offensive too, to the hordes of Obama-maniacs out there. The truth, they say, is bitter and not many people, least of all Obama devotees can take it in their strides.

But let’s face it: Obama’s second term bid is far from being a done deal. And like the true politician that he is though pretending otherwise purportedly as a change agent, he has resorted to political tradeoffs and that means shoving the Palestinians under the bus as he has indeed done to his own constituencies that brought him to power in most of his policy negotiations with the Republicans in Congress where he wound up selling out to the Republicans in the name of pragmatism. Having shunned the Black Congressional Caucus for three odd years for which he has been drawing scathing criticisms, he is now finally reaching out to them in the caucus when elections are drawing near because he now badly needs black votes to counter the tidal waves of defections from his fast depleting political camp, especially so of white folks.

It is clear, therefore, that Obama’s personal political fate is the source of his desperation and frenzied, last minutes diplomatic moves to scuttle Palestinian statehood and possibly save his neck the political embarrassment that would inevitably go with his public support for the Palestinian cause at the UN, in Washington’s daggers-drawn political battlefields. However, it is a shortsighted political maneuver that could do great harm to Obama’s presidential legacy because it is not at all clear to anybody including Obama himself that the Jewish votes that he is hoping to gain by denying the Palestinians statehood will fetch him the second term that he is dying to gain at the next US presidential elections. If and when that happens he will have only himself to blame for burning his candle at both ends and ending up in political darkness.

Now, here is the crux of what had given western capitals, including Washington, D.C., sleepless nights. As indicated above, the Palestinian leader had come to the UN with grit determination to demand statehood for the Palestinian territory. Statehood is a long standing Palestinian aspiration that the whole world had agreed to as a matter of right not privilege except for Israel and the Palestinian territory already enjoys observer status at the UN, which is only one step away from statehood. But so long as the Palestinian wish-list remained sitting on the shelf gathering dusts without taking any concrete steps to actualize it, it was fine with both Israeli and Washington, D.C. Palestinian state of limbo and inertia did not hurt anyone. Palestinian aspiration for statehood was, therefore, treated as a mere dream that had no practical implications on the realities on the ground both for Israel and the United States. Why would they be overly concerned with a mere dream that is the stuff of fantasies? However, things dramatically changed literarily overnight as the Palestinians took the first concrete steps to actualize their dream and headed to the UN. And nothing was going to stop them from doing just that at the UN. This first concrete step is what has alarmed the Obama administration because it suddenly found itself going against what it had publicly agreed to and voiced out time and again so close to an election year. Suddenly Obama has put himself in a position where he is, at the same time both for and against Palestinian statehood—certainly not the best position a leader should find himself in so close to an election. He is flip/flopping by speaking from both sides of his mouth at the same time—a craft that Obama disappointingly seems to have mastered. Thus President Obama is facing both credibility and leadership crisis at once—no thanks to Mahmud Abbas. It has taken the Palestinian leader’s UN diplomatic gambit to expose Obama’s leadership deficit, which had for some time now come to the fore domestically to bring it on the international stage.

However, to state that the Obama administration was taken by surprise, leaving little or no wiggle room to maneuver, is to state the obvious. This is because nothing of this sort had happened in the past before and there was no prior indication of this development before the news broke out. Although the Palestinian Authority leader had been attending UN summits in the past in “Observer status,” this is the first time a Palestinian leader had, on behalf of his people, placed before the UN Security Council and the General Assembly, a formal request for the recognition and admission of the Palestinian territory into the world body as a state with all the powers— legal, political, sovereign and diplomatic appurtenant thereto in complete defiance of the US and Israeli serious objections. The Palestinians have finally decided to take their destiny in their own hands rather than waiting for Washington, D.C., and other western capitals to make the decision for them and that has unnerved the Obama administration.

It is a crying shame and most regrettable indeed that Obama, the candidate of change, did not see in this development a golden and historical opportunity to rewrite the history of the Middle-East for the better; in particular, the Israeli/Palestinian conflict, which colors everything in the Arab world including global terrorism. Resolution of the Palestinian question would unquestionably bring huge peace dividends to that part of the world and the global community in general and save the world the huge resources committed to fighting global terrorism. But a rather shortsighted and calculating Obama did not see the potentials for the huge peace dividends in granting statehood to the Palestinians which all agree they deserve. Rather, he has sought to put his own narrow selfish issue of his political survival ahead of seizing the momentous opportunity to bringing the conflict to a decisive end.

Watching President Obama standing before the UN and mouthing rhetoric about how only negotiations not UN resolutions would bring statehood to the Palestinians made me want to cry for a man who has completely derailed from his own pre-election promises and has unbelievably turned himself into an agent of oppression of the Palestinian people. There seems to be no time Obama would publicly stand for something and go all the way to bring it to fruition and in the end winds up standing for nothing when it matters most.

The Palestinians themselves have lost faith having seen the wobbly position of the Obama administration in only talking the talk and not walking the walk. This extreme measure on the part of the Palestinians has thus been necessitated by the utter frustration of the Palestinian people regarding the stalled so-called “peace process” that appears to be dead in the waters and more of a meaningless talk-shop designed to buy time for the Israelis than real, substantive peace talks that produce tangible results. The reality is that there is currently no peace process as the parties are not even talking to each other and have not been talking to each other for years substantively, that is, since the highly partisan Bush administration that did not even pretend otherwise. Obama’s campaign promise of solving the Palestinian issue once and for all has proved to be mere hollow campaign rhetoric just like others of his “change’ promises that have gone up in smoke in the face of Washington’s unyielding political realities on the ground. This is one of the pieces of evidence of Obama administration’s failed foreign policy no less so his rather spectacular failures in domestic policies as well.

Meanwhile, the Israelis have no incentives of playing ball with the Palestinians and move forward with the peace process in good faith. It seems that the bullish, hawkish right wing Israeli PM, Benjamin Netanyahu, is bent on derailing the peace process altogether. He had been a hawk all along even before his election that ousted more moderate former Israeli PM turned Foreign Affairs Minister, Ehud Barak. It is instructive to note in this connection, that the stalling tactics employed by the Israelis has enabled the Jewish state to continue to illegally build new settlements on Palestinian lands, particularly in the Golan Heights, in total defiance of the United States and the global community. It seems there is no adult in the global community to call this bully to order.

His goal, as that of his predecessors, is relentless and continued annexation of Palestinian territories for the building of Israeli settlements at the expense of the Palestinian people who are simply watching with alarm as their lands are been taken away from them by force of arms with no end in sight. And he is doing this in the hope of “changing the facts on the ground”; that is to say, dealing with new settlers whose homes would be difficult to destroy at the end of the day thereby creating new realities on the ground. It’s like a thief imagining that it would be difficult to deprive him of the property he had stolen from another because it would create problems for him when deprived of it and given back to its rightful owner at the end of a legal process. That is the mindset of the Israeli leaders in illegally building on lands belonging to the Palestinians seized from them during previous wars. This is against all tenets of international laws otherwise Germany, Britain, and Japan would still be occupying lands seized from other countries in wars.

The state of Israel is a creation of the UN precisely on May 14, 1948 at the end of the WWII and its boundaries are precise. They do not include Palestinian territory and no act of war and illegal new settlements on Palestinian lands could redraw those boundaries in favor of Israel no matter how long and however extensive those settlements may be, because time does not legitimize or legalize an illegality unless the victim had acquiesced in the illegality which the Palestinians have clearly not done. On the contrary, they had been resisting this illegality with all the means at their disposal, including suicide bombings and the like, which the Israelis have now turned around to cite as example of their alleged insecurity. This is, at best, fraudulent claims on the part of the Israelis that should not even be countenanced by the global community. How does an aggressor take the property of another when the aggrieved reacts to that deprivation the aggressor turns around to complain of insecurity in the hands of his victim and gets away with it?

It’s this frustration fostered by an acute sense of helplessness and hopelessness that has driven the Palestinian leaders to the UN to dramatically escalate their issue before world leaders. And who would blame them? And if there is any conscience left in the UN at all, it has been presented with the opportunity to demonstrate it loud and clear. And the thunderous ovation that greeted Abbas speech at the UN in contra-distinction to the muted reactions that attended both Obama and Netanyahu’s speeches is an eloquent demonstration and testifies to the fact that the UN as a body is ready to take the lead and do what is right but for and regardless of the veto power wielded by the US, which Obama had threatened to apply to scuttle Palestinian request for statehood. Yet it would be a huge diplomatic victory for the Palestinian and a huge embarrassment for the Obama administration to be thus caught on the wrong side of history at this moment in time. It will do no good in US/Arab relations to be sure. And more importantly, Obama’s veto of the request at the Security Council has all the potentials for setting the region on fire once again scuttling the moribund peace process as the Palestinians might be tempted to resort to self-help once again having thus been rebuffed by the big powers at the UN. That is not an outcome any serious leader would wish for as part of his legacy.

Now the issue of Palestinian state has been at the front and center of the Israeli/Palestinian peace process. And all the 15-members of the UN Security Council have endorsed, at least in principle, the idea of a Palestinian state including the United States. In fact, the US President, Barack Obama, came out publicly two months ago ahead of the Israeli Prime Minister, Benjamin Netanyahu’s visit to Washington, D.C., to declare that the Palestinians deserved a state of their own along the 1967 boundaries defined by the UN at the end of the 6-day war—a declaration that immediately drew sharp and caustic rebuke from the Israeli leader, which he described as “naïve wishful thinking” on the part of the US president.

But the fact of the matter is that the boundaries between the state of Israel and the Palestinians had already been drawn by the UN back in 1948 before Israel attained statehood. But having seized Palestinian lands in the 1967 wars with Arab countries which it had won decisively Israel had not only held on to those lands except for those returned to Egypt and Jordan, but has continued not only to occupy Palestinian lands but in addition to that annex more lands from the Palestinians virtually unchecked. Israel is doing to Arab nations what Germany did to Europe that caused the WWII by invading and annexing smaller nations along its borders in its desire to acquire “living space” at the expense of other nations by sheer force of arms. And the Jews were the greatest victims of Hitler’s madness which unfortunately and ironically they are now practicing on the Palestinians and other Arab nations under bogus excuses no better than Hitler’s excuses. And to imagine that the Palestinians would just sit back and watch their territories disappear into the Jewish state would be the height of naivety and sheer wishful thinking.

Therefore, the issue is not whether the Palestinians deserve a state of their own and be recognized as such by the international community because they had been entitled to that status along with the Jewish state itself at the beginnings back in 1948—though it was tragically rejected by them. The Palestinian indeed Arab opposition and rejection of the creation and existence of the state of Israel which led to the 6-day war in 1967 is the cause of this impasse otherwise they would have had their state long ago alongside Israel. But that opposition has since died down and Israel is now recognized by all its neighbors including, Egypt, Jordan, Lebanon, and the Palestinians themselves, with which it has established diplomatic relations over the several decades. There is therefore no real reason why Israel should be opposed to the creation of Palestinian state.

Therefore, the artificial complications of redrawing the boundaries introduced by the Israelis through acts of annexation of Palestinian territories should not, must not, and cannot be allowed to stand in defiance of international law and morality. Therefore, the US president was right historically in his public declaration that the boundaries of the two-state structure of Israelis and Palestinians remain those laid down by the UN in 1967, regardless of the Israeli settlements on Palestinian lands which should and must be dismantled forthwith because no one is allowed to profit from an illegality. In fact, those settlements rightly belong to the Palestinians as they legally go with the land on which they stand.

And since Obama and indeed all US presidents and world leaders had clearly recognized this as the very minimum conditions for Palestinian statehood, it becomes extremely disappointing indeed for Obama to turn his back on the Palestinian demand for statehood. Having publicly voiced out that position it is morally incumbent on Obama to follow through regardless of the political price he might pay back home with the Jewish votes. His presidency should not be about pleasing the Jews in the US and getting Jewish votes for his re-election but doing what is right for an oppressed people as the Jews themselves were back in the day. He will go down in history as standing up for the oppressed people and changing the conditions on the ground throughout the Arab world. Wasn’t that, after all, his campaign promise? Why is he developing cold feet because of political expediency? Shouldn’t he be held to his election promise? Would Obama go down in history as the US president who killed the dream of the Palestinians for statehood?

I understand perfectly well that there are other issues such as the status of Jerusalem, which both sides are holding on to as a prized and most sacred piece of real estate that cannot be negotiated away lightly; including prisoner swaps, the deliberately invented issue of illegal Israeli settlements, and the almighty issue of Israel’s security, that are holding up the negotiations. Important as they are, however, all these are incidental issues that should not be allowed to hold recognition of Palestinian statehood hostage so long as that candidate entity satisfies the legal requirements and conditions for statehood and pushes for it. Southern Sudan, for example, which attained statehood back in July, this year, there are still outstanding issues to be thrashed out with its northern neighbor, but that did not prevent the UN from approving its statehood.

The international legal basis for recognition of states has been clearly laid down in the Montevideo Convention of 1933 Article 1 of which provides as follows—“The state as a person of international law should posses the following qualifications: (a) a permanent population; (b) a defined territory; (c) government and; (d) capacity to enter into legal relations with other states.”

Under this Convention many former stateless territories that satisfied these criteria have acquired the status of statehood and accordingly admitted into UN membership, and the Palestinian territory should not be an exception. Membership of the UN confers not just prestige on the entity on the global scene but real legal powers and protection from the violation of its territorial integrity by other nations. Thus, once the Palestinians are granted statehood it will prevent the Israelis from routinely invading their territory militarily or carry out other acts of aggression against it, be it economic or otherwise. In other words, it will effectively clip the wings of the Israeli military and political leadership in relation to Palestinian state, which would then be in a legal position to ask for military assistance from any member nation when militarily threatened or attacked by the Israelis in violation of international law.

The implication of this for the Israelis is that military deterrence as a strategic defense policy will no longer be available to them as it is today if Palestinians are granted statehood and admitted to UN membership. Any unprovoked military aggression against the Palestinian state would be condemned by the UN as an act of aggression against “a member state” with appropriate sanctions imposed on the aggressive side. Already the Israelis have garnered a number of condemnations from the US and therefore not in the good books of the UN due to its acts of aggression against the Palestinians and annexation of Palestinian lands.

There is no doubt even by Israelis themselves that the Palestinian candidacy for statehood abundantly satisfies the above criteria. Palestinian territory has permanent population; defined territory, which need not be precise as there are territorial disputes amongst states, which do not and cannot detract from their statehood status; government, which by the way, may or may not be democratic (as that is not a yardstick), headed by Mahmud Abbas duly recognized by the west and the rest of the world, including the United States and; a capacity to enter into legal relations with other states. No one has argued that the Palestinian government lacks the ability to enter into legal relations with other states. In fact, it is already doing so with the Israelis themselves.

So what precisely, is holding up the recognition of the Palestinian territory as a state? It is not the international community that has refused to accord statehood to the territory but the Jewish state, Israel. One state—Israel— stands between the Palestinians and statehood and that one state has held the international community hostage to its selfish desire to deny the Palestinians a state of their own. How would the Israelis have felt if one powerful border nation had acted to deny them their most cherished dream of a Jewish state back in 1948 when they were still in Diaspora, scattered and murdered by Adolf Hitler? How would the Israelis have felt was demonstrated in the Arab/Israeli war. The Arab countries did not want the Jews to realize their dream of a Jewish state and attacked, and the Jews went to war with the Arab states which it won decisively. It was a just war of self-preservation and self-determination supported by major powers including the United States and Britain. Is Israel now trying to pay them in their own coins?

While the Palestinians cannot go to war and prevail against Israel as Israelis did against the Arab countries in 1967, the fact remains that the Palestinians are fighting a similar just cause as the Israelis back in the day and the end results will not be any different regardless of the weak military status of the Palestinians and regardless of the stalling tactics currently being employed by Israel. Palestinian statehood is an inexorable reality that cannot be permanently defeated by any military and political power on earth because it is an issue of justice and morality that ultimately have greater force than military power. Why would a state that came into existence literarily out of nowhere, formed by Jews fleeing persecution abroad before and after the end of the WWII be the one to deny her neighbors statehood? And why would the international community allow itself to be held hostage to the Jewish state in denying the Palestinians statehood? This is the moral question that continues to prick the conscience of the world.

This is not an attempt to sweep Israeli fears and concerns under the rug. Israel has reasons to fear for her security. However, the fear of Israeli leaders that a Palestinian state would constitute a threat to the existence of the Jewish state is not only untenable but self-serving, and could be addressed by entering into peace treaty with the Palestinian state not to allow its territory to be used against Israel by radical elements. In any case, such fears should in no way be allowed to stand in the way of the application of the law of nations which is clearly on the side of Palestinian statehood. There is no moral and legal justifications whatsoever why the Palestinians who have satisfied all legal requirements for statehood should be denied that status just because the Israelis are against it. It means that the legal requirements as laid down in the Montevideo Convention signed by world powers and binding on all nations have no meaning whatsoever. It means in effect that one state, such as Israel, has or could be allowed to possess de facto veto power over the entire UN and the world in this matter of according an otherwise qualified territory the status of statehood. This, of course, will only bring international law and the UN itself into public ridicule.

It must be noted in conclusion, however, that the time has indeed come for the creation of the Palestinian state as a matter of practical implementation rather than mere academic or theoretical exercise, because a people cannot be denied their legal entitlement indefinitely without incurring grave consequences. The world must come to the recognition of the fact that unlike Taiwan, for example, that is part of Chinese territory, Palestine is not a break-away territory of the Jewish state seeking recognition of statehood, but an independent territory seeking statehood just like Israel did 63 years ago. And something tells me that whether or not the US vetoes the vote in the UN Security Council, the UN General Assembly will carry it through, and that will be one leg up for the full realization of the dream of the Palestinians. If the UN General Assembly accords official recognition to the Palestinian state, it will be one step closer to its dream and the rest will follow in due course. When the final word is written where will Obama be? Only Obama can answer that question. But I would advise to him to retract his steps and be on the right side of history regardless of his re-election considerations.

A bold leader must lead his people at critical historical junctures even at personal costs, not follow and held hostage to partisan ramblings in Washington, D.C. Will Obama lead, for once—stop the flip/flops, and stand up for what is right? In the beginnings, Obama had the promise of greatness but the fulfillment of that promise will take Obama the candidate as opposed to Obama the President of the United States of America.

Franklin Otorofani is an attorney and public affairs analyst