Extended Version: Palestine Seeking Observer Membership Status at UN

As you may have heard, the Palestinian Authority has opted to return to the U.N. this year to seek recognition. I have a piece up on UN Dispatch to that very effect. While the government of President Abbas has said now that they’ll delay the vote until after the U.S. Presidential elections, that’s all it is: a delay. This year, it’s going to be way harder to convince the Palestinians to back down from their efforts, for a number of reasons.

First the ease in which the vote should come out in their favor has to be a draw. The Palestinian Mission is already predicting upwards of 120 votes in favor of their upgrade, far more than the necessary 97 required. Indeed, they’re hoping for a blowout vote of “between 150 and 170 nations” voting ‘yes’. Knowing that this is so close within their grasp will make it hard for the U.S. and others to cut a deal halting it.

The difficulty in dissuading Abbas is compounded by the domestic situation in Ramallah. Last year’s U.N. push resulted in Abbas receiving a hero’s welcome upon his return from New York. This year, he’s faced a surge in pushback against his government, culminating in protests that have roiled the West Bank. Abbas is left in need of a short-term win to distract from the economic troubles that the Palestinian people have been bearing. A successful recognition of the State of Palestine by the United Nations would lift his standing enough to give him breathing room.

Abbas is betting that Palestinian independence can be better achieved with the help of its new standing at the ICC, giving him a long-term incentive to pursue the vote. Difficulty comes in the midterm, as Israel reacts to a Palestinian upgrade. Israeli Prime Minister Benjamin Netanyahu’s government has already threatened to withhold much needed tax revenue from the West Bank government should they proceed, which would further the economic calamity in the West Bank. Also uncertain is the effect that de jure statehood would have regarding the split between Abbas’ Fatah government in the West Bank and Hamas in Gaza.

So the odds are good that we’re going to see Palestine bumped up to being an Observer State at the U.N. this Fall. The real question is what repercussions that will have both directly between Israel and Palestine and what it means for the United States and the U.N. in general.

In Defense of the Dictator’s Club

In what should be no surprise to anyone who has had an eye on Geneva in the last few weeks, Israeli Deputy Foreign Minister Danny Ayalon had a piece published in Foreign Policy‘s “Argument” section. The topic? The UN’s continuing unfairness towards Israel, in an article titled “Theater of the Absurd”. In this particular instance, the Deputy Minister has an issue with the Human Rights Council’s latest vicious attack against the much-maligned state, claiming that the body has been hijacked, much like the Commission on Human Rights before it.

Last week, at its 19th Regular Session, the UN HRC passed a resolution launching an investigation of the continued expansion of settlements in the West Bank by Jewish citizens of Israel. The vote on the matter was 35 in favor, 1 against, and 10 abstentions, with the lone “no” vote cast by the United States. Pay attention to those numbers, as they become important later.

In response to the decision, Israel has not only forbidden access to its territory to any investigation under the resolution’s mandate, but severed all working ties with the Human Rights Council. This is the environment in which the Deputy Minister penned his Foreign Policy article. In it, he cites the continued presence of tyrannical states on the Council as a preclude of its legitimacy:

Only 20 of the 47 nations on the UNHRC, a minority, are considered “free” by the independent NGO Freedom House. The majority of nations currently represented on this self-styled “human rights” body do not allow basic freedoms for their own people, let alone concern themselves with global civil liberties.

The current roster of the UNHRC is a virtual who’s who of global human rights offenders: It includes Cuba and Saudi Arabia — not to mention Mauritania, where modern-day slavery is an entrenched phenomenon. Last year, while Libyan despot Muammar al-Qaddafi was massacring his own people, the Human Rights Council drafted a report full of praise for the former dictator’s regime for its “protection of human rights.”

Let’s work our way backwards in examining these claims. The report the Deputy Minister mentions is the Universal Period Review, a mechanism the UNHRC has developed to look at the human rights records of every UN member state, Libya in this case. The New York Times article Ayalon cites pulls some choice quotes out of this draft UPR, signaling the corrupt nature of the endeavor. The praise from a who’s who of international pariahs comes across as highly disturbing. The problem with this narrative, however, lies in the fact that none of the states listed were members of the Human Rights Council at the time. Rather, the rapporteurs for each report, in this instance Argentina, Norway and Senegal, solicit input from literally every member state of the UN. Plenty of other states registered concern at Libya’s rights record in that text, and the recommendations for reform at the end include several that were rejected by Libya.

Minister Ayalon’s concerns about the makeup of the Council are somewhat valid, and we’ll address those shortly. However even by his math in the quoted text, something is off. In the event all the “not free” states voted in favor of the resolution, which they did, that wouldn’t give thirty-five votes, the number actually case. As it turns out, some of those free countries, such as Austria and Belgium, joined their non-free counterparts. The rest of them, save the United States, chose to abstain on the draft, rather than putting forward a no vote. This is hardly a ringing endorsement of the Deputy Minister’s position that the Council is being hijacked. Were Austria and Belgium forced to vote yes? Were the ten states who abstained muzzled? I would think not.

As I indicated before, I do have to concur that it is still disturbing that rights violators often make it onto the Human Rights Council. This is less a product of willful maliciousness but an unwritten set of rules in Turtle Bay. Most bodies like the HRC fill the seats through an allotment of a certain amount to each Regional Group at the UN. These groups then produce consensus candidates which take up their seats regardless of human rights records in the HRC or contributions to international peace and security in the Security Council. The fact that Togo sits on the UNSC this year is as much a fault of this system as Saudi Arabia’s presence on the Human Rights Council.

The Deputy Minister is also correct that Israel has had more resolutions specifically targeted at it than any other state. As he says, many human rights abuses escape inquiry at all. However, he is incorrect in asserting that the HRC refuses to make strides against legitimate cases of rights violations. For example, the work of the Council over the past year with regards to Syria are extremely commendable. Several special sessions have been held alongside the appointment of a special Commission of Inquiry to investigate the situation. Likewise its swift action against Libya last spring belies the normal argument that the Human Rights Council is full of dictators who are loathe to depose one of their own.

Many of these positive outcomes from the Council is a byproduct of the United States’ deciding to engage with and seek a seat on the Council, rather than shunning it as originally planned. It is with that in mind that the state of Israel should think much harder about its position towards the United Nations. I will readily admit that there does exist a bias among many of the Member States against Jerusalem. This has been reflected by the insane number of resolutions passed in the General Assembly condemning the state. But the solution is not, as Ayalon seems to suggest to pick up the ball and go home (emphasis mine):

Perhaps it is time to establish a new organization that more faithfully adheres to a true human rights agenda. Democracies should reassess their participation in a council that places political calculations over the protection of human rights, while providing cover to some of the world’s most brutal regimes.

The need to institute reforms at the United Nations is apparent to anyone who’s spent time studying it. But the idea of starting up a new organization, a League of Democracies as has often been fantasized about, should remain just that: a fantasy. For democracies putting off ties from states that do not fully live up to Western standards would be a critical mistake, especially when they outnumber you. Rather, constructive engagement is key to rising all states to the same level, rather than bringing them down as Ayalon seems to suggest.

In reality, the Human Rights Council is no more a “Theater of the Absurd” than Ayalon’s outrage is a farce. The Deputy Minister asserts that Israel will remain willing to work with UN inquiries that “don’t already confer guilt”, but if such inquiries are approved, or silently condoned, by those Israel would invite to a new organization, where does that leave Jerusalem?

The Hague on both your houses

I swear, after an hour long discussion with an Israeli friend of mine about my last post, I promised to myself that I would avoid Israel/Palestinian issues vis a vis the UN for a good long time. That promise has now been broken. So, thanks, Turkey.

The gist of it is as follows, thanks to the Irish Times for condensing:

Turkey plans to challenge Israel’s blockade of the Gaza Strip at the International Court of Justice, dismissing a United Nations report that said it was legal.

Turkey will apply to the court at The Hague next week, foreign minister Ahmet Davutoglu said yesterday. Mr Davutoglu’s comments came the day after Turkey suspended military agreements with Israel.

Turkish prime minister Recep Tayyip Erdogan’s government has said it will take action against Israel for refusing to apologise for the killing of nine of its citizens on a flotilla to Gaza last year. Israel says its soldiers acted in self-defence.

So this fight is going to the Hague. I haven’t even had the chance to read the complete report on the flotilla incident, but it comes across as extremely balanced, calling the blockade itself legal but the actions in this specific incident over the line. Pretty even handed for an organization that is known in right-wing circles as being amazingly anti-Zionist.

A longer piece from Bloomberg indicates that the Turks intend to seek damages from the ICJ and a lifting of the blockade as illegal. If Turkey is looking for speedy recourse, though, they’ve turned to the wrong forum. The ICJ has a rather lengthy backlog of cases to get through, including the most recent case to be listed, which may keep Thailand and Cambodia from launching an all-out war against each other.

I can see how and why Turkey is planning to take this to the ICJ, but it will be years before any sort of conclusion is reached. In the immediate term, it only amounts to antagonizing Israel even further when, let’s face it, they’re feeling pretty agonized.

The Palestinian Question

The biggest fight on floor of the UN General Assembly this September is without a doubt going to be the Palestinian push for unilateral recognition of statehood. The whole thing has been fascinating to watch from an international institution standpoint, awful to watch from a US policy-making standpoint.

As the weeks have gone on, and its become crystal clear that the US will veto any full admission to the United Nations, as is their prerogative under the combination Articles 4 and 27 of the UN Charter, the Palestinians have come up with a somewhat ingenious backup plan. Currently the Palestinian Liberation Organization is recognized in the UN as the sole legitimate authority of the Palestinian people, and holds the seat of the Permanent Observer Mission of Palestine, possessing the status of ‘observing non-member entity’. This is slightly below the place of the Vatican and formerly Switzerland, Japan and others, as an ‘observing non-member state’ and above other observers such as the European Union and other international organizations.

Should a full-bid for statehood fail at the hands of a US veto, originally consideration was given to taking up a Uniting for Peace resolution to override the Security Council when the UNSC is deadlocked. This would hold a particularly irony in the fact that the concept was first developed by the US in a time when it still controlled the GA. This was shot down by legal scholars who, accurately, stated that the matter of UN membership has a concrete mechanism built into the Charter.

What could be done instead would be to upgrade Palestine’s status from observer entity to that of an observer state. This would confer certain abilities that are currently outside the reach of their present status. Among these is the ability to join a multitude of UN bodies and treaties, as they can then point to their recognition as a state.

The real kicker  is the enhanced case it would give to push for an ability to bring Israeli citizens before the International Criminal Court. Under Article 14 of the Rome Statute, States party to the treaty may bring cases that fall under the jurisdiction of the Court forward. The key word there is “State”, something that the Palestinians have been lacking but may be able to argue for after September and allow them to sign the Rome Statute. This is Israel’s greatest fear in this situation; though they aren’t a party to the Court, they would be afraid to have officials travel anywhere save the United States and others who have thus far refused to sign on to the State. This fear may be somewhat misguided as we’ve seen somewhat lax enforcement of warrants issued by the ICC, but that’s for another post.

A friend who works on Israeli foreign policy did present me with an interesting point when it comes to other ramifications of a UN GA vote. Should Palestine become an independent state before having a true hold on their internal security, it could be even more of a disaster. Palestine’s greatest argument for independence in the past has been their status as the ‘Occupied Territories’, with the Israeli Defense Force providing a villain in the play. Should they become recognized as a state, this changes the dynamic considerably.

When the first missile flies between a Palestinian state and Israel, the Israelis can invoke Article 51 of the UN Charter. As Article 51 allows for actions to be taken in self-defense against the opposing state until the Security Council acts, and the US still has the ability to veto anything that comes before the Council, you could see a full on takedown of Palestine before it even gets its legs under it. That isn’t the wish of anyone but maybe the most hardcore of Israeli legislators as this scenario would not benefit any party. It would make the IDF look like bullies, again, and the Palestinians look incompetent, again, but Israel’s actions would be fully within the scope of international law.

This doomsday scenario aside, I find Israel’s reading of international law in this situation somewhat confusing and indeed hypocritical. The State of Israel is strongly objecting to the UN granting statehood to Palestine as a matter of not just policy but insisting that the power lies outside the scope of the UN Charter. Many other observers take the same stance, claiming that the UN General Assembly can’t create a state, including the Council on Foreign Relations’ Eliot Abrams:

That’s the rub, of course– it would. Indeed it might be even further away, if the main effect of their campaign were to delay serious negotiations and further alienate Israelis and Americans. For in the end, it isn’t just the UN Charter that tells us the General Assembly cannot create a Palestinian state. Reality teaches the same lesson.

That the PLO is following this path suggests a lack of interest in the genuine negotiations that are the only real path to statehood. This is not surprising at a moment when Palestinian attention is mostly focused on domestic politics–Fatah vs. Hamas–and the PLO’s leader, Mahmoud Abbas, has his sights set on retirement next year. It may yet be possible for the United States to come up with a form of words that brings the two parties to the negotiating table this summer and thereby allows Abbas to back away from the UN shenanigans. But this entire episode reveals a lack of Palestinian seriousness about negotiations and suggests that, while talks may commence and avoid the September UN confrontation, they will go nowhere. Like the talks the United States engineered in September 2010, such negotiations might start with hoopla and ceremony, but would most likely break down in the subsequent few months.

Correct me if I’m mistaking in remembering a little something called UN Resolution 181, which lay out the original boundaries for the Jewish State and Arab State as they are referred to. That resolution allowed for either the Jews or Arabs to sign onto the plan and have access to joining the UN, whether the other had approved or not. The Palestinians indeed did not accept the Resolution, leading to the civil war period that followed the Israeli Declaration of Independence. It’s within the UN’s power to, if not formally create a state, lay the groundwork to legitimacy that makes statehood possible.

The US is struggling frantically to delay the vote, pushing for renewed negotiations between Israel and Palestine rather than a unilateral push. The Quartet, never the greatest mechanism for moving peace forward, has yet to finalize their new peace plan, but is actually moving forward, something that has to be applauded. The Israelis have lent their support to a new draft but only silence has come from the Palestinians. A new set of concrete proposals designed to spur talks is something that has been lacking for far too long, but it may be too little too late.

The stalling tactics of the US are clearly doomed to fail. Even China has expressed its backing for the Palestinian cause. With the Quartet lacking a proper carrot or stick to bring both the Palestinians and the Israelis back to the table, the PLO’s diplomatic effort may be one of the best ways possible to convince the Likud government that negotiations are necessary, as Palestine will become a state one way or another. Bibi’s ministers have to realize that by not negotiating, they aren’t gaining leverage, they’re wasting opportunity to finally strike a deal.

The GA is going to overwhelmingly support either of the routes that Palestine takes towards upgrading their status whether a few Europeans can be peeled off or not, leaving the US in the dust. The United States has declared in the past that it is for a two-state solution but its actions heading into the General Assembly can’t be seen as those of an impartial negotiator and has the ability to hinder a US role moving forward.

Rather than wasting time and energy attempting to block the motion from passing, the United States should instead be working with both the Israelis and Palestinians bilaterally to help frame the terms of what the outcome will look like and mitigating any potential damage.

If Palestinian pride can be salvaged by abstaining in the General Assembly while still vetoing action in the Security Council, the United States should do so in an attempt to foster some semblance of goodwill to push Abbas and the PLO to act as a state should, cracking down further on militants within its supposed borders and putting the country back on track to holding general elections, currently scheduled for May 2012. A diplomatic victory such as the one in September has the ability to put Fatah even further ahead of Hamas in opinion polls in Palestine, as a June 2011 poll indicated a preference for Fatah’s policies in any unity government.

On the part of the Israelis, the US can privately guarantee that support for the Israeli right to exist and defend itself remains paramount in our policies, particularly against a Palestinian state provided Israel is not the aggressor. This can be coupled with the US pushing flexibility towards settlements in the West Bank being factored into any proposed land-swaps as part of the Quartet’s official plan, and acceding to the Israeli demand for control of security in any connection between Gaza and the West Bank.

What is currently being seen as a powerful defeat for the US can still be turned around into a beneficial arrangement for all parties. The General Assembly votes will be among the most closely watched to come out of the chamber in years and I know I’ll be on the edge of my seat.