Not Israel's to give

By John Whitbeck*
There will never be a perfect moment to formalise the transformation of Palestinian governmental institutions from the "Authority" to the "State" and for Palestine to apply for full member state status at the United Nations. The daily dead and maimed of the Al-Aqsa Intifada may well make a statehood "declaration" at this point in the Palestinian liberation struggle seem like an act of empty symbolism even in sympathetic eyes.
However, much more than symbolism is at stake, and there may never be a more favourable moment for Palestine to successfully claim its inalienable rights as a nation-state among nation-states than between now and 20 January 2001, when the new president of the United States will take office. The scheduling of early Israeli elections makes the favourable timing even clearer.
While President Arafat promised to establish the State of Palestine on the soil of Palestine on 4 May 1999 and, subsequently, on 13 September 2000, he has also let slip on several occasions that the State of Palestine already exists. As a legal matter, this is clearly correct. Within two months of the declaration of Palestinian independence and statehood on 15 November 1988, more than 100 other sovereign states had recognised the State of Palestine (more than recognised Israel at that time). Even the United States and European countries which have not yet extended formal diplomatic recognition to the State of Palestine have for years welcomed President Arafat with the honours and protocol due to a head of state. Since its establishment of "effective control" over a portion of Palestinian territory in 1994, Palestine has met all of the criteria for sovereign statehood pursuant to customary international law.
It should be clear to all with open eyes that the "Palestinian Authority" has always been a transparent euphemism for the State of Palestine, a "Trojan Horse" through which the state has penetrated the walls of the occupation and established itself on its national soil. What then is to be gained by "re-proclaiming" the state and seeking UN membership while the occupation of most Palestinian territory remains firmly, and violently, in place?
The failure to reaffirm the existence of the state, particularly after repeated public promises to do so, has left the dangerous (and false) impression, particularly in Israeli and American eyes, that Palestinian statehood is within Israel's power to grant or deny -- and that the Palestinians must pay a price, through relinquishing some of their rights, to obtain Israel's consent to what the European Union, in its Berlin Declaration issued on 25 March 1999, reaffirmed is an "unqualified Palestinian right... which is not subject to any veto". This conspicuous failure has itself become a major obstacle to peace, an obstacle which must be removed.
Moreover, if Palestine were to be admitted to the United Nations as a member state within its pre-1967 borders, then it would be indisputable that the Palestinian territories conquered by Israel in 1967 are not "disputed" but occupied (illegally so) -- and that the Israeli occupation of Palestine is, legally, no different from the Iraqi occupation of Kuwait (except that Iraq claimed sovereignty over all of Kuwait, while Israel has never claimed sovereignty over any part of the occupied Palestinian territories except expanded East Jerusalem). This is not to say that Security Council-approved sanctions, blockades and "overwhelming force" against Israel would be imminent. However, the field on which a new, improved, post-Oslo phase of the "peace process" would be played out would be fundamentally different - and vastly more advantageous - for Palestine. The end of the occupation would no longer be a question of whether but rather a question of when.
Furthermore, by seizing the initiative in this way, Palestine would dodge the bullet of a nightmare scenario -- Israel's preemptive recognition of a Palestinian state, but only within the small portion of the West Bank (excluding Jerusalem) and the Gaza Strip currently subject to Palestinian Authority control. Another part of the scenario would be Israeli success (with American pressure and threats fully deployed) in convincing many countries to recognise Palestine only within those Bantustan borders, thereby effectively transforming the rest of the occupied Palestinian territories into "disputed" territories and subordinating international law and UN Security Council Resolution 242 to the principle that "might makes right." This is a threat which should be taken seriously.
Imagine then that, between now and 20 January, President Arafat were to publicly confirm that the State of Palestine has been legally sovereign in all the Palestinian territories occupied in 1967, including Jerusalem, since the state was proclaimed in 1988, that the "Palestinian Authority" through which the state established its presence and authority on a portion of its national territory has ceased to exist with the termination of the "Oslo process" and that all Palestinian governmental institutions established on Palestinian territory as organs of the "Palestinian Authority" are now governmental institutions of the State of Palestine.
Imagine further that he were then to appeal for diplomatic recognition from all states which have not already recognised the State of Palestine and to announce that the State of Palestine is applying to upgrade its status at the United Nations from "permanent observer" (a status in which "Palestine" replaced the PLO in December 1988, one month after Palestine's declaration of independence, and which was upgraded to an effective "super-observer" or "quasi-state" status in July 1998) to full member state.
Imagine finally that, at the same time, President Arafat were to confirm his eagerness and that of the State of Palestine to negotiate with the current Israeli government, prior to the forthcoming Israeli elections, a permanent status agreement dealing definitively with all outstanding issues (including Jerusalem and refugees) with a view to achieving a new relationship between the two states and peoples based on peaceful coexistence, mutual respect and human dignity so as to finally provide peace and security for both Israelis and Palestinians in the land both peoples love.
How would the international community react? The consistent support of the international community for Palestinian statehood was again demonstrated in December 1999 when the UN General Assembly adopted its annual resolution reaffirming "the right of the Palestinian people to self-determination, including the option of a State" and expressing "the hope that the Palestinian people will soon be exercising their right to self-determination, which is not subject to any veto" by a vote of 156 to two (Israel and the United States), with only one abstention. When this and other resolutions supporting the Palestinian people were adopted by the General Assembly this 2 December, Israel and the United States again stood alone against the rest of the world.
While a handful of US-dominated countries might decline to extend immediate diplomatic recognition to Palestine, only one country, the United States, would consider vetoing Palestine's application for UN membership. In normal times, a veto would be highly likely. Fortunately, these are not normal times. President Clinton must be well aware that vetoing Palestine's UN membership, particularly after the events of recent months, would provoke an explosion of anti-American rage and violence, with American citizens and embassies becoming targets throughout the Muslim world. He would derive absolutely no personal benefit from ending his presidency on such a catastrophic note -- quite the contrary. However, the same personal and political considerations would not apply to his successor. (It is worth noting that the US-PLO "dialogue" began in December 1988 during just such a post-election period.)
While the United Sates would never extend diplomatic recognition to Palestine unless Israel had already given it permission, or instructed it, to do so, for a few precious weeks between now and mid-January a Palestinian application for UN membership would be much more likely to produce an American abstention than an American veto -- and thus to succeed in making Palestine a full member of the international community.
What could Mr Barak do? He is already inflicting military and economic violence on Palestinians to a degree which has caused neutral observers to characterise Israel's acts as war crimes and seems to recognise, better than his top military men, that intensifying Israeli brutality is likely to prove counter-productive. Furthermore, virtually all Israeli commentators agree that Mr Barak's only hope of re-election rests on reaching a "peace deal" with the Palestinians, and the experience of the 1996 election, in which Shimon Peres chose to emphasise his capacity for nastiness to Arabs rather than to offer any vision of peace, is convincing evidence that such an electoral strategy is a sure loser for the political "centre" in Israel.
In these circumstances, one could expect Mr Barak to shrug off the absorption of the Palestinian Authority into the Palestinian State and to publicly minimise its importance, while silently recognising that, in any future negotiations, the Palestinians will continue to insist on their full rights under international law and relevant UN resolutions, that the Palestinian negotiating position will henceforth be much stronger than ever before and that Israel will never have peace or security until it offers Palestine peace terms far closer to full compliance with international law and UN resolutions than any which he or any other Israeli Prime Minister has ever imagined before. On this basis, peace will finally be possible -- perhaps even before the next Israeli elections.
A rare window of opportunity will be open for the next few weeks. After that, it will close -- perhaps for years.
* John Whitbeck is an international lawyer who writes frequently on the Israeli-Palestinian conflict.
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The deal-breaker 14 - 20 September 2000
Deciding not to decide - twice 14 - 20 September 2000
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