While it deserves to be considered important and positive, it seems to suffer a number of legal and political problematic aspects. Neither exaggerating nor undervaluing its value is useful if it is to be capitalized on for the benefit of the Palestinian people.
The initiative to obtain upgraded statehood status was led by the Palestine Liberation Organization. It reflects an attempt to end the PLO’s loss of action for the first time in a long while.
The last time that the Palestinian leadership undertook such active engagement was in 1988; at that time, it was also in the form of a declaration of independence, announced on November 15 that year in Algeria.
The significance of this step lies in that it is contrary to the reactive politics that have characterized Palestinian political action for long. The PLO usually accepts or rejects initiatives or projects led by other players. Although reflecting frustration with the "peace process", the UN bid is a stage of positive action.
The peace process had already ceased by 29 November 2012. It did not get Palestinians any closer to achieving their legitimate political aspiration of self-determination and statehood. On the contrary, this open-ended process made statehood much farther away.
The so-called peace process provided Israel with the time and political cover to create massive new facts on the ground by means of colonizing the West Bank, including Jerusalem.
Israel put its full power into achieving this goal with such speed and ingenuity that Palestinians belatedly realized policies such as Judaizing East Jerusalem, building the Separation Wall, confiscating more land with the intention to annex it, and deepening the separation of Gaza from the West Bank will have irreversible implications. The isolation of Gaza and the weakening of the Palestinian Authority have also reached dangerous limits.
The PLO bid, in fact, reflects a significant protest, a refusal to continue with a futile process, with such an obscure framework upon which the "peace process" has been based since its start in 1993. Negotiations cannot be conducted with merely negotiations as their framework.
The international community, which has been involved since the first day of the crisis, and which was in fact behind it, must bear its responsibilities.
International engagement with the cause of Palestine must change. If the world insists that negotiations are the way to resolve the crisis, then international norms and law must bind these negotiations.
They cannot continue forever while settlements expand every day and discrimination against Palestinians in their land increase every minute. The world must make it clear that annexing land by force will never be tolerated. Negotiations must lead to an agreement that secures the Palestinian territory occupied since 1967.
These significant changes and messages cannot stand alone. Upgrading Palestine’s status at the UN is not a goal in itself, and should not be viewed as such by the Palestinian leadership. It must be reinforced with political and legal actions, which require the Palestinian leadership to show strong political will.
This development may well end up like previous public relations endeavors, without any real value. But it may also mean everything; it could signify a declaration of closing the previous kind of useless, endless negotiations, and insisting that negotiations can only be resumed if and when there is a different, meaningful legal and political framework that will end the occupation and the colonization of occupied Palestinian land based on a specific time frame, which should not be more than one year.
Pressure will be high and will come from all the powerful actors, yet this is the real test for the Palestinian leadership who must divert pressure where it should rightfully go – on the occupier-violator, and not the occupied-violated.
Scholars with a special interest in international law might find the upgraded status falls short of providing a clear-cut assertion of the legal status of the occupied Palestinian territory. Is it occupied or disputed territory?
Notwithstanding Israel’s position, which is not accepted by any other state or by any international organizations, the status of the Palestinian territory remains the same regardless of such developments as the creation of the PA, the disengagement with Gaza, Hamas’ limited control over Gaza, or the new upgraded status of Palestine; only facts on the ground matter. And facts indicate clearly that all of the territory occupied by Israel in 1967 has remained under the effective control of the Israeli forces.
The upgraded status of Palestine is only indicative of this situation, not its creator. There is no reason for concern that the new status granted to Palestine might alter the status of the Palestinian territory. Moreover, the Oslo Accords failed to assert the legal status of the Palestinian territory as such, buying into Israel’s official position which insists that the land is in fact "disputed territory" over which Israel might have a claim.
The new status of Palestine can be seen as supportive of both fact and international consensus. The new assertion is a positive side effect of the new status.
Palestine is a state actor that can now start to have a different kind of engagement in the international arena. It can ratify all kinds of treaties and human rights conventions, and have active interaction with states at the UN and its agencies and bodies. Palestine will not need to use friendly states to speak out or act on its behalf at the UN any longer; it will speak and act for itself in cooperation with friendly states.
With this development, Palestine must not lose more time. It should ratify human rights treaties, an act which shows commitment to respecting the human rights of its citizens and others under any degree of jurisdiction it may enjoy in reality. It must not delay in signing and ratifying the Rome Statute to protect its citizens and territory from the ongoing colonization, oppression, and discrimination.
The type of prolonged occupation, coupled with colonization and serious discrimination faced by Palestinians, must be rendered illegitimate. The world community must act on its responsibility when it comes to ensuring the rule of law and peace; however, it will never do so if Palestine does not pursue this path.
Palestine must be clear that justice and law work both ways. While we must insist that others respect international law, we must do so as well. When we call for an international court, such as the International Criminal Court to investigate grave violations of international law and gross violations of human rights in the occupied Palestinian territory, we should expect it to look at alleged violations by the Palestinians.
Justice cannot be divided or tailored to fit us alone. Joining the community of states is indeed a privilege for Palestine. But we must accept that it also creates obligations. Will Palestine have the will to make use of its new status to seek to prosecute Israeli perpetrators of war crimes in Palestinian territory?
Prior to achieving the new status, the PLO had two recent opportunities to do just this, and it squandered both of them. In July 2004, the International Court of Justice issued a very important advisory opinion on the legality of Israel’s Separation Wall, rendering it illegal and calling for it to be dismantled. The court asserted that states must not assist Israel with such a violation. In addition, it returned the case to the UN General Assembly to take further action.
The reason why the PLO has not pursued this advisory opinion remains unknown, but no reason would seem to justify missing such an important opportunity.
The second opportunity came in 2009, when the UN Fact-Finding Mission on the Gaza Conflict issued a report on serious violations of international law committed by Israel during Operation Cast Lead. Many of the cases documented in the report were rightly asserted as war crimes and/or possible crimes against humanity. The report’s recommendations, which offer a wide range of actions under international law to pursue justice and accountability, are yet to be implemented.
This failure is not due only to the failures of the international community to take the issue of justice forward, but also the PLO’s failures to play the roles it should have on the international stage.
The state of Palestine’s political will should soon be tested. Whether or not Palestine will ratify the Rome Statute will be the first serious test.
Will Palestine continue to fail to act, even peacefully through legal means, and allow for such atrocities to continue? Or will it use justice mechanisms to protect its people and their land from such horrific violations?
With few exceptions, only a state party to the Rome Statute can ask the ICC to investigate and prosecute serious violations of international law. It is incumbent on the new state to show its true will under heavy pressure.Issam Younis is the director of the Al Mezan Center for Human Rights
The United Nations’ vote to grant Palestine the status of a non-member observer state has much political and legal symbolic significance.