UN headquarters AP October 12, 2010
United Nations General Assembly Hall on Oct. 12, 2010. Photo by AP
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Every week the Prime Minister’s Bureau and the Ministry of Foreign Affairs add another three of four names to the long list of countries that have promised their support at the vote expected in September on recognition of a Palestinian state in the 1967 border. In Jerusalem they know that in the diplomatic conflict at the United Nations General Assembly the Palestinians will win on points. Lots of points. In order to prevent a knock-out victory, Israel is focusing the uphill battle on “quality” countries headed, or course, by the United States with its with its powerful Jews, and Germany, with its Jewish weakness. If it also succeeds in convincing France, Britain and Italy to vote against the resolution, or at least abstain, the government of Prime Minister Benjamin Netanyahu will depict the General Assembly resolution as further proof that Israel has become the victim of the campaign to delegitimize the Jewish state.

Of late, official Israeli spokesmen, first and foremost Netanyahu himself, have been describing General Assembly votes touching on the Israeli Arab conflict as foregone conclusions, in which an automatic majority determines their anti-Israeli in advance. In Jerusalem they have brushed the mothballs off the 1975 “Zionism-Racism” resolution passed at the height of the Cold War. Who remembers that this resolution was rescinded by a large majority towards the end of 1991? Who knows the revocation was among the fruit Israel picked in the wake of the agreement of Yitzhak Shamir’s government to participate in the international summit in Madrid?

Netanyahu is trying to reassure the public (and himself?) with the help of the argument that the General Assembly is a paper tiger. On Sunday he told members of the Knesset Foreign Affairs and Defense Committee: “It is impossible to recognize the Palestinian state without going through the Security Council,” and therefore “This move is doomed to failure.” The prime minister is counting on United States President Barack Obama and is assuming/hoping the American veto in the Security Council will thwart the Palestinians’ attempt to internationalize the conflict.

Prof. Gabriela Shalev, formerly Israel’s ambassador to the UN (July 2008-September 2010) would not be surprised if Obama instructs her former colleague, America’s Ambassador to the UN Susan Rice, to hold back on the veto weapon this time. By Shalev’s count, The Palestinians have already succeeded in recruiting nine members of the Security Council – the number necessary for recommending to the General Assembly to accept a new member state to the UN.

The Americans, adds Shalev, are not eager to use their veto and to take comfort from the isolation in Israel’s arms. According to her, “We too have tried to limit insofar as possible the use of the American veto.”

Obama has declared he has reservations about the Palestinians’ application to the UN and is calling upon the sides to return to the negotiating table. However, if Netanyahu stands by his refusal from May to adopt the June 4, 1967 lines as the basis for negotiations on the permanent status agreement, Obama will be able to explain why he is not imposing a veto in September.

Incidentally, in a Palestinian document prepared in advance of submitting the proposal to the Security Council, it is noted that Palestine does not fulfill the second criterion of the Montevideo Convention for accepting new member states to the UN, which requires that the candidate have a defined territory (the other criteria: a permanent population, an effective government and he ability to conduct relations with other countries). However, add the writers of the document, Israel was accepted to the UN without a defined international border in the eastern sector and without recognizing the ceasefire lines (June 4, 1967) as defining its territory. The document states that Palestinian recognition of this border improves it standing in the international and UN arena.

But even if America does impose a veto in the Security Council on the decision to recommend to the General Assembly acceptance of Palestine into the UN, the Palestinians will not give up. The head of the negotiations department in the Palestine Liberation Organization, Saeb Erekat, said recently that if the General Assembly thwarts the move of recognition of Palestine and its acceptance into the UN, the Palestinians will demand enforcement of General Assembly Resolution 377, known as the “Uniting for Peace” resolution. The resolution, which was passed in 1950, as an initiative by the United States to thwart the Soviet veto in the matter of Korea, says that in cases when the Security Council does not succeed in taking action to maintain international peace and security in the wake of disagreement among the permanent members, the General Assembly must be convened for a special emergency session. To this end it is sufficient to have a request by a majority of the members of the UN or an initiative by seven members of the Security Council.

Prof. Shalev suggests that the cabinet in Jerusalem should take very seriously the possibility that Resolution 377 will be invoked. She notes it was used in 1956 during the Sinai Campaign and led to the ceasefire. This happened after France and Britain imposed a veto in the Security Council on a resolution condemning the attack on Egypt.

The Foreign Ministry, however, is skeptical the possibility of activating Resolution 377 in this context.

Prof. Eyal Benvenisti, a expert on international law at Tel Aviv University, doubts the General Assembly’s’ ability to use Resolution 377 to override the instructions in the UN Charter conditioning acceptance of a country to the organization on approval by the Security Council. However, adds Benvenisti immediately, the Generally Assembly can call upon the member states to recognize the state of Palestine, call for sending a multi-national force and call for imposing sanctions on Israel.

Moreover, the General Assembly can repeat the move of applying to the International Court of Justice in The Hague, as it did in the matter of the separation fence, and this time ask the court’s opinion concerning the status of the borders and the right of return. In an article he published last month in The New York Times, Palestinian President Mahmoud Abbas hinted at this possibility.

By means of applying to the court, the General Assembly can overcome its lack of the right to take a binding decision. In its decision in the matter of the fence the court implies it was open to deliberating on such questions.

In the preface to its decision, the court stated it was qualified to give an opinion at the request of the General Assembly. It noted that the conflict between Israel and the Palestinians is of “particularly acute concern” to the UN and “one which is located in a much broader frame of reference than a bilateral dispute.” Since this is an “extraordinary case,” there will be decreased objection by countries involved in disputes with neighbors and are not keen to report to The Hague.

Benvenisti says the ruling on the matter of the fence shows that the court recognizes its responsibility a the judiciary organization of the UN to help enforce General Assembly Resolution 118 (the partition resolution of November 29, 1947) and it is prepared to rule on further legal questions connected to the conflict that will be brought before it (such as the right of return). The recognition that the mandate and the partition plan create an obligation for the UN implies that General Assembly resolutions on this issue are not merely non-binding recommendations.