No Palestinian State Has Been Created

The UN status upgrade is just one in a long line of resolutions on the Middle East that have no influence on the situation on the ground.

Alan Baker
Alan Baker
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Alan Baker
Alan Baker

Even as the United Nations has returned to its routine, unproductive agenda, an atmosphere of expectation prevails following the General Assembly resolution granting the Palestinians the status of nonmember observer state. Some even anticipate charges in the International Criminal Court against Israeli leaders and military officers in the expectation that the ICC will accept "Palestine" as a state with the right to present claims.

Perhaps now is the time to place things in their correct proportion and face the legal and political reality, without illusions or wishful thinking.

First, no Palestinian state has been created.

The United Nations does not have the authority to establish states. The resolution merely upgraded the Palestinian observer delegation to a nonmember state for internal purposes within the UN and its constituent bodies.

General Assembly resolutions cannot determine international law. They cannot obligate states. They are nonbinding recommendations indicating the positions of the countries that voted on them.

The Palestinian upgrade resolution is nothing more than another General Assembly resolution on the Middle East - to be added to the list of resolutions adopted annually that have no influence on the situation on the ground, which can only be affected by actual negotiation and agreement.

Second, the Palestinians are not in a position to declare statehood.

Internationally accepted criteria for statehood include unified territory, capability of responsible governance and readiness to abide by international obligations. The UN Charter also requires states seeking membership to be "peace-loving" and capable of carrying out UN Charter obligations.

With Gaza controlled by Hamas/Iran and the West Bank by Fatah, with both at loggerheads with each other, and with Gaza-based terror groups indiscriminately lobbing rockets into Israel's towns, even the most optimistic Palestinian supporter could not but agree that the Palestinians have a long way to go until they fulfill these requirements.

Third, the term "Occupied Palestinian Territory" has no basis in fact or law.

Gaza and the West Bank (Judea and Samaria ) have never, in any legal document or agreement, been determined as sovereign Palestinian territory. UN Security Council resolutions 242 (1967 ) and 338 (1973 ) required that the conflict be settled by negotiation between the parties.

Both entertain claims regarding the areas. The Palestinians base theirs on the right to self-determination, the 1947 UN partition resolution and long-time residence. The Israelis base theirs on long-held historic, indeed indigenous, rights and a chain of international instruments attesting to their right to a national home.

Notwithstanding these claims, both agreed in the Oslo Accords to negotiate the fate of these areas. Thus, the term "Occupied Palestinian Territory" figuring in UN resolutions is nothing more than wishful thinking, devoid of legal or factual basis.

Fourth, the threat to initiate charges in the ICC is legally and politically questionable.

A central purpose of the Palestinian upgrade is to bring charges against Israelis before the ICC. There are even those who have gone so far as to detail the potential war crimes for which Israelis could be charged (as Aeyal Gross did in this newspaper earlier this month ).

This is questionable for several reasons. The ICC is not a UN body obliged to follow UN recommendations. Its relationship agreement with the United Nations describes it as "an independent, permanent judicial institution." Its statute permits "states" to activate the court's jurisdiction. In 2009 the Palestinians asked the court to activate jurisdiction over the "territory of Palestine." The prosecutor refrained from accepting the Palestinian Authority as a "state" and referred the issue to the UN secretary-general and General Assembly.

After the upgrade resolution, the Palestinians are no more a state than they were beforehand. It is doubtful whether the secretary-general could, legally or logically, determine otherwise.

As an independent juridical body, the ICC functions in complete objectivity. Palestinian attempts to abuse it by politicization against Israel would prejudice its credibility and stature. Creating false hopes among Palestinians, while catering to self-serving interests of its leadership and of PA President Mahmoud Abbas personally, will only cause frustration and disappointment when it becomes evident that nothing has changed or will change.

Only a return to bona fide negotiations, devoid of mistrust and bitterness, will bring about the changes and peace that everybody seeks.

Alan Baker has served as the legal adviser to the Foreign Ministry and as Israel's ambassador to Canada. He is presently director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs.

People waving Palestinian flags in Ramallah during a rally to support the UN statehood bidCredit: AP

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