A Legal Tsunami on the Horizon

Most local experts agree the Palestinian state will be recognized by international law, but they differ as to the fallout.

A series of dramatic issues will be raised in the wake of the anticipated Palestinian declaration of statehood, and its recognition by other nations of the world. International law experts are divided over the significance of this step. Some believe that such a declaration will not have much influence on the facts on the ground.

Others believe that the political tsunami that is currently washing over the Israel's prime minister will be greatly exacerbated in light of the legal tsunami that the state, its civilians and soldiers are expected to face in October.

Most experts agree the state of Palestine will be recognized by international law, since it fulfills four requirements: It will have a defined territory, a fixed population, an effective government (even if this means only in Palestinian-controlled Area A at the outset ) and the ability to conduct relations with other countries.

Should Palestine become a recognized legal entity in September, it will also be able sign separate agreements including commercial ones with other states. In this case, some experts caution, every shipment that arrives at its border and which Israeli examiners request to open has the potential to cause a diplomatic crisis.

But in the eyes of those who cite the most extreme scenario, this is the least of Israel's problems. The truly big problem lies in the Palestinians' ability to sign international agreements, with the Rome Accords topping the list: These would grant judicial authority to the International Criminal Court over all territory beyond Israel's 1967 borders, and over every Israeli soldier or official who is present there.

"The most dramatic and practical arena of action is the International Court," says Prof. David Kretzmer of the Hebrew University of Jerusalem. "Until now, there was a doubt whether the court had jurisdiction over Israeli activities in the territories. But if 140 countries recognize Palestine, there is no doubt that the International Court prosecution will also recognize it. Then everything that Israel does will be subject to its judgment." According to Kretzmer, this fact bears special relevance to the settlements, including those in East Jerusalem.

"It would appear," he adds, "that if [Israel] decides to settle additional populations beyond the Green Line, it will be possible to sue the decision makers: the defense minister, the prime minister and officials. Israel will not be able to continue to claim that the area is disputed. The dispute will end, and Israel will be the occupier of another country."

This stand is the same as that taken by attorney Michael Sfard who, like Kretzmer, is known for his activities on behalf of the left.

"The day after the proclamation," he predicts, "we will become a country that occupies a friendly one, like Iraq in Kuwait. How the international community responds is a political question, but I have no doubt that from a judicial standpoint, there will be many more ways to take action against Israel. The number of incidents in which Israel is acting in violation of international law will increase dramatically."

Sfard offers a long list of scenarios that are likely to arise: a Palestinian soccer player whom Israel refuses to allow to leave for a game abroad may seriously undermine Israel's position in FIFA, the international soccer association; a diplomatic crisis could arise if, say, a Belgian minister who wants to visit his Palestinian counterpart, but fails to arrange it with Israel in advance, and so on.

Sfard: "In my opinion this will occur at every turn and the pressure on Israel will increase all the time."

'Stronger voice'

Many local experts, however, believe that the Palestinian declaration of a state will not present a real threat in the international legal realm, at least not at the start.

"It's nonsense," says Ruth Lapidot, a Hebrew University professor emeritus, explaining that such a declaration violates recognized international agreements between Israel and Fatah, in effect giving Israel a strong claim to be wielded in that realm.

"I don't see how the situation will change" after declaration of a Palestinian state, agrees attorney Nick Kaufman, a prosecutor in the International Court that was convened in the wake of the war in the former Yugoslavia. "The best example is Kosovo. There the court recognized the independence of the region, but the emphasis was on political recognition, not on legal questions. In the end, everything is political."

Prof. Yuval Shani of Tel Aviv University offers a position that is somewhere in the middle: "Legally, the proclamation will hasten current trends that exist in any case," he says. "The Palestinians will have a stronger voice and more options on the international scene. But it must be remembered that it also works in the opposite direction: The same lack of clarity that exists today about their rights also exists with regard to their responsibilities. The declaration will grant Israel a firmer position from which to sue in the case of violence from the territories."

"Whoever claims sovereignty also claims responsibility," adds Prof. Eyal Benvenisti, also of TAU. "From the moment the Palestinians declare a state based on the 1967 borders, they are in effect giving up on claims beyond [the area within] those borders. And it makes no difference which regime they will have: Hamas, Al-Qaida or Iran."