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    Middle East
     Nov 29, 2012

Palestinian 'state' vote a crisis moment
By Victor Kotsev

Thursday is shaping up as a big day in Palestinian history. Exactly 65 years after the United Nations resolution partitioning British Mandatory Palestine was adopted (and rejected at the time by the Arabs), the General Assembly will vote on Palestinian President Mahmoud Abbas's proposal for non-member state status for Palestine within the borders of the period between the 1948 and the 1967 wars.

Abbas is expected to win overwhelming approval, and while legal experts differ on what exactly the new status would entail, a heated and potentially explosive diplomatic confrontation with Israel is guaranteed.

Meanwhile, though some predict violence and chaos in the days ahead, a surprising new moderate reappeared miraculously on the


Palestinian horizon. His internal rivals blown away by Israeli air strikes, Hamas's politburo chief Khaled Meshal, the erstwhile hardliner once targeted by a high-profile assassination fiasco ordered by Israeli Prime Minister Benjamin Netanyahu some 15 years ago (during his first term in office), endorsed a Palestinian state in the 1967 lines and embarked on a renewed push for reconciliation with Abbas's Palestinian Authority. He even hinted that Hamas could switch to "non-violent resistance".

This is no less than a tectonic shift in the militant organization's rhetoric. Meshal still refuses to recognize Israel officially, but his support for Abbas's UN bid is a big step up from recent times when hardliners sidelined him, arguing among other things that declaring a Palestinian state in the 1967 borders would implicitly recognize the "Zionist entity".

Moreover, amid victory celebrations and boastful threats, the militants vowed to re-arm, but at the same time, a prominent Gaza cleric, Suleiman al-Daya, issued a fatwa (religious decree) against breaking the truce. [1]

It is hard to say how much of the rhetoric will hold up with the passage of time. Meshal and Abbas tried to reconcile last year when their agreement was torpedoed by Hamas's Gaza faction. Now the Gazan leaders took a beating, and despite that the organization itself was strengthened, within Hamas a more pragmatic and moderate faction appears to have gained the upper hand. Whether this will last depends on a myriad of factors and in no small part on the developments in neighboring Egypt, which are hardly predictable at present.

Other foreign actors could also upset this fragile balance. The ceasefire in the Gaza strip was widely perceived as a coup against Iranian influence in the Levant, both diplomatic and military, and Tehran might conceivably seek to torpedo it and to silence the moderates. The Iranian dominos in the region seem to be falling: the Syrian rebels, for example, are constantly progressing against the regime and have captured at least five important army and air force bases in the past 10 days.

Diplomacy is also in high gear. The Palestinian missiles in the strip arguably served as both a military deterrent against Israel and a bargaining chip in the nuclear negotiations with the West.

Most importantly, however, all three native protagonists on the Israeli-Palestinian diplomatic scene - Israel, the Palestinian Authority and Hamas - have gone into high gear positioning and repositioning among themselves, and it is hard to predict the outcome of this complicated three-way bargaining. Last week Israel and Hamas hijacked the spotlight with their brief but violent military confrontation, and it looked as if Abbas was going to be the big loser. Now all of a sudden Hamas is making a show of extending him a hand, while Israel is watching threateningly from the sidelines. On Thursday, the next major act is set to start with the UN debates and vote.

Symbolism matters a lot in the Middle East, and becoming the leader of an implicitly recognized state would certainly be a major symbolic victory for Abbas. He has hinted that the boost to his popularity may be sufficient to empower him to lead a new round of direct peace negotiations with Israel, perhaps even without preconditions. While darker scenarios also exist, this appears to be a legitimate possibility for the mid-term future.

Practically, in terms of international law, things are much less clear. Legal experts say that the precise meaning of Palestine's expected new status is dubious, and that several controversies, most importantly related to lawsuits at the International Criminal Court, could arise. The Palestinian Authority attempted to accept the court's jurisdiction and to sue Israeli leaders and soldiers after the end of Operation Cast Lead in Gaza in 2009 but was turned down. Nevertheless, the ICC's prosecutor worded his decision in such a way that in theory the upgrade could turn things around. [2]

A UN expert who did not wish to be named dismissed this possibility, calling the idea that Palestine could become a de-facto state "wishful thinking".

Professor Aeyal Gross of Tel Aviv University, a prominent Israeli legal expert and human rights activist, said that there is "no singular answer" and that much depends on how much political recognition Palestine gets. "Although the question of what is a 'state' is factual," he said, "in reality political recognition by other states and the international institutions will determine how successful the bid is."

Professor Mary Ellen O'Connell, a professor of law and international dispute resolution at the University of Notre Dame, wrote in an email that "the bottom line is that full UN membership is the only way for an entity to remove all doubt about status as a a sovereign state."

She noted also that "the UN Secretary General acts as depositary for the Rome Statute, meaning he takes in the ratifications of the treaty…. If the Secretary General were presented with an instrument of ratification for various treaties by Palestine, it would be very interesting to see what he does. He could, for example, refuse to accept it, saying Palestine is not a state, noting it is not a UN member or has some other impediment, such as being occupied by Israel."

For Israel, the ICC question is particularly pertinent, and the Israeli government has characterized such lawsuits as "lawfare" intended not so much to right an injustice (as the Palestinians claim) as to put pressure on and to create difficulties for Israeli officials and military commanders for several years while a suit lasts. According to a report in the Israeli site Ynet, the top Israeli decision-makers are split about how to respond to the UN vote, but most would support measures such as toppling the Palestinian Authority in case such suits are filed. [3]

It is practically certain that Israel will hit back at the Palestinians, most likely backed by its traditional allies in the US Congress. Various media reports have mentioned possible measures such as aggressive settlement-building or withholding funds from Abbas's administration. The Daily Beast cautions that the UN move could "explode [the] West Bank." [4]

Last month, the Israeli daily Ha'aretz warned "of a scenario in which Israel's government 'goes crazy' the day after the UN vote," mostly because of the ongoing Israeli election campaign. [5] The symbolism of Abbas's move is also not lost on the Israeli public, most of which refuses to give up East Jerusalem and the main settlements in the West Bank. The Israelis are further worried that this step would bring full UN membership of Palestine closer.

Recent polls show a further shift to the right among voters, in part after the recent confrontation in Gaza which, though causing more death and destruction in strip, crossed several critical Israeli redlines. These included hundreds of rockets fired straight at Israeli population centers, a sustained missile barrage on the country's heartland (including on Jerusalem and Tel Aviv) and a bus bombing in Tel Aviv. The diplomatic confrontation and the reconciliation initiative threaten to push Israeli voters even further to the right, and most politicians can hardly afford to ignore this trend right now.

A further sign of caution is that Israeli Defense Minister Ehud Barak, a moderate on the Palestinian issue, announced that he would not run for re-election. This happened on the same day as hardliners inside Netanyahu's right-wing Likud party received a significant boost in pre-election primaries. Barak was incidentally Netanyahu's semi-official liaison with the United States (in place of hardline Foreign Minister Avigdor Lieberman), and one way of interpreting his surprising move is that he saw a big storm coming.

Overall, while Thursday's vote at the UN seems to carry more symbolic than real weight, it comes at a very sensitive moment and could trigger major consequences. A crisis is at the same time a moment of opportunity, as the saying goes, and a significant crisis is expected.

1. Gaza Cleric Calls Violation of Israel Truce Sinful, Associated Press, November 24, 2012.
2. Analysis: Round 2 of 'Israel, Palestine at the ICC', Jerusalem Post, November 15, 2012.
3. Israel leaders at odds over response to Palestinian UN bid, Ynet, November 26, 2012.
4. Mahmoud Abbas Bid for U.N. Sanction of Palestine State Could Explode West Bank, The Daily Beast, November 26, 2012.
5. Ahead of Israel election, PA bid in UN may push Netanyahu to harsh unilateral reaction, diplomats say, Ha'aretz (registration required).

Victor Kotsev is a journalist and political analyst.

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