“a birth certificate of the reality of the state of Palestine”

Yesterday, the United Nations General Assembly voted to upgrade the status of Palestine to a “nonmember observer State” ostensibly recognizing the existence of a Palestinian State in the Middle East.  As has been pointed out by others, this move could mean that the Palestinian Authority could accept the jurisdiction of the International Criminal Court and thereby cede jurisdiction to that body to investigate alleged crimes taking place on its territory.

The existence of a State is supposed to be a matter of fact (see my earlier post on this subject). In fact, when Palestinian Authority President Mahmoud Abbas called upon the General Assembly to upgrade his organization’s status he called on them to certify an already existing reality. That the situation on the ground should not continue as it has for decades now is not in question. The problem is, at least for me, that I do not see “Palestine” as an already existing State, but rather one that should already exist.

The Montevideo criteria for Statehood, as generally recognized as being the required conditions for being a State, are (1) a permanent population, (2) a defined territory, (3) a government and (4) the ability to enter into international relations with other States. Two of these criteria are without a doubt satisfied, the Palestinian Territories have a permanent population and the Palestinian Authority has entered into international relationships. The problems are with the defined territory and government.

The lack of a defined territory is not so much a barrier to Statehood. There is a core of the Palestinian Territories that would be without a doubt part of any future State and no other State claims them. The border issues (which of course is a big issue) do not change the fact that a core territory exists. In this context recognition should be able to cure any defect in territorial integrity. In fact, this was and is the case with the State of Israel.

The real problem is that any Palestinian State (recognized or not) does not currently have a government with control over the territory. Until yesterday, the Palestinian Territories were still referred to as the Occupied Territories. Israel still maintains significant control in the area, not to mention controlling much of the borders, the payments of monies customs duties and the ability to intervene with force when it chooses to do so. If there is no control, there can be no sovereign State. Sovereignty is after all defined as the ability to exclude other powers, something the Palestinian Authority cannot do as of yet.

If Palestine is a State, it can act in self-defense to a violation of its borders and can call on others to assist in that defense. This means that the status quo ante recognition and at the time of recognition could be considered an act of aggression or war. In other words, actions that were not illegal (or at least not acts of war or aggression) would be transformed by a diplomatic act into serious international crimes. The new State could then refer the issue to the ICC or invite other States to fight Israel in a ground war. In the first case, the referral would have no teeth as the Palestinian forces have no ability to arrest and transfer accused to the Court without Israeli cooperation. In the second, recognition did nothing more than lead to war. Neither of these are results that the international community should welcome.

I do not mean to say by this that the Palestinians should not have a State. My only point is that declaring something that does not yet exist to be a reality is to live in a land of fantasy. And when one lives in a land of fantasy, and acts based on that false reality, sooner or later, the real world will come calling and the result will not be pretty.

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Filed under International Criminal Law, International Human Rights, News and Events, Public International Law

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