BICOM

This briefing is a supplementary update to our earlier document, BICOM Focus: Thinking beyond September.

Key points

• The Palestinians and the Arab League are deliberating up to the last minute over whether, and in what sequence, to approach the General Assembly or the Security Council in their bid for recognition at the United Nations this month.
• The most significant concerns are the potential to spark legal measures such as ICC litigation, which could sideline negotiations indefinitely; the potential for the US or Israel to cut funding from the PA in response; and the potential for violence on the ground.
• There are different initiatives that seek to balance Palestinian demands for status without jeopardising a future return to negotiations.

What is likely to happen at the UN?

The Palestinians and the Arab League are deliberating up to the last minute. It is unclear whether the Palestinians will approach the General Assembly (GA) or the Security Council (SC). Another option could include an approach to both the UNSC and GA. The full range of Palestinian options is still being debated and disputed among legal and diplomatic experts. The decision may not even be clear before Abbas makes his scheduled speech before the General Assembly on 23 September.

Full membership of the UN can only be achieved through the Security Council. However, the US has said they will use their veto. There is also the possibility that the Palestinian bid for membership could be considered by a 15-member sub-committee of the Security Council. The sub-committee could potentially avoid a UNSC vote and encourage a return to negotiations in accordance with clear terms of reference. This would allow further time to broker a compromise between the two sides.

The Palestinians would almost certainly get the majority they need for any resolution at the General Assembly, where no country has a veto. A GA resolution, however, can only grant the lesser status of ‘non-member state,’ and would represent a compromise on the Palestinians’ original goal of full membership. Nevertheless, it would change the status of Palestinian representation in other international forums, with major consequences.

The most significant consequence is the possibility that the International Criminal Court (ICC) will have jurisdiction over Palestine. The PA requested this in 2009, and the chief prosecutor has deferred his decision until now. Should he decide to accept jurisdiction, this would lead to a wave of complaints against Israel from individuals within the Palestinian territories or elsewhere. It is believed that this will, for example, supersede the amendment to the universal jurisdiction law, which received Royal Ascent yesterday (15 September). There is a significant danger that pushing the issue into legal forums in this way could sideline negotiations indefinitely.

One option for the Palestinians is to go to the Security Council, force the US to veto, and then appeal to the General Assembly. The US is, however, seeking to avoid the use of its veto. Alternatively, the motion could be referred to the aforementioned sub-committee of the Security Council. However, the sub-committee would have to address the Palestinian Authority’s need for a diplomatic achievement, even as it seeks to prevent potential adverse consequences.  The Palestinians may also have difficulty winning European support for a General Assembly resolution once the issue is already being considered by the Security Council.

What is the position of the US?

The position of the US is an extremely important factor in the Palestinian decision. The US administration has taken a clear stance against any Palestinian appeal to the UN, and insists that the establishment of a Palestinian state can only be achieved through negotiations with Israel.

Congress is considering withdrawing its considerable financial assistance from the Palestinian Authority if the PA defies US wishes and forces a UN vote. This would be a crippling blow to the PA, which is facing significant financial problems already. US legislation would probably include a presidential waiver, putting President Obama in the politically uncomfortable position of deciding whether or not to enforce the measures passed by Congress.

Although the US would seem to prefer that the Palestinians seek a resolution at the General Assembly. This would avoid the US being forced to use its veto. However, this move could still cause Congress to retaliate by cutting aid, something the administration would want to avoid. With that in mind, the US may in fact prefer if the Palestinians approached the Security Council. An application to the Council would first be referred to a sub-committee, which could find a way to return to negotiations in accordance with a clear timetable and terms of reference.

What is the position of Britain and the EU?

The position of the Europeans is important to the Palestinians, as EU support for any resolution will give added legitimacy, and considerably increase the diplomatic isolation of the US and Israel.

The EU is united over the need to see a return to negotiations, but divided as to what to do about a resolution when one comes before them. They were supportive of Tony Blair’s efforts to broker a Quartet statement, which could have been the basis of a return to such negotiations, but Blair was not able to find a compromise that both Palestinians and Israelis accepted.

France is relatively supportive of the Palestinian appeal to the UN and Germany opposed. British officials stress that they are aware of the dangers of the UN route, but Ministers have been unwilling to make a decision until they see the text of the resolution.

There are ongoing discussions between the Europeans and the Palestinians over the possible content of a resolution. The Europeans have largely recognised the need to direct the parties back to negotiations and the need to focus on a negotiated solution within the resolution. There are also discussions about how to make the resolution more balanced, for example, by including text from President Obama’s May policy speeches that referred to a two state solution, the 1967 borders and the need for recognition of Israel as the nation state of the Jewish people. There is also a proposal for the resolution to include wording to the effect that states should consider bilateral recognition of a Palestinian state ‘at the appropriate time.’ This would potentially enable states that are clearly opposed to bilateral recognition at this stage, like Germany, to support the resolution without fear that this itself would amount to bilateral recognition.

There are reports that the Palestinians might promise to return to negotiations without preconditions in return for EU support at the General Assembly. But even in the wake of a ‘victory’ at the UN, the Palestinians will find it hard to drop their previous preconditions, that Israel completely freeze settlement construction and commit to 1967 borders plus swaps.

There are also reports that the Palestinians may promise to stop any legal action at the ICC in return for European support at the UN. However, for the PA to prevent legal action against Israel once the court has been granted jurisdiction is impossible, as charges can be brought forward by third parties without the prior consent of the PA.

What is the position of Israel?

The Israeli government remains opposed to any attempt to endorse Palestinian statehood claims at the UN, and has lobbied states not to support it. Prime Minister Benjamin Netanyahu continues to stress his readiness to engage in direct negotiations on a two state solution without preconditions, and has accused the Palestinians of avoiding negotiations. Another concern regards the possible recognition of a Palestinian state in the West Bank and Gaza Strip, which could provide de-facto recognition of Hamas’s rule in the Strip.

Israel is weighing possible responses to what might come of out the UN. There is a wide range of responses Israel could take, from recognising a Palestinian state, to taking a host of retaliatory actions against the PA. Politically, Netanyahu will be under pressure from hawkish members of his cabinet to take retaliatory measures against the PA. The most immediately damaging measure would be stopping the routine transfer of tax revenues to the PA, which Israel collects on the PA’s behalf.

Israel is also preparing its security forces to respond to any large scale demonstrations which may come in response to developments at the UN. Israel’s clear interest is to contain violence and avoid any escalation. For this reason it has invested in non-lethal equipment in order to handle large demonstrations without causing fatalities.

Israel’s political response to the Palestinian UN bid has been criticised by opposition politicians. The Knesset’s Foreign Affairs and Defence Committee, chaired by former Defence Minister and senior Kadima politician Shaul Mofaz, produced a report criticising the government for failing to prevent the move to the UN by securing a return to negotiations. It expressed considerable concerns about the negative diplomatic impact on Israel of a UN resolution and the potential for it to trigger Palestinian demonstrations that could turn violent.

Further Resources

For background briefing, podcasts, and daily updates on the Palestinian bid for UN recognition, go to BICOM Spotlight: UN vote on Palestinian Statehood.