The Palestinian Authority continues to insist that getting recognition of Palestinian statehood — even as a non-member observer state at the United Nations — will change the status of the pre-1967 occupied Palestinian territories from disputed land to that of a state under occupation.
However, this is not exactly accurate. According to experts in international law, Palestinian territories have been and will continue to be occupied.
Many international organizations have classified the Palestinian land in pre-1967 borders as “occupied territories,” while many other countries have recognized a Palestinian state. Thus, this “incomplete” step, which President Mahmoud Abbas is seeking at the UN, will only add few “benefits,” according to some. These “benefits” are related to the fact that Palestinians can now press cases at the International Criminal Court, even if this remains subject to “impossible” conditions. Others believe that the step at the UN has merely upgraded the status of the Palestinian Liberation Organization from a representative organization to that of the Palestinian state.
In order to explain the status of non-member observer state, Hassan Jouni, professor of international law, told As-Safir that “the UN Charter does not provide for such thing as observer state, legally speaking. However, in light of improvements in international law, and based on the idea that international law ought to include all sides, this status was granted to certain organizations, such as the League of Arab States, the International Red Cross, as well as the Vatican.”
In this context, one must note that the PLO was granted “permanent observer” status in 1974, which was described by Jouni as a “historic” step, especially because the PLO was granted exclusive rights that no other organization enjoyed. “Not only was it granted observer status, but the PLO also had the right to address issues related to Palestine and to attend General Assembly meetings. The PLO was also invited to attend meetings of the UN Security Council. It also represents the state of Palestine in the Arab League, the Organization of Islamic Cooperation and the Non-Aligned countries,” he added.
Nevertheless, Shafiq al-Masry, an expert in international law, does not see any difference in Palestine’s representation. But he goes further than this. He believes that the vote at the UN is an upgrade to the status of “Palestine.”
“At the domestic level, the PLO has been promoted to the Palestinian Authority,” Masry said.
He added that “the problem lies in the fact that the Palestinian state gained the recognition of more than 100 nations in 1988. However, the PLO failed to properly use this [advantage] as it had concluded the Oslo Accords as if it were disregarding all this recognition.”
Therefore, Masry considers that any renewed talk about a Palestinian state must be associated with serious steps to reinstate these recognitions.
Masry added that “there is no such a thing as the PLO at the UN. This name had already been replaced with the name of Palestine, and now it only remains to add the word ‘state’.”
Jouni, on the other hand, believes that “following the Oslo Accords, the Palestinian Authority became the representative of the Palestinian people in international relations.” Thus, achieving statehood makes it the representative of the people in the international organization.
Disputed Territories or Occupation
According to the Palestinian Authority, “with the UN vote, Palestine will be considered to be a state under occupation. Thus, no Israeli will be able to argue that these territories are disputed areas.” Is this true according to international law?
Jouni said no. He confirmed that even if the legal status of the PA has changed, “the problem lies in determining the territorial lines of this state. Israel will continue to reject these lines and there will continue to be disputed territories.”
“There exist dozens of international resolutions, in addition to the International Court of Justice’s decision in 2004 regarding the separation barrier and the International Committee of the Red Cross, which all recognize Palestine based on the 1967 frontiers. Thus, all these organizations consider these territories, including East Jerusalem, to be occupied. Therefore, nothing has changed on the ground.”
Masry agreed on the argument that nothing will change on the ground. Palestinians territories will remain under occupation, “whether or not they upgraded their status to a state.”
The Palestinian at the Diplomatic and Judicial Levels
Masry, however, argues that this move has some “positives.” Palestine has acquired additional rights, including its right to be active at the diplomatic level and in foreign affairs. The State of Palestine is now able to exchange ambassadors with other nations and sign treaties. “This is not to mention that it can use its upgraded status at the UN to directly file cases against the Israeli occupation, rather than through Arab states or the Arab League,” he added.
This point particularly has provoked controversy amongst European countries over whether to vote for or against a Palestinian state. Britain, for instance, set a prerequisite for voting “yes” on the Palestinian state, requiring the PA to pledge that it would not go to the ICC to file cases against Israel.
In this context, Jouni derided those claiming that Palestine will go to the ICC to press cases against Israel for the assassination of late President Yasser Arafat, since the ICC’s jurisdiction is limited to war crimes, crimes of aggression, genocide and human rights violations.
He explained that “pursuant to Article 13 of the ICC charter, the court allows only member-states to press cases, along with the Security Council and the General Prosecutor.” Therefore, Palestine is not entitled to file any case. Should Palestine’s membership be approved, it will have to wait six months to be able to file suit.
As for the International Court of Justice, because of this new upgraded status as non-member observer state, Palestine will be able to file lawsuits but under certain conditions. “Most importantly, Palestine must become an active member in the international community and ought to resume its relations with the countries that have previously recognized it. Palestine won recognition from about 100 countries.”
Masry further explained that “two countries must jointly submit a judicial file at the International Court of Justice,” i.e., Palestine and Israel. Therefore, pressing cases before the Court of Justice to prosecute Israel will remain a difficult task for the new state.