Palestine And The Post-State Era
By Cameron Hunt
06 March, 2009
Countercurrents.org
Those of us appalled by Israel’s latest attacks on the civilian infrastructure of Gaza would likely have been delighted to hear the announcement by the Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, that the Court was actively considering whether Palestine was “enough like a state” for the ICC to investigate those attacks. More than 220 communications have already been received by the Court alleging Israeli war crimes and crimes against humanity. The Court, whose Statute entered into force on July 2002, had until now insisted that it had no jurisdiction over the occupied Palestinian Territories; mainly owing to the Court’s Statue, which limits the jurisdiction of the Court to “the territory of any State Party and, by special agreement, on the territory of any other State” – but in either case, to ‘states’ . Mr. Moreno-Ocampo was quoted as saying: “What is a state in international law, in particular in the Gaza territory - that is the discussion. It is a complicated discussion.”
Interestingly, I am not able to find a single piece of commentary (in English) on the significance of this quote from Mr. Moreno-Ocampo. If it is “a complicated discussion” whether, under international law, Palestine constitutes a state, then one thing is for sure: there may already be an internationally recognized ‘State of Palestine’ – at least for those of us that consider international law more fundamental than the assertions of either Israel or the US. Even more interesting, is that there is a very strong legal case that Palestine does indeed constitute a ‘state’ under international law, and that Israel should therefore not be surprised by any ICC investigation into its latest crimes.
In his Book, Palestine, Palestinians, and International Law, Professor Frances Boyle of the University of Illinois detailed his earlier analysis of the legal bases for Palestinian statehood; an analysis requested from him by the PLO, in June 1987. The immediate result of his research paper, many will not be aware, was that “on November 15, 1988, the independent state of Palestine was proclaimed by the Palestine National Council (PNC), meeting in Algiers, … as well as … in Jerusalem”. Writing shortly after the Palestinian declaration of statehood, Mr. Boyle concluded: “Generally put … there are four elements constituent of a state: territory, population, government, and the capacity to enter into relations with other states. All four characteristics have been satisfied by the newly proclaimed independent state of Palestine… Over 114 states have already recognized the newly proclaimed state … which is more than the 93 that maintain some form of diplomatic relations with Israel. Furthermore, on December 15, 1988, the United Nations General Assembly adopted Resolution [A/RES/]43/177, essentially recognizing the new state of Palestine”.
Unlike the majority, I consider the recent comments from the ICC Prosecutor to be more problematic, than beneficial. What if the ICC decides that Palestine already constitutes a state under international law, recognizes it as a new party to the Rome Statute, and opens up an investigation into Israel’s alleged crimes in Gaza? Many will no doubt express their gratitude, but what of the ICC’s ability to actually punish those it finds guilty as charged? Hasn’t Ehud Olmert, for example, already announced that Israel would keep serving soldiers “safe from any tribunal”? It is important to make the point, in this regard, that the ICC can only try those suspected of international crimes, if they have not already been tried by their appropriate domestic courts. What if those under scrutiny are tried in Israeli courts, and either cleared, or given absurdly light sentences? I suspect it is for this reason that Susan Rice, the new US representative to the UN, offered their long-standing ally some friendly advice: “Israel must investigate allegations its army violated international law”. And if it didn’t, and the ICC subsequently indicted various leading Israelis? Does anybody believe that their arrest would not be blocked by the Israeli military, using any means necessary? And what of the US – who likewise refuses to recognize the jurisdiction of the ICC – and its “unshakeable” support for Israel? It would certainly do everything in its power to prevent such legalistic action being taken against an important ally. The Palestinians are not only unlikely to receive the justice they deserve through any ICC action – as matters stand – but they might also end up destroying the ICC, by handing it what could become the first serious test of its mettle, very early in its life.
You may have noticed the caveat of ‘as matters stand’, in the preceding paragraph. This is a reference to one of my earlier Articles, Two-State Chimera, No-State Solution, of 24 May 2007, in which I outline a plan for a ‘no-state solution’ to the Israel-Palestine conflict. This solution is modelled on the multi-nation State of Switzerland – a Federation of nation-based cantons – and is predicated upon the forced internationalization of the entirety of historic Palestine: its conversion into a United Nations ‘Trust Territory’ (UNTT), divided into nation-based cantons. It would of course be very easy for you, at this point in time, to discount me as a naïve idealist, but before doing so, please consider the following quote from “a senior Hamas leader in Gaza”, dated 26 October 2007: “Switzerland is the model”. Needless to say, whether the requisite nation-based cantons existed within the framework of a UNTT, or within a single federated ‘state’, is almost entirely irrelevant, provided that each of those cantons operated on the principle of ‘subsidiarity’, thereby guaranteeing the inhabiting peoples their legal right to national self-determination. Important to note in relation to self-determination, is that, as is the case in Switzerland, the borders of any such cantons would not be rigidly fixed, but could be adjusted on the basis of a popular vote – contrast this with the prevailing ‘European Model’ of statehood.
Some of the ever-evolving benefits of the proposed no-state solution would include there being no need for Hamas to recognize the State of Israel – though the Nation of Israel would of course remain – and no need for Hamas to recognize past ‘peace agreements’ made between the PLO/PA and Israel – which have earnt the Palestinians no freedom, and cost them huge swathes of the West Bank. Likewise, there would be no need to form another National Unity Government between the Palestinian factions – something which, in addition to now being very difficult to achieve, would immediately allow Israel (and in particular Benjamin Netanyahu) to return to its earlier refrain of not dealing with any government that included Hamas – how quickly the World forgets. Hamas, as the democratically elected Government in Gaza, could simply go on governing those cantons which constituted Gaza, and the PA/Fatah those cantons that constituted the West Bank; until the next elections – something which would be mandated in the UNTT’s ‘Trusteeship Agreement’.
In returning to the opening theme of this Article, the proposed no-state solution would likewise facilitate the immediate investigation of war crimes alleged to have been committed in Gaza, by an ad-hoc tribunal established by the United Nations General Assembly – the Administering Authority of the newly established UNTT. Though the most senior criminals would undoubtedly be offered shelter in the US – perhaps a moral coup for Hamas in itself – there would no longer exist any capacity for the State of Israel itself to keep its citizens “safe from any tribunal”. There would no longer be an Israeli Army, and no longer any such thing as Israeli courts, thereby eliminating the two major instruments currently available to Israel to prevent the punishment of war criminals living within its professed borders. At this point in time, it is worth recalling Israel’s stance towards the international Fact-Finding Team established by Kofi Annan in April 2002, to investigate accusations by the UN Relief and Works Agency, amongst others, that Israel was guilty of “violating international humanitarian laws during its operation in the Jenin camp”. Upon setting up the Team, Mr. Annan announced: “I expect the government of Israel and the Palestinian Authority to co-operate fully with the team and to provide full and complete access to all … sources of information”. The Team was denied any and all access by the State of Israel.
It goes without saying however, that the major benefit offered by the no-state solution, is that Hamas can very quickly end the occupation, by ending the occupier – the State of Israel (as opposed to the Nation). How does this compare with the PA’s oft-mooted ‘nuclear option’ of simply dissolving the PA, and insisting at that point that there is only one State, and that the Palestinians should therefore be treated as equal citizens within it (despite all the evidence that even Israel’s Mizrahim Jews are discriminated against)? How well would that strategy advance the cause of Palestinian national self-determination? There is another point that needs to be made on this strategy: the ‘two-state’ and ‘one-state’ frameworks each require the full cooperation and support of both the US and Israel, to have any chance of success. Conversely, the ‘no-state solution’ sidelines the US – as is appropriate after more than 40 years of failure, with no policy change in sight – and ends the State of Israel.
The only advantage that a Palestinian State – with East Jerusalem as its capital – appears to offer the Palestinians over and above my proposed no-state solution, is the promise of (Sunni) Muslim sovereignty over the Haram al-Sharif, in the Old City of (East) Jerusalem – the third holiest site in Islam. It seems telling that Hamas’ offer of a 10-year truce with Israel, in April 2008, was conditional upon a Palestinian “state on pre-67 borders, with Jerusalem as its capital”. On this issue – the only issue that appears to stand between Hamas and the immediate implementation of the no-state solution – it is worth citing the words of Professor Boyle, whose legal opinion was absolutely central to the 1988 Palestinian declaration of statehood: “neither Israel nor Palestine nor both together have the basic right under international law to dispose of Jerusalem”. We know already of Israel’s contempt for international law, but most had hoped for a different stance towards it from the Palestinians. Sadly, Hamas’ description of the ICC arrest warrant just issued against Sudan’s President, Omar al-Bashir, as “unjust and political”, doesn’t bode very well in this regard, and is likely to make it much more difficult to argue that Israel’s crimes in Gaza should be punished.
For those within Hamas that continue to insist that the only outcome they will accept is a Palestinian State with East Jerusalem as its capital – with full sovereignty over the Haram al-Sharif – it is worth considering the attitude of Israel’s government in waiting, towards Hamas. Benjamin Netanyahu has recently been quoted as saying that Hamas should “ultimately be removed” from Gaza. What has his likely coalition partner, Avigdor Lieberman, had to say on the topic of Hamas? “If we will be in this government, the defeat of Hamas will be the foremost objective.” As for the Palestinians more generally, who continue to suffer indiscriminately whenever Israel decides to punish those it doesn’t like – democratically elected or otherwise – Benjamin Netanyahu “has repeatedly made clear that he opposes creation of a Palestinian state. Instead, he speaks of economic development – ‘economic peace’…”
So, with the promise of no Palestinian state that is recognized by Israel – or by way of that, the US – and the promise of ongoing attacks against Gaza (ostensibly) aimed at unseating Hamas, what else can the Palestinian leadership expect to continue if they don’t act soon to end the occupier? In the middle of February 2009, “Israel tightened still further the restrictions on Palestinian movement and residency rights in East Jerusalem... This means that tens of thousands of Palestinians are now cut off from the city”. Israel’s ethnic cleansing of East Jerusalem is gaining pace, and shall certainly continue to do so under what is likely to become the most right-wing coalition in Israel’s history. Hilary Clinton’s recent commentary on Israel’s planned demolition of 100 Arab homes in occupied East Jerusalem built without a permit from the occupier, something she referred to as “unhelpful” – as opposed to a war crime – gives no cause for hope of there being any US resistance to Israel’s endless expansion. Likewise, I am not aware of any commentary by Mrs. Clinton on Israel’s recently leaked plans for 73,000 new homes in East Jerusalem and the West Bank – this at a time when thousands of Gazans are living in tents, with no guarantee of new homes to replace those that Israel just destroyed.
With a decision on the legal status of the Palestinian state expected from the ICC within "months, not years", and a very strong possibility that the ICC decides in the affirmative, the fundamental question becomes: What if there already is a ‘State of Palestine’? Where would that leave the current ‘peace process’; a process premised upon a ‘two-state vision’ (namely, affording the Palestinians a state of their own, if they behave as Israel and the US demands)? Won’t that noble ‘vision’ have therefore already been achieved, possibly as early as 1988? Does this perhaps suggest that the current promise of a Palestinian state more closely resembles a ‘two-state placebo’, than solution? Might it point to the intellectual idolatry of ‘statehood’? If the Palestinians are found to already have their State, how has it helped them?
Were Hamas to embrace the proposed no-state solution, they would in fact be taking the first step towards a Post-State World. They would immediately represent the World’s intellectual vanguard, declaring that the European Model of statehood does not in fact represent the best framework for the 21st Century, or beyond. If challenged on this point, they might simply ask how the European Model helped to prevent the two major (European) Wars of the past Century? How it is helping to prevent the fissure of Belgium, or to placate the various separatist movements that exist within the State of Spain? How state borders have helped to calm tensions between nationalists in the Congo and Rwanda? In Pakistan’s Pashtun areas?
National borders are far more important than any recognized or disputed State borders; the European Model of statehood being barely a century old in most parts of the World. Hamas is in a position to reject that Model, and to demand the enlightened Swiss Model of nation-based cantons; something that can be easily imposed through the mechanism of the United Nations General Assembly, without regard to either Israeli or US objections – contrast this with the other two ‘solutions’ actually under consideration.
Cameron Hunt is the author of Pax UNita - A novel solution to the Israel-Palestine conflict.
