Palestine, When is Your Birthday?

 Col. (Retired) Liron A. Libman, LL.M, is a former Head of the International Law Department of the Israeli Defense Forces.

On 29 November, in what some reports described as a historic vote, the UN General Assembly accorded to “Palestine” the status of a “non-member observer state” in the organization. The Palestinian Liberation Organization (PLO) has enjoyed an observer status in the UN since 1974. Since 1988 the PLO mission to the UN was designated “Palestine”. Therefore, the supposed novelty is the UN recognition of Palestine as a state.

I do not want to discuss here the question of Palestinian statehood itself: whether “Palestine” has the objective qualification of a state under international law. Rather, I want to concentrate on the Palestinian official view as to the date when the Palestinian state was established. Many states celebrate their national day on that date, so in simple words, I ask when will the Palestinians celebrate their Independence Day?

I start my inquiry with the epilogue of Dr. Abbas, chairperson of the PLO, in his speech to the General Assembly:

“Sixty-five years ago on this day, the United Nations General Assembly adopted resolution 181 (II), which partitioned the land of historic Palestine into two States and became the birth certificate for Israel.

The United Nations General Assembly is called upon today to issue the birth certificate of the reality of the State of Palestine.”

Dr. Abbas asked the General Assembly to grant a “birth certificate” to the state of Palestine. Taking this metaphor seriously, this implies that the Palestinian state already exists. To the best of my knowledge (as a father, if I may add), first, a child is born and only afterwards can the happy parents receive a birth certificate. The certificate is an official acknowledgement of a fait accompli.

However, Dr. Abbas paralleled the resolution he asks for with General Assembly resolution 181(II) of 29 November 1947, which he views as the birth certificate of the state of Israel. The problem is that clearly resolution 181(II) did not recognize an existing state of Israel, but rather recommended the future establishment of a Jewish state (alongside an Arab state) upon the termination of the British Mandate. The resolution even set a timetable for the coming into existence of the two future states.  Israel was established only about six months later, on 14 May 1948, when the Jewish People’s Council approved the Declaration of the establishment of the state of Israel. Clearly, resolution 181(II) was not the birth certificate of the state of Israel.

Perhaps, one might say, the metaphor of a birth certificate is unsuitable, so let us stick to the intention expressed to follow the precedent of resolution 181(II) and its relation to the establishment of the state of Israel. Thus, what the Palestinians were asking the General Assembly is to confer international legitimacy upon the future establishment of a Palestinian state, one not yet existing.

This interpretation is aligned with other expressions in Dr. Abbas’s speech, such as:

“We came to affirm the legitimacy of the State that must now achieve its independence, and that is Palestine.”

My emphasis is on the word “now”, suggesting that Palestine is not yet an independent state.

In addition, elsewhere in the speech I found this rhetorical question:

“Are we a surplus people, or is there a state which is missing which must be embodied on its land, which is Palestine.”

“A state that is missing” in other words, a state that still does not exist, but ought to exist.

But things are not so easy. Elsewhere in the speech, Dr. Abbas refers to the 1988  Palestine National Council Declaration of Independence, which was “adopted by your august body“. This declaration solemnly proclaims:

“The Palestine National Council hereby declares, in the Name of God and on behalf of the Palestinian Arab people, the establishment of the State of Palestine in the land of Palestine with its capital at Jerusalem.”

Dr. Abbas rightfully notes that this declaration was acknowledged by the General Assembly (in resolution 43/177 of December 15, 1988).  Since that resolution, the designation “Palestine” is used instead of “PLO” for the Palestinian mission to the UN.

Therefore, perhaps a Palestinian state has existed since the Palestinian National Council Declaration of independence in 1988? However, if so, the General Assembly already acknowledged it more than twenty years ago. What did Dr. Abbas want now?

Maybe he is well aware that in 1988, it was clear that the PLO, with its headquarters in Tunisia, had none of the qualifications of a state, as prescribed in the 1933 Montevideo Convention on the rights and duties of states: a permanent population, a defined territory, government and the capacity to enter into relations with the other states.  UN recognition at that time could not by itself create a state not existing in reality.

Today the situation on the ground is different. Dr.  Abbas heads the Palestinian authority, created by the Oslo Accords with Israel and exercising at least some degree of self-government in the West Bank. This does not mean there are not some serious doubts as to Palestinian qualifications for statehood, just that it is clear that the Palestinian case is better today than in 1988, possibly justifying, in the Palestinian view, reiterating UN recognition of statehood.

Still, if it is clear that, in 1988, Palestine was not really a state, and now the Palestinians contend it is, when exactly did this change occur?

You would not find a clear answer in Dr. Abbas’s speech, or in other Palestinian actions and statements.  For example, take the Palestinian National Authority’s 2009 plan for constructing the institutions of an independent Palestinian State within a two-year period, mentioned in the UN resolution adopted after Abbas’s speech. This plan clearly indicates that, at least before 2011, even the Palestinians did not think they were prepared for statehood.

Confused? Rightfully so. It is not clear whether the Palestinians asked the UN to confer legitimacy upon the future establishment of a state of Palestine, or whether they asked just recognition by the UN of an existing Palestinian state, and if the latter is true, when the Palestinian state was established, in the Palestinians’ own view.

This is not a formalistic, legalistic or marginal question. States are still the principal actors in the international sphere. The international community deserves certainty, at least as to the status claimed by other international actors. I claim that this ambiguity is not an accident, nor an indication of drafting incompetence. The Palestinians have a very abled and experienced legal team and did not hesitate in the past to consult top foreign international law experts. This ambiguity must be deliberate.

I dare to speculate about the motive behind this evasiveness: assuming statehood, unlike demanding the right to establish a state, has considerable burdens. States are not just the bearers of rights in the international sphere, but also the bearers of some heavy duties.

For example, a state has a duty, recognized in UN General Assembly resolution 2625 (XXV), to refrain from acquiescing in organized activities within its territory directed towards the commission of  terrorist acts in another State. What does this mean for Ramallah’s responsibility for Hamas missile attacks from Gaza, part of the Palestinian territory claimed, deliberately aimed against Israeli civilian communities?

Furthermore, under article 11 of the ILC Draft articles on Responsibility of States for Internationally Wrongful Acts, states may be responsible for acts they did not direct, if they acknowledged and adopted them as their own after the fact. Dr. Abbas sent one of his top officials, Mr. Nabil Shaath, to a Hamas “victory” rally in Gaza, after the latest round of hostilities. Mr. Shaath described Palestinian unity and praised the “armed resistance”. Does this mean that the state of Palestine acknowledged and adopted the war crimes perpetrated by Hamas?

Indeed, statehood is a responsibility. As long as Palestinians themselves avoid this responsibility, in statements and in actions, the adoption of UN resolutions can be no more than a symbolic victory in the diplomatic sphere, with no consequences on the ground. Self-determination is not just a right, but also, sometimes, an obligation to decide and take risks.