Federal Politics


Israel faces era of lawfare

Recognising Palestine will change the legal landscape, writes Gregory Rose

On Thursday, a special United Nations vote was taken to formally recognise the state of Palestine as established and in existence.

In Jerusalem, ''29 November Street'' is located in an ageing neighbourhood where some can remember that day in 1947. It was when the 56 members of the UN General Assembly voted on the partition of the ex-Ottoman, British-managed UN mandate in Palestine to create two states, a Jewish state of Israel and an Arab state of Palestine. The day in 1948 that the British evacuated, five Arab armies invaded and launched, with Palestinian irregular and other forces, a war of annihilation.

Worldwide, November 29 is now more often remembered as the International Day of Solidarity with the Palestinian People. The 1948 war is commemorated, by decree of a UN resolution, in sympathy with the unsuccessful aggressors. This perverse outcome can be obtained when you have the votes, but more of that later.

UN recognition of Palestine as a state will not do much to change the facts on the ground. However, the UN manoeuvre is legally significant, having four major international law impacts.

First, is the final dissolution of the 1993 Oslo Accords between the Palestine Liberation Organisation and Israel. These established the Palestinian Authority with civil and security powers in the West Bank and Gaza, as well as legal, trade, fiscal and security relationships with Israel, and a negotiation process to create peaceful relations and an autonomous Palestine. For the Palestinians, the end goal of an independent state will have been reached successfully through the Oslo process, despite terminating negotiations without settling disputes or agreeing to any peace for the Israelis.

Second, the UN-recognised state of Palestine will have new legal rights. Any hostilities and continued Israeli security presence in parts claimed as Palestine will now formally come under the applicable international laws of armed conflict and military occupation, as set out in the Geneva Conventions. Previously, they were not part of a state but were disputed.


Third, sovereignty will enable Palestine to exercise sovereign rights in international organisations. Accordingly, the President of the Palestinian Authority, Mahmoud Abbas, has stated that the advantage of formalised statehood is to seek prosecutions in the International Criminal Court of Israeli political figures and military personnel.

Fourth, Palestinian refugees and their descendants around the world from the Arab-Israel wars will have a sovereign homeland free to give them full citizenship, which Arab countries (other than Jordan) still refuse to give. Assuming at least partial Israeli withdrawal, the refugee problem can finally be solved and the UN Relief and Works Agency for Palestinian Refugees in the Near East will become defunct.

Yet, the independent state of Palestine hardly seems a likely success. Its people are violently divided across two territories - Gaza and the West Bank, and two antagonistic governments - Hamas and Fatah, both corrupt, undemocratic, economically floundering and sure to receive less external assistance as an autonomous country.

It is doubtful also that regional peace will be brought any closer. The Palestinian Authority seeks to strengthen its position through the UN resolution establishing sovereignty and borders to be determined on the basis of the 1949-67 armistice lines. However, Jewish-populated towns beyond these lines will continue to be disputed territories and Israel could respond by annexing them to strengthen its legal control.

If Israeli strategic responses include accelerated military withdrawals from more West Bank areas, then missiles and mortars fired at Jewish population centres from Gaza could well be joined by others from higher ground in the West Bank, worsening hostilities between the Israel Defence Forces and armed Palestinian groups.

Further, regional Muslim states will be better positioned, for their part, to delegitimise Israel, having shifted from conventional warfare between state armed forces to sponsoring terrorism and, for the while, to lawfare. Sadly, Palestine does not even meet the required legal criteria for a state under international law. It does not have an operational national government, for a start. It is to be represented in the UN by the moribund Palestine Liberation Organisation rather than by its operational governments.

Nevertheless, at least 130 UN members voted to recognise the sovereignty of Palestine (the exact number is not known at the time of writing this piece before the vote). Votes are always in the bag, as almost a third of today's 192 UN members vote as a bloc of 56 states in the Organisation of the Islamic Conference, while another third are OIC neighbours with historic ties in Africa and Asia, and yet others know that national oil and economic interests are best served by not voting against the OIC bloc.

The new lawfare against the Jewish state has fewer fixed rules than conventional warfare. It manipulates the exquisitely pliable UN rule of law and challenges notions of international legal order. Clearly fixed and certain, though, is that November 29 will inaugurate a new legal situation and be a good business day to hang out a shingle for those lawyers with interests in the international lawfare trade.

Professor Rose is director of the institute for transnational and maritime security at the University of Wollongong.