Palestinian Statehood: Who Should Decide And How? (Forbes.com) January 9, 2015

You would think there would be a clear-cut definition and path for establishing a new nation-state.  But in the Alice in Wonderland world called international law, there is not.  And this very uncertainty has created an opening for Palestine to attempt to shift the political balance in the Middle East and pursue a novel “throw enough against the wall in the hope that something will stick” approach to gaining statehood.

At the risk of oversimplifying this vague and complex area of law, there are two basic approaches to becoming a state.  One, the more traditional, legal approach, is based on satisfying objective criteria established by the Montevideo Convention (1933):  (1) A permanent population, (2) a defined territory, (3) a government and (4) the capacity to enter into relations with other states. Palestine, by the way, would have difficulty establishing each of these criteria.  The other is a more of a postmodern, holistic approach:  if others treat you as a state, then you must be a state.

It is a variation on this latter approach to statehood that has thrust President Mahmoud Abbas and Palestine into the headlines recently.  First came a close vote in the U.N. Security Council on a proposal from Jordan to vote a Palestinian state into existence.  That failed by one vote, and Abbas says it will come up again soon, and maybe over and over, in the not unrealistic hope of gaining one extra vote.  Of course, even that isn’t the end of this strategy, since the U.S., as a permanent member of the Council, could and likely would veto it.

The very next day following the Security Council vote, Abbas signed Palestine onto 15 international treaties and agreements on a range of subjects, most importantly applying to join the International Criminal Court (ICC).  The idea is to keep acting like a state—a round of agreements like this was also signed by Palestine last year—and, if you throw enough against the international wall, maybe something will stick and people will finally say, yep, they’re a state.

But to join the ICC you have to be a state, which is what prevented Palestine from bringing charges against Israel in the ICC following the Gaza conflict of 2009-10.  The Prosecutor of the ICC, however, has opined that a U.N. General Assembly vote is sufficient for this purpose.  At least some version of that vote took place several months ago, with the U.N. General Assembly establishing Palestine as a non-member “observer state” like the Vatican.  Of course that vote was largely political, and made no attempt to determine whether Palestine satisfies the legal criteria for statehood.  And one could argue that being an “observer state” in the U.N. is more about observing (participating, being at the table) than official statehood.  Indeed, the U.S. State Department has now expressed the view that Palestine, under law, is not a state, notwithstanding that vote.

A final complication underlying all of this is that Palestine is a party to the Oslo Accords, which is supposed to be an exclusive effort toward a two-state solution and which explicitly provides that “Israel has sole criminal jurisdiction over…offenses committed in the Territories by Israel.”  So through the Oslo Accords, Palestine has, in effect, promised not to seek statehood by other means and further has agreed that only Israel can bring criminal cases against its people, which is what Palestine would like the ICC to do.

And you wonder why the Middle East peace process is complicated?

In all of this, a central question the law does not clearly address is who decides what is and is not a state.  Generally it would the United Nations, but I don’t think “observer state” votes in the debating club of the General Assembly really do it.  A Security Council vote that seriously considered the Montevideo criteria would be more impressive.  But, in this case, the key players have agreed that the Oslo Accords, establishing a Middle East peace process is an exclusive path to statehood.  So, in my view, Palestine would have to step up and formally renounce the Oslo Accords—highly controversial—if it wants to go its own way.

Most immediately, an international criminal court should not be wading into the delicate Middle East peace negotiations and deciding who is a state.  The Court’s own credibility, already strained by completing only two successful prosecutions of lesser players in 10 years, will continue to decline, and the Middle East peace process will be irreparably harmed.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/01/09/palestinian-statehood-who-should-decide-and-how/