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/

International Law? U.S. Military Action Is Actually Prohibited By The UN (Forbes.com) September 11, 2013

While everyone seems focused on whether President Obama needs congressional authority under the U.S. Constitution to bomb Syria, there is surprisingly little discussion whether such an attack would be proper under international law. What that tells us, in part, is how little a superpower such as the United States frets over the niceties of international law.

The reality is that much of international law isn’t really “law” in the sense that most Americans understand the term. There is no world constitution to frame international law, no powerful supreme court or legal system to define and enforce it, and no global police force to arrest and detain those who violate the law. It would be more accurate to say that international law is a set of norms that countries agree to follow, at least when it’s in their interest to do so.

But isn’t there a law against the use of chemical weapons? As with much of international law, the answer is yes and no. Most of international public law is a matter of treaty and there is a 1925 Geneva Protocol outlawing the use of poisonous gases in war (not domestic conflict). There is also an expanded 1993 Chemical Weapons Convention, but Syria is not a party to that treaty. This illustrates one of the real problems with international law: countries most likely to violate it don’t agree to it in the first place. Some argue that using chemical weapons violates “customary international law,” a fairly soft concept and one that would be tough to use as a basis for missile strikes by one country against another.

This raises another big problem with international law: who may enforce it? Even if Syria had signed a treaty agreeing not to use weapons, could one country on its own take military action against another because of a treaty violation? Here the answer is “no.” Although the U.S. is sometimes referred to as the world’s police force, it usually intervenes only at the invitation of the host country, or as part of a pact of self-defense with other countries in the region. Neither of these is the case with Syria, and so the U.S. may not unilaterally enforce an international treaty or norm. There has been discussion of the need to establish an international right of humanitarian intervention in a country, but those talks are a long way from reaching an actionable policy or law.

To put an even finer point on it, U.S. military action in Syria is actually prohibited by the United Nations Charter. There are only two circumstances in which the U.N. Charter permits the use of military force by one nation against another: a case of self-defense, or when authorized by the Security Council “to maintain or restore international peace and security.” Russia has already said it does not support action against Syria, so its veto (or that of China) in the Security Council would stop that alternative cold. The U.S. makes noises that it is concerned about its own security whenever a leader uses weapons of mass destruction (Saddam Hussein in Iraq), but a case of self-defense would need to be stronger for chemical weapons thousands of miles away.

So, the bottom line is that if you want to undertake military measures against Syria for its use of chemical weapons on its own people, international law is part of the problem, not part of the solution. President Obama and Secretary of State John Kerry are left with the thin argument that what they propose is “legitimate” even if it isn’t actually “legal.” And how do they establish such legitimacy? Presumably by getting other world powers to agree, by persuading Congress to pass a resolution, from the E.U. statement of concern (but no authorization of military force), etc. This is how NATO authorized bombings in Kosovo in the 90’s—the major world powers agreed (or agreed not to disagree) that this was the humanitarian and right thing to do, even though it violated international law.

Such are the vagaries of international law, when what is illegal may nevertheless be legitimate, and when what may well be best is in direct contravention of international law.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/09/11/international-law-u-s-military-action-is-actually-prohibited-by-the-un-charter/