After the Arab Spring – Part II

Statehood for Palestine in name only won’t ensure peace, equal footing with Israel and policies that serve the people living within those borders. A three-part series explores the aftermath of the Arab Spring including the motivations behind the Palestinian quest for statehood and consequences. “A balance of dignity between the parties is a necessary step towards a more durable accommodation,” writes Daniel Bethlehem, principal legal adviser of the UK Foreign & Commonwealth Office from 2006 to 2011 and now a senior fellow at Columbia Law School, in the second article. With statehood designation for Palestine, international law would guide the Palestinian-Israeli relationship, providing “an equality, and a clarity, of law and of legal obligation that would apply to both sides.” The status quo is unsustainable, and supported by many nations, statehood for Palestine is inevitable. Yet a reasonable process and responsibility are essential, too. If Palestinian statehood promotes dialogue over conflict, security over vulnerability, peace over division, it will be welcomed by the world. – YaleGlobal

After the Arab Spring – Part II

Despite risks of aggravation, Palestine’s statehood with a balance of dignity could bring peace
Daniel Bethlehem
Friday, September 23, 2011

Balance of dignity: President Obama with Benjamin Netanyahu (left) and Mahmoud Abbas; Palestine's statehood will confer equal status to both Israel and Palestine

NEW YORK: The issue of Palestinian statehood before the UN holds both opportunities and risks. The opportunities, difficult to realize and requiring mature engagement by both the Palestinians and the Israelis, argue in favor of the initiative. The risks are significant and will be difficult to avoid. The Palestinian leadership, particularly if buoyed by success in the General Assembly and a clamor on the streets, will have to make the transition to a government of sober reflection that will pursue policies for a durable settlement with Israel and of stable and effective government at home. Israel will have to move beyond the instincts of its leadership and take meaningful steps to facilitate efforts to build a sovereign national homeland for the Palestinian people.

The statehood initiative is driven by a stalemate in attempts at a bilateral settlement. It is also driven by a search for dignity and political emancipation on the part of the Palestinian people. It is here that the opportunities reside. Dignity and emancipation hold the seeds of confidence and responsibility – confidence of a leadership to speak with authority on behalf of all of the Palestinian people and to do so as a government which is committed to the strategic interest of building a secure relationship with Israel; responsibility of a government that must look inward as well as outward, shaping the internal destiny of the people it seeks to represent, not just their external face.

There has been a lack of symmetry in the search for peace over the past 20 years. Israel, as a state, with all the trappings that this brings, has held the reins and, with proper concerns, has slowed the process and sharpened the focus on the realization of a stable security environment. The Palestinian leadership has had to seek its goal as something less, with a limping confidence and dignity, pursuing emancipation from another to which it is opposed but on whom it is dependent. It is time to move beyond this. A balance of dignity between the parties is a necessary step towards a more durable accommodation.

The opportunities of the current initiative are that it brings confidence and responsibility, and with it a rebalancing of the Israeli-Palestinian relationship. Resting on the rhetoric of occupation, Palestine has too often parried the hard questions about the internal responsibility of a government to ensure that its territory is not used as a springboard for violence. Statehood would make that more difficult. The confusion – legal, moral, political – about Israel’s right of self-defense in the face of threats of attack from across the border, would be laid to rest. Israel would have such a right. There would be an equality, and a clarity, of law and of legal obligation that would apply to both sides. The relationship going forward would be governed by international law, the law applicable to all states, rather than by some uncertain mix of the law of belligerent occupation, coupled with endlessly complex elements of Israeli, Jordanian, Egyptian and Ottoman law. The search for peace requires a boiling down of issues and a clarification of vision.

The opportunities will not be easily realized and will be assailable from every quarter. The disjuncture between form and substance of Palestinian statehood will be manifest. A common will of sorts, of Palestine, of Israel and of the international community, will be required if form is not to founder on the limitations of substance. The Palestinian leadership will need to appreciate that this is a vulnerable victory that will be made secure only by measured next steps, not by grand gestures or adversarial postures. It will need to lead its people, rather than follow them, and resist calls for a sharpening of the divide with Israel to build on and underscore statehood. Israel will have to accommodate the new reality and see in it opportunities for peace on which it too can build. The international community, in favor and opposed, will have to foster stability.

These are significant challenges. And there are others too, more systemic, institutional and immediate, that will need to be addressed. The edifice of the political and institutional relationship between the two sides, and of the structures of Palestinian polity, have for more than a decade been rooted in the Interim Agreement and the Oslo Accords. The statehood initiative calls this into question; and a vacuum creates risk. The Quartet Roadmap set out a different vision for achieving Palestinian statehood. If it is to remain relevant, it will need careful recalibration, and in a manner that does not downplay the critical importance of the security imperative that rightly remains core. And, drawing much current comment, there is the issue of the International Criminal Court and whether statehood will open up new avenues through which Palestine would be able to assail Israel about settlements, military operations and more.

This last is a serious issue that is capable of escalating and sharpening the dispute in a manner that would not thereafter be easily managed. President Mahmoud Abbas should explicitly take this off the agenda. It is always a matter to which he can return in due course. Palestinian accession to the Statute of the International Criminal Court at this point would be a folly that could set back the chance of real peace for a generation to come. A durable settlement between Israel and Palestine will not be achieved through the judgment of a court.

If it comes to a vote, President Abbas, when he speaks to it, needs to paint a vision of a new possibility for dialogue, not a new phase of conflict. And, in this, he will need to carry opinion in Gaza, not just the West Bank. Israel should support the initiative, although politics will dictate that it does not. In opposing, however, Israel should emphasize that its concerns go to process, and who speaks for Palestinian opinion, not to the outcome of a sovereign and independent Palestinian state. The United States must stand with Israel, signaling that change will not lead to Israeli security vulnerability, but in doing so it should be clear that the status quo is unsustainable and unacceptable. Europe should abstain in any vote, not from an inability to decide but in explicit statement that the manifest discordance between the formality of statehood and the substance of governance requires that the Palestinian leadership must still convince the international community, and its donor and investment components, that statehood will be more than simply a nameplate and that with status will indeed come responsibility. And the wider world, supportive of statehood, should vote in solemnity in witness of the legitimate national aspirations of the Palestinian people and that there is still a good deal more to be done.


Sir Daniel Bethlehem KCMG QC was the principal legal adviser of the United Kingdom Foreign & Commonwealth Office from May 2006 to May 2011. He is now director of legal policy International Limited (LPI), a consulting senior fellow at the International Institute for Strategic Studies (IISS), and, from September to December 2011, a senior fellow and scholar in residence at Columbia Law School. This is a personal comment.
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