Why the EU should abstain on the Palestinian issue in the UNGA

This article was written in response to “Palestinian statehood at the UN: why Europe should vote 'yes'”, a memo by Daniel Levy and Nick Witney, published by ECFR

The Palestinians are striving to secure, through a vote in the United Nations General Assembly, a heightening of their international status. Such a desire is understandable. This does not necessarily mean, however, that it deserves unconditional support. Nick Witney and Daniel Levy, the authors of an ECFR memo calling for EU nations to unify behind a ‘yes’ vote are correct in calling for European unity, but the debate over whether this means voting ‘yes’ (as they recommend), “no”, or abstaining is far from settled.

The stalled Israeli-Palestinian peace process should not be abandoned. It is based on the Oslo Accords of 1994, and subsequent treaties. Yet the Interim Agreement of 1995, the key treaty fleshing out the Accords, clearly states in art. 36 p. 7: “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.” Any motion to the UN on Palestinian statehood, which would make explicit reference to the status of these territories, would be in clear breach of that article – and any motion which would not make such a reference would be redundant, insomuch as the UN has already, in 1988, “acknowledged” the Palestinian declaration of statehood. The article also, of course, forbids any hypothetical Israeli bid to unilaterally annex any part of the territories mentioned.

Although the memo makes the argument that the Palestinian move is not unilateral as it seeks to gather multilateral international support, and does not violate previous signed agreements as they say nothing about Palestinian statehood, these arguments do not stand up. The Palestinian move is indeed unilateral (undertaken without the consent of the other party to the treaty), even if its target is multilateral (addressing states which were not parties to the treaty). Any argument that the agreements “say nothing about statehood” fails to account for the quoted article.

There is also an argument that Israel’s charges of unilateralism sit oddly alongside the continued expansion of settlements in the West Bank and Jerusalem (Nick Witney and Daniel Levy note that settler numbers have grown in excess of 500,000 in the years since the Oslo Accords). This could, at best, be grounds for condemning supposed Israeli unilateralism, not the basis for supporting unilateralism by Palestinians. But the Oslo Accords do not forbid the construction of settlements (although most countries do believe that this construction violates international law). The Israeli government pledged to freeze settlement construction when signing the Roadmap; in the same document the Palestinian authorities pledged to stop terror and dismantle its infrastructure. These activities were to be conducted in tandem, and each side points to the other’s non-compliance to justify its own. All this, however, in no way authorizes either side to directly violate the fundamental Accords of 1994-95.

It might be the case that the time has come for the EU, a member of the Mideast Quartet, to give up on the Oslo Accords – but if so, the issue should be addressed directly, and not as a side-effect of endorsing a political initiative made by other parties. Also, in advocating a move which, in the past, has been opposed by key EU countries such as Germany and Italy, it would be worthwhile to address their arguments and concerns, chief of which is the unilateral character of the initiative.

There are also arguments over the EU’s consistency in their support for supporting a Palestinian state, incorporating both European values and interests. This is certainly valid – but does not necessarily automatically translate into supporting this particular UN motion at this particular time. Given the fact that such support implies a break both with the Oslo Accords, and with the US administration and Israel – as well as an abrupt foreign policy about-turn by key EU member states, a more detailed discussion is surely called for.

It is also important to note that while the memo suggests that Israel is unwilling to make the concessions necessary for peace,  the willingness – or, indeed, capacity – of the Palestinian side to make concessions at this moment is also seriously in doubt, as evidenced by Hamas’s condemnation of the entire peace process. Given that the Islamic Movement has joined, at least declaratively, a unity government with the PA, it is unclear if such a government in fact even recognizes Israel. One might be inclined to avoid taking action which might be seen as supportive of the current Israeli government’s policies. But, by the same token, actions supportive of the current Palestinian government should be seen in a similar light.

My ECFR colleagues note correctly in their memo that President Obama had tried to manipulate PM Netanyahu “first to freeze settlement growth in the occupied territories, and more recently to accept a negotiation focused first on security and on borders “based on the 1967 lines with mutually agreed swaps”. However, those efforts failed.” While the second attempt failed because of the obduracy of the Israeli side, the responsibility for the first failure falls squarely on the side of the Palestinians, who refused to engage in negotiations for the first nine months of the ten-month freeze announced by Netanyahu. Yet both are invoked in making the argument that the Israelis allegedly no longer wish to make concessions.

A ‘yes’ vote at the UN, as Daniel Levy and Nick Witney suggest, could be sweetened for the Israelis by offering ‘Israel-friendly deliverables’, the most important of which would be convincing the Palestinians not to go to the ICC against Israelis. After the UNGA vote, Palestine will have the capacity of joining the ICC and bringing legal action to that court – and having legal action brought against it. Some of the acts committed by both sides of the Israeli-Palestinian conflict very probably constitute war crimes and crimes against humanity. Shamefully, Israel has not done enough to prosecute those who on its side are probably guilty of such acts, while the PA and especially the de facto Hamas government in Gaza have done nothing in that respect. Unless the ICC is seen as biased or able to be hijacked for political ends by one side or another, it should be welcomed rather than obstructed.

Other ways, suggested in the memo, in which the Israelis could be reassured by the wording of any UNGA resolution on Palestinian status are troublesome. For example, reiterating previous UN resolutions such as UN General Assembly Resolution 181 (which affirmed the Jewish character of the state) certainly would warrant more debate. The demand that Palestinians “recognize Israel as a Jewish state”, made by PM Netanyahu, seems unreasonable, and would certainly be politically very difficult for the Palestinian side to satisfy, while having no basis in international law (GA 181 is not law, and its wording is open to interpretation).

As Daniel Levy and Nick Witney argue, European votes in the UNGA are a valuable prize for both sides, and this is certainly a time when Europe would benefit from staking out a unified, powerful and coherent position on the international stage. But this does not mean that a ‘yes’ vote on an –as yet unknown Palestinian motion – is the best way forward. It is true that another internal EU division on a crucial international issue, after Kosovo and Libya, would be damaging to Europe’s international standing. Although I agree with my ECFR colleagues’ reasons against voting ‘no’, I am unconvinced by the arguments for voting ‘yes’. Abstaining would seem the desirable choice.