The Palestinians’ Unilateral “Kosovo Strategy”: Implications for the PA and Israel

http://jcpa.org/JCPA/Templates/ShowPage.asp?DRIT=2&DBID=1&LNGID=1&TMID=111&FID=443&PID=0&IID=3271&TTL=The_Palestinians’_Unilateral_”Kosovo_Strategy”:_Implications_for_the_PA_and_Israel

Dan Diker is Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, where he is also a senior foreign policy analyst. He is also an Adjunct Fellow of the Hudson Institute in Washington.

Published January 2010

TheJerusalem Viewpoints series is published by the Institute for Contemporary Affairs, founded jointly with the Wechsler Family Foundation.

No. 575 January-February 2010

• Mahmoud Abbas’ new precondition that the international community recognize the 1967 lines in the West Bank as the new Palestinian border bolsters the assessment that the Palestinians have largely abandoned a negotiated settlement and instead are actively pursuing a unilateral approach to statehood.
• Senior Palestinian officials note that Palestinian unilateralism is modeled after Kosovo’s February 2008 unilateral declaration of independence from Serbia. European and U.S. support for Kosovo’s unilateral declaration has led the Palestinian leadership to determine that geopolitical conditions are ripe to seek international endorsement of its unilateral statehood bid, despite the fact that leading international jurists have suggested that the cases of Kosovo and the Palestinian Authority are historically and legally different.
• The Palestinians are legally bound to negotiate a bilateral solution with Israel. Unilateral Palestinian threats to declare statehood have been rebuffed thus far by the European powers and the United States.
• The Palestinian “Kosovo strategy” includes a campaign of delegitimization of Israel, seeking to isolate Israel as a pariah state, while driving a wedge between Israel and the United States. The unilateral Palestinian bid for sovereignty will also likely turn the Palestinians into the leading petitioner against the State of Israel at the International Criminal Court. Although the PA is not a state and therefore should have no legal standing before the court, the petition it submitted to the court after the Gaza war was not rejected by the ICC.
• Finally, a unilateral Palestinian quest for the 1947 lines may well continue even if the 1967 lines are endorsed by the United Nations. The PLO’s 1988 declaration of independence was based on UN General Assembly Resolution 181, which recognizes the 1947 partition plan for Palestine, not the 1967 lines, as the basis for the borders of Israel and an Arab state.

Have the Palestinians Abandoned a Negotiated Settlement?

Washington’s intensive shuttle diplomacy as well as Arab pressure may convince Palestinian leader Mahmoud Abbas to return to the negotiating table with Israel. However, Abbas’ new precondition that the international community recognize the 1967 lines in the West Bank as the new Palestinian border bolsters the assessment that the Palestinians have largely abandoned a negotiated settlement and instead are actively pursuing a unilateral approach to statehood.¹

Senior Palestinian officials have also noted that Palestinian unilateralism is modeled after Kosovo’s February 2008 unilateral declaration of independence from Serbia.² European and U.S. support for Kosovo’s unilateral declaration, plus Palestinian confidence in its own international case, appear to have led the Palestinian leadership to determine that geopolitical conditions are ripe to seek international endorsement of its unilateral statehood bid, with the 1967 lines as its future borders.³

This assertive Palestinian shift to unilateralism has also been bolstered by a changing balance of power between the Palestinian Authority that was established at Oslo, and its “parent,” the Palestine Liberation Organization, which has embraced a unilateral approach to statehood since its 1988 unilateral declaration of independence but has not operationalized it. On December 15-16, 2009, the PLO Central Council convened in Ramallah where it unilaterally assumed the PA’s legislative authority, resolved to extend Abbas’ term indefinitely, and even voted to replace the PA Legislative Council that had been established as part of the internationally-sanctioned Oslo peace accords.⁴

The PLO Central Council meeting and its far-reaching resolutions provide another illustration of unilateral intentions that are rooted in former PLO Chairman Yasser Arafat’s 1988 PLO statehood declaration. However, despite Palestinian determination and a largely sympathetic international community, it’s unlikely that the Palestinian “Kosovo strategy” will end the decades-old conflict between Israel and the Palestinians. Instead, it may signal the final unraveling of the Middle East peace process.

Palestinians Invoke Kosovo’s Unilateral Statehood Model

Since February 2008, when the Albanian Muslim majority government in Kosovo unilaterally declared independence and secession from Christian Serbia, winning U.S. and European support, the Palestinian leadership has publicly invoked Kosovo as a model for a prospective Palestinian state. Yasser Abed Rabbo, senior advisor to Palestinian leader Mahmoud Abbas, told Agence France Presse immediately following the Kosovo declaration, “Our people have the right to proclaim independence even before Kosovo. And we ask for the backing of the United States and the European Union for our independence.”⁵

In late 2008, the collapse of the Annapolis peace negotiations between Abbas and former Israeli Prime Minister Ehud Olmert, who, as Abbas acknowledged publicly, had made unprecedented concessions,⁶further motivated the Palestinians to embrace a unilateral approach to statehood as a default option. Abed Rabo confirmed at the time that, “we have another option. Kosovo is not better than Palestine.”⁷

The Palestinians strengthened their bid for unilaterally-declared statehood in late 2009 and into 2010 while lobbying Europe, South America, and the UN for support, and simultaneously setting unprecedented preconditions for restarting negotiations with Israel.⁸ In November 2009, chief Palestinian negotiator Saeb Erekat threatened to unilaterally declare a Palestinian state on the 1967 lines, arguing that “the EU recognized the state” of Kosovo before other official channels supported its claim for independence. However, U.S. and European opposition to the move would force Erekat to deny his intentions. Instead, he insisted that the Palestinian Authority merely sought UN Security Council endorsement of a Palestinian state, which also mirrors Kosovo’s quest for a UN Security Council resolution proposing independence.⁹

Two leading international jurists have suggested that the cases of Kosovo and the Palestinian Authority are historically and legally different.¹⁰ However, from a Palestinian point of view, it seems that legal and historical context are less important than the sympathetic political perceptions that can be created in the international community by promoting what appear to be some external similarities.¹¹ The Palestinians liken themselves to Kosovo’s profile in the West as a besieged, indigenous population seeking freedom and independence from its brutal Serbian sovereign overlord, which in the Palestinian analogy is the State of Israel’s “occupation” of the disputed West Bank.¹²

True, both Palestinians and Muslim Kosovars enjoy international support for their respective bids for independence.¹³ Both have established internationally-sanctioned, self-governing authorities, receive European security backing and UN financial support, and work with UN-appointed special envoys, while each has penned a constitution. However, Kosovo enjoys a NATO security presence, which Palestinian negotiators have failed to introduce into the West Bank despite several attempts to do so in past peace negotiations with Israel.¹⁴

Another point of similarity between Kosovars and the Palestinians involves territory. The Kosovo model did not require a territorial compromise on the part of the Albanian Muslim Kosavar government to take into account areas where concentrations of Serbian Christian population remained.¹⁵ Similarly, the Palestinian leadership has been reluctant to compromise with Israel over Israeli population centers and vital security requirements in the West Bank.

Politically, many in the Palestinian leadership assess that adopting a unilateral “Kosovo strategy” and seeking international legitimacy to impose the 1967 borders on Israel is their best option, which, in their view, would automatically solve the issues of Jewish settlements and the status of Jerusalem without having to negotiate with Israel, while leaving the refugee issue to be decided according to the “agreed-upon solution” specified in the Arab peace initiative.¹⁶

Israel as the Palestinians’ “Serbian” War Criminal

Palestinian efforts to delegitimize Israel in the international community play a key role in their unilateral quest for independence. Mindful of former Bosnian Serb leader Radovan Karadzic, who was indicted by the Hague-based International War Crimes Tribunal for the 1995 massacre of 8,000 Muslim men and boys at Srebrenica, the Palestinian leadership has aggressively pursued a diplomatic intifada against Israel as a tool of “resistance” to criminalize and isolate the Jewish state in international circles, while simultaneously “leveraging up” the PA’s case for statehood.¹⁷ For example, Palestinian leaders have for years charged Israel with being an “illegal occupier” of Palestinian lands, and of building an “apartheid wall” – Israel’s security fence – in the West Bank. The Palestinian leadership has also promoted internationally its denial of any historical Jewish connection to Jerusalem.¹⁸

In January 2009, following the Gaza war with Hamas, Palestinian Justice Minster Ali Khashan petitioned the International Criminal Court to charge Israel with genocide, crimes against humanity, and war crimes.¹⁹Israel’s Foreign Ministry noted that the PA was also a driving force behind the establishment of the Goldstone mission by the UN Human Rights Council (HRC), and led the campaign in the HRC and the UN General Assembly to implement its conclusions.²⁰ Pro-Palestinian groups have filed scores of war crimes petitions in London and in other European courts, using the Rome Statute and laws of universal jurisdiction to seek the arrest of senior Israeli leaders.²¹

Palestinian Prime Minister Salam Fayyad has also advanced the notion of a “popular intifada” and has overseen the organization of committees for non-violent popular resistance against Israel that are expressed in the weekly, high-profile, Palestinian-led protests at Bil’in, Maasara, Ni’ilin, and more recently in Sheikh Jarah in Jerusalem.²² In December 2009, Fayyad characterized PA diplomacy as launching an “international intifada against Israel.”²³

The Influence of Fayyad’s Unilateral Statehood Plan

The Palestinian leadership’s numerous references to Kosovo’s unilateral statehood quest, in the context of public threats by Abbas and Erekat in November 2009 to unilaterally declare Palestinian statehood, must be seen against the backdrop of the August 2009 publication of Prime Minister Fayyad’s unilateral two-year statehood plan.

Western policymakers and observers have embraced the Fayyad plan as a positive development – a unilateral, “bottom up,” state-building plan whose main goal is to build the infrastructure for eventual Palestinian independence.²⁴ Some Israeli officials and legal experts have also praised aspects of the plan. However, its firm two-year deadline, and its massive state-building projects slated for Area C of the West Bank – which is under full Israeli control and includes the strategically vital Jordan Valley and its protective 3,000-foot hilltops overlooking Israel’s main airport and cities – renders the plan more of a pretext to unilaterally declare statehood.²⁵ In fact, Fayyad has provided clear indications that after two years, the establishment of a de facto Palestinian state will occur with or without Israel’s agreement.²⁶

In January 2010, Fayyad said, “Our people are determined to expunge all the distorted definitions described as Areas A, B, and C,” and that “Palestinian markets should burn products coming out of Jewish settlements.”²⁷ This would seem to suggest that Fayyad advocates sidelining the principle of a negotiated agreement that was enshrined and agreed upon in the Oslo accords, even to the point of resisting such previous agreements on the ground.

Favorable Geopolitical Conditions for the Palestinians

The Palestinian leadership did not adopt the unilateral “Kosovo strategy” ex nihilo. Leading members of the European Union encouraged the Palestinians to move in this direction. PA chief negotiator Saeb Erekat credited former EU foreign policy chief Javier Solana with engineering the idea.²⁸ In July 2009, Solana told a British forum that after a fixed deadline, the UN Security Council should unilaterally recognize a Palestinian state along the 1967 lines.²⁹ Palestinian unilateralism also received a boost in early December 2009 when Sweden, in the final thirty days of its rotating EU presidency, proposed that EU foreign ministers back its draft proposal recognizing east Jerusalem as the capital of a future Palestinian state, thus implying EU acceptance of a unilateral Palestinian declaration of statehood.³⁰

The EU Foreign Policy Council partly softened its final statement days later. However, as former UN ambassador Dore Gold notes, the final EU statement still retained the proposal that envisioned Jerusalem as the future capital of two states. Additionally, the statement said that the EU “would not recognize any changes to the pre-1967 borders including with regard to Jerusalem,” thereby enshrining the 1967 lines – a key Palestinian demand – as a previous political border.³¹ Palestinian unilateralism has also drawn encouragement from the United Nations itself. UN Secretary General Ban Ki-moon has reportedly issued expressions of support for such moves, according to former PA security chief Mohammed Dahlan and Saeb Erekat in a November 14, 2009, interview with the Palestinian newspaper Al-Ayyam.³²

U.S. Policy

The Palestinians’ roller-coaster relationship with the United States over the past two years has ended up giving the Palestinians’ “Kosovo strategy” a push forward. In 2008 the Bush administration had rejected the Palestinian comparison between Kosovo and the Palestinian Authority, encouraging the PA to continue to pursue the Annapolis process.³³ However, the Palestinian Authority rejected Washington’s opposition, despite Palestinian participation at Annapolis. Abbas’ spokesman, Yasser Abed Rabo, noted, “Our people have the right to proclaim independence as the people of Kosovo did. We were occupied long before the Kosovo problem emerged.”³⁴

Since then, Palestinian disappointment with the Obama administration’s policy reversal on an Israeli settlement freeze as a precondition to negotiations has fueled the unilateral Palestinian statehood bid. Secretary of State Hillary Clinton’s praise of Israel’s settlement moratorium and her calls for an unconditional resumption of peace talks convinced Palestinians that the United States would not “deliver” Israel.³⁵ Abbas was also worried about Secretary Clinton’s statement noted in the Arabic press during her visit to Qatar that negotiations are about “give and take.” He inferred that Clinton meant removing the principle of the 1967 borders from the table – which the Palestinians took as a hint that the Obama administration may have been reviving President Bush’s 2004 presidential letter to former Prime Minister Ariel Sharon that provided U.S. presidential backing for Israeli settlement blocs and denied the right of return to Palestinian refugees. Abbas contrasted Clinton’s latest statements with her much tougher statements on Israeli settlements in May 2009, when she said, “Not some settlements, not outposts, not natural growth exceptions.”³⁶

Former PA Minister Ziad Abu Ziad assessed that “the Palestinian leadership had thought that Obama had become more Palestinian than the Palestinians, that he would stop settlements, remove them, and establish a Palestinian state.”³⁷ Rather, U.S. pressure on Abbas to return to negotiations with Israel without preconditions has appeared to weaken Abbas both among the political echelons of Fatah and on the Palestinian street,³⁸ and has severely compromised his ability to negotiate with Israel. Additionally, the terms of reference which Clinton had used in January 2010, to try to reconcile Israeli demands for secure and recognized boundaries with Palestinian demands for a state on the 1967 lines, seem to justify Abbas’ concerns.

Despite Palestinian disenchantment with Washington, there are signs that the Obama administration position supports the Palestinian demand for a state along the 1967 lines and a Palestinian capital in east Jerusalem,³⁹ which are central objectives of the Palestinian “Kosovo strategy.” According to one assessment, Obama may have even supplied the Palestinians with a letter of guarantee to that effect.⁴⁰While the U.S. is publicly committed to the principle of a negotiated solution between the sides, it has grown impatient with the bilateral process. White House Chief of Staff Rahm Emanuel reportedly expressed deep frustration with both the PA and Israel, which supports the Palestinian sense that they are on the right track in pursuing a unilateral “Kosovo” option.

Internal Palestinian Considerations

The Palestinians’ “Kosovo strategy” has also been bolstered by a shift in the balance of power from the internationally-sanctioned Palestinian Authority to its parent organization, the Palestine Liberation Organization. Abbas’ refusal to stand for re-election and the PA’s failure to hold new parliamentary elections has led to a governmental deadlock. Hamas’ nominal control of the PLC since its 2006 electoral victory, as well as its rule in Gaza and its refusal to reconcile with Fatah or to cooperate in holding elections for the PA in January 2010, is another major source of the PA’s paralysis. Abbas also fears a Hamas takeover of the West Bank.⁴¹

At the PLO Council’s mid-December meeting, it unilaterally assumed the PA parliament’s legislative authority and extended Abbas’ leadership indefinitely, recognizing Abbas as Chairman of the PLO, as opposed to Chairman of the PA. By definition, the PLO move sidelined Hamas’ majority control in the PA parliament.⁴² Despite the PLO Council’s decision to delay the official replacement of the PA parliament, the meeting unilaterally restored the PLO’s power in Palestinian parliamentary politics that had characterized the period under Arafat’s rule.⁴³

Should the PLO implement its recent resolution, collapse the PA, and rule the West Bank, it will create a vacuum of international legal legitimacy, as the PA was recognized by the Oslo agreements as an interim governing body. Therefore, this latest internal move will likely accelerate PLO decision-making regarding a unilateral declaration of statehood. The case has a precedent: in 1999, it was precisely this consideration that caused the Palestinian leadership to consider unilaterally declaring a Palestinian state as Oslo’s five-year interim period was about to expire.

Reenergizing International Support for the PLO’s 1988 Statehood Declaration

The PLO Council meeting also illustrated a strategic shift from the bilateral negotiations with Israel of the past 17 years. The PLO Council reenergized the Palestinian National Council’s 1988 declaration of independence in Algiers, which had been endorsed by 104 countries and resulted in UN recognition of the PLO’s proclamation.⁴⁴ Beginning in 1989, this brought the UN to refer to the PLO as “Palestine,” but without formal statehood status in view of firm U.S. and European opposition to the PLO declaration, since the PLO did not satisfy the basic criteria for statehood under international law.⁴⁵

The PLO’s unilateral statehood declaration was never shelved even during the Oslo years, despite the signed agreement between the Palestinian Authority and Israel affirming a negotiated solution based on UN Security Council Resolutions 242 and 338, which also governed all subsequent peace initiatives including the Quartet-sanctioned Roadmap and the Annapolis process.⁴⁶ In fact, Arafat and other senior PLO and PA representatives had repeatedly asserted their right to declare statehood unilaterally during the Oslo period without prior coordination or agreement with Israel, and even threatened to make such a declaration on several occasions, including at the United Nations in 2000.⁴⁷

That explains the far-reaching significance of the PLO Central Council’s sudden reemergence as the Palestinian legislative authority. It established a new pretext to cancel previously signed agreements, both with respect to the exchange of letters with the PLO in September 1993 at the White House and to the 1995 interim agreement with the Palestinian Authority. A reinvigorated PLO strategy now seeks UN Security Council endorsement of the 1988 PLO declaration of statehood in an effort to impose the 1949 armistice lines (the 1967 borders) on Israel – which Abbas and other senior Palestinian leaders publicly sought in November 2009.⁴⁸ On January 8, 2010, Abbas reiterated this threat if the United States failed to impose Palestinian preconditions on Israel as part of Washington’s efforts to jump-start peace talks.⁴⁹ Waleed al-Awad of the former communist Peoples Party noted that the goal of the PLO Central Council meeting was to “place an international siege on Israel.”⁵⁰

Prospects for Palestinian Success

The Palestinian gambit for pursuing a “Kosovo strategy” is anything but certain. The Palestinians are legally bound to negotiate a bilateral solution with Israel. Unilateral Palestinian threats to declare statehood have been rebuffed thus far by the European powers and the United States. However, the Palestinians believe that under fluid political conditions and growing U.S. impatience over getting the parties to return to the negotiating table, support for Palestinian unilateralism is possible and necessary for success. Foreign Minister Riyadh al-Malki told the London-based Asharq Alawsatthat the main goal of Palestinian diplomacy is winning U.S. support, so that when the Arab countries jointly appeal to the UN Security Council, the Obama administration will not veto a resolution that will finally affirm the pre-1967 lines as the borders of a Palestinian state.⁵¹

There is also a wide gap between Palestinian aspirations for unilateral statehood and their poor performance on the ground. Palestinian governance has been marked by several failures. The PA has not delivered reforms to its constituency. Government corruption and unemployment are still major issues. The PA failed to hold the promised 2010 elections, which resulted in the PLO Central Council resolution to replace the PA Legislative Council. But that decision has also been tabled for the interim. Meanwhile, the split between Hamas in Gaza and Fatah in the West Bank may prove to be irreconcilable.

The Palestinian leadership’s rush to act already as a de facto state has not succeeded, even in the basic administrative tasks of issuing passports and currency.⁵² In December 2009, Maan, a leading Palestinian news organization, raised doubts as to the effectiveness of the PLO’s “Kosovo strategy” and questioned the wisdom of turning the international arena into a confrontation line between the Palestinians and Israelis. It emphasized that unilateral “success will benefit the Palestinians, while failure will inflict political catastrophe.”⁵³

Implications for Israel

The Palestinian “Kosovo strategy” contains several major implications for Israel. First, the Palestinian delegitimization of Israel in the interim poses a strategic threat. The Palestinian state-building process has succeeded in painting Israel as a pariah state, while the hidden foreign policy agenda of the PA and PLO leaderships is to drive a wedge between Israel and the United States. Although unlikely, if the Palestinians win international endorsement of sovereignty along the 1967 lines, Israel will become persona non grata anywhere east of the “green line,” including in many central neighborhoods within its own capital city, Jerusalem, that have been developed since the 1967 war.

The unilateral Palestinian bid for sovereignty will also likely turn the Palestinians into the leading petitioner against the State of Israel at the International Criminal Court. An early indication of what can be expected if the PA’s “Kosovo strategy” comes to fruition may be seen in the petition submitted to the court by the PA after the Gaza war. Although the PA is not a state and therefore should have no legal standing before the court, its petition was not rejected by the ICC.

Finally, the unilateral Palestinian quest for the 1947 lines may well continue even if the 1967 lines are endorsed by the United Nations. The PLO’s 1988 declaration of independence was based on UN General Assembly Resolution 181, which recognizes the 1947 partition plan for Palestine, not the 1967 lines, as the basis for the borders of Israel and an Arab state.

This threat is not theoretical. In 1999, former Palestinian UN Ambassador Nasser al-Kidwa, today a senior Palestinian official and a major proponent of UN endorsement of a unilaterally-declared Palestinian state, submitted a letter on behalf of the PLO asserting that Resolution 181 and its corresponding 1947 partition plan are accepted by the PLO and cannot be annulled, as they provide the legal basis for the existence of both Jewish and Arab states in Mandatory Palestine.⁵⁴ Since then, Resolution 181 has been invoked by other Palestinian leaders. In view of the PLO’s intention to replace the PA as the legitimate legal authority to carry out the Palestinians’ Kosovo model, the implications of unilateral Palestinian action are far-reaching.

* * *

Notes

1. Khaled Abu Toameh and Herb Keinon, “Recognition of ‘67 Border Before Talks,” Jerusalem Post, December 15, 2009. Abbas announced at the PLO Central Council meeting on December 15, 2009, that the Palestinians will not resume peace talks with Israel unless the international community recognized the “1967 borders” as the boundaries of a Palestinian state. Abbas’ latest precondition, as well as the complete Palestinian rejection of all Israeli concessions and gestures since the failed Annapolis peace process – including Prime Minister Benjamin Netanyahu’s recognition of a demilitarized Palestinian state, a virtually complete settlement moratorium in the West Bank, and the granting of amnesty to hundreds of members of Palestinian terror groups – illustrates a Palestinian refusal to negotiate with Israel. See “The Palestinian Refusal to Negotiate Peace,” Israel Ministry of Foreign Affairs, January 4, 2010, http://www.mfa.gov.il/MFA/About+the+Ministry/Behind+the+Headlines/Palestinian_refusal_negotiate_peace-Jan_2009.

2. “Erekat: It’s Time to Recognize a Palestinian State,” Ma’an News, November 17, 2009. See also, “Palestinians Should Follow Kosovo Example: Negotiator,” Agence France Press, February 20, 2008, http://afp.google.com/article/ALeqM5iS_5y-7raxAQIhNgJDtMOIhadGrg.

3. “Palestinians Unveil Two-Year Development Plan for Statehood,” Ha’aretz, November 15, 2009.

4. http://www.mofa-gov.ps/ar/index.php?p=main&id=22. The PLO Central Council also voted to delay implementing the replacement of the Oslo-sanctioned Palestinian Legislative Council (PLC), extending the PLC’s role in the interim until elections can be called “at the earliest possible date.”

5. Yaakov Katz, “Taking a Cue from Kosovo,” Jerusalem Post, September, 3, 2009.

6. Abbas acknowledged to the Washington Post ‘s Jackson Diehl after the failure of Annapolis that Olmert’s offer of 97 percent of the West Bank and the recognition of the right of return (that included the return of 100,000 refugees – DD) was more generous to the Palestinians than the offers of either George Bush or Bill Clinton, and yet Abbas said: “The gaps were wide.” See Jackson Diehl, “Abbas’ Waiting Game,”Washington Post, May 29, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/05/28/AR2009052803614.html.

7. Ali Abunimah, “Kosovo and the Question of Palestine,” Electronic Intifada, February 25, 2008.

8. “Erekat Unimpressed with New U.S. Attitude,” January 9, 2009, Jerusalem Post,http://www.jpost.com/servlet/Satellite?cid=1262339435514 & pagename=JPost%2FJPArticle%2FShowFull.

9. Tova Lazeroff and Herb Keinon, “Erekat Denies PA Unilateralism Plans,” Jerusalem Post, November 18, 2009, http://www.jpost.com/servlet/Satellite?cid=1258489190816&pagename=JPost%2FJPArticle%2FPrinter. In the Kosovo case, UN Security Council Resolution 1244, passed in 1999, established Kosovo as a UN Protectorate. However, similar to the Palestinian case, Kosovo has not yet won a UNSC resolution for independence, since the Security Council has been unable to agree on a resolution backing supervised independence. See International Crisis Group Analysis, http://www.crisisgroup.org/home/index.cfm?id=3225&l=1.

10. Separate conversations with international law experts Professor Ruth Lapidot and Professor Irwin Cotler, former Justice Minister of Canada, in Jerusalem, December 21, 2009.

11. Kosovo – a province of Serbia – has been under international trusteeship since NATO’s armed intervention in 1999. UN Security Council Resolution 1244 provided international sanction for UN trusteeship. For Serbs, Kosovo is an ancestral homeland and the site of many important Serbian Orthodox churches and monasteries. They insist that the area remain under Serbian sovereignty. The current state of limbo, tension, and sporadic violence between Kosovo’s Albanian majority, which is mostly Muslim, and the Serbian minority, which is mostly Orthodox Christian, has mobilized international support away from the notion of a multi-ethnic society there and ratcheted up support for Kosovo’s break from Serbia.

12. Clearly, the legal analogy does not work. Kosovar independence, currently being considered by the International Court of Justice, requires the consent of Serbia, the sovereign power, notwithstanding exceptional cases of brutality that would obviate agreement of the sovereign. Ironically perhaps, legally, the Palestinians must also receive Israel’s agreement in any final status arrangement over final borders, as enshrined in UN Security Council Resolution 242, and as agreed upon at Oslo and in the 2002 Roadmap.

13. The Kosovo case was referred by the UN General Assembly to the International Court of Justice on October 8, 2008, for an advisory opinion as to the legality of Kosovo’s unilateral declaration. The ICJ opinion is still pending. See http://www.icj-cij.org/docket/files/141/14797.pdf.

14. http://reut-institute.org/en/Publication.aspx?PublicationId=3679.

15. A map of Kosovo reveals that its ethnic composition leaves the minority Serb population contained in the provinces in Kosovo’s north, leaving the majority of the land to the Muslim Kosovar majority without the risk of geographical interlocking or overlapping communities.

16. The 2002 Arab Peace Initiative referred to the issue of refugees thus: “Achievement of a just solution to the Palestinian refugee problem to be agreed upon in accordance with UN General Assembly Resolution 194.” http://www.guardian.co.uk/world/2002/mar/28/israel7.

17. Dan Diker, “Why Israel Must Now Move from Concession-Based Diplomacy to Rights-Based Diplomacy,” Jerusalem Viewpoints #554, June-July 2007,http://www.jcpa.org/JCPA/Templates/ShowPage.asp ? DRIT=2&DBID=1&LNGID=1&TMID=111&FID=253&PID=0&IID=1607&TTL= Why_Israel_Must_Now_Move_from_Concessions-Based_Diplomacy_to_Rights-Based_Diplomacy. See also “Palestinian Refusal to Negotiate Peace.”

18. See examples of Palestinian leadership denials of the Jewish Temple in Jerusalem in Dore Gold, The Fight for Jerusalem (Washington: Regnery Publishing, 2007), pp. 10-11.

19. John Quigly, “The Palestine Declaration to the International Criminal Court: The Statehood Issue,”Rutgers Law Record, vol. 35, (Spring 2009), http://www.lawrecord.com/files/35-rutgers-l-rec-1.pdf.

20. “Palestinian Refusal to Negotiate Peace.” Daniel Reisner, former head of the Israel Defense Forces’ International Law Department, pointed out in interviews on January 6, 2010, on Army Radio and Channel 10 that Fayyad’s government successfully appealed to the International Criminal Court without having the status of a sovereign state. Surprisingly, Reisner noted, the court did not dismiss the appeal, which underscores the vigorous efforts of PA Foreign Minister Riyadh al-Malki to upgrade the status of the PA to a sovereign state, which would in turn leverage up the number and effectiveness of Palestinian petitions to the ICC against the Israeli government and military officials.

21. In late 2009, Defense Minister Ehud Barak narrowly escaped arrest while on an official visit to London, while Israeli opposition leader and former foreign minister Tzippi Livni cancelled a planned visit to London, fearing arrest. http://www.myfoxchicago.com/dpp/news/international/Israeli_Military_Delegation_Cancels _Britain_Trip_Fearing_Possible_War_Crime_Charges_25944716.

22. On March 22, 2009, Fayyad convened in his bureau the committees of the “popular intifada,” as opposed to the military one. These committees were charged with organizing public activities against the security barrier and the settlements. Fayyad told them: “This example of resistance received respect, appreciation and support worldwide.” Al-Hayat al-Jadeeda, March 22 2009. See also Dan Diker and Pinhas Inbari, “Is the Palestinian Authority Stable Enough for Peace Talks? Assessing the Resignation and Return of Prime Minister Salam Fayyad,” Jerusalem Issue Brief, vol. 9, no. 3, June 16, 2009,http://www.jcpa.org/JCPA/Templates/ShowPage.asp ? DBID=1&LNGID=1&TMID=111&FID=442&PID=0&IID=3007. For a typical anti-Israel protest website, see http://www.awalls.org/.

23. http://www.aawsat.com/details.asp?section=4&article=548758&issueno=11341.

24. U.S. Senator Joe Lieberman, visiting Ramallah in November 2009, said, “I know some people concerned that this is unilateral, but it seems to me that it is unilateral in the healthy sense of self-development.” See “Fayyad, PA Getting Ready for Statehood,” Jerusalem Post, November 15, 2009. See also Dan Diker and Pinhas Inbari, “Prime Minister Salam Fayyad’s Two-Year Path to Palestinian Statehood: Implications for the Palestinian Authority and Israel,” Jerusalem Issue Brief, vol. 9, no. 11, October 2, 2009,http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DBID=1&LNGID=1&TMID=111&FID =442&PID=0&IID=3096.

25. Alan Baker, “A Paradox of Peacemaking: How Fayyad’s Unilateral Statehood Plan Undermines the Legal Foundations of Israeli-Palestinian Diplomacy,” Jerusalem Viewpoints, no. 574, November-December, 2009,http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DBID=1&LNGID =1&TMID=111&FID=443&PID=0&IID=3185.

26. Diker and Inbari, “Fayyad’s Two-Year Path.”

27. http://www.maannews.net/arb/ViewDetails.aspx?ID=252188.

28. “Erekat: PA May Declare State via UN,” Ynet News, November 14, 2009, http://www.ynet.co.il/english/articles/0,7340,L-3804948,00.html.

29. Assaf Uni, Jack Khoury, and Yanir Yagna, “EU Chief Urges UN to Set Unilateral Timetable for Palestinian Statehood,” Ha’aretz, July 13, 2009.

30. Barak Ravid, “EU Draft Document on Division of Jerusalem,” Ha’aretz, December 2, 2009, http://www.haaretz.com/hasen/spages/1131988.html.

31. Dore Gold, “Europe Seeks to Divide Jerusalem,” Jerusalem Issue Brief, vol. 9, no. 14, December 10, 2009.

32. Baker, “A Paradox of Peace Making.”

33. “Washington Rejects Palestinian Kosovo Comparison,” AFP, February, 20, 2008.

34. Ibid.

35. http://www.haaretz.com/hasen/spages/1124825.html.

36. Isabel Kershner, “Israeli Settlement Growth Must Stop, Clinton Says,” New York Times, May 28, 2009.

37. Khaled Abu Toameh, “Palestinians and Obama, End of a Honeymoon,” Hudson Institute New York, November 24, 2009.

38. Khaled Abu Toameh, “Why Is Abbas Stonewalling?” Jerusalem Post, December 24, 2009.

39. “Obama Tells Abbas Committed to PA State,” Ynet News, October 23, 2009. Following Obama’s phone call to Abbas, his spokesman, Nabil Abu Rudeinah, said, “It was a very important conversation for the future of the peace process and the region.” As the Palestinians’ sole priority has been to win U.S. and international endorsement for the 1967 lines, the PA’s uncharacteristically positive reaction to Obama after Washington’s reversal of its former precondition of a total Israeli settlement freeze strongly suggests an Obama commitment on the central Palestinian demand.

40. Amidst the growing tensions between the U.S. and Israel over Israeli construction in the Jerusalem neighborhood of Gilo, Israeli journalist Akiva Eldar wrote, “The Obama administration has recently begun discussing how to appease Abbas. For example, by giving him letters spelling out U.S. support for a final status arrangement based on the 1967 borders and reaffirming Washington’s position that Jerusalem is divided into eastern and western parts.” See Akiva, Eldar, “Will Netanyahu’s Behavior Push Obama into Abbas’ Arms?” Ha’aretz, November 19, 2009.

41. Abbas reportedly revealed to a Kuwaiti newspaper that he had “verified information that Hamas was planning to take over the West Bank. Khaled Abu Toameh, “Can Hamas Be Stopped from Seizing the West Bank,” Hudson Institute New York, January 5, 2010, http://www.hudsonny.org/2010/01/can-hamas-be-stopped-from-seizing-west-bank.php.

42. While many Hamas PLC lawmakers remain in Israeli custody, the Palestinian leadership wanted to remove Hamas from even formal majority control of the Palestinian Authority’s Legislative Council.

43. Salim Zanoun, Chairman of the PLO’s National Council, noted that the Palestinian Authority was the legal child of the PLO and the Central Council which the PNC established in 1994. The Palestinian Ministry of Foreign Affairs further explained the proposed but yet to be implemented PLO takeover of the PA Parliament, saying: “The PA’s duty is only to provide services to the Palestinians.” Hence, the PLO and not the PA is the only legal body empowered to declare a state, http://www.mofa-gov.ps/ar/index.php?p=main&id=22. Ironically, perhaps, the PLO Council did not uproot the PA and endorsed the continued functioning of the Palestinian Authority’s legislative council, in order to enjoy the ongoing receipt of billions of dollars in international donor contributions. The PA received $3 billion in 2008, according to French estimates, while the December 2007 Paris donors’ conference pledged over $7 billion in aid to the PA over the years 2008-2010. See Dan Diker and Khaled Abu Toameh, “Can the Palestinian Authority’s Fatah Forces Retake Gaza?” Jerusalem Viewpoints, no. 569, January-February 2009, http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DBID=1&LNGID=1&TMID=111&FID=443&PID=0&IID=2842.

44. While not recognizing Palestine as a state, 104 countries recognized the 1988 Palestine Liberation Organization’s Declaration of Independence. See John Quigly, “The Palestine Declaration to the International Criminal Court.” See also Palestinian National Council, Declaration of Independence, November 15, 1988, UN Doc. A/43/827, S/20278, Annex III, November 18, 1988, reprinted in 27 I.L.M. 1668 (1988). The August 2009 publication of PA Prime Minister Salam Fayyad’s “Two-Year Plan to Palestinian Statehood” is seen by most Western and many Israeli observers as a unilateral state-building plan in its initial phases, but not necessarily one in which Fayyad or the PA will unilaterally declare a Palestinian state in 2011, thereby maintaining the framework of a negotiated solution.

45. Tal Becker, “International Recognition of a Unilaterally Declared Palestinian State, Legal and Policy Dilemmas,” Jerusalem Center for Public Affairs, http://www.jcpa.org/art/becker1.htm.

46. Baker, “A Paradox of Peacemaking.”

47. Becker, “International Recognition of a Unilaterally Declared Palestinian State.”

48. “Erekat: It’s Time to Recognize a Palestinian State,” Ma’an News. See also “Abbas: Only Solution Is to Declare Palestinian State,” Ha’aretz, November 25, 2009, http://www.haaretz.com/hasen/spages/1128786.html.

49. Hilary Leila Krieger, “Jerusalem Rejects 2-Year Peace Deadline,” Jerusalem Post, January 8, 2010.

50. Maan News (Arabic), December 12, 2009, http://www.maannews.net/arb/ViewDetails.aspx?ID=245977.

51. http://www.aawsat.com/details.asp?section=4&article=548758&issueno=11341.

52. For example, Palestinian Foreign Minister Riyadh al-Malki signed a state-to-state agreement with Francewhich is an upgrade of the PA’s political status on the declarative level, but the Palestinians had to backtrack from practical decisions expressing unilateral statehood, such as issuing a Palestinian currency or issuing Palestinian passports. The Lebanese daily al-Akhbar reported that one of the main purposes of Abbas’ visit to Beirut was to deal with the rejection of issuing passports to the Palestinian refugees inLebanon, as they believed passports would cost them the right of return. Abbas, according to the report, accepted the claim and rescinded the issuing of passports.

53. http://www.maannews.net/arb/ViewDetails.aspx?ID=245885.

54. See the letter submitted by PLO Ambassador Nasser al-Kidwa to the General Assembly, http://www.jcpa.org/art/jid-apx.htm#plo181.

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