- Hamas and Palestinian Leadership Seek Political Gains Through Violence: The October 7, 2023 massacre by Hamas was, in part, aimed at reigniting international recognition for the “State of Palestine.” Despite the violence, several countries have moved toward recognizing Palestinian statehood – a reward for terrorism.
- The “State of Palestine” Fails to Meet International Criteria for Statehood: According to the Montevideo Convention and UN Charter, statehood requires a permanent population, defined territory, effective government, and the ability to enter international relations. The Palestinian leadership does not meet these standards.
- The Oslo Accords Preclude Unilateral Statehood Declarations: The 1990s agreements between Israel and the PLO explicitly deferred statehood and borders to future negotiations. Any recognition of Palestinian statehood outside this framework violates the Accords.
- The PA’s Own Statements Undermine Its Statehood Claim: In legal defense against lawsuits following the October 7 massacre, the Palestinian Authority admitted it has no control over Gaza, contradicting its statehood claims which include Gaza as part of its territory.
- International Recognition Efforts Are Politically Motivated and Legally Baseless: Efforts by France, the UK, and Canada to promote a two-state solution ignore the legal and factual deficiencies in Palestinian claims to statehood and incentivize further violence.
One of the most prominent goals Hamas set for the October 7, 2023, massacre was to re-ignite and bolster the international discussion regarding the recognition of the “State of Palestine.” Shamefully, ten countries have already given Hamas the greatest reward and have responded to the murder, torture, rape, beheading, and kidnapping of over 250 people by recognizing the “State of Palestine.”
Next in line to grant the ultimate reward for the wanton murder of Jews appears to be French President Emmanuel Macron who, together with the UK and Canada, is promoting a high-level conference on “the two-state solution.”
Similar to the goals of Hamas, the Palestinian leadership is also pushing for the recognition of the “State of Palestine.” In support of their claim, they often say that the fact that 147 United Nations countries recognize the “State of Palestine” is proof of its existence. Closer inspection of the record of recognition, specifically the timing of the recognition, exposes an interesting and deceptive reality.
But what does it mean to recognize a new state? What criteria are required for an entity to become a “state”?
Legal Criteria for Recognizing a State
The 1933 Montevideo Convention on the Rights and Duties of States sets the basic criteria for recognizing emerging states. Article 1 provides the most widely and internationally accepted formula for recognizing statehood in international law, requiring the new state to meet four cumulative criteria: a permanent population; a defined territory; a government; and capacity to enter into relations with other states.
UN Procedure for Recognizing a New State
According to the UN Charter (Articles 4, 18, and 27) the UN can only admit a new state if nine (including all five permanent members) of the 15 members of the UN Security Council (UNSC) recommend doing so and that such recommendation is thereafter adopted by two-thirds of the states who are members in the UN General Assembly (UNGA).
According to the accepted process, a state that seeks UN membership is required to submit a request to the UN Secretary General. The request is then transmitted to the UN Committee on the Admission of New Members, which in turn provides its recommendation to the UNSC.
To date, the UN has never admitted a new state without the positive recommendation of the Committee on the Admission of New Members and without the approval of the UNSC.
In addition to the formal request, a state seeking UN membership is also required to provide a declaration that it is a “peace-loving state” which accepts the obligations contained in the UN Charter.
The Record of Recognition of the “State of Palestine”
Of the 147 UN states that ostensibly have recognized the “State of Palestine,” 100 countries did so between February 4, 1988 (Iran) and November 1, 1995 (Kyrgyzstan). Most of these countries (82 of them) gave their recognition in November and December of 1988, in response to the November 15, 1988, “Declaration of Independence” issued by Yasser Arafat and the PLO.
At the time, the PLO was a pariah organization that had been expelled from Jordan in 1970 and from Lebanon in 1982, and was being hosted in Tunisia. In the declaration, Arafat gave no indication as to what comprised the population of the new state. Moreover, the declaration appeared to cover the entire territory from the Jordan River to the Mediterranean Sea and, in practice, denied Israel’s existence and the right of the Jewish state to exist at all.
Similarly, at the time, even the semblance of a governmental apparatus that the PLO had tried to construct did not govern any of the territory to which it laid claim. Consequently, the entity was incapable of performing any of the requisite functions associated with governance including, but not limited to, any capacity to engage in foreign relations.
Considering the criteria for statehood, and in reference to Arafat’s declaration, Professor Malcolm Shaw found, “For this reason at least, therefore, the ‘State of Palestine’ declared in November 1988 at a conference in Algiers cannot be regarded as a valid state. The Palestinian organizations did not control any part of the territory they claim.”
Did the Oslo Accords Change Anything?
In the Oslo Accords, Israel and the PLO agreed to establish a “Palestinian Authority” (PA) as an agency to administer the implementation of the provisions of the Accords in Judea, Samaria, and Gaza. The parties agreed that the PA would have powers and responsibilities to govern the daily lives of the Palestinians resident in areas that would be transferred to its control. The accords made absolutely no mention of the creation of a “State of Palestine.”
To the contrary, in the accords, the issue of statehood, including such issues as Jerusalem, security arrangements, settlements, refugees, borders, and foreign relations, were left open for “permanent status negotiations.” Negating the ability to unilaterally declare a Palestinian state, Israel and the PLO further agreed that “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.”
Clearly, and by definition, the Israeli-Palestinian commitment to “permanent status negotiations” precludes any predetermination by any foreign state, parliament, international or regional organization president or international leader, of the outcome of such negotiation by attempting to recognize, initiate, support, or sponsor a Palestinian state outside the agreed negotiating forum.
Furthermore, the Oslo Accords were formally witnessed by the United States, Russia, Egypt, the EU, and Norway and subsequently affirmed by the UN. In so doing, these states and organizations, including France, are under an international obligation not to act to undermine or to contravene the Oslo Accords.
Since the formation of the PA in 1996 and through 2010, 11 more countries recognized Arafat’s non-existent “State of Palestine.”
Abbas Requests UN Recognition of the “State of Palestine”
In breach of the commitments of the PLO in the Oslo Accords, in September 2011, PLO and PA leader, Mahmoud Abbas, submitted a unilateral request to the UN to admit the “State of Palestine” as a member state. In the application, Abbas referred, inter alia, to Arafat’s invalid declaration.
Between 1996 and 2011, Palestinian terrorists carried out tens of thousands of terror attacks, including shooting attacks, stabbings, bombings, suicide attacks, kidnappings, and launching rockets and mortars indiscriminately targeting Israel’s civilian population, causing the death or injury of thousands of Israelis. Despite the fact that many of the attacks were carried out by terrorist groups associated with the PLO, Abbas nevertheless brazenly submitted the necessary declaration that the State of Palestine is a “peace-loving state.”
This evidently did not create any shock or surprise among the states in the international community, and pursuant to UN procedure, Abbas’s request was simply sent to the Committee on the Admission of New Members for consideration.
In its deliberations, while Abbas never expressly amended the declaration of Arafat that the territory of the State of Palestine would supersede and erase Israel, the erroneous assumption was made that Abbas was willing to suffice with the territory that he referred to as delineated by “the 4 June 1967 borders” – i.e. Judea, Samaria, the Gaza Strip, and eastern Jerusalem.
In reality of course, “the 4 June 1967 borders,” is a term deceptively invented by the Palestinians, to describe the armistice lines set between Israel and its neighbors in 1949 at the end of Israel’s War of Independence. Those lines, according to the armistice agreements, and as expressly demanded by the Arab countries in the text of the agreements, specifically provided that the lines drawn would not be considered as “borders.”
The reason for those Arab demands in the 1949 Armistice negotiations were at least two-fold. Firstly, they refused to agree to any “border” since that would imply the existence of another legitimate sovereign country on the other side of the border. Since the Arab countries rejected Israel’s right to exist, they would not agree to any delineation of a border.
Secondly, having rejected the 1947 UN Partition Plan, five Arab countries launched a war of annihilation against the nascent Jewish state. Despite being heavily outnumbered, Israel not only survived, but also took control of more territory than the non-binding and non-authoritative Partition Plan had allocated to the Jewish State. In the eyes of the Arab countries, agreeing to the delineation of borders in place of the armistice lines would have solidified Israel’s control and sovereignty over those areas.
While some members of the Committee on the Admission of New Members were willing to ignore reality and recommend the recognition of the “State of Palestine,” others were reluctant.
Among other issues, the reluctant members of the committee pointed to the fact that the Palestinians did not even control the territory they claimed. Specifically, “Questions were raised, however, regarding Palestine’s control over its territory, in view of the fact that Hamas was the de facto authority in the Gaza Strip.”
Regarding the criteria of government, they added that “Hamas was in control of 40 percent of the population of Palestine; therefore, the Palestinian Authority could not be considered to have effective government control over the claimed territory.”
Similarly, while some members of the committee were willing to ignore Palestinian terror and blindly accept the Palestinian “commitment to the achievement of a just, lasting and comprehensive resolution of the Israeli-Palestinian conflict,” others noted their reservations “since Hamas refused to renounce terrorism and violence, and had the stated aim of destroying Israel.”
Interestingly, no reference whatsoever was made to the lack of any PLO/PA governance over any part of the area of “East Jerusalem” claimed by Abbas.
After thorough consideration, the committee remained “unable to make a unanimous recommendation to the Security Council.” Therefore Abbas’s bid for the admission of the “State of Palestine” failed.
While the UNGA did vote in 2012 to upgrade the Palestinian political representation in the UN to the level of “Non-member Observer State,” this was not considered to be a factual or legal equivalent to recognizing the existence of the “State of Palestine.”
Abbas Joins Hamas and Seeks to Make Political Gain from the October 7 Massacre
After thousands of terrorists from the Gaza Strip invaded Israel on the morning of October 7, 2023, murdering almost 1,200 people, raping, torturing, and beheading many victims, and kidnapping hundreds more, the Palestinian leadership again sought to make political gain, and renewed the request to the UN to admit the non-existent “State of Palestine” as a full UN member.
This new request ignored the massacre, over a decade of violent Palestinian terror since 2012, and the fact that in reality, almost nothing had changed since the previous attempt. The reason to say that almost nothing had changed, was not because the Palestinian leadership had expanded its control, whether in Gaza, Judea, Samaria, or Jerusalem, but rather, since in the interim period, it had even lost substantial parts of its control in Judea and Samaria.
Palestinian opinion polls indicated that the Palestinians living under the PA governance now saw the PA as a burden on the Palestinian people rather than an asset. The polls also indicated the consistent decline of the PLO as their representative.
Internally, Abbas had refrained from holding elections knowing that he and his Fatah party would lose, and substantially, to Hamas, as they did in the 2006 elections. Abbas knew that if he allowed the Palestinians the choice, the allegedly “peace-loving” “State of Palestine” would be governed by an internationally designated terror group that openly calls for the murder of Jews and the destruction of Israel, and that would eventually conceive, plan, and execute an October 7-like massacre.
As required by UN procedure, the PLO’s renewed request was transmitted for the consideration of the Committee on the Admission of New Members.
Once again, while some members of the committee were willing to ignore both reality and law and supported the admission of the “State of Palestine,” others noted that the applicant “might not meet all the requirements for membership under Article 4 of the Charter, in light of the situation on the ground.” They added that the current application was premature, and questions remained as to whether the applicant met all the criteria of statehood.”
The Malicious French Initiative – A Reward for Massacring Jews
Despite the fact that the Palestinian leadership, whether PLO or Hamas, has repeatedly demonstrated the dedication to terror, violence, murder, and the destruction of the State of Israel, President Macron seems nevertheless curiously, obstinately, and mostly naively intent on rewarding their actions.
Threatening unilateral recognition of the “State of Palestine,” Macron and the others have affirmed “the important role of the High-level Two-State Solution Conference at the UN in June in building international consensus around this aim.”
The underlying facts on which the conference will be held are unequivocal. Despite the political desire to promote a political solution to the Palestinian-Israel conflict, the “State of Palestine” declared by Arafat and still claimed by Mahmoud Abbas still lacks critical elements of statehood.
The body purporting to represent the non-existent “State of Palestine” does not have a governing apparatus that exerts effective control over most of the territory it claims, and does not meet the internationally recognized criteria for statehood.
Moreover, despite the mealymouthed commitment, the “State of Palestine” does not even meet the basic requirement of the UN Charter and cannot honestly claim that it is a ‘peace-loving state’.
In the wider context, as history has shown, the misguided use of political recognition of the non-existent “State of Palestine” has not served any real purpose in promoting a diplomatic solution to the conflict. Rather, it has bolstered Palestinian rejection of Israel’s right to exist and has been interpreted by the Palestinians as giving a green light by the international community for encouraging the use of terror to further the Palestinian goal of murdering Jews and destroying Israel.
The October 7 Massacre: PA Denies Control over Gaza
While the Palestinian leadership in the international arena continues to push for the recognition of the “State of Palestine” in Judea, Samaria, and the Gaza Strip, ironically, even the PA openly admits that it has in fact no control over the Gaza Strip.
Following the October 7 massacre, hundreds of victims submitted lawsuits against the PA, claiming its responsibility for the killings. In the PA’s official response to one of the lawsuits, the PA claimed that in 2007, Hamas carried out a military coup in Gaza and seized control of the area. The PA responded that since it “lacks any actual control over what happens in the Gaza Strip since 2007,” it is not responsible for the massacre. In so doing, it fundamentally undermined its claim to statehood in the international arena.
The Palestinian leadership cannot pick and choose the level of control it exerts over the Gaza Strip, depending on the forum – the UN on the one hand, claiming statehood, and domestic courts on the other, rejecting the claims against it by victims of terror.
Clearly, if the Palestinians claim statehood, effective control and governance over the Gaza Strip, then they are precluded from denying responsibility for the massacre.
Notwithstanding, it is patently clear that they are relying on the naive and hypocritical international community to look the other way, divorced from all reality, and nonetheless accept the fictitious claim of Palestinian control and governance, even when the they themselves deny that situation.
How Should Israel Respond?
Two dominant factors provide the platform for the Palestinian claim for statehood.
The first is the fact that for over five decades, Israel has been reluctant unequivocally realize its internationally acknowledged historic and legal sovereign rights over Judea and Samaria. This hesitance has served to strengthen Palestinian claims that the areas are “Palestinian territory,” and as such they have succeeded in establishing a fiction that has been willingly accepted within the international community.
Israel’s legal basis for asserting its unequivocal title to those areas is anchored in the repeated determinations by the international community following World War I, including, but not limited to, the League of Nations Mandate for Palestine, as adopted and given full legal force in article 80 of the UN Charter, which recognized the “historical connection of the Jewish people with Palestine” and allocated the entire area from the Jordan River to the Mediterranean Sea for the sole purpose of “reconstituting their national home in that country.”
The second factor that gives potential credence to the Palestinian claim for statehood is the existence of the Palestinian Authority as a vehicle for Palestinian governance that provides a semblance of a governmental body claiming to fulfill state-like functions.
However, the PA, since its establishment in the Oslo Accords, has proven over the last three decades that it is not committed to furthering peaceful relations but rather to the destruction of Israel through the use of violence and terror.
Thus, as Israel approaches the 57th anniversary of the liberation of Judea and Samaria from the illegal Jordanian occupation, predominantly celebrated on the 28th day of the Hebrew month of Iyar, which this year falls on May 26, the Israeli government must make two substantial declarations:
First, the erroneous policy of ambiguity adopted in 1967 towards Judea and Samaria should be ended. Those areas are no less, and some even argue more, part of the ancestral homeland of the Jewish people than Tel-Aviv, Netanya, and the rest of Israel’s coastal plain. Despite political developments, Israel maintains the most substantial legal claim and title to those areas and should effectively and unashamedly assert those rights.
Secondly, the reality of the failure of the Oslo Accords should be recognized. By the actions of the Palestinian leadership, in consistently undermining and violating the Accords, including, most pertinently for the current subject, the bid for unilateral recognition of the “State of Palestine,” the Palestinians have fundamentally frustrated the implementation of the Accords and rendered them invalid.
Accordingly, Israel should act without delay to implement its essential national security interests by declaring the Accords invalid, including dismantling the institutions and other instrumentalities created by the Accords, starting with the PA itself.
These acts should not come, as some have suggested, as a knee-jerk response to any particular act of Palestinian terror and the irresistible urge of the international community to pamper and reward Hamas and the PLO for massacring Jews but rather as the basic and clear acceptance of reality and furtherance of the essential requirement to ensure the long-term security of the State of Israel.
Further hesitance and reluctance to move forward with these two goals will only further undermine Israel and will strengthen the resolve of the Palestinian leadership to continue to terrorize.
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Notes
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