There is a strange, other-worldly quality to the current war of
words over Palestinian statehood. In response to Prime Minister
Netanyahu's insistence that he will never agree to the
establishment of a Palestinian state, President Arafat has
responded that a state "is the desire of the Palestinian people,
and nobody can stop it," while President Mubarak has stated that
"the Palestinians are going to establish a Palestinian state sooner
or later." In fact, whether or not Mr. Netanyahu agrees to it, and
whether or not Mr. Arafat and his supporters fully realize it, the
State of Palestine already exists, and Palestinian statehood is not
even an issue in the "permanent-status" negotiations which began
this May [1996] and must reach an agreement not later than May
1999.
According to the Declaration of Principles (DOP) signed on the
White House lawn in September 1993, the issues to be covered during
permanent-status negotiations are "Jerusalem, refugees,
settlements, security arrangements, borders, relations with other
neighbors, and other issues of common interest." Palestinian
statehood is not mentioned, but the references to "borders" and
"other neighbors" would make no sense except in the context of an
agreement between states. Israel's eventual formal acceptance of
Palestinian statehood is clearly implicit in the terms of the DOP,
but legally, Israel's prior acceptance is not an essential
condition for the State of Palestine to exist.
Criteria for Statehood
While extending diplomatic recognition to foreign states lies
within the discretion of each sovereign state, there are, as a
matter of international law, four customary criteria for sovereign
statehood: first, a defined territory over which sovereignty is not
seriously contested by any other state; second, a permanent
population; third, the ability and willingness of the state to
discharge international and conventional obligations; and fourth,
effective control over the state's territory and population. Judged
by these customary criteria, the State of Palestine is on at least
as firm a legal footing as the State of Israel.
While Israel has never defined its ultimate borders, an act which
would necessarily place limits on them, the State of Palestine has
effectively done so. They encompass only that portion of historical
Palestine occupied by Israel during the 1967 war. Sovereignty over
expanded East Jerusalem is explicitly contested, even though, after
nearly three decades, none of the world's other 192 sovereign
states has recognized Israel's claim to sovereignty. However, the
sovereignty of the State of Palestine over the Gaza Strip and the
rest of the West Bank is uncontested.
Israel has never dared even to purport to annex these territories,
recognizing that doing so would raise awkward questions about the
rights (or lack of them) of those who live there. Jordan renounced
all claims to the West Bank in July 1988, and, on June 5 [1996],
King Hussein reaffirmed that "we will never under any condition be
a substitute for" the Palestinians. While Egypt administered the
Gaza Strip for 19 years, it never asserted sovereignty over it.
Since November 1988, when Palestinian statehood was formally
proclaimed, the only state asserting sovereignty over those
portions of historical Palestine which Israel conquered in 1967
(aside from expanded East Jerusalem) have been the State of
Palestine, a state recognized as such by 124 other states
encompassing the vast majority of humankind.
The permanence of Palestine's population is not in question. The
state's ability and willingness to discharge international and
conventional obligations has been demonstrated by its establishment
of diplomatic relations with a majority of the world's other
sovereign states and by its efforts to obtain membership in
international organizations, such as the World Health Organization
(WHO) and UNESCO, even if those efforts have been blocked by the
United States.
The weak link in Palestine's claim to already exist as a state was,
until recently, the fourth criterion, "effective control." When the
state was proclaimed, its entire territory was under the military
occupation of another sovereign state. (For seven months, Palestine
and Kuwait had that much in common.) Yet a Palestinian executive
and legislature, democratically elected with the enthusiastic
approval of the international community, now exercises "effective
control" over a portion of Palestinian territory in which the great
majority of the state's population lives. It can no longer be
seriously argued that Palestine's claim to exist falls at the
fourth and final hurdle.
The State of Palestine Exists
Accordingly, as a matter of customary international law, if not yet
of general public consciousness, the status of the Palestinian
territories occupied in 1967 is today clear and (with the exception
of expanded East Jerusalem) uncontested. The State of Palestine is
sovereign, the State of Israel remains the occupying power in a
portion of Palestinian territory and UN Security Council Resolution
242, explicitly premised on the "inadmissibility of the acquisition
of territory by war," and explicitly cited as the basis of the
future permanent-status settlement in all the Israeli-Palestinian
accords, is the internationally accepted basis for terminating the
occupation.
Some Israelis argue and some Palestinians fear that the PLO's
signature on its accords with Israel constitutes, at least
implicitly, an acquiescence in the occupation and a renunciation of
Palestine's 1988 declaration of independence. However, the interim
agreements signed in Cairo in May 1994 and in Washington in
September 1995, both contain the following significant provision:
"Neither Party shall be deemed, by virtue of having entered into
this Agreement, to have renounced or waived any of its existing
rights, claims or positions." This provision was inserted at
Palestinian insistence during the final stages of the Cairo
negotiations, specifically to protect Palestine against such an
interpretation.
Out of deference to Israeli sensibilities, President Arafat has in
recent years kept the third of his three presidential "hats," that
of President of the State of Palestine, largely on a back shelf.
There is every reason to believe that he will now wear it more
prominently. If the United States and other Western countries,
which already welcome President Arafat with the honors and protocol
due to a head of state, are seriously interested in actually
achieving peace in the Middle East, as opposed to simply ensuring
that an interminable and increasingly euphemistic "peace process"
continues, there could be no more constructive act than adding
their names to the long list of countries which have extended
diplomatic recognition to the State of Palestine.
Even if the State of Palestine did not already exist, and if Israel
were free to pursue its own perception of its self-interest with no
concern for justice, morality, world public opinion, UN resolutions
and its own signed agreements, what would be Israel's
"permanent-status" alternative?
A Dead-End Road
Most broadly, there might seem to be three alternatives: making the
status quo permanent, asserting (for the first time) Israeli
sovereignty over the occupied territories beyond expanded East
Jerusalem or accepting Palestinian sovereignty over the Palestinian
lands occupied in 1967 (with some agreed formula for sharing
Jerusalem).
The status quo is "belligerent occupation," a status which, as a
matter of international law, is inherently temporary, pending
annexation or withdrawal. While this status can be maintained
indefinitely as long as the military force and political will to
maintain it exist, it is logically and legally inconceivable that
it could be made "permanent." The status of "perpetual belligerent
occupation" does not exist. A major virtue of the DOP signed in
September 1993 is to require the negotiation of some
permanent-status solution within an agreed time-frame.
If Israel asserted sovereignty over the occupied territories, it
could either provide or deny the full rights of Israeli citizenship
to those who live there. If it took the former course, Israel would
be renouncing Zionism and negating its raison d'etre. If, however,
it took the latter course, leaving the disenfranchised indigenous
people to rot in "autonomous areas," "reservations" or "black
spots," without even the option of "independent homelands," it
would be creating a system and a state more heinous and blatantly
racist than South Africa at the height of apartheid.
Even in the worst days of apartheid, the settler-colonial regime in
power offered the indigenous peoples independent states in a small
portion of the land that once was theirs. That is all that the
Palestinian people are asking for. The indigenous South Africans
ended up getting much more. Can anyone honestly believe that the
Palestinians will accept less?
Since the Palestinian people could never accept such an
ultra-apartheid solution, it would have to be imposed by force. No
country other than the United States could possibly support Israel
if it adopted such a course. Far from achieving acceptance in its
region, Israel would replace the old South Africa as the world's
ultimate pariah state. Is this really an option which Israelis
would wish to implement or even to contemplate? Do Israelis really
believe that their long-term interests would be served by veering
off down a dead-end road to a winner-take-all fight to the finish
between four million Jews and one billion Muslims?
Since the first apparent option is impossible while the second is
unthinkable, only one viable option exists - accepting Palestinian
sovereignty in the Palestinian lands occupied in 1967 subject to an
agreed formula for an equitable sharing of an undivided Jerusalem.
It is high time for Israeli leaders to stop pretending that the
earth is flat and to actually lead by telling their people, clearly
and honestly, that Israeli acceptance of Palestinian statehood is
essential if a lasting peace in the Middle East is ever to be
achieved. Such acceptance is thus, fundamentally, in the interest
of Israel and Israelis.
The true challenge for all who are seriously interested in
achieving a genuine peace is to find a way to structure the
Palestinian state and its relationship with Israel which serves the
interests of both Israelis and Palestinians, and which permits a
majority of Israelis to perceive such a state, as so structured, as
enhancing their security and the quality of their lives. They can,
then, recognize that it is in their own self-interest to accept
Palestine's right to exist in peaceful coexistence alongside
Israel. Peace is unimaginable on any other basis.