The unilateral Palestinian UN bid and The Goldstone Report lesson

President Mahmoud Abbas is to renew the idea of Palestinian UN statehood bid. After failing to win recognition of full statehood last year, President is expected to ask  for a less ambitious upgrade. Even though Abbas returns to New York to ask General Assembly for an ‘observer state’ status, the expectations are not high. As already argued, President efforts are unable either to deliver Palestinian case improvement, or promote a regional security. Should Abbas succeeded, his victory would be only moral, yet pyrrhic. The costs of the upgrade may be well  beyond what PA can afford.

Having learned the lesson of the previous bid, Abbas is looking to push for more modest proposal and  submit to raise the Palestinians’ UN status from “observer entity” to “observer state” that theoretically gives an opportunity to use wider range of internationally recognized mechanisms. Most importantly, having been recognized as a state rather than entity, can provide Palestinians with a possibility to join bodies such as the International Criminal Court (ICC) and use it as tool of resisting the occupation by legally recognized means. Nevertheless, one should avoid confusing a mere capability of  ICC involvement with a feasibility of its implementation. Even if Palestinians were able to use ICC mechanism its effectiveness could be easily determined by political factors – very the same factors that have been shaping realities on the ground since  1993 Oslo accords.

As perceived by Israel, Palestinian statehood can be only achieved  by direct talks that exclude unilateral moves. Hence, any Palestinian UN bid is likely to be regarded as a violation of the 1993 Oslo accords. President Abbas is facing a serious dilemma. The unilateral move toward a statehood can easily result in Israeli rigidness. On the other hand however, giving up UN path does not guarantee Israeli flexibility. The Abbas choice is even more dramatic. The UN bid is not a mere unilateral move, it is also an attempt to use a mechanisms provided by International Law. Even though it is widely argued to be doomed to fail. Since IL application is shaped by disadvantageous political factors any potential IL based agenda might be difficult, if not impossible to implement. Even if Palestinian were given a possibility to use ICC agenda the feasibility of its engagement would be much beyond probability.

As proven by the history of the previous internationally endorsed initiatives, any IL based mechanism is not possible to be effective without Israeli approval even if supported by international actors. One of the most important examples of failure was provided by the history of so called the Goldstone Report – the agenda that was widely perceived as a basis for possible ICC action that eventually turned out to be meaningless.

On the 16th of October 2009 the United Nations Human Rights Council (UNHRC) adopted a Resolution condemning acts of violence committed during the war in the Gaza Strip. The Resolution was based on the Goldstone Report – the testimony and final outcome of a UN-mandated Fact Finding Mission under justice of Richard Goldstone. (The report itself was released a month earlier – 15.09.09). The report itself was said to be the most comprehensive and best documented account of Israeli violence ever released. TheMission concluded that war crimes, and possibly in some respects crimes against humanity, were committed by the Israel Defense Force.  As suggested further actions should be referred to the International Criminal Court inthe Hague.

In its main findings the Report detailed: deliberate attacks on civilians, humanitarian aid workers, government buildings and the police the use of prohibited weapons (including USA-made white phosphorus bombs used to shell al-Quds Hospital); the premeditated attacks on mosques during prayer, schools (280 out of 641 have been destroyed[1]) and hospitals; the shelling of houses (according to the Report around 24 000 houses has been ruined – which made 100 000 Palestinians homeless); the use of civilians as human shields; the arbitrary detention of civilians and their inhumane treatment. The atrocities were said to affect “the foundations of civilian life inGaza” what included the “destruction of industrial infrastructure, food production, water installations, sewage treatment plants and housing.”

Unfortunately for residents of  Gaza, the Report wasn’t able to secure neither law observance nor regional safety promotion.  At the end of the day Goldstone revelations turned into an unintentional obstacle  that  slowed down peace process development. To understand the roots of the failure it is necessary to look briefly at basis of internationally endorsed negotiation mechanism.

Future reconciliation was intended to be reached on the basis of guidelines designed by Road Map – the plan of settlement that had been presented by the Middle East Quartet in 2002. According to its general agenda the peace process finlalization would result in the foundation of an independentPalestinianState. The Map however, had suggested a gradual process itself rather than direct implementation of the final status. According to the first phase,Israelhad been obliged to: close down the  development of settlement program, dismantle the settlements established since March 2001, allow an unlimited flow of goods at border crossings, abolish check-points, permit the connection between the West Bank and the Gaza Strip and reinstate Palestinian institutions inEast Jerusalem(which have been closed under military instructions).The Palestinian Authority had been obliged to ensure security, tackle internal chaos, impose and accomplish an essential reform of security system and undertake a transformation towards peaceful coexistence withIsrael.

‘The Road Map – a road to nowhere.’     

Nevertheless, the first phase main limitation has been its ambiguity combined with the lack of implementation mechanisms. Both Palestinians’ and Israelis’ commitments have been depended on good will which has been usually lacked. Therefore, one side’s decisions could  either give credence to further development or reversely harm an integrity of the peace arrangement as such. The additional difficulty has been the sequence.Israelhas perceived its concessions as absolutely dependent on the Palestinian moves. For that reason it has been obviously easy forIsraelto create the meaning, direction and context of the process itself.

As one can conclude – as long as Road Map was in operation concerned, the future of negotiations was determined by authoritarian Israeli judgment rather than by Palestinian achievements. Hence, The authorities of the Palestinian Autonomy (PA) made a great effort to stress its developments, perceiving them as reason sufficient to balance Israeli contributions.

It was especially relevant with regards to the performance of the Prime Minister of the Palestinian National Authority Salam Fayyad who has been credited with undertaking of judicial and financial systems reforms as well as bringing (to some extend) a measure of security and rule of law to theWest Bank.  Nevertheless, as far asIsraelwas concerned the Palestinian performance was not convincing. One should not underestimate the consequences. The Israeli rejection has disabled the first phase of th peace process as well as undermined Palestinian peace camp credibility. Even though Abbas leadership has still remained a key to the peace process, negotiations under his guidance could turn into an act of submission. Abbas empowerment is still vital to the future of mediations, yet is not possible without Israeli concessions. The more Israeli engagement is applied, the bigger are chances for comprehensive negotiations. Conversely, the lack of Israeli commitment is the shortest way to fuel radicalism.

Unfortunately, PM Netanyahu has done little to support peace process yet much more to undermine it.  The most controversial ideas included:  was to carry on the settlements extension under provision of so called ‘natural growth’ and  permanent rejection of Palestinian postulate of establishing its capital in East Jerusalem. What is more, Israeli veto has been combined with expansion and the demolition of Palestinian homes. [2] [3]

The initial Israeli approval of negotiations based on vague guidelines of the Road Map that  has been achieved thanks to the pressure of Barak Obama who hoped to deliver the final agreement. Nevertheless, due to the obvious disability of the Road Map, Netanyahu could have been able to pose himself as a flexible negotiator, yet expand the settlements at the same time. Additionally, Israeli side used the Road Map as a tool of diplomatic blackmail…[4]

The Israeli side didn’t give its Palestinian partners much choice. Had Abbas decided to negotiate without Israeli concessions his status would have diminished and himself became puppet-like. On the other hand, had Abbas chosen the deadlock Israeli settlement activity would have proceeded literally uninterrupted. Nevertheless its dramatic character, the further development quickly determined the loser.

On the 22nd of September inNew York the summit between President Obama, President Abbas and PM Netanyahu took place – Palestinian side has abandoned the idea of negotiation rejection…

The Meeting itself has been summarized by President Obama who said: ‘Permanent status negotiations must begin and begin soon… We need to translate discussions into actions’. Still, to understand what ‘actions’ could meant  it would be worth looking at statements of other participants. President Abbas gave his remarks saying: “As for resuming talks, this depends on a definition of the negotiating process that means basing them on recognizing the need to withdraw to the 1967 borders and ending the occupation, as was discussed with the previous Israeli government when we defined the occupied territories as the West Bank, Gaza and Jerusalem,”  However, Reuters quoted Netanyahu as saying: “We are certainly not obliged to the positions of the previous government.”

This laconic statement found its practical development less than 24 hours after the summit when Minister Ehud Barak approved 37 more housing units for theWest Banksettlement of Karnei Shomron. (it is worth bearing in mind that weeks earlier Barak approved the construction of 455 such units elsewhere in theWest Bank).

Can it be presumed that President Abbas was aware of such a scenario? Was it likely that Palestinian negotiators were  naive enough to assume changes of Israeli policy ? Why not boycotting and refusing participation?  Abbas simply felt in the same old trap – he  didn’t have much choice, for his position was far from being autonomous. Had Abbas decided not to participate, It wouldn’t have been difficult forIsraelto find him guilty of negotiations failure and use the well known excuse of ‘lack of partnership’.

Israel herself was convinced of the best way of sustaining its settlement activity – to avoid negotiations. But contrary to Netanyahu will yet in line with Obama’s policy, negotiations were somewhat imposed. Hence, from the Israeli perspective it was reasonable to engage in the negotiations only on one condition it had to be fruitless negotiations are the  designed to reach political deadlock. But, to apply its visionIsraelneeded Palestinian side as a participant.

Having said that it’s worth recalling one of the most important events determining the Abbas leadership. On August 10 2009, Fatah had concluded its sixth congress, the first in twenty years. (The decision to hold the summit was made single-handedly by Abbas). Over the span of seven days, Fatah leaders had discussed the key issues and challenges facing the party, including organizational and political issues affecting its unity, the role of its power centers, the peace process, and the group’s relationship with Hamas and the Palestinian government. But, the most important outcome of the congress can be summarized as the consolidation of Abbas leadership. President had managed to rejuvenate the leadership and secure the support of the younger establishment together with successful marginalization of his rivals namely: Muhammad Dahlan and Marwan Barghouthi

Stronger Abbas position however, didn’t play intoIsraelhands. As well know logic of the negotiations points out the best adversary is the one who doesn’t demand. Therefore, the consolidation of Abbas position was seen as a threat toIsraelshaped negotiations. Hence, the Israeli decision makers needed to come out with the formula of weakening Abbas. Paradoxically, the deteriorating of Abbas position was  achieved thanks to the Goldstone Report.

The Goldstone Report – recommendation of peace as a tool of escalation.

Israeli diplomats attacked the Report together with Goldstone himself claiming that the findings had been pre-written.Israel’s Foreign Ministry Spokesman said the report created “unjust equivalence of a democratic state with a terror organization,” (a reference to Hamas). Making the comment on the resolution he went on: “We have nothing to be ashamed of, and don’t need lessons in morality from a committee established bySyria,Pakistan,Bangladesh,MalaysiaandSomalia”. Premier Netanyahu expressed his stand  saying: “No Israeli solider will be accused or prosecuted, we have a right to self-defense’. (The PM kept his promise – in August 2012 all suspected soldiers were plead innocent).

Additionally,Israelmade a big effort to correlate the Resolution with the negotiation impasse. As far asIsraelwas concern the peace dialogue remained impossible as long as the Palestinian side supported discussion on the Report on the international agenda.  This policy reflected the Israeli conviction that the Palestinian question is a mere internal matter – a problem of Israeli security.

Prior to the UNHRC session Netanyahu has undertaken steps to support his policy. The Israeli PM held meetings and telephone conversations with British, French, Dutch and Spanish officials aiming to gain support against the resolution. (Netanyahu himself was reported to be trying to convince the diplomats to vote against the draft. ) Another conversation was held with UN Secretary General Ban Ki Moon, where Netanyahu attempted to persuade the senior diplomat of that the report was “ridiculous” and caused Palestinians to “refuse negotiations.” Another Israeli criticism came after in the UN General Assembly session. The Israeli representative to the UN Gabriela Shalev, called the resolution “yet another campaign against the victims of terrorism, the people ofIsrael.”

The main Israeli partner who shared Israeli perspective was theUSA. The US Ambassador to the United Nations, Alejandro Wolff called the UNHRC resolution “regrettable,” and “beyond the scope of the Goldstone report.” Wolff said that the adoption of the resolution could only postpone a lasting peace and deepen the divide betweenIsraelandPalestine. As often pointed, theUSAposition could have been influenced by Netanyahu pressure.

Additionally Netanyahu depended negotiations on rejection of the resolution. The policy has been  calculated not only as an attempt to undermine the Goldstone Report credibility but also is a very useful tool for weakening the Palestinian negotiation position. Israelwas aware that lack of Palestinian involvement in discussion over the Report can become an instrument of challenging Abbas. Having said that, It would be worth recalling an episode from the beginning of October 2009 when the draft resolution was to be adopted for the first time. Due to President Abbas request the draft was withdrawn. This decision was encouraged by the USAwho claimed the positive vote on the resolution to be possible threat to the peace process. Abbas’s decision has shocked many. West Bankstreets faced numerous demonstrations demanding the adoption of Goldstone recommendations and… that Abbas step down.  The unprecedented wave of criticism made Abbas give in and ended with support for the draft and eventually the adoption the resolution two weeks later (15th of October).

Nevertheless, Goldstone Report become a mere theoretical game which was very unlikely to result in justice.  It was clear from the very beginning that even if Secretary General Bar Ki Moon had decided to put the resolution on the table of Security Council (UNSC) no expectations  would have have  been raised – for it should not have been  expected that UNSC would decide to recommend an investigation to the ICC.[5] For that reason the Goldstone Report has become significant only as a theoretical recommendation whereas reality of Israeli – Palestinian relationships remained a demonstration of  the peace process corruption.

[1] Figures estimated by UN Office for the Coordination of Humanitarian Affairs (OCHA) –

[2] The most advanced settlement extension was  presented in spring this year. According to “Peace Now” The Ministry of Construction and Housing was planning to construct at least 73,300 housing units in the West Bank” (  21/03/2009)

[3] Israeli policy of East Jerusalem judaisation is carried out through the constant demolition of Palestinian houses. During the first five months of the current year Israel undertaken demolition of 1200 Palestinian houses. ( 30/05/2009)

[4] The improvement of settlements combined with negotiations has become Israeli agenda since the time of Oslo. During the leadership of the Labour Party (1992-1996) the population of Israeli settlers in West Bank increased by 48%(Ben Ami, Scars of war. Wounds of peace, London 2005, p. 216). The first Netanyyahu cabinet increased the judaisation ofEast Jerusalem by giving a green light to Har Homa Settlement. That settlement was additionally expanded due to the approval of Prime Minister Sharon who approved also Settlement Ariel. Under the leadership of Olmert both settlements continued to expand, another Olmert’s decision contributed to the idea of expansion E-1 settlement plan – planed construction of 5000 housing units that aimed to connect East Jerusalem with the settlement block of Ma’ale Adumin ( 4/2/2008). The current Israeli government doesn’t lag behind its predecessors  Not only did Israel not freeze settlements, even temporarily, it approved the completion of 2,500 units already “under construction” and an additional 450 new homes ( 9/11/2009).

[5] Even in the event of referring the case to the International Court of Justice prosecuting guilty ones will be an extremely unlikely scenario. According to the mandate of ICJ a state who is not a signatory (e.g.Israel) can’t be prosecuted without it’s consent.