(UPDATED) Serious questions on Palestine UN bid raised in legal opinion

This article originally appeared on Mondoweiss.

Israeli Defense Minister Ehud Barak has called the Palestinian Authority’s (PA) bid for United Nations recognition of a state of Palestine next month a diplomatic “tsunami.”  The United States has threatened to cut off aid to the PA if they proceed with the UN gambit.  But more importantly, a legal opinion submitted to the Palestine Liberation Organization (PLO) from the other side of the debate over the UN bid has raised serious and alarming questions about the PA’s plans.

The opinion, written by a law professor who was on the team that successfully challenged Israel’s separation barrier at the International Court of Justice, tackles the issues of Palestinian self-determination and the right of return.  Guy Goodwin Gill, the author of the opinion, recently told Al Jazeera English that he doubts that Palestinian refugees would “be enfranchised through the creation of a state.”  Senior PLO member Hanan Ashrawi has dismissed the concerns raised by Gill.

Excerpts from Goodwin Gill’s legal opinion read:

I am advised that one possibility being debated involves the replacement of the Palestinian Liberation Organization (PLO) and its ‘substitution’, within the United Nations, by the State of Palestine as the legitimate representative of the Palestinian people. In my view, this raises, first, what I will call ‘constitutional’ problems (in that they engage the Palestinian National Charter and the organization and entities which make up the PLO); secondly, the question of the ‘capacity’ of the State of Palestine effectively to take on the role and responsibilities of the PLO in the UN; and thirdly, the question of popular representation…

Until such a time as a final settlement is agreed, the putative State of Palestine will have no territory over which it exercises effective sovereignty, its borders will be indeterminate or disputed, its population, actual and potential, undetermined and many of them continuing to live under occupation or in States of refuge. While it may be an observer State in the United Nations, it will fall short of meeting the internationally agreed criteria of statehood, with serious implications for Palestinians at large, particularly as concerns the popular representation of those not currently present in the Occupied Palestinian Territory.  The significant link between the Palestinian National Council and the diaspora has been noted above in paragraph 4. They constitute more than half of the people of Palestine, and if they are ‘disenfranchised’ and lose their representation in the UN, it will not only prejudice their entitlement to equal representation, contrary to the will of the General Assembly, but also their ability to vocalise their views, to participate in matters of national governance, including the formation and political identity of the State, and to exercise the right of return.
In my opinion, current moves to secure recognition of statehood do not appear to reflect fully the role of the Palestinian people as a principal party in the resolution of the situation in the Middle East.

The interests of the Palestinian people are at risk of prejudice and fragmentation, unless steps are taken to ensure and maintain their representation through the Palestinian Liberation Organization, until such time as there is in place a State competent and fully able to assume these responsibilities towards the people at large.

The legal concerns raised in the opinion further reflect the skepticism of many Palestinians about the UN bid, as a piece by Mohammed Rabah Suliman in the Electronic Intifada recently pointed out.

Ali Abunimah also recently enunciated these concerns:

The Western-backed Palestinian Authority’s (PA) effort to seek UN recognition of “statehood” unilaterally, without consulting the Palestinian people from which the PA has absolutely no mandate, has raised fears among Palestinians that the move could actually harm Palestinian rights.

If the UN votes to admit the “State of Palestine,” it is likely that the unelected representatives of the Palestinian Authority would be seated in the General Assembly instead of the Palestine Liberation Organization (PLO), which currently holds the Palestine observer seat at the UN..

This would be a severe blow to the potential for realizing Palestinian rights in the long run through international bodies: whereas the PLO ostensibly represents all Palestinians, the PA “state” would only represent its “citizens” – residents of the West Bank and Gaza Strip.

Of course in reality this “state” would not represent anyone since it would have absolutely no control of the territory on which it purports to exist and its “government” – what is now the Palestinian Authority – would remain subject to the blackmail and pressure of its financiers and external political sponsors.

As September approaches, these concerns become ever more pressing.

UPDATE:  It’s only fair to link to some expert legal opinion that doesn’t agree with Goodwin-Gill’s.  Francis Boyle, who advised the Palestinian leadership on their 1988 Declaration of Independence, says that Goodwin-Gill’s opinion is “based on many erroneous assumption.”  The full piece is at CounterPunch.

Meanwhile, Ma’an News Agency has published four other opinions on the PA’s UN bid.  Some of them agree with Goodwin-Gill, others oppose.  It’s worth reading.

U.S. already affirmed ’67 borders–only to have Obama backtrack

President Barack Obama is set to deliver a hotly anticipated speech tomorrow to “argue that the political upheaval [in the Arab world] raises the prospect for progress on all fronts, and will offer ‘some specific new ideas about U.S. policy toward the region,’” the New York Times reports. And according to a report in the Israeli daily Yediot Ahronoth, Obama will “call upon Israel to withdraw to the 1967 lines, with border alterations that will be agreed upon with the Palestinian Authority”–a move that would “disturb” Prime Minister Benjamin Netanyahu.

But perhaps Netanyahu has little to worry about. The Obama administration has already backtracked on the 1967 borders in private meetings with Palestinian officials, according to documents released by Al Jazeera as part of the “Palestine Papers.” The backtracking on the 1967 lines came despite an an affirmation in the Bush administration-backed “Road Map” on Middle East peace that the ’67 borders would be the border for Israel and a Palestinian state.

Analysis by Ali Abunimah for Al Jazeera indicates how little a commitment to the 1967 borders by Obama in his speech Thursday could mean:

In apparently contentious meetings between Mitchell and Palestinian chief negotiator Saeb Erekat and their respective teams in September and October 2009 — whose detailed contents have been revealed for the first time — Mitchell claimed the Bush administration position was nonbinding. He pressed the Palestinians to accept terms of reference that acquiesced to Israel’s refusal to recognize the 1967 line which separates Israel as it was established in 1948 from the West Bank and Gaza Strip where Palestinians hoped to have their state…

At a critical 21 October 2009 meeting, [George] Mitchell read out proposed language for terms of reference:

“The US believes that through good faith negotiations the parties can mutually agree on an outcome that achieves both the Palestinian goal of an independent and viable state encompassing all the territory occupied in 1967 or its equivalent in value, and the Israeli goal of secure and recognized borders that reflect subsequent developments and meets Israeli security requirements.”

Erekat’s response was blunt: “So no Road Map?” The implication of the words “or equivalent in value” is that the US would only commit to Palestinians receiving a specific amount of territory — 6258 square kilometers, or the equivalent area of the West Bank and Gaza Strip — but not to any specific borders.

The Bush-Obama line on Palestine: forget ’67

The election of President Barack Obama brought great hope that his administration could be the one to bring about a settlement to the Israeli/Palestinian conflict.  But Obama has largely followed the Bush administration’s pro-Israel slant.  New documents released by WikiLeaks and Al Jazeera shed further light on the continuation of the Bush administration’s disastrous policy on Israel/Palestine.

As part of its ongoing release of secret State Department cables, WikiLeaks yesterday released documents concerning Brazil.  One 2005 document, written from the U.S. embassy in Brazil, centers on a first-time gathering in Brazil between Arab and South American leaders.  The U.S. was worried about language concerning Israel/Palestine in the final document that came out of the summit:

Despite repeated Brazilian promises over many months that the Summit Declaration would not contain language inimical to Middle East peace efforts, the final text contains problematic paragraphs that existed in earlier declaration drafts. In addition to the demand that Israel withdraw to its June 4, 1967 frontiers, the declaration also calls on Israel to comply with the International Court of Justice July 2004 decision on dismantling the security wall.

The reference to the 1967 borders and the International Court of Justice decision as “problematic” is unsurprising, given that the Bush administration showed the utmost contempt for international law.  This cable further confirms the Bush administration’s double-dealings when it came to the borders of a future Palestinian state:  while the Bush administration backed the 2003 Road Map that called for a halt to Israeli settlement building, a secret letter to the Israeli government contradicts that plan:

In a key sentence in Bush’s 2004 letter, the president stated, “In light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949.”

Contempt for international law, and support for Israel’s insistence that negotiations not be based on the 1967 borders, has continued into the Obama administration.  Despite President Obama’s pledge in 2009 to push for a “viable, independent Palestinian state with contiguous territory that ends the occupation that began in 1967,” documents published by Al Jazeera as part of the “Palestine Papers” tell a different story.  Ali Abunimah, writing in Al Jazeera, analyzes:

The next day [after Obama's 2009 UN speech] during a meeting at the US Mission to the United Nations in New York, Erekat refused an American request to adopt Obama’s speech as the terms of reference for negotiations. Erekat asked Assistant Secretary of State for Near Eastern Affairs David Hale why the Obama administration would not explicitly state that the intended outcome of negotiations would be a Palestinian state on the 1967 borders with a third party security role and a staged Israeli withdrawal. Hale responded, “You ask why? How would it help you if we state something so specific and then not be able to deliver?” according to Palestinian minutes of the meeting.

At the same meeting, which Mitchell himself later joined, Erekat challenged the US envoy on how Obama could publicly endorse Israel as a “Jewish state” but not commit to the 1967 borders. Mitchell, according to the minutes, told Erekat “You can’t negotiate detailed ToRs [terms of reference for the negotiations]” so the Palestinians might as well be “positive” and proceed directly to negotiations. Erekat viewed Mitchell’s position as a US abandonment of the Road Map.

On 2 October 2009 Mitchell met with Erekat at the State Department and again attempted to persuade the Palestinian team to return to negotiations. Despite Erekat’s entreaties that the US should stand by its earlier positions, Mitchell responded, “If you think Obama will force the option you’ve described, you are seriously misreading him. I am begging you to take this opportunity.”

Erekat replied, according to the minutes, “All I ask is to say two states on 67 border with agreed modifications. This protects me against Israeli greed and land grab – it allows Israel to keep some realities on the ground” (a reference to Palestinian willingness to allow Israel to annex some West Bank settlements as part of minor land swaps). Erekat argued that this position had been explicitly endorsed by Secretary of State Condoleezza Rice under the Bush administration.

“Again I tell you that President Obama does not accept prior decisions by Bush. Don’t use this because it can hurt you. Countries are bound by agreements – not discussions or statements,” Mitchell reportedly said.

The US envoy was firm that if the government of Israeli Prime Minister Benjamin Netanyahu did not agree to language in the terms of reference the US would not try to force it. Yet Mitchell continued to pressure the Palestinian side to adopt formulas the Palestinians feared would give Israel leeway to annex large parts of the occupied West Bank without providing any compensation.

At a critical 21 October 2009 meeting, Mitchell read out proposed language for terms of reference:

“The US believes that through good faith negotiations the parties can mutually agree on an outcome that achieves both the Palestinian goal of an independent and viable state encompassing all the territory occupied in 1967 or its equivalent in value, and the Israeli goal of secure and recognized borders that reflect subsequent developments and meets Israeli security requirements.”

Erekat’s response was blunt: “So no Road Map?” The implication of the words “or equivalent in value” is that the US would only commit to Palestinians receiving a specific amount of territory — 6258 square kilometers, or the equivalent area of the West Bank and Gaza Strip — but not to any specific borders.

Anti-BDS Campaigners Liken Movement to Nazi Germany Policies

If you can’t beat ‘em, smear ‘em.

As the boycott, divestment and sanctions (BDS) movement continues full-steam ahead in its efforts to force Israel to comply with international law, pro-Israel hawks are increasingly attempting to link the movement to anti-Semitism and Nazi Germany-era policies.

The latest person to do so is Jeffrey Goldberg of the Atlantic, who has been described as “one of the most influential Jewish journalists working in mainstream media.”

Goldberg–who, ironically, recently wrote that “people reaching for insults should find something better than Nazi”–applauds today the New Israel Fund for, as he terms it, leaving the “BDS swamp.”  Goldberg writes:

Because I’m running a campaign on this blog against the cheap deployment of Nazi imagery in argument-making, I am going to resist the urge to point out that the European-centered campaign to launch an economic boycott of the world’s only majority-Jewish country smacks of something historically unpleasant, except now I didn’t resist the urge. But I do actually think it’s a fair analogy, and the BDS movement, like no other anti-Israel propaganda campaign, has sent chills down the collective Jewish spine precisely because economic boycotts have been, throughout history, used to hurt Jews. This is why I was slightly taken aback by Sokatch’s statemen that, “segments of this movement seek to undermine the existence of the state of Israel.” I would say that undermining the existence of the state of Israel is this movement’s raison d’etre.

First off:  the BDS movement is not a “European-centered campaign.”  It is a Palestinian-led civil society movement that has spread to the Western world.  Europe may have a strong Palestine solidarity movement which is increasingly racking up BDS victories, but attempting to invoke the history of European anti-Semitism by labeling the BDS movement a “European-centered campaign” falls apart because the movement is not, in fact, Europe-centric.

Goldberg, and others like him, are guilty of conflating Israel with Judaism, and Jews with Israelis.  The BDS movement is not an economic boycott directed against Jews; it is a boycott movement directed against the State of Israel, which labels itself the Jewish State, because of its flagrant violations of international law and its continued occupation of Palestinian land.  As Alisa Solomon, co-editor of Wrestling with Zion: Progressive Jewish-American Responses to the Israeli-Palestinian Conflict, told me in 2009, “it’s a very dubious and dangerous collapse when ‘Jew’ and ‘Israel’ are conflated.  Anti-Semites do it a lot, and unfortunately, powers of the Israeli state do it as well.”

Invoking Nazi Germany’s policy of boycotting Jewish-owned businesses as a way to smear the BDS movement is a cheap trick that has no merit.  Nazi Germany instituted a blanket boycott, with no end in sight, that was directed at a persecuted minority just because of their religious faith.  The BDS movement is targeting a state, asking Israel to comply with their obligations under international law, because of their unjust and oppressive policies towards the Palestinian people.  There are many Jewish organizations that support the movement, including inside Israel.

Ali Abunimah, the founder of the Electronic Intifada, had this to say in response to “a cartoon [found in a local Jewish group's paper] from the Israeli strip Dry Bones in which Hitler asks Satan if he believes that BDS is a replay of the Nazi program to economically strange the Jews. ‘Yup,’ Satan replies. ‘It has everything but the swastikas’”:

This ugly defamation is an insult to those who died in the Holocaust.  It cheapens their memory. It cheapens their suffering.

What’s J Street Doing Meeting With Israeli Officials On BDS?

The lobby group J Street has a somewhat muddled policy on the boycott, divestment and sanctions (BDS) movement.

An interview in which their executive director says that he’s meeting with the Israeli Foreign Ministry on “how to address” the movement adds to the confusion.

On their website, J Street explicitly says that it is “greatly concerned by the goals and tactics of the formal global BDS Movement” and that it opposes the BDS movement because “they fail explicitly to recognize Israel’s right to exist and they ignore or reject Israel’s role as a national home for the Jewish people.”

J Street was slammed by Palestine solidarity activists–including Israelis–for actively working with organizations such as the right-wing David Project, Stand With Us and the Jewish National Fund against the landmark divestment effort at the University of California, Berkeley.  After that episode, Jeremy Ben-Ami, J Street’s executive director, said that “J Street will not be signing on to letters with organizations like that in group settings again,” apparently conceding that J Street was wrong to do so.  And last June, during a Jewish debate on the BDS movement, J Street board member Kathleen Peratis said she would support the boycotting of settlement products (although this is clearly not J Street’s position).

But in a just-published interview with Hadassah Magazine, Ben-Ami says that “this very afternoon I have a meeting with people from Israel’s Foreign Ministry on how to address the BDS [Boycott Divestment Sanctions] movement.”

What exactly is J Street doing meeting with the Israeli Foreign Ministry over how to “address” BDS?

The Israeli government has a very unconfused, clear policy on the BDS movement:  it’s a threat to the State of Israel, part of a growing “delegitimization” campaign.  And they’re actively working to neutralize it.

Last summer, the Israeli Knesset began steps to pass what Adalah, a group that works to protect the rights of Palestinian citizens living in Israel, describes as a bill “to outlaw any activities promoting any kind of boycott against Israeli organizations, individuals or products.”  And the well-connected Reut Institute, an Israeli think tank, gave a presentation to the Israeli cabinet last winter on the need to “direct substantial resources to ‘attack’ and possibly engage in criminal ‘sabotage’” against the BDS movement, as Ali Abunimah reported.

In the most recent prominent move taken against the BDS movement, the Jewish Federations of North America and the Jewish Council for Public Affairs launched “a multimillion-dollar joint initiative to combat anti-Israel boycott, divestment and sanctions campaigns,” according to the Jewish Telegraphic Agency.

Where does J Street stand on all of this?  Does it support the undemocratic nature of the Israeli bill that seeks to criminalize boycotts against the state?  Does it support throwing millions of dollars to undermine a campaign that seeks to ensure that the human rights of Palestinians are respected?  And just what were they meeting with the Israeli Foreign Ministry about concerning the movement?

Washington Post Continues Distorted Coverage on Flotilla Raid

In the immediate wake of the Israeli raid on the Gaza “Freedom Flotilla” last May, U.S. corporate media largely took Israel’s claims as fact.  As media watchdog group Fairness and Accuracy in Reporting highlighted, the Washington Post reported the attack using a similar sequence of events that the Israeli government pushed: “Upon touching down, the Israeli commandos, who were equipped with paint guns and pistols, were assaulted with steel poles, knives and pepper spray.”

There is a lot of evidence to throw the Israeli account into question, but four months later the Post still can’t get it right.

While the paper’s September 29 report on the UN Human Rights Council endorsement of a report by three human rights experts that found the raid brutal, illegal and disproportionate opened with a decent lead–”The U.N. Human Rights Council voted Wednesday to endorse the report of a U.N. fact-finding mission that accused Israeli commandos of summarily executing six passengers on a Turkish aid flotilla last May”–the piece quickly attempts to discredit the report by citing Israeli and U.S. objections to it.

And then there’s this short account of the actual attack: “The commandos, who were attacked and beaten while rappelling onto the ship’s deck, killed nine passengers as they seized control.”

That misleading account has become the norm for corporate media reporting on the flotilla raid.  A July report from the Wall Street Journal states that passengers on board the Mavi Marmara “attacked the Israeli soldiers as they boarded the ship.”

But that gets what happened on board the ship backwards, implying that it was the activists who first started the clash.  As I pointed out in a Fairness and Accurary In Reporting blog post on the Journal piece:

Regardless of who initiated the violence on board the ship first–and witnesses claim that soldiers started shooting even before they landed on the Turkish ship (Common Dreams, 6/5/10)–when heavily armed commandos invade a ship in international waters without legal authorization to do so, that in itself constitutes an attack. The Israeli navy attacked the boat in international waters even as it was moving away from Gaza’s coast (Ali Abunimah, 6/7/10).

L.A. Times: ‘Many’ Palestinians prefer the one-state solution

The one-state solution debate is picking up steam and media coverage in the wake of Israeli journalist Noam Sheizaf’s Ha’aretz article on prominent right-wing calls for the incorporation of the West Bank into Israel.  For more on the significance of Sheizaf’s article and the growing calls from the right for some type of one-state solution, I would recommend reading Ali Abunimah’s analysis here.

Now the Los Angeles Times–the best national newspaper on Middle East issues by far–has a blog post up that reports that “a poll on the Palestinian Ma’an news website that ended Monday showed that more than 56% of Palestinians support a former Israeli defense minister’s idea to annex the West Bank and grant Israeli citizenship to its 2.5 million residents.”

The L.A. Times goes on and says:

Apparently, Arens’ idea seems to have struck a chord among Palestinians. What the poll indicates is that a slim majority of Palestinians in the occupied territories have given up on the idea of two states – Israel and Palestine — living side by side in peace and security. Many now prefer the one-state solution, which means Israel would incorporate the remaining parts of historic Palestine, excluding the Gaza Strip, which Arens seems to have ignored.

However, the Palestinians’ reasoning for their decision is totally different from that of Arens, a right-wing Israeli politician. While Arens dismisses the general Israeli concern that granting West Bank Palestinians Israeli citizenship would change the demographic and Jewish structure of Israel, Palestinians believe they would eventually become a majority in Israel in light of their higher birth rate, which means they could eventually take control through democratic and peaceful means.

The idea of a one-state solution has been gradually gaining Palestinian support as the Oslo process, started in 1993, has failed to bring about an independent state for the Palestinians in the West Bank and Gaza Strip. Strong advocates of the two-states idea are also now talking about one state. Recently, Palestinian President Mahmoud Abbas suggested the one-state solution if negotiations to bring about an independent state fail.

The Ma’an poll, while not very scientific, reflects the general Palestinian mood in the occupied territories after efforts to give them a state have stalled and hopes pinned on the Obama administration faded. Palestinians still carry the one card that can either make or break peace in the Middle East: their presence on the land. Israel will have to deal with that reality sooner or later.

This is important–a Palestinian movement for equal rights and citizenship in one-state will change the game in Israel/Palestine.  Once it picks up to a critical mass, the fundamentally flawed “peace process” will die and Israel, as Ehud Olmert and Ehud Barak have said before, will have to deal with the simple call for respecting the human rights of the Palestinian people, including the millions of refugees who long to return to their villages.  That means the end of Zionism.