Tuesday, May 21, 2024

Palestine: a UN non-Member Observer State
May 19, 2024
Source: Originally published by Z. Feel free to share widely.


The Security Council meets before voting on a resolution concerning a ceasefire in Gaza at United Nations headquarters, Tuesday, Feb. 20, 2024. (AP Photo/Seth Wenig)


On 10 May 2024, the UN General Assembly (UNGA) adopted Resolution A/RES/ES-10/23 in which it expressed “deep regret and concern that, on 18 April 2024, one negative vote by a permanent member of the Security Council [UNSC] prevented … the Council recommending the admission of the State of Palestine to membership in the United Nations”; for which reason the UNGA decided, of its own initiative, to authorize “the participation of the State of Palestine in the sessions and work of the General Assembly and the international conferences convened under the auspices of … the United Nations”.

Given the stipulation in Article 4 of the UN Charter that “The admission of any … state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council”, and given that precisely such a recommendation was vetoed by the USA in the UNSC most-recently on 18 April 2024 – as acknowledged in the UNGA Resolution itself – it was indeed a very liberal reading of the UN Charter by the UNGA in support of its decision to grant “additional rights and privileges of participation” to “the State of Palestine”; absent any initial recommendation from the UNSC to do so. This is in fact the only liberal interpretation of the UN Charter I have seen by the UNGA – in two decades – to overcome the perverted use of vetoes in the UNSC by those with an arrogant disregard for the wishes of the overwhelming majority of the UN’s 193 Member States.

The Israeli Ambassador of course spoke out against this latest UNGA Resolution – which had 143 votes in favour, 25 abstentions and only 9 votes against (Argentina, Czech Republic, Hungary, Israel, Federated States of Micronesia, Nauru, Palau, Papua New Guinea, United States) – making explicit reference to this very same liberal interpretation of the UN Charter: “With today’s vote, you’re totally bypassing the Security Council in violation of the Charter”. He went on to make the point that UN Membership is only open to “peace-loving States”, yet in his interpretation, “The Palestinians are the exact opposite of peace-loving. They have only tried to destroy Israel”. The same Israeli Ambassador declared in recent weeks that “The UN, the organization founded to prevent Nazi ideology from spreading, has committed itself to reinforcing modern-day Nazi Jihadists… breaking the Guinness World Record for rewarding terror, the UN now, in complete violation of its charter, is considering to force the establishment of a Palestinian terror state”.

Interestingly, the USA’s Ambassador made exactly the same effort to confuse and conflate the issue of ‘Palestinian Statehood’ with the subject of ‘Palestinian membership of the UN’: “our vote does not reflect opposition to Palestinian Statehood”. “Instead, it is an acknowledgment that Statehood will come only through a process that involves direct negotiations between the parties”; whilst also noting “his country’s commitment to intensifying its engagement with the Palestinians and the rest of the region to advance a political settlement that will create a path to Palestinian Statehood and subsequent UN membership”. These comments, along with the Israeli Ambassador’s recent reference to “the establishment of a Palestinian terror state”, can both be easily demonstrated as distortions of historic proportion. The subject of the UNGA Resolution was instead: “the admission of the State of Palestine to membership in the United Nations”.

In the real world, the existence of the “State of Palestine” – as it was once again referred to by the UNGA in its Resolution – has been a legal fact under international law since 1988. The State of Palestine was proclaimed by the Palestine National Council on 15 November 1988, and by 2003 was recognized by over 114 states: only 93 states had diplomatic relations with Israel at that time. To this we can of course add UNGA Resolution A/RES/67/19 of 29 November 2012, in which the UNGA granted “Palestine non-member observer State status” in the UN Organization.

It is also perhaps worth making the point that the International Criminal Court (ICC) – one of two international courts currently reviewing Israel’s ongoing behaviour in the context of the Convention on the Prevention and Punishment of the Crime of Genocide – only has jurisdiction in cases when “A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court”. This is of course exactly what happened in January 2015 when the president of the ‘Assembly of States Parties to the Rome Statute’ of the ICC “welcomed the deposit by the State of Palestine of the instruments of accession to the Rome Statute of the International Criminal Court”. The legal existence of the State of Palestine has been well established for decades: talk of a ‘Two-State Solution’ to the conflict has been no more than pointless theatre for decades, and a “vision” that Palestinian membership of the UN will do nothing at all to advance.

Unlike the ICC, whose membership is only open to “States”, in the case of the International Court of Justice (ICJ) – “the principal judicial organ of the United Nations” – “All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice”: precisely why South Africa has been taking the lead at the ICJ in the place of the ‘State of Palestine’ which is not yet, as already discussed, a (full) member of the UN.

It is worth returning to the words of Israel’s Ambassador who correctly declared that UN Membership is only open to “peace-loving States”, and to discuss the remainder of the same sentence from Article 4 that he understandably omitted: “Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations”. As such, UN membership is not automatically open to “peace-loving states”; those same states must also “accept the obligations contained in the present Charter”.

One such obligation can be found in Article 25 of the Charter: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. This is of course why UNSC resolutions are ALWAYS binding (irrespective of the additional distortions attempted by the USA’s Ambassador in suggesting otherwise; much to the chagrin of legal scholars).

The list of UNSC resolutions completely ignored by Israel today is so vast, it is difficult to place an accurate number on them. Given this, if we consider only the most recent UNSC resolution on the conflict – UNSC Resolution 2728 of 25 March 2024 – we read that the UNSC: “Reiterating its demand that all parties comply with their obligations under international law, including international humanitarian law and international human rights law”, (1) “Demands an immediate ceasefire for the month of Ramadan respected by all parties leading to a lasting sustainable ceasefire”, and (2) “Emphasizes the urgent need to expand the flow of humanitarian assistance to and reinforce the protection of civilians in the entire Gaza Strip … in line with international humanitarian law”.

Anyone that has been following the situation in Gaza since that date knows that Israel is in flagrant breach of both of these – binding – demands of the UNSC. As such, it is eminently provable that the State of Israel is in violation of Article 25 of the UN Charter, given its manifest contempt for “the decisions of the Security Council”: and this since – at least – the adoption of historic UNSC Resolution 242 on 22 November 1967, which after “Emphasizing the inadmissibility of the acquisition of territory by war”, demanded the “Withdrawal of Israel armed forces from territories occupied in the recent conflict” of June 1967 (at which point in time, many argue, the occupation of Palestine officially started).

The UNGA must continue down the path it took on 10 May 2024. It is for the UNGA – never the UNSC – to decide which states “accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations”: before those states can be accepted as members of the UN. And it was UNGA Resolution 273 of 11 May 1949 that – erroneously – judged that “Israel is a peace-loving State which accepts the obligations contained in the Charter and is able and willing to carry out those obligations”. This, with the benefit of 75 years of retrospection, we can now see was an ineffable error of judgement by the UNGA.

Anyone that reads the UN Charter knows that there is currently only one solution: the UNGA must revoke operative Paragraph 1 of its Resolution 273 immediately, and must ask the ICJ for an Advisory Opinion on the consequences for the ongoing participation of Israel at the United Nations: membership, after all, only being available to “peace-loving states which accept the obligations contained in the present Charter”. The UNGA must not lose its newly-found creativity, or we risk losing the UN as a whole; just as we lost the ‘League of Nations’ (UN version 1.0).

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