11/30/2012 12:03 pm ET Updated Jan 30, 2013

The Palestinian Goals Behind Demanding a Non-Member State

Perhaps the most important implication of Palestine receiving recognition as a state, at the UN General Assembly, is the fact that international laws have been reemphasized as a reference point, while Palestine has now obtained the right to ratify international treaties. In truth, this represents a strategic shift in the Israeli - Palestinian conflict, as it backs negotiations with international legitimacy, and releases them from the clutches of politicking or military escalation. But while the feat at the UN is indeed a major development, it is not entirely free of risk. On the one hand, the Palestinian achievement may be met with Israeli and American vengefulness, which could prove costly to the Palestinian National Authority headed by Mahmoud Abbas, the Palestinian people under occupation, and the international agencies that may admit Palestine as a member. But, on the other hand, this historic juncture in the Palestinian-Israeli equation may prove to be the best possible opportunity to bring about the two-state solution, exactly because Palestine now has new instruments in its hands. True, Israel remains the stronger party, both politically and militarily speaking, so long as the United States remains its ally, no matter what it does - and even after Israel challenged the U.S. President and forced him to back down on a policy he once declared to fall in line with U.S. national interests. This is true, but the fundamentals of the relationship between Israel and Palestine have now changed, and can no longer be characterized as being between one strong party and another weak, helpless one that is completely lacking in the instruments to alter its position, and which has no choice but to cave in to the de facto realities being imposed on it, one after the other.

One of the most important instruments that have changed this equation is the fact that the status of Palestine as a state grants it the right to take legal action against Israel at the International Criminal Court (ICC), not only in relation to war crimes, but also over the various illegal practices against an existing state by another occupying one, for example as regards illegal settlements which Israel refuses to even put a moratorium on. These instruments, namely the right to file complaints and bring legal cases, can indeed improve the negotiating position of the Palestinian side, and force the Israelis to take a new approach towards the two-state solution. The only other option would be for Israel to cope with overwhelming international isolation, and face cases brought against Israel at the ICC for war crimes, which cover the construction of settlements in another occupied state as well as the forceful deportation of Palestinians - pursuant to the Rome Statute that established the ICC. In other words, the new element in the equation is that Palestine is now considered, legally speaking, a state under occupation, and this renders Israel an occupying power subject to prosecution. This, in fact, is precisely what has led Israel and the United States to make hysterical threats of punishment and revenge. The rules of the game have changed, and the Palestinians now hold instruments that can inflict serious damage to Israel, namely international law as both a reference point and an ally.

Strategically, this means that the day after the UN General Assembly's vote to recognize Palestine as a state - regardless of whether the latter is a full member or a non-member state of the UN - a new kind of negotiation and a new day for bargains shall begin, since international law and international legitimacy have become part of the reference point for negotiations. The resolution recognizing Palestine as a state also means, in the words of chief Palestinian negotiator Saeb Erekat, that "the UN will eliminate the three tenets of Israeli Prime Minister Benjamin Netanyahu's strategy, namely an authority without jurisdiction, a cost-free occupation, and a Gaza in Egypt's lap." The Palestinian leadership is aware that Israeli vengeance is more likely to come than not. Nevertheless, it has resolved that it is ready to bear the consequences, which may include freezing Palestinian funds, and imposing a siege on President Mahmoud Abbas, just like the late Palestinian leader Yasser Arafat was put under siege by Israel. The Palestinian leadership also understands that the U.S. Congress, as it has threatened, will be likely to take punitive measures as well, not just against the Palestinians, but also against UN agencies that admit Palestine as a member.

Here, the risk taken by the Palestinian leadership stems from three main premises: First, U.S. and Israeli retaliatory measures may prove to be a double-edged sword that harms both the parties that wield it and those at its receiving end. Second, the waiting game has lasted for too long, without a visible end in sight. Therefore, the Palestinian Authority has become short of a vision of which it can convince the Palestinian people, as long as Israel continues to build settlements and alter realities on the ground, effectively destroying prospects for the two-state solution and making the whole peace process the equivalent of a bad joke. The third premise is the fact that Hamas's popularity seems to be on the rise, in the wake of the events in Gaza, with the favors of the Islamist group now sought as the de facto alternative to the Palestinian Authority. All this has prompted the latter's leadership to put both the United States and Israel to the test of making the inevitable choice between the Palestinian Authority and Hamas, as if to say: Choose and bear the consequences of your choice, between Hamas which rejects the two-state solution and the Palestinian Authority that is committed to it.

Practically, what the Palestinian leadership has done is have the Israeli leadership and the U.S. administration equally choose either the two-state solution or have the occupation face trial, yet while making it clear that its goal is to achieve the two-state solution, rather than put the occupation under trial. But the Palestinian Authority did not give guarantees in advance that it would not head to the ICC, like the United Kingdom asked on behalf of the United States. Neither did it pledge in advance not to seek membership of various UN agencies in its capacity as a state - which would lead the U.S. Congress to carry out its threat of cutting funding to those agencies, not without negative repercussions for the United States. Instead, the Palestinian leadership acquired this new precious negotiation card, and declared that it was ready to play it intelligently and responsibly, as long as the new equation was going to lead to a new language for trade-offs, on the basis of what is required from each of the three players: Palestine, Israel, and the United States.

The U.S. Congress, in a bill it adopted some time earlier, pledged to cut aid and funding to UN agencies if the UN General Assembly adopted a resolution granting Palestine full member status. So what the Palestinian leadership sought and obtained, was a non-member state of the UN. This distinction gives room to the U.S. Congress and the U.S. administration not to rush into measures that not only harm UN agencies, but also the United States itself and implicate it further. To be sure, a U.S. withdrawal from international organizations would put an end to one of the most important instruments of U.S. influence on both states and peoples in poor countries. Cutting U.S. funding of the World Food Program would be a disaster to the United States for instance. Similarly, withdrawing from the World Intellectual Property Organization would lead to losing protection for U.S. intellectual property. Indeed, all this is a double-edge sword. Moreover, cutting off aid to the UN Relief and Works Agency for Palestine Refugees (UNRWA) and the Palestinian Authority, would spell great harm for and perhaps even the end of the latter, and would exacerbate Palestinian anger against the United States. All this would lead in turn to deterioration in security, chaos and a vacuum that may perhaps be filled by Hamas and other Palestinian factions opposed to the two-state solution.

Meanwhile, if Israel carries out its threat to end its obligations under the Oslo agreement, on the grounds that the Palestinian Authority torpedoed Oslo when it went to the United Nations in a bid for statehood, then this will also put an end to the Palestinian security role that has benefited Israel greatly so far. The Israeli reaction is expected. According to a study titled "The Next Day", prepared by Saeb Erekat, the Israelis will not only hold the Palestinian Authority responsible for undermining peace, but will also "withhold Palestinian tax revenues; start a provocation and bring about a deterioration in the security situation on the ground; take steps towards unilateral withdrawal in the direction of the wall; impose restrictions that will affect both the private sector and the general economy;" and "possibly suspend contracts with the ministries and bodies of the Palestinian National Authority." The steps that have strategic implications, according to the study, may include, in addition to deeming the move a breach of the Oslo Accords: Refusing to recognize Palestinian sovereignty over the occupied Palestinian territory; settlement expansion especially in East Jerusalem; annexing some settlement blocs to Israel; and possibly declaring that Israel is now absolved of the previously signed agreements.

U.S. reactions, also according to the study, may include, in addition to suspending funding to the Palestinian Authority and putting pressure on other governments to dissuade them from offering support to the Palestinians, as well as suspending contributions to UN agencies: Closing down the office of the Palestine Liberation Organization (PLO) in Washington and giving political cover to the Israeli measures against the Palestinians. But what the United States and Israel won't be able to achieve is prevent the State of Palestine from ratifying international treaties, such as the Rome Statute for the ICC, human rights agreements, the Law of the Sea, and the Fourth Geneva Convention on the protection of civilians under occupation. Here, Christian Wenaweser, Liechtenstein's UN ambassador and president of the ICC Assembly of State Parties, said that Palestine was entitled to join any international treaty, including the Rome Statute of the ICC, and added that legally speaking, and as soon as the UN General Assembly adopted the resolution, there would be no ground to reject Palestine's membership to any of these treaties.

Ultimately, the timing of joining the treaties is a political decision, exercised or postponed by the Palestinian Authority as it sees fit in accordance with the national interest. Accordingly, the first opportunity for the resumption of negotiations will be taken, without preconditions, except that they should take place on the basis of international legitimacy in order to achieve the two-state solution, according to the pre-1967 borders and East Jerusalem as the capital of Palestine. Indeed, the Palestinian Authority will not be in a hurry to join the ICC or UN agencies. Instead, what it intends to do is complete the achievement of the state in order to re-shuffle the negotiating deck, with new aces now up its sleeves.

If the U.S. administration chooses to take advantage of the lull to come up with a plan to revive serious negotiations, then the Palestinian Authority may reserve the "right" to resort to the ICC and apply to join international agencies, provided that a clear timeframe is set for completing the negotiations, and putting them on a new, serious and effective track. But if the answer to the Palestinian achievement will be reprisal, or threats thereof, or even vague promises, then the Palestinian Authority will pursue a strategy of joining treaties and agencies one after the other, as it is required to do in response to Israeli and American measures.

It's a new day. It's a new chapter. It is a test to choose between the serious implementation of the two-state solution and putting the occupation on trial, and between the Palestinian Authority and Hamas as the representative of the Palestinians. Indeed, the legal instruments have changed the foundations of the relationship between the parties to the Israeli - Palestinian conflict.