THE UN AND THE ASSAULT ON ISRAEL´S LEGITIMACY: IMPLICATIONS FOR THE ROADMAP (JCPA-JERUSALEM CENTER FOR PUBLIC AFFAIRS) Anne Bayefsky Jerusalem Viewpoints No. 501 15 Tammuz - 3 Av / 15 July - 1 August 2003)
Source: http://www.jcpa.org./jl/vp501.htm
JCPA-Jerusalem Center Public Affairs
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The roadmap has significant roots in the UN, an organization long
understood as biased against Israeli interests and Jewish well-being
in general.
Examples include the work of the UN "Special Committee to
Investigate Israeli Practices Affecting the Human Rights of the
Palestinian People and Other Arabs of the Occupied Territories,"
established in 1968, and the UN "Committee on the Exercise of the
Inalienable Rights of the Palestinian People," created in 1975.
There is a pressing need to clarify with the American
administration what attributes of sovereignty will not be accorded a
Palestinian state with provisional borders prior to final status
negotiations.
Israel must reassert that its consent is necessary for any
decision affecting its essential interests. An American commitment to
object to any unilateral declaration of independence should be
immediately forthcoming and clearly understood by the parties.
The UN and the European Union must be kept out of any monitoring
and assessment function. Recognition of a fundamental breach, and the
ability to apply the necessary consequences, require that precise and
public monitoring by Israel start now.
From a political perspective, many in Israel view the roadmap as
another irrelevant piece of paper in a long line of musings or
written agreements between Israelis and Palestinians, or among
Israelis, Palestinians, and Americans over the past decade. Although
the spirit of the document has significant UN roots, an organization
long understood as biased against Israeli interests and Jewish well-
being in general, the prevailing view is still a strong skepticism
about the possible harm the UN can do in the Arab-Israeli conflict. A
sense of control over Israel´s destiny is firmly entrenched in the
minds of Israelis and the current Israeli government.
This analysis of the roadmap as a non-legal, non-paper with non-
status, a marginal UN, and a firm Israeli grip on Israel´s future, is
seriously flawed and even dangerously inaccurate.
The United Nations and Israel
Consider first the character of the roadmap´s parentage. Human rights
may be the most highly-rated political currency in modern times. This
is exactly why the criminal state or political actor has sought to
appropriate it. The United Nations, as the pre-eminent guardian of
human rights, has been the staging ground for this subversion. The
body erected upon the rejection of anti-Semitism now perversely
serves as a major international vehicle for anti-Semitism. It is anti-
Semitism that to a large measure drives the effort at the UN to
demonize, isolate, and ultimately destroy the Jewish state.
According to the UN, Israel is the archetypal human rights violator
in the world today, while recognition or condemnation of anti-
Semitism is highly controversial. For example:
Almost 30% of UN Commission on Human Rights resolutions over a
thirty-five year period have been on Israel.
Israel is the only state to have been the subject of an entire
agenda item of the Commission for the past thirty-three years.
The General Assembly has had only ten emergency sessions in its
history and six of them focused on Israel.
From 1975 to 1991, the self-determination of the Jewish people
was called racism by the infamous Zionism is Racism resolution of the
General Assembly.
In 2002 alone, the UN General Assembly produced twenty-two
reports and formal notes on "conditions of Palestinian and other Arab
citizens living under Israeli occupation."
The UN record is clear also from the following instances. The "UN
human rights organizational structure" on the UN website lists only
one country-specific mandate, the "Special Committee to Investigate
Israeli Practices Affecting the Human Rights of the Palestinian
People and Other Arabs of the Occupied Territories." Established in
1968, it is the only country-specific UN human rights investigative
mechanism that is not comprised of independent experts, but state
representatives.
There is another "Committee on the Exercise of the Inalienable Rights
of the Palestinian People." Established in 1975 on the same day as
the Zionism is Racism resolution, it still produces annual reports
and sponsors meetings, conferences, and various publications, year
round.
In 1993 the UN Commission on Human Rights created the role of Special
Rapporteur on the "Palestinian territories." The Rapporteur´s mandate
is to investigate only "Israel´s violations of...international law,"
and not to consider human rights violations by Palestinians in
Israel.
At the 1993 Vienna World Conference on Human Rights (only the second
world conference on human rights in the history of the UN), efforts
to place "anti-Semitism" into the Vienna Declaration failed because,
in the words of the Chair of the Drafting Committee, it was too
controversial a subject.
In October 1995 the UN General Assembly adopted a Declaration in
Connection with the Fiftieth Anniversary of the End of the Second
World War. Specific efforts to include the Holocaust were rejected,
on the grounds that the resolution could not otherwise have been
adopted by consensus, the text had to be universal, and it could not
single out any particular horror.
At the UN Durban World Conference Against Racism in September 2001,
only one country situation was criticized as racist in the world
today - Palestinians living under Israeli occupation. The NGO Forum,
immediately preceding the government conference, adopted a document
that equated Zionism with racism. In the government conference the
drafting committees discussed whether Holocaust had a capital ´H´ or
an ´s´ on the end, whether anti-Semitism also meant discrimination
against Arabs, the legitimacy of referring either to anti-Semitism or
the Holocaust at all, and the legitimacy of mingling Moslems and Jews
on Arab soil. In the end, almost all references to anti-Semitism and
the Holocaust, particularly in sections requiring specific actions in
the fields of education, political parties, and the judicial
function, were deleted. The outcome reflected a consensus by all but
the United States and Israel, the only two states to walk out.
In April 2002 UN behavior was a major contributing factor to an
atmosphere of hysteria over an alleged Israeli "massacre" in Jenin,
labeled even in a Fatah-authored report as "the suicide bomber´s
capital." Terje Larsen, UN Special Coordinator for the Middle East
Peace Process, told the world the scene in Jenin was "horrific beyond
belief," "totally destroyed...like an earthquake; we have expert
people here who...say they have never seen anything like it." Peter
Hansen, Commissioner General of UNRWA, called it "a human catastrophe
that had few parallels in recent history." UN press releases
blazed: "End the horrors in the camps." Buried in paragraph 57 of a
report issued by the Secretary General in the summer, was the fact
that the Palestinian death toll had been fifty-two, more than half of
whom were armed combatants. The impression of a massacre at Israeli
hands is what remains in the public consciousness.
Israel is the only UN member state denied full and equal membership
in one of the UN´s five regional groups, specifically in any UN body
elected in Geneva. Israel therefore cannot stand for election to WIPO
(the World Intellectual Property Organization) and the International
Labor Organization´s governing body, or participate in the
consultations of regional bodies at the United Nations Conference on
Trade and Development, the World Health Organization, and the
Commission on Human Rights.
The 2002 General Assembly adopted for the first time a new resolution
on Palestinian children. It is now one of only three General Assembly
resolutions on children - the other two are on the rights of the
child and the rights of the girl child. It was adopted in committee
in the same week that a gunman from Arafat´s Al-Aqsa Martyrs Brigade
broke into a home in a kibbutz in northern Israel and shot to death a
four- and five-year-old at close range while their mother tried to
hide them beneath her body. Although in the past two years over one
hundred Israeli children have been murdered, and one thousand wounded
or maimed, the UN resolution made no mention of Israeli children.
Only the United States, Israel, the Federated States of Micronesia,
the Marshall Islands, and Palau voted against.
In December 2002 the Security Council passed a resolution on the
November 28th terrorist attacks in Kenya which were directed at
Israelis. In October a hostage-taking incident in Moscow and a
terrorist bombing in Bali resulted in Security Council resolutions
within twenty-four and forty-eight hours respectively. But it took
the Council two weeks of intensive negotiation to adopt the
resolution concerning the attacks in Kenya because of a struggle over
references to Israel and Israeli victims. Eventually omitted from the
final draft is a reference to "Israeli civilians" and to any
cooperation with "Israeli authorities" in order to bring the
perpetrators to justice.
In 2002 there were twenty General Assembly resolutions directed at
Israel. They include claims that Israeli sovereignty over any part of
Jerusalem is null and void, all persons displaced as a result of June
1967 and subsequent hostilities have a right to return to their
homes, and that "the problem of the Palestine refugees" must be
resolved in conformity with resolution 194(III) of 1948.
The most recent report of the Special Rapporteur on Israel, by South
African John Dugaard, to the 2003 Commission on Human Rights
says: "Both Palestinian and Israeli children have been exposed to
threats of personal safety, while Palestinian children have, in
addition, felt the breakdown of family life." He could not conceive
of the breakdown of the family life of the Israeli child whose parent
is murdered or maimed in a suicide bombing. Says Dugaard of suicide
bombings, on the one hand, and civilian deaths that result from
military action by Israel (he labels "reckless"), on the other, "from
a moral perspective both are reprehensible."
The Palestinian representative told the Commission on Human Rights in
March 2003: "The world condemned the old Nazism in the past...during
the Second World War....The world also condemned Zionist Israel for
the same criminal crimes it has been perpetrating against the
Palestinian people...for over fifty years now, starting...in 1948....
[T]he world...has not yet eliminated the New Zionist Nazism."
In recent years, Jewish non-governmental organizations, such as the
International Association of Jewish Lawyers and Jurists, Hadassah,
and the Simon Weisenthal Center, have been singled out for
differential treatment by the UN´s Economic and Social Council NGO
accreditation committee, which has attempted to impede their UN
accreditation (and, by implication, access).
Durban is now the centerpiece of the UN anti-racism agenda. Every
time follow-up to the Durban conference has come to the General
Assembly or Commission on Human Rights, an assault on the legitimacy
of UN concern with anti-Semitism has occurred. Both in the Fall 2002
General Assembly and the 2003 Commission, anti-Semitism was deleted
from the explicit terms of reference of the UN investigator on racism.
The 2003 Commission on Human Rights adopted a resolution which
specifically affirms (through incorporation by reference of an
earlier General Assembly resolution) the legitimacy of suicide-
bombing - or, in UN-language, "all available means including armed
struggle" - in order to resist "foreign occupation and for self-
determination." The only states to vote against were Australia,
Canada, Germany, Peru, and the United States. The United Kingdom and
France, for example, merely abstained.
UN Regard for Human Rights
The UN´s regard for human rights conditions in other states is
instructive. To give only a few examples:
There has never been a UN Commission on Human Rights resolution
on countries like China, Syria, Saudi Arabia, or Zimbabwe.
The Special Rapporteur on the Independence of the Judiciary, in a
special report on Saudi Arabia to the 2003 Commission, found: "Saudi
Arabia does not permit women judges....It was believed that women
were unlike men physically, emotionally, and in thought, and that
only a small number of women had shown the intellectual maturity to
become a judge." No comment was made by the Commission.
There was no report to the Commission in 2003 on human rights
violations in Iran, for the first time in seventeen years. This is
because the 2002 Commission deleted the post of UN Special
Representative on Iran. In April 2002 the Commission had before it a
report expressing concern with such problems in Iran as: the failure
to comply with standards in the administration of justice, the
absence of due process of law and respect for religious minorities,
systematic discrimination against women, and the killing of
intellectuals and political activists. Iran had also refused to
cooperate with the representative and denied him entry into the
country for the previous six years. The Commission responded by
removing the representative.
At the 2003 Commission, members had before them the report of the
UN Special Rapporteur on Torture. He told them about the articles of
the Sudanese penal code making the punishment for armed
robbery "cross amputation" - the amputation of the right hand and
left foot. He told them about various cases of women being stoned to
death for alleged adultery after trials denying them legal
representation that were conducted in a language they didn´t
understand, and cases of "death by hanging with crucifixion." The
Commission also had the report of the Special Rapporteur on human
rights in Sudan, a position created in 1993. He informed them
that "women cannot travel unless they get a travel permit from
their ´guardians´," and "overall, the human rights situation has not
yet changed significantly." The result? Pakistan, on behalf of the
Organization of the Islamic Conference, vehemently objected that the
draft resolution´s condemnation "of cruel, inhuman, and degrading
treatment or punishment such as cross amputation" was "an offense to
all Muslim countries." The resolution was defeated and the Commission
thereby terminated the position of the Rapporteur on human rights in
Sudan.
The UN and the War on Terrorism
The UN´s role in the war against terrorism is equally pernicious. The
UN has no definition of terrorism. The members of the Organization of
the Islamic Conference (OIC) and the League of Arab States continue
to block consensus on any common understanding of terrorism and
prevent the adoption of a comprehensive convention against terrorism.
Across UN bodies, including the Security Council´s Counter Terrorism
Committee, they continually invoke the Arab Terrorism Convention and
the Terrorism Convention of the OIC, according to which "armed
struggle for liberation and self-determination" does not count as
terrorism (unless "prejudicing the territorial integrity of any Arab
state").
At the same time, the UN seeks to deny Israel the necessities of a
right to self-defense. UN officials often misstate international
humanitarian law. High Commissioner for Human Rights Sergio Vieiro de
Mello said in March (following the failure of the effort to hold a
special session of the Commission on the war in Iraq): "Parties must
never direct attacks against the civilian population...even if the
purpose is to strike a military target. This is true even if human
shields are being used....The precision of modern weapons...is not
reliable, not least in densely populated urban areas....Do not attack
that particular target." The Geneva Conventions say no such thing.
They do not grant immunity to military targets or terrorists using
civilians as human shields. They prohibit the disproportionate use of
force, that is, an attack on a military target "which may be expected
to cause incidental loss of civilian life" when "excessive." The
Convention is clear that the presence of "civilians shall not be used
to render...areas immune from military operations...in attempts to
shield military objectives from attack."
In summary, one birth parent of the roadmap - the UN - serves as a
breeding ground for anti-Semitism, where Jewish victimhood is
routinely denied and displaced by the Palestinian victim said to be
living under racist, Nazi-like oppression. The UN goal is to minimize
the role of negotiations, intervene on behalf of the Palestinian
victim on the grounds that the root cause of the dispute is the
Israeli occupation, and to impose pre-determined right answers on the
Israeli culprit. The roadmap now serves as its plan of action.
The Roadmap
Strictly-speaking, the roadmap is a creation of the Quartet, composed
of the United Nations, the European Union, Russia, and the United
States. UN officials say the Quartet was an initiative of Secretary-
General Kofi Annan who brought the group together in the fall of 2001
with the expressed interest of becoming directly involved in the Arab-
Israeli conflict. The initiative took root. Although late in 2001,
American and Russian counterparts were still referring to themselves
as "co-sponsors of the Middle East peace process," by 10 April 2002
Annan was able to declare, together with Secretary of State Colin
Powell, that the Quartet was "going to remain consistently seized of
the problem [of the Middle East]." The European Union, which had been
clamoring for an inside role for years, shared UN enthusiasm for the
Quartet. By 29 April 2002 German Foreign Minister Joschka Fischer was
insisting on behalf of the European Union that the Quartet "stick
together." Mr. Powell called for an international conference at the
beginning of May 2002. The summer of 2002 saw a proliferation of
Quartet bureaucrats in working groups and task forces, with certain
U.S. officials such as David Satterfield, Deputy Assistant Secretary
of State for Near Eastern Affairs, and Flynt Leverett, Senior
Director for Middle East Initiatives at the National Security
Council, actively pushing the drafting process. On 17 September 2002
European Union President Per Stig Moeller announced (while issuing a
Quartet communique) "the quartet has to be the focal point" of the
peace process. During the fall of 2002 the roadmap took shape.
Satterfield and Leverett had key roles from the American side, while
UN officials attribute significant input to Terje Larsen. According
to some participants, the major rough points arose while American
representatives from the White House and the State Department
negotiated in the Quartet with each other. Israeli officials maintain
they were always in the loop, but one early fall version came into
Israeli hands only via an Arab newspaper. Expressions of concern by
Israelis at various points to American officials were not taken
seriously, while at the same time, Israeli input was minimized by a
tendency to downplay or ignore the impending threat. Various versions
passed through the parties´ hands until the roadmap was eventually
published with the President´s approval in March 2003.
American endorsement of the roadmap´s orientation represents a
seismic shift in the United States´ attitude towards the Arab-Israeli
conflict. The long-standing UN policy that pushes imposed solutions
rather than a negotiated settlement has been swallowed almost whole.
Adjudication of the process is also no longer in the hands of the
parties. Consider the change from the fall of 2001 to the end of 2002:
On 19 November 2001 Mr. Powell said in a Louisville
speech: "Palestinians must accept that they can only achieve their
goals through negotiation. That was the essence of the agreements
made between Israelis and Palestinians in Madrid and again in Oslo in
1993. There is no other way but direct negotiation in an atmosphere
of stability and non-violence."
On 24 April 2002 Mr. Powell told a Senate subcommittee: "First,
security and freedom from terror and violence...second, serious
accelerated negotiations; and third, economic humanitarian
assistance."
On 16 July 2002 Mr. Annan and the European Union´s Danish
president insisted that progress on all tracks be "side by side."
On 17 September 2002 Mr. Annan, with Mr. Powell at his side,
declared a three-phase program: "The first phase will see Palestinian
security reform, Israeli withdrawals, and...Palestinian
elections...the second phase...the option of creating a Palestinian
state with provisional borders...the third phase...Israeli-
Palestinian negotiations."
On 3 December 2002 the American Ambassador to the UN, John
Negroponte, told the General Assembly: "The centerpiece of our
current objectives is a roadmap designed to help promote practical
efforts to achieve four objectives: 1) implement the strategy of
promoting Palestinian institutional and security reform; 2) ease the
humanitarian situation inside Palestinian areas; 3) end violence and
terror and restore security cooperation; and 4) restore a political
dialogue."
The roadmap itself drops the word "option" before the creation of a
Palestinian state in the later parts of Phase II, calls for the
creation of such a state prior to negotiations between Israelis and
Palestinians, and mentions "negotiation" only in the second to the
last paragraph in the final phase.
It seems paradoxical that at the very time in which the United States
has a much more direct, hands-on approach in the region by way of
Iraq, it has ceded significant control in the Arab-Israeli context to
the Quartet and its UN-inspired agenda. The picture fits together,
however, as follows. American interest in the Quartet coincides with
what might be called a UN-ization of American foreign policy. Between
12 March and 19 April 2002 the United States permitted or actively
promoted four Security Council resolutions concerning Israel. The
Quartet blossomed at the same time that the United States refused to
exercise its Security Council veto to shield Israel from the UN´s
highly selective concern with human rights, even in the midst of a
particularly vicious point in the terrorist campaign directed at the
Jewish state. This culminated on 19 April 2002 with the United States
becoming the sole sponsor of Security Council resolution 1405, a
resolution that voiced concern only with a dire situation among
Palestinian civilians and supported the production of a UN report on
events in Jenin. The resolution proved to be a complete fiasco, its
implementation eventually foundering over UN chicanery relating to
the mandate and composition of the investigative team. Four
resolutions in thirty-eight days had the predictable effect, not of
mollifying the Arab group, but of whetting their appetite. The Arab
group waited two weeks before seeking the next UN resolution,
reconvened an emergency session of the General Assembly, and only
then got a negative vote from the United States in response to a
General Assembly resolution on 7 May 2002.
On 24 September 2002 the United States failed to veto yet another one-
sided Security Council resolution concerning Israel. UN-ization was
in full swing. Instead of using the President´s General Assembly
speech in September 2002 to justify a coalition assault on Iraq based
upon past Security Council resolutions, the United States sought
further UN approval for an Iraq war. American officials obviously
thought that serving up Israel via yet another Security Council
resolution would smooth the way on the Iraq resolution. Instead, more
clamoring for the next condemnation of Israel over non-compliance
with the previous resolution revved up, and it took the United States
another six weeks to achieve a resolution on Iraq. By that time, on
the bottom line, American negotiators could only manage a resolution
requiring them to go back to the Security Council for further
supplication. Months of coddling UN investigators, Security Council,
and other UN members coincided with active American participation in
the preparation of the roadmap. UN-ization intensified as the
President was convinced to go back to the Security Council in
February, not only for discussions, but for additional approval. This
culminated in the serious embarrassment to the President from
publicly announcing that he would insist Security Council members lay
their cards on the table by forcing a vote on a resolution. Very
shortly thereafter, he was forced to slink away from the table
without a vote when it became obvious that he could not muster enough
support for a win (even without a veto).
At bottom, the stumbling block over Iraq was its incompatibility with
UN priorities, which are clearly an "Israel-first" agenda.
Consequently, British allies demanded compensation for the
marginalization of the organization over Iraq by rendering it front
and center in the Arab-Israeli conflict. Remarkably, the
extraordinarily poor advice the President had received on the glories
of UN-ization still registered. The British request was deemed
acceptable and the roadmap, a UN-inspired trojan horse moving into
the Israeli heartland with the United States at the reins, was born.
There is no doubt that antipathy for the UN in the Bush
administration remains high. Concern about the International Criminal
Court, continued reluctance to ratify various UN-sponsored treaties,
and disgust with the behavior of the Commission on Human Rights are
widely shared by the White House and Congress. Despite the obvious
inconsistency between American values and the UN "human rights"
agenda, or the war against terrorism and the UN promotion of
Palestinian terrorism, the siren call of significant UN participation
is proving irresistible. Colin Powell is said to spend more time
speaking to Kofi Annan in a month than any other Secretary of State
ever did in an entire term in office. The pressure of
multilateralism, defined as UN-engagement, is unremitting,
particularly in the case of Israel which dominates so much of UN
business. At the same time, there is no doubt that UN representatives
found willing partners not only in the European Union, but among
various like-minded American officials. They believed, for example,
that the President´s 24 June 2002 speech was too heavily weighted on
the Israeli side and sought a means to recast American policy in the
opposite direction. It may also be that American officials calculate
that the Quartet may be useful in any future good cop-bad cop
routine. A bad cop Quartet would strengthen an American "we have your
best interests at heart" story-line. Similarly, there is nothing like
dangling an international conference (now entrenched in the roadmap),
outnumbering the Jewish state 192-1, to rattle an Israeli cabinet.
Landmines in the Roadmap
All of the indicators surrounding the roadmap´s birth should arouse
in Israelis every defensive instinct. Seven major landmines are
immediately apparent.
1. The Israeli cabinet signed onto the steps in the roadmap with the
promise that fourteen "comments" or "remarks" would be seriously
addressed by the United States administration. Senior Israeli
officials tell local audiences that American assurances are rock
solid. They have even produced a so-called consolidated version of
the roadmap with the Israeli comments inserted. Interestingly, senior
UN officials say they have never seen a copy of a consolidated
roadmap. They claim, on the contrary, that they have been given
assurances by the White House that the fourteen comments have no
status and are not binding in any way.
2. Israeli officials stress that the roadmap is not a legal document,
and that items like dates, which were obviously unrealistic, were
deliberately left unchanged upon publication so that no one would
think it was intended to be strictly implemented. UN officials also
say that the White House insisted on vague language in various
places. However, a seven-page, single-spaced document that
purportedly requires in its opening provisions "good faith efforts of
the parties and their compliance with each of the obligations
outlined below" suggests future responses such as "we didn´t mean it"
are unlikely to be effective. As a senior Israeli judge recently
expressed it, of course the roadmap has legal implications.
3. All parties agree that no attempt was made to ensure any
consistency between the roadmap and the prior Oslo or interim legal
agreements. There is no phrase preserving prior rights or
neutralizing prejudicial results prior to final status negotiations.
By contrast, for example, Article XXXI(6) of the Interim Agreement
says "Nothing in this Agreement shall prejudice or preempt the
outcome of the negotiations on the permanent status to be conducted
pursuant to the Declaration of Principles. 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." Hence, regardless of the legal status of prior agreements
versus the non-legal status of the roadmap, it is not clear that the
former will prevail in case of an inconsistency.
Since there are clear inconsistencies with the interim agreements and
an obvious intention to override them to some extent, any attempt to
turn back the clock on other elements will not be straightforward.
For instance, the roadmap´s creation of a Palestinian state prior to
final status negotiations is inconsistent with the interim
agreements. Clearly overridden is Article XXXI(7) of the Interim
Agreement which states that "Neither side shall initiate or take any
step that will change the status of the West Bank and Gaza Strip
pending the outcome of the permanent status negotiations."
Furthermore, Article XVIII of the Interim Agreement contemplates
legislation of the Palestinian Council which is inconsistent with the
provisions of the interim agreements but permissible by "any
agreement that may be reached between the two sides during the
interim period" - thereby apparently giving legal effect to the non-
legal provisions of the roadmap.
4. While detractors of the Oslo agreements may prefer to ridicule any
lingering emotional attachments, the sentimentality may not seem
quite so frivolous when it comes to defining the
roadmap´s "attributes of sovereignty." Such attributes are to be
accorded the Palestinian state in the interim phase. The interim
agreements carefully delineate attributes of sovereignty not to be
transferred prior to final status negotiations. For instance, Article
VIII of the Declaration of Principles and Article XII of the Interim
Agreement preserved Israel´s continuing responsibility "for defending
against external threats." Article XIII(4) of the Security Annex to
the Interim Agreement makes clear that control over airspace is not
transferred to the Palestinian Authority. Article XVII(1)(a) of the
Interim Agreement provides that jurisdiction of the Palestinian
Council will not cover such items as "foreign relations and
Israelis." Not a single one of these items is mentioned as excluded
from the attributes of sovereignty that the roadmap purports to
transfer upon the creation of a Palestinian state with provisional
borders. Even the fourteen elements on Israel´s wish list exclude in
vague terms "all other matters whose substance relates to the final
settlement" (following a small number of specified items). One of the
fourteen wishes speaks about the limitations to be imposed on
a "provisional Palestinian state." The claim to specific limitations
is undercut by the fact that this paragraph totally misstates the
content of the roadmap. The roadmap does not speak of a provisional
state, but of a state with provisional borders. No half pregnancy
here. It therefore appears that Israel may well have to renegotiate
limitations on the attributes of sovereignty it seeks to withhold
from the new state. So far, American officials are reportedly
uninterested in any such definitions or detailed thinking, leaving
Israel wide open to a Palestinian power grab that will be difficult
to control.
5. This brings us to the question of identifying the decision-maker.
Without a doubt, bilateralism has been seriously undermined. The
cornerstone of all previous Israeli and American policy has been that
negotiations between Israel and the Palestinians were the only way
forward to a durable peace. Negotiation would test recognition of
Israel´s permanency. It was the necessary alternative to violence,
and it meant compromises with which the parties determined they could
and would live. In the roadmap, the word "negotiation" between the
parties does not appear anywhere until the end of the final phase. In
many places in the roadmap, progress between steps or phases is
specifically not dependent upon the parties´ agreement, but upon
consensus decisions of the Quartet made only "in consultation with
the parties."
Israeli officials now place their faith on avoiding imposed results
on the following words at the end of Phase II: "creation of an
independent Palestinian state with provisional borders through a
process of Israeli-Palestinian engagement" and the words in Phase III
describing a second international conference as "convened by the
Quartet, in consultation with the parties, at beginning of 2004 to
endorse agreement reached on an independent Palestinian state with
provisional borders." By contrast, UN officials interpret the roadmap
to mean that Israeli consent is not required for the establishment of
a Palestinian state. The latter interpretation may be more consistent
with the actual language of the text. "Engagement" does not
necessarily mean "negotiation." The "agreement" endorsed in phase III
does not specify an Israeli-Palestinian agreement, and it is located
in the context of a conference that can be convened without the
parties´ consent after mere "consultations."
When pressed on this issue, Israeli officials have a number of
responses:
(a) First, it is argued that in effect there is already a Palestinian
state; it makes no practical difference if one is created now.
Israeli officials of all kinds are likely to think otherwise after
the first case is put before the prosecutor of the International
Criminal Court - quite likely to be the first neighborly act of the
new state - and the ability of significant numbers of Israelis to
travel to many countries without the threat of arrest evaporates.
Furthermore, international pressure to refrain from crossing
international borders in order to pursue terrorists operating from
the new state - whether or not they act with the approval or
acquiescence of the government - will be much greater than the
international condemnation Israel currently experiences. It may also
attract serious saber-rattling from members of the Arab League´s
Defense Pact, with concomitant pressure all round to desist from
acting. Finally, the inevitability at this point of a Palestinian
state does not mean that timing is irrelevant. The roadmap represents
a fundamental shift in favor of the Palestinian bargaining position.
The Palestinians succeeded in loading the deck by making a cessation
of their violence Israel´s major issue for which statehood became the
quid pro quo. But granting statehood prior to any resolution of
Israel´s fundamental issues, such as the firm recognition of the
Jewishness of the state, and closure on any right of return,
obviously reduces Israel´s bargaining chips and weakens its hand in
final status negotiations.
(b) Second, in response to the "imposed solutions - lack of consent"
scenario, senior officials are convinced that the United States will
not permit the creation of any Palestinian state under interim
conditions with which Israel does not agree. By contrast, UN
officials do not agree with such an assessment. The UN view may prove
more accurate, particularly in light of the substantial changes
between President Bush´s 24 June 2002 speech and the roadmap, and the
UN-ization of American Israel policy over the past year.
The roadmap is not consistent with the President´s 24 June 2002
speech in a number of basic respects:
(i) The roadmap moves from sequentialism to parallelism, from the
necessity of ending Palestinian terrorism first to the performance
of "obligations in parallel."
(ii) The roadmap dilutes the principle of a performance-based process
by setting timelines and target dates, and by designing a monitoring
process that in theory could push the process along regardless of non-
compliance.
(iii) The roadmap does not insist on a completely new Palestinian
leadership.
(iv) The roadmap dilutes details of counter-terrorism requirements.
It creates the potential of satisfying its conditions merely by
legalizing illegal weapons and putting current combatants on the
Palestinian Authority payroll.
(v) The roadmap introduces a moral equivalence between Palestinian
and so-called Israeli incitement.
(vi) The roadmap moves from conditional future American support for
the creation of a Palestinian state, to a firm commitment to create
such a state as part of an agreed-upon series of steps.
Although the non-non-paper containing the fourteen Israeli remarks
twice speaks of the future "in accordance with the 24 June 2002
speech," the inconsistencies remain and there is no indication that
the Bush administration is looking backwards.
(c) Finally, Israeli officials believe that the creation of a
Palestinian state with provisional borders without Israeli consent,
for example, by way of a unilateral declaration of independence,
would not be in Palestinian interests. The argument goes that Israel
would simply pick up its marbles and go home and the Palestinians
would be stuck with those provisional borders forever. But it seems
just as likely that Palestinian success in garnering international
pressure to create the state under interim conditions would be
repeated when it came to expanding their sovereignty. Their claim
would be similar and resonate with the same audiences - the refrain:
Israel is responsible for continuing Palestinian suffering and
economic hardship resulting from unsatisfactory borders, as well as
Palestinian humiliation over lack of control over matters of any
kind. The predictable continuation of international pressure is also
clear from the myriad numbers of UN resolutions that proclaim "the
United Nations has a permanent responsibility towards the question of
Palestine until the question is resolved in all its aspects in a
satisfactory manner in accordance with international legitimacy."
Israel´s inability to say no to the roadmap belies such bravado about
withstanding future pressure to engage with its new neighbor and
fellow UN-member state.
6. Any ability to halt progress along the roadmap depends on the
assessment of the satisfaction of the steps along the route.
Monitoring is the key. In theory, the roadmap calls for Quartet
monitors, which of course includes the UN. The roadmap says: "the
Quartet will meet regularly at senior levels to evaluate the parties´
performance on implementation of the plan." In Phase I, "Quartet
representatives begin informal monitoring and consult with the
parties on establishment of a formal monitoring mechanism and its
implementation." "Progress into Phase II will be based upon the
consensus judgment of the Quartet of whether conditions are
appropriate to proceed, taking into account performance of both
parties." Phase II includes "enhanced international role in
monitoring transition, with the active, sustained, and operational
support of the Quartet." Language such as "taking into account
performance" deliberately diminishes the status of conditions for
pressing on, and is quite different than the so-called "zipper"
approach of earlier agreements which required steps to be matched all
along the way, with movement stopping in the absence of genuine
compliance by either side. Furthermore, realization of non-American
Quartet players monitoring and assessing progress and determining the
timing of subsequent moves would represent no less than a serious
surrender of the hitherto untouchable American domination of the
Middle East peace process. As well, the bias of UN judges, the loss
of Israeli control in assessing the adequacy of implementation along
the way, and the enormously increased Israeli reliance on American
willingness to withhold consensus within the Quartet is a profound
problem.
The fourteen non-comments on the non-paper therefore include the
following plea: "The monitoring mechanism will be under American
management....Verification will be performed exclusively on a
professional basis...without the existence of a combined or unified
mechanism. Substantive decisions will remain in the hands of both
parties." Unfortunately, the actual roadmap says no such thing. While
at the moment the United States is the primary adjudicator and for
all practical purposes currently retains control over the monitoring
process, Israel is now dependent on American resistance to the
continual hounding of Quartet partners to increase their
participation. A UN paper on every Quartet member´s future monitoring
functions is already making the rounds. The coming General Assembly
and many other UN-hosted meetings on Israel will ensure it gets
continued attention. Of course there is nothing to prevent Israeli
monitoring of the extent to which Palestinians meet their roadmap
commitments. However, although regular reports are sent to the
Americans on instances of non-compliance, a public and official
scorecard is not yet being produced. There is some suggestion that
this is a deliberate omission on the grounds that it would alienate
Israeli public opinion against the roadmap. Such an attitude is
diametrically opposed to the lessons learned from Oslo, and also
undercuts any future ability to stop the clock should circumstances
warrant it.
7. Even when it comes to final status negotiations, the roadmap
prejudices Israel´s case. The roadmap maintains that final status
negotiations must result in an agreement that "ends the occupation
that began in 1967." It also requires that the resolution of the
status of Jerusalem must "take into account the political and
religious concerns of both sides, and protect the religious interests
of Jews, Christians, and Muslims worldwide" - an obvious effort to
undermine Israeli control over its capital city as purportedly
incompatible with global interests.
Conclusion
The realities of continuing deep-rooted UN hostility to the State of
Israel, the incorporation of UN ideology in the roadmap, and the
current UN-ization of American foreign policy in the case of the Arab-
Israeli conflict should suggest some immediate measures on the part
of any Israeli government.
1. There is a pressing need to be clear both publicly and with the
American administration about what attributes of sovereignty will not
be accorded a Palestinian state with provisional borders prior to
final status negotiations. This means clarifying what aspects of the
Oslo agreements have not been overridden by the roadmap. It
necessitates taking steps to preserve prior rights. It also means
formulating shared American-Israeli particulars on what needs to be
withheld from the initial state in the interests of the war against
terrorism.
2. Israel must reassert that its consent is necessary for any
decision affecting its essential interests. If the legal argument is
that "engagement" means "negotiation" and endorsement of agreements
reached about a Palestinian state means Israeli agreement, or perhaps
just the demands of attributes of Israeli sovereignty, that case must
be made constantly and forcefully. In particular, the American
administration must be under no illusions about Israel´s expectations
in this regard. An effort should be made to extract from the American
administration now a commitment to object to any unilateral
declaration of independence, and to prevent any Security Council
recommendation of UN membership following a unilateral declaration of
independence.
3. Keeping the UN and the European Union out of any monitoring and
assessment function ought to be an unwavering Israeli stance. In the
recent past, there are various indications that the bias and
resulting threat from such parties is not always understood. A little
more than one year ago Prime Minister Sharon seemed to suggest he
would welcome an international conference. Furthermore, Israel
initially said yes to a UN-led Jenin investigation.
At the same time, if a Quartet monitoring role were to become
inevitable in a limited context, concessions should be extracted for
such participation. Israel has some bargaining power here, since the
use of Israeli territory or impositions on Israeli jurisdiction will
likely be required by monitors. To take an obvious example of a
bargaining chip, Israel wants to be a full member of the Western and
Others regional group (WEOG) throughout the UN system. Recently this
past April, European Union members in particular prevented Israel
from joining in WEOG meetings at the Commission on Human Rights.
There are other similar configurations for UN-based Geneva bodies
whose membership is largely controlled by the European Union. Israel
could insist that full and equal Israeli participation in all UN
bodies within every Western democratic regional group or sub-group be
a sine qua non of UN or European Union participation in monitoring
the roadmap.
4. Ultimately, monitoring compliance should be done publicly and
professionally by Israel itself. Such a monitoring function should be
established without delay. It is not a matter of quietly keeping a
scorecard with "the Americans." This is particularly important
because the Administration is not monolithic, and a scorecard with
the White House does not necessarily translate into a hammer in the
hands of the State Department or a serious lever between the Powell-
Annan chums. Recognition of a fundamental breach, and the ability to
apply the necessary consequences, require that precise and public
monitoring by Israel start now. Furthermore, monitoring of
politically sensitive subjects - like the requirement that "Arab
states cut off public and private funding and all other forms of
support for groups supporting and engaging in violence and terror" -
may otherwise not occur.
5. The limitations upon the subject matter of the two international
conferences anticipated by the roadmap should be clearly set out now.
Rumblings about the scheduling of such a conference have already
begun. It must be made clear what will be off the table at any
substantive international conference. An international conference by
virtue of numbers alone - let alone the current dynamic of UN-led
multilateralism - ought to be anticipated as a nightmare scenario for
Israel.
6. The threat posed by the International Criminal Court to Israelis
should not be underestimated. Harmonious relations between Israel and
a future Palestinian state will be constantly undermined if such a
sword of Damocles is continually present. On the grounds of
furthering peaceful coexistence, there is no reason why an Israeli
government should not begin to insist that a future state - including
the one with provisional borders - must be conditioned on mutual
agreement not to sanction or support any claim before the
International Criminal Court concerning any acts predating the
creation of a Palestinian state.
The roadmap represents a serious degradation of Israel´s rights in
both legal and political terms. While ideally the American
administration might be convinced to rethink its support for the
roadmap, in the immediate future concrete steps to protect Israel´s
interests are essential.
* * *
Professor Anne Bayefsky is an international lawyer, adjunct professor
at the Columbia University Law School in New York, professor of
political science at York University in Canada, and a member of the
governing board of UN Watch. This Jerusalem Viewpoints is based on
her presentation at the Jerusalem Center for Public Affairs on 10
July 2003. (JCPA.ORG 08/01/03)
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