Preening Like a State

by Darryl Li | published April 3, 2014 - 3:21pm

On Tuesday, Mahmoud ‘Abbas surprised peace processers by making use of Palestine’s recently upgraded status as a UN-recognized “state” to sign 15 international agreements, mostly concerning human rights, humanitarian law and diplomatic protocol. The move was announced at a hastily convened meeting of the PLO executive committee, but appears to have been carefully crafted to support extending the US-sponsored negotiations that have dragged on haplessly over the past nine months. Its connection to any strategy of national liberation is far less clear, lending support to the critique of the international law approach to the question of Palestine advanced by Mezna Qato and Kareem Rabie in Jacobin.

The immediate calculations are relatively straightforward: Israel reneged yet again on the promised release of prisoners (Yousef Munayyer artfully retraces this chapter in the farcical history of the “peace process”). This backsliding presented a major crisis to a Palestinian leadership desperately invested in maintaining the appearance of diplomatic progress. Tuesday’s accessions allow the Palestinian leadership to show a little backbone by defying US-Israeli diktats against “internationalizing” the question of Palestine. At the same time, the Palestinian leadership demonstrates to the world its eminent reasonableness: Israel demands that Washington release the convicted spy Jonathan Pollard while the Palestinians are blamed for voluntarily shouldering obligations to respect human rights and the laws of war.

At the same time, the choice of agreements signed indicated a desire to ruffle feathers but go no further. Notably, ‘Abbas did not sign the Rome Convention of the International Criminal Court, which would have exposed Israeli officials to the possibility (however remote) of prosecution for war crimes and crimes against humanity. Moreover, he declined to set into motion membership applications to any of the UN’s various specialized agencies, such as the World Health Organization or Food and Agriculture Organization. Such a move would have triggered provisions under US law that automatically cut American funding to those bodies, as occurred when Palestine joined the UN Educational, Scientific and Cultural Organization (UNESCO) in 2011.

Reasonableness and moderation, however, do not by themselves constitute a strategy.

Historically, national liberation movements have engaged international law and legal institutions in a variety of ways: to achieve symbolic gains, to gain access to institutional platforms, to win allies and build coalitions. They seek to reap the benefits of “acting as if” they are states. Perhaps the best-known example involves the laws of war, which rebels of all kinds have long sought to join as a way of seeking formal parity with their state adversaries (although bringing revolutionary violence into the ambit of law also carries political costs, as Samera Esmeir has argued). Fionnuala Ní Aoláin reminds us that the PLO had already tried to accede to the Geneva Conventions and its First Additional Protocol (core instruments of the laws of war) in 1989 and that Tuesday’s move effectively renews that attempt. Indeed, the PLO, ANC, SWAPO and other liberation movements were non-voting participants in the drafting of the Protocol, which enshrined many of rules of war that are now considered basic, such as the obligation not to target civilians. The Protocol conferred limited legitimacy upon anti-colonial movements, prompting the US and Israel to refuse to sign on. In other words, non-state actors not only won a symbolic “seat at the table,” but they were also able to polarize the process in a way that isolated their adversaries.

Tuesday’s accessions also carry potential downsides for Palestinian legal strategy. Take, for example, the decision to join the major international rights agreements. At first blush, this decision is obviously a good thing, in that it extends the reach of international human rights obligations to more actors. Yet it also introduces the possibility of considerable confusion.

Many of the human rights agreements ‘Abbas signed have monitoring mechanisms whereby committees of experts monitor state compliance through periodically holding hearings and issuing reports. The expert committees provide some limited value by conferring official recognition of Israeli abuses and shaping the evolution of legal norms. For example, in 2001 an expert body found that punitive house demolitions weren’t simply a violation of property rights or the laws of occupation, but could also be considered “cruel, inhuman or degrading” punishment under the Torture Convention. These findings can then feed into other litigation and advocacy efforts.

‘Abbas has now agreed to expose Palestine to scrutiny as if it were a state, when the Palestinian Authority remains legally and effectively subordinated to the Israeli occupying power. When PA security forces torture political opponents in “coordination” with Israel, which state should be held responsible in these international bodies? How can the PA’s performance in ensuring the right to housing be evaluated when Israel controls the import of all building materials? Are the Hamas authorities in Gaza to be included in such evaluations without having signed on? Moreover, Zionist organizations seeking to coopt the language of human rights are likely to embrace this process with fervor. While none of these problems is by itself insurmountable or disastrous, it is not at all clear that they are worth the perceived benefits of accession. After all, joining the human rights agreements as a state party does not give the Palestinians an additional platform within the UN for pursuing their cause (at most, it allows Palestine to participate in voting on the appointment of experts).

The problem is not criticizing the PA’s long and ample record of human rights abuses. It’s that doing so in a forum designed for states carries the risk of artificially separating the very real conjoined collaboration between Israel and certain Palestinian elites and, worse, doing so in a manner that implies that they are equals. Sometimes the appearance of parity with one’s adversaries is useful; other times it decidedly is not, especially at the risk of obscuring the reality of occupation and colonization.
   
According to Palestinian negotiators, the accessions will “protect and promote basic rights of the Palestinian people and will enable the State of Palestine to be a responsible actor on the international stage.” The tension between these two goals, however, has not been addressed or even properly acknowledged. Edward Said’s famous warning that the Oslo process would increase Palestinian obligations without safeguarding Palestinian rights remains as prescient as ever.

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