After U.N. vote, Palestinians and Israel search for the next step
Published: November 29, 2012 09:13PM
Updated: November 29, 2012 08:13PM

Jerusalem • Saeb Erekat, a senior Palestinian official, recently said that the day after Palestine gained recognition as a nonmember state at the United Nations, “Life will not be the same.”

True, there would still be the occupation, he said; Israeli settlement and closing policies would continue. But no Israeli official could argue that the West Bank, Gaza and East Jerusalem were disputed territories, he said, adding, “Palestine will become a country under occupation. The terms of reference for any negotiations become withdrawal.”

Now that the United Nations has voted to grant the Palestinian territories status as a nonmember state, one question is whether the Palestinians will use their enhanced status for renewed negotiations in the spirit of peace and reconciliation or for confronting Israel in new ways through the U.N. system, and possibly the International Criminal Court.

The answer may be both. But for now, at least, as Israel heads into January elections after a resounding diplomatic defeat at the General Assembly, the sides seemed, at best, stuck in the same stalemate as before, analysts said.

Erekat, speaking by telephone from New York a day before Thursday’s Assembly vote, said that the Palestinians would be willing to “sit with the Israelis and define a road map,” and to talk about how to return to talks. For example, he asked, would negotiations pick up where they left off at the end of 2008, when Ehud Olmert was prime minister of Israel, or would they go back to the start?

Negotiations for a two-state solution have been stalled with the Palestinians, who insisting on a halt to settlement building. The Israeli prime minister, Benjamin Netanyahu, says he is ready for negotiations without preconditions and has refused to renew a temporary freeze that expired in 2010.

With the new emphasis on the territory as occupied, Palestinian officials said, the demand for a settlement freeze was unlikely to be dropped.

Israel has long argued that a Palestinian state can only come through negotiations, but that the new resolution would make negotiations more difficult. Israeli critics say that the resolution enshrines the principle of a state based on the pre-1967 borders, a position rejected by the Israeli government, while upholding the Palestinian refugee claim for a right of return to the Israeli side of the lines.

“They got a state without end of conflict,” a top Israeli official said. “This sets new terms of reference that will never allow negotiations to start.”

The absence of negotiations may then open the way for a more confrontational approach.

Mustafa Barghouti, a Palestinian politician and a member of the Palestine Liberation Organization’s “Day After” committee, said that as an occupied state, if the Israelis failed to apply the Fourth Geneva Convention, the Palestinians could “at some time in the future” seek prosecution in the International Criminal Court or work through the U.N. system to push for sanctions.

“There is a very long list of actions by Israel that violate international law,” Barghouti said, citing the settlements, economic projects in the West Bank and Israel’s treatment of Palestinian prisoners.

While Israel considers settlements it has established with government approval to be legal, most of the world disagrees. The convention prohibits an occupying power from deporting or transferring parts of its own civilian population into territory it occupies.

In an effort to garner the widest support possible for their U.N. bid, Palestinian officials had in recent months toned down threats of prosecuting Israel for settlement building or suspected war crimes, instead emphasizing that the move was intended to jump-start a more meaningful, nonviolent political process toward a two-state solution.

“We say it is in no way a substitute to negotiations,” Nabil Shaath, a senior Palestinian official, said in a recent interview. “It is in no way meant to delegitimize Israel.”

But in the days before the vote, officials refused to make any public commitment that the Palestinians would not seek to prosecute Israel, saying they would not accept any limits on their statehood.

“Those who worry about the International Criminal Court should not commit acts that will take them there,” Erekat said.

Some experts suggested that the Israeli fears were overblown.

“Most countries have been saying for the last 40 years that this is an occupation,” said Robbie Sabel, a professor of international law at the Hebrew University of Jerusalem and a former legal adviser of Israel’s Foreign Ministry.

Sabel said that Palestinian refugees living in the West Bank and Gaza could now “cease to be refugees and become Palestinian nationals in their own country.”

He added that given the technicalities involved, the idea of the Palestinians pursuing Israel in the International Criminal Court was “far-fetched.” While settlements may be considered an obstacle to peace, he said, the court was more used to dealing with crimes like mass rape or genocide.

But the top Israeli official said that the issue of settlements was still a major concern. The International Criminal Court, of which Israel is not a member, only prosecutes in cases where a country would not try its own citizens.

“I am not afraid of our soldiers breaking international law because in most cases they do not,” he said, “and if they do, we try them. But we cannot say we will try settlers because for us settlement is not a crime.”

Israel has said that any punitive measures after the U.N. maneuver would depend on the future actions of the Palestinians. Yigal Palmor, the spokesman for Israel’s Foreign Ministry, said that Israel would “work by the book” and would only take steps that did not violate any signed accords.

One possibility, he said, was deducting debts owed by the Palestinian Authority to Israeli utility companies from the tax revenues that Israel collects on behalf of the authority.

“We can, so we may,” he said.

Israeli officials had been warning of much more drastic options, including canceling agreements and collapsing the Palestinian Authority, but those seemed to have been shelved for the time being so as not to worsen Israel’s international isolation on the issue.

Some Israelis regretted that their country had reached this point. Olmert, the former prime minister, said that he saw “no reason to oppose” the Palestinian bid at the United Nations and that it was “congruent with the basic concept of the two-state solution.”

Gabriela Shalev, a law professor and a former Israeli ambassador to the United Nations, said in an interview that Israel “could have done more” to promote negotiations with the Palestinians and “could have not given them the feeling of being irrelevant.”

“The situation is so bad now,” she said, “that maybe only good can come of it.”