Prospects of a Hamas truce and the Palestinian quest for UN membership

Amidst the news of a top Hamas Official confirming that the Islamic militant group is willing to agree to a truce of five years or more with Israel and that it would lay down its weapons and convert into a political party if an independent Palestine State is established along pre-1967 borders. Historically, Palestine’s borders have arisen from the lines drawn by the armistice agreements that Israel signed with both Jordan and Egypt in 1949.

Although initially, it was on a de facto basis, these lines have been converted into de jure frontiers.

The United Nations Security Council (UNSC) failed to ensure Palestine’s full membership of the United Nations (UN) due to a United States veto on a draft resolution that would have recommended granting such status to Palestine. A UNSC resolution required at least nine votes in favour to pass with no vetoes from its five permanent members.

Although the proposal submitted by Algeria received 12 votes in favour, it could not pass due to a negative vote from the United States cast, and Switzerland and the United Kingdom abstaining. Adopting the draft resolution would have led to the UNSC recommending the General Assembly admit the State of Palestine as a member of the UN.

This recent veto exercised by the United States raises important questions regarding the draft resolution at the UNSC, such as: What were the issues that led to the veto being exercised by the US? What is the rationale for having in place the veto? The history of the Palestinian claim to membership in the UN and the possible way forward.

Under Article 24(1) of the United Nations Charter, which confers a duty upon the members of the Security Council to act to maintain the peace and security of the world, the use of veto is highly controversial.

The power to use a veto is derived from Article 27(3) of the same Charter, in which the role of permanent members (P-5) in the decision-making of the Security Council is expressed. According to the article, the decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members, including concurring votes from the permanent members. Similarly, under Articles 108 and 109, P-5 approval is required to bring an amendment to the Charter along with two-thirds of the members of the General Assembly. It must be understood that the veto was granted to ensure that the interests of the P5 were not ignored and to ensure their participation in the UN in the aftermath of World War II.

In the history of the Palestinian claim to membership, it declared itself an independent state in 1988 and has been bilaterally recognised by several states and regional and cross-regional organisations. It was in 1972 that the UNSC permitted the Palestine Liberation Organization (PLO) as a participant, which was later changed to being recognised as Palestine in December 1988.

Palestine first applied for UN membership in 2011, and the application was deferred indefinitely by the UNSC. The Palestine leadership has in the past sought help from the Arab League, who extended their support in groupings like OIC, NAM, AU, UNASUR, and EU to Palestine. Palestine has been a full-state member of the Arab League since 1988 (between 1976 and 1988, the Palestinian Liberation Organization held the seat). Finally, in November 2012, they were recognised as a non-member observer state at the UN. Since then, it has become a party to various international treaties and conventions, which, in principle, were only open to states that enjoy full democratic recognition as sovereign states like the Geneva Conventions. They had aimed to strengthen their statehood by achieving universal recognition of their state.

An example of the drawbacks of not being granted full membership could be understood from Judea and Samaria law in Palestine. Through the Judea and Samaria laws, Israel applies its domestic laws to the Israelis in the settlements on the West Bank. These laws apply only to Israeli civilians in Area C of the West Bank, which is often referred to by the United Nations as the disputed occupied land of Palestine. Israel applies military laws to the rest of the people living in these disputed lands. Such Israeli laws don’t apply to the territory of the West Bank but rather only to Israeli civilians inhabiting the region. They are known as ‘enclave laws’ and ‘enclave-based justice’.

Given the circumstances, the universal recognition of Palestinian statehood still hinges upon the outcome of a successful peace process, which needs immediate attention as the human rights of people in Gaza are at stake.

Abhinav Mehrotra & Amit Upadhyay, Assistant Professor & Associate Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, India