If a statehood declaration is likely to have little impact beyond giving Mr. Abbas a rhetorical victory, why are the Palestinians and their supporters (the Arab League states, Turkey, Iran) making such a point of endorsing it, and why are the Israelis and their supporters (the U.S., Canada, Germany) opposing it so vigorously?
Well, there’s no telling which direction the political spin will take. The Palestinians calculate that Israel will feel increased heat if they’re successful, while the Israelis assume that Palestinian militancy will be harder to chill if their opposition to the move fails. But, in Middle East politics, predictions are dire and reversals the norm.
What should be more predictable is the impact of Palestinian statehood on the legal rights and wrongs flowing between the parties. In these times of worldwide lawfare, where legal claims fly like Scud missiles chasing Mideast opponents across jurisdictions, statehood has been considered a comparative advantage. Proceedings against Israel and its officials are often doomed to failure, largely because the doctrine of sovereign immunity prevents a state and its agents from being hauled into the courts of another state.
In the notorious Bouzari case, an Iranian Canadian’s claim against the country of his birth for torturing him in prison was dismissed by the Ontario courts, confirming that immunity applies regardless of how guilty or innocent a state might be. Iran can’t be sued in Canada for torturing its citizens any more than Israel can be sued for aggressively defending its citizens.
This legal quirk has the Palestinians coveting statehood. Terror victims have resorted to litigation to lash back at those who did them harm, and the Palestinian Authority has been the subject of many of those legal efforts. In the Ungar case – the leading U.S. decision on Palestinian legal status – the court determined the Palestinian Authority gets no immunity in a U.S. forum because it lacks the essential features of sovereignty that UN member states enjoy.
On the other hand, the Israelis and Palestinians may be gazing at too narrow a legal horizon.
The other legal consequence of statehood is that a state is responsible internationally not only for its own acts but for all acts from its territory – even by groups beyond its control. Israel learned this in 1949 when it was held liable by the International Court of Justice and made to pay reparations for the death of a diplomat killed by renegade Jewish extremists that the new Israeli government had yet to bring under control. Under international law, a state can’t avoid responsibility by claiming it has no authority over groups within its territory.
Although skepticism about the balance of international institutions is justified, it’s not only Israel that has been called to task by the UN’s judicial branch. Libya, Sudan, Iran and others have been subjected to justice in international forums where they can’t be touched in domestic ones.
From the international perspective, it should be the Israelis cheering for Palestinian sovereignty and the Palestinian Authority concerned about its potential liabilities. After all, Palestinians have tended to deflect responsibility for violence by pointing to groups beyond the Palestinian Authority’s reach – Hamas, Islamic Jihad, Popular Resistance Committees. While the statehood gambit may provide new arguments for domestic immunity, it will impose full international responsibility on the Palestinian Authority for anyone operating from Gaza and the West Bank.
Politically, Palestinian statehood may re-spin, but not resolve, the conflict with Israel. But, legally, it’s a potential game changer, albeit in a reverse direction from what the parties expect. It may turn out that Mideast surprises are as much the norm in law as in everything else.
Ed Morgan is a professor of law at the University of Toronto. He testified as an international law expert for the plaintiffs in U.S. federal court in Ungar v. Palestinian Authority and in Ontario Superior Court in Bouzari v. Islamic Republic of Iran.
