Tag: Israel/Palestine
Does statehood make a difference?
Three different concepts are often confounded: statehood, sovereignty and independence. There is good reason for this: most states are also sovereign and independent. But the three attributes are distinct and they are acquired in different ways. My approach on this issue differs from the usual one, which regards the concepts as essentially identical and distinguishes between “declarative” and “constitutive” theories of how independent, sovereign statehood is acquired.
Statehood in my way of thinking comes from acquiring the institutions needed to govern. Arkansas is therefore a state not only in the sense of being one of the 50 Federal units of the United States but also in the sense that it has the institutions that enable it to govern itself, within limits set by the constitution, the Federal courts and Federal legislation.
Sovereignty refers to an international entity with a legitimate monopoly on the means of violence on a particular territory. Sovereignty is acquired through recognition by other sovereign states, an admittedly tautological definition that is nevertheless well established (the “constitutive” theory). Arkansas may believe it has a monopoly on the legitimate means of violence, and on most days it does. But it is not recognized as sovereign by other sovereign states.
That’s because Arkansas is not independent. Independence is declared by a state on its own volition once it meets minimal criteria (the “declarative theory”) with little restriction in international law, as became apparent in the recent decision of the International Court of Justice in an advisory opinion requested by Serbia about Kosovo.
While these three concepts usually go together, there are times when they don’t. Taiwan is clearly a sovereign state, but it does not claim to be independent (at least not yet). Somalia lacks a state (or has too many of them, depending on how you look at it) and is not sovereign, since none of its state-like entities has a legitimate monopoly on the means of force in the whole territory known as Somalia. It is nevertheless more or less independent because no other state has claimed the dubious honor of governing it. Kosovo is a state and independent, and is recognized as sovereign by 82 UN members but depends on foreign forces to exert a legitimate monopoly on the means of violence, which is generally referred to as a condition of “limited” sovereignty.
Which brings us to the important but confusing case of Palestine. It is recognized by 126 states, even though the territory on which it might claim to exert a legitimate monopoly on the means of violence is not clearly defined. Whatever its precise boundaries, that territory is divided into two distinct pieces, the West Bank and Gaza, with different state institutions governing in each. A nominal agreement to unify them has not been fully implemented.
Palestine cannot be said to be independent, despite its declaration of independence in 1988. That is at least in part because its territory is “occupied,” or at least controlled, by Israel.
This week’s jockeying at the UN should be viewed in the light of these three distinct attributes. UN General Assembly acceptance of Palestine as a non-member state is the maximum the Palestinians can hope for. The United States will veto full membership in the UN, which has to pass through the Security Council before approval in the General Assembly. Palestine will not become independent or more sovereign than it already is no matter what the General Assembly does. The GA can, however, put Palestine on the same footing as the Vatican, which is not saying much in my view.
The Palestinians hope it will enable them to pursue cases against Israel in the International Court of Justice and at the International Criminal Court. I am not a lawyer and dare tread only lightly on legal turf, but it seems to me Israel has little to fear in the ICJ, which allows states not members of the United Nations to come before it, but only under conditions set by the Security Council. Here are the relevant provisions of its Statute (Article 35):
1. The Court shall be open to the states parties to the present Statute [all members of the UN].
2. The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.
3. When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall not apply if such state is bearing a share of the expenses of the Court.
So if the Security Council were to allow a non-member state (The Vatican today or Palestine tomorrow) access to the ICJ, then it would be the equal of any parties to the case (say Israel), but that if is a big one.
The ICC is different. It summarizes its jurisdiction as follows:
The Court does not have universal jurisdiction. The Court may only exercise jurisdiction if:
- The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court;
- The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or
- The United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime.
The Court’s jurisdiction is further limited to events taking place since 1 July 2002. In addition, the ICC has no jurisdiction in a state before the date on which that state joins. Bottom line: even if Palestine were to become a state party to the ICJ, there could be no prosecutions for anything occurring on its territory before it became a state party.
The Palestinians have come up with something that has at the very least made everyone sit up and pay attention. With increased support from Egypt and Turkey, they have put Israel and the U.S. in a bind. Hearing Prime Minister Netanyahu, the master of unilateral settlement activity, insisting that nothing can be achieved away from the negotiating table is–as I put it earlier in a tweet–“chutzpahdik.”
That said, the best way out is still one that leads to serious negotiations, which everyone (even Netanyahu) now seems to agree begin with the 1967 borders, subject to land swaps. A UN General Assembly resolution that accords some degree of recognition to the serious efforts that have been made in recent years to build a Palestinian state capable of providing security, at least on the West Bank, while getting the parties back to negotiations, would be a step forward.
Some will object that the Palestinians are just trying to delegitimize Israel. I suppose there is some truth in that. They are certainly trying to take Israel down a peg. But in my way of thinking it is Netanyahu who has done Israel the most damage. His failure to make up with Turkey after the Gaza flotilla incident and his refusal to apologize to Egypt for killing its security forces–not to mention his grandstanding at the U.S. Congress in May–has caused more damage than anything the Palestinians could have dreamed up.
A sense of direction
Friday night’s attack on the Israeli embassy in Cairo has already generated more heat than light. The analytical question is what were its short and long term impacts?
One in the short term is the recognition by many on both sides of the rather wide Egypt/Israel divide that the Camp David accords, however defective they may be regarded in particular details, have an enormous benefit: they eliminate the need for either country to be constantly on a war footing, thus avoiding enormous burdens that neither country would want to take on in the current environment. Several Egyptians I spoke to yesterday viewed Prime Minister Netanyahu’s statements as far more forthcoming than he has been in the past. Even Egyptian Salafists seemed to think the attack a bad idea, therefore possibly incited by the U.S. and helpful to Israel.
Egypt wants to renegotiate some aspects of the accords. The recognition on both sides of their value may make renegotiation easier, though I imagine the Israelis will want provisions that make it more difficult for a future Egyptian government to renege on the accords entirely. Politicians are now competing to see who can be more opposed to the current version of the accords and more vigorous in pursuit of renegotiation. It is widely believed that the military will not allow the accords to be abrogated, which ironically frees the politicians to call for precisely that, knowing that it won’t happen. Over the longer term, democratically elected politicians could find themselves trapped by their own promises.
The economic impact of Friday night’s riot is likely to be substantial. I’ve enjoyed some of Egypt’s fine tourist attractions the last few days: the step pyramid at Saqqara as well as the more famous pyramids and sphinx at Giza. We were almost alone at Saqqara. There were a few more people at Giza, mostly Egyptians enjoying a fine Saturday. No long lines of tour buses, no wait for anything. We also enjoyed a good lunch at Meena House, the spectacular hotel at the edge of the Giza pyramids. It, too, was deserted. The attack on the embassy will likely set the recovery in tourism to Egypt back another six months to a year, which means a lot to the significant percentage of the population that depends on it for their livings.
For those who thought the revolution was about making things better for the average Egyptian, the attack on the embassy is therefore not only a diversion, but also a perversion of priorities. Friday’s demonstration was supposed to have been about “correcting the path,” but it was far too small to get the army to accelerate the handover to civilians or even to get it to fix a date for elections. To the contrary, the embassy attack inspired a re-imposition of emergency laws, not a loosening of military controls. One keen American observer I spoke to suggested that the “scales are falling from Egyptian eyes” and they are now recognizing that their “revolution” was in fact hijacked by a military coup, one that was popular for a while but is now much less so. But even many of those who may no longer be enthusiasts for the army do not want to see disorder and disruption, which is becoming more widespread.
What the Egyptian transition seems to lack today is a clear sense of direction. People are doubting whether the military really intends to turn over power to civilians. I’ve already found in my few hours in Libya a dramatically different spirit: Benghazi at least thinks it knows where it is going and has advertised the fact repeatedly on the road from the airport: “we have a dream,” the signs read. Even though Qaddafi and his sons are still at large, people here are determined to push ahead to establish a more open and democcratic regime. I have little doubt but that Egyptians also want that, but they seem less sure of how to get it. The complexities of Egypt are far greater than those of relatively unpopulated and hydrocarbon-rich Libya.
PS: For those who might still wonder whether the football hooligans were in fact at the Israeli embassy Friday night, I discussed the matter yesterday with an Egyptian observer who knows their leadership well and stayed on the streets until 5 am. He assured me that the leaders of the “ultras” had not participated but that younger adherents had. They precipitated the confrontation with the police with gusto and determination.
What I said and didn’t say
I’m not much into the duelling aspect of blogging, but there has been enough misunderstanding of what I wrote yesterday about my experience in Tahrir that it may be enlightening to respond to at least a few of the criticisms.
Let me focus on Angry Arab, whose comments have been repeated elsewhere. He writes under the heading “dumbest comment of the day”:
Daniel Serwer, who is in Cairo, reckons last night’s violence at the Israeli embassy had more to do with discontent against Egypt’s military rulers than Israel. He also suggests (see 11.12am post) that many of those protesting could be regarded as football hooligans.
This is dumb, but it is not what I said. I wrote: “The predominant themes in Tahrir however had little to do with Israel.” I then went on to outline what those themes appeared to be. I’ve checked this point several times: people in Tahrir were talking, chanting and singing about mainly internal Egyptian issues.
I never suggested that Egyptians were not angry with Israel. Nor did I suggest that the attack on the Embassy had more to do with Egypt’s military than with Israel. In fact, I wrote:
Egyptians regard the Israeli killing of several Egyptian policemen in Sinai in the aftermath of a terrorist attack inside Israel as humiliating and want a more fulsome apology for it.
I went on to conclude that peace between Egypt and Israel could not be maintained unless the people are committed to it, “society to society.”
Angry Arab also suggests I said “many of those protesting could be regarded as football hooligans.” What I actually said was “some of whom were surely what would be termed football hooligans in Europe.” I might prefer today to have said “likely” rather than “surely,” but the point here is that I never said “many of those protesting” (I added the bold face) could or should be regarded as football hooligans, which is what Angry Arab said I said. In case there is any doubt: I assume most of them were Egyptians angry with Israel.
Accuracy is not Angry Arab’s strong point. Let’s take this statement: “this ‘US blogger’–whoever he is–because she holds a PhD from Oxford University and is a young academic.” Yes, I am a PhD, from Princeton not Oxford, male and not young, all of which is readily ascertainable from this website.
I don’t however expect anyone to believe me because of age, education or gender. I only expect to be quoted accurately and debated honestly. That is not what Angry Arab did. I would rate his comments dumbest of my day.
My Tahrir experience last night
I spent yesterday evening in Tahrir square, which meant that I missed the attack on the Israeli embassy that has dominated the news from Cairo. Colleagues on their way back from the pyramids got caught in a pitched battle betweeen rock-throwers and riot police in front of the Saudi embassy, down the street from the Israelis. They got a good scare, but were uninjured.
My own contact with the would-be rock throwers was limited to their recruiting marches through Tahrir, where most people were ignoring the chants of “to the embassy!” sung out by fist-pumping small groups of young men. But they apparently managed to assemble thousands at the embassy, some of whom were surely what would be termed football hooligans in Europe. The arrival of Ahli and Zamalek (the two Cairo teams) fans in Tahrir was greeted earlier in the evening with a roar of approval.
The predominant themes in Tahrir however had little to do with Israel. A big sign denounced the media cronies of the Mubarak regime, all still in their jobs. Another called for justice for those who had resisted the revolution, noting that they are not even arrested but pro-democracy demonstrators are still being processed in military courts.
Anti-military sentiment tinged the speeches, which called on Egyptians to be like one hand, a civilian one. The crowd wanted the army to fulfill its promise to turn over power to civilians. “Liberty, social justice and bread” was a popular chant–it sounds a lot more rhythmic in Arabic. The atmosphere is a bit like Hyde Park: anyone with a microphone stands on a soap box, quickly assembles a crowd and holds forth, to the amusement and banter of the listeners, who denounce him for hogging the mic. The Communist Party was handing out leaflets that denounced human rights violations by the military and called for liberation from everything, including bachelorhood.
Women were less than a quarter of Tahrir’s population last night, many but not all covering at least their hair. “The one who governs shoud be bigger in wisdom than beard” was a popular, I am told Koranic, quotation. But neither religion nor secularism was on serious display so far I could tell.
If there was any link between the general sentiment of the crowd and the violence at the Israeli embassy, it may lay in the idea of humiliation. “Keep your head up, you are Egyptian” was a strong current in the speeches. Egyptians regard the Israeli killing of several Egyptian policemen in Sinai in the aftermath of a terrorist attack inside Israel as humiliating and want a more fulsome apology for it. As Rob Satloff suggests, “a more generous statement on the unfortunate killing of Egyptian security forces might have been
both appropriate and helpful.”
That would not likely have carried much weight with last night’s rioters, who destroyed a security wall built recently in front of the embassy and injured a lot of people. But it is only by making the “cold peace” between Israel and Egypt a warmer one that politicians on both sides of the Sinai border will be able to convince their electorates that the Camp David accords are worth defending.
This is the real meaning of the Arab spring to Israel, as Satloff also notes: peace is no longer an issue that can be settled president to prime minister, or even government to government. It will have to be society to society, which is much harder, especially if your ambassador has fled from Cairo and the Egyptian one has been withdrawn from Tel Aviv as well.

“Get up stand up for your rights…
…don’t give up the fight.” That’s what Bob Marley was singing as my cab circled Tahrir square this afternoon to deposit me at the Egyptian Museum.
I’d just come from a conversation with a leader of the revolutionary opposition. He opened by warning me sternly that the West was exaggerating the importance of the Islamists in Egypt. They would gain no more than 3-5 million votes out of 25-30 million, which is the number that can be expected to vote this fall. The revolutionary opposition, trying hard to form a broad coalition to include moderate Islamists, hopes to win a majority, or at least a plurality.
The big challenge is the proposed electoral law, which divides Egypt into large constituencies in a system that is 50/50 open and closed list. This will favor larger, better known and better organized forces, like Mubarak’s National Democratic Party (NDP) and the Muslim Brotherhood.

The revolutionary opposition favors a closed list system (with smaller constituencies or a proportional system–which or both wasn’t clear to me), with people allowed to vote from abroad. This would mean party lists fixed by party leaders with no voting for individuals. If they don’t get it, the opposition may boycott the elections, which my interlocutor thought would deny legitimacy to the results.
But most of all the revolutionary opposition wants the constitution written before elections. The September 9 demonstration is its remaining best opportunity to force this issue. It was a mistake to allow the army the role it has in the transition process, and now the opposition will have to live with its mistake. But it can still try to get the army to listen to the people–the only way to force it to do that is by returning to Tahrir.
Tahrir seemed to me mostly a construction site these days, which I guess is an apt metaphor for the situation the country is in. I prefer that to the metaphoric museum, whose extraordinary collection of treasures is so shabbily housed, labeled and cared for behind its pretty pink facade that it is hard not to wonder what their eventual fate will be.

I also had to wonder about the fate of the Camp David accords, which aren’t nearly as old and dusty as the artefacts from King Tut’s tomb. My interlocutor thought Camp David unfairly limited the development of Sinai, where Hamas is enjoying free rein and blowing up the gas pipeline that takes Egyptian gas to Israel. Islamist domination of the Sinai would be harmful. The opposition wants to know what secret agreements were made at Camp David and to exert full Egyptian sovereignty in Sinai.


Only time will tell
I’ve been busy lately reading articles about how dumb various (but mostly American) negotiators are. If only the diplomats would do some pretty simple things, serious conflicts would be readily resolved.
A former Iranian nuclear negotiator suggests the Americans and Iranians just have to put aside the threats and pressure, then talk nicer about issues of common interest and things will improve. Ahmed Rashid wants us to listen more carefully to Taliban leader Mullah Omar, who says he does not intend to monopolize power in Afghanistan. And we could achieve peace in Israel and Palestine if the Palestinians would just recognize Israel, and Israel would provide a few factories to the Palestinians.
This last one is the easiest to debunk. There hasn’t been a problem with Palestinian recognition of Israel since Arafat did it almost twenty years ago. The problem is that Israel is now demanding recognition as a Jewish state, something that the UN General Assembly already did in its partition resolution. And of course Israel has not recognized Palestine, or allowed it to establish clear borders. The notion that economic development will satisfy the Palestinians in the absence of a political solution is nonsense.
Listening carefully to Mullah Omar is a good idea, but I confess his Eid message did not fill me with hope. Here is what he actually says about negotiation:
The Islamic Emirate considers the presence of the foreign invading troops in the country; their blind-bombardment, night raids, their brutalities; tortures and tyranny as the main cause of the current imbroglio in the country. The issue would come to an end when the said brutalities are meted out. Similarly, IE [Islamic Emirate] considers [the] establishment of an independent Islamic regime as a conducive mechanism for sustainability of religious and worldly interests of the country and the countrymen. For this purpose, every legitimate option can be considered in order to reach this goal. The contacts which have been made with some parties for the release of prisoners can’t be called as a comprehensive negotiation for the solution of the current imbroglio of the country. However, the Islamic Emirate, as an efficient political and military entity, has a specific and independent agenda in this regard which has been elucidated time and again.
Yes, he leaves the door open to future talks, but he also goes on to make it clear that the Taliban will only stop fighting when the occupation has ended. We can be certain Mullah Omar’s message was carefully parsed inside the State Department and the U.S. intelligence community, where its ambiguous character will not have excited too much enthusiasm.
As for Iran, it makes sense to reduce the trash talking and to focus on issues where there may be some common interest, but the hard kernel of disagreement is over nuclear weapons. Making nice and solving some other issues isn’t going to make that one go away, and the time delay could even make it more difficult to solve.
So yes, we do need to make sure we understand our adversaries, deal in a pragmatic way with them and leave no stone unturned in the search for peaceful resolutions of these issues. But it is a whole lot easier to kibbitz from the sidelines than to play the game for real. When the guys calling for more stridency are also the people deciding your budget, there is an inclination to go strident. When the Taliban are as ambiguous as Mullah Omar in his Eid message, listening really does get hard. And when your critics are misunderstanding the problem, it is easy to write them off.
There is one sign of hope in all these cases: the Americans are maintaining radio silence. Iran guru Dennis Ross, Afghanistan lead Marc Grossman and whoever is acting in George Mitchell’s place (Hoff? Feltman?) on Israel/Palestine are suspiciously quiet. Maybe that’s because there is nothing to say. Or maybe it’s because negotiations are quietly producing fruit. Only time will tell.
PS: I’m not the only one less impressed with Mullah Omar’s message than Ahmed Rashid.