GA/12626: a new international framework for Palestine?

Does last week's resolution mark a turning point in the international framing of the occupation?

The news about the Middle East last week was dominated by Israel’s exploding pager and walkie-talkie attacks on Hezbollah (and innocent bystanding civilians, including children). But less widely reported was that something significant happened at the UN on 18 September, something that may - may - have long term ramifications for Israel’s occupation of Palestinian territory.

That event was a General Assembly (GA) vote to adopt a resolution, number GA/12626 (its full text is here). Remember that number, if you can. It was passed by a two-thirds majority: 124 in favour to 14 against, with 43 abstentions. The resolution is cumbersomely titled “Advisory opinion of the International Court of Justice (ICJ) on the legal consequences arising from Israel’s policies and practices in the Occupied Palestinian Territory, including East Jerusalem, and from the illegality of Israel’s continued presence in the Occupied Palestinian Territory”. But that title is also significant, for in essence the resolution is ‘operationalising’ the extraordinary and, in my view, decisive ICJ advisory opinion of 19 July about the occupation. Together, the ICJ opinion and this new GA resolution create a new framework, both legal and political, for the occupation.

The legal history of the Palestine issue at the UN is complicated, too complicated when it should be simple - don’t occupy someone else’s land! It is normally the domain of international lawyers and diplomats (as I once was at the UK Mission to the UN in New York¹). Traditionally, and by many UN member states, the legal framework for the Israel/Palestine ‘issue’ (a term which by the way I think should be shelved as misleading²) has been the Security Council resolutions (SCRs), in particular SCRs 242 and 338, which were agreed after the ‘67 and ‘73 wars. 242 is the key one, as 338 merely demands that 242, with its call for Israel to leave territories it occupied in ‘67, be implemented (these were in the happier days when Security Council resolutions were commendably short).

I once wrote a speech for the British foreign secretary reiterating 242 and 338 as the framework of British policy. I used to refer to these numbers all the time when I negotiated about Palestine at the Security Council or General Assembly. I didn’t pay much attention to what they said indeed I cannot remember even reading them, hinting that the main effect of such decisions is political not legal. UN member states are not legally bound to enforce these resolutions; they are not agreed under Chapter VII of the UN Charter which implies that resolutions are both obligatory and enforceable. And of course they have not been enforced because the US has blocked anything close to substantive action by the Security Council to enforce them.

So we can see that the so-called ‘legal’ framework of Palestine at the UN is in essence political. What matters therefore is how states treat those decisions and what they do about them. But this is where the ICJ and GA decisions become interesting. Because, in my view, they establish a new legal-political framework with a clear statement of the obligations of member states to enforce it. They emphatically enumerate the law on occupation and the requirement on Israel and member states to end it. In another forum, the ICC prosecutor has now formally requested arrest warrants for some Israeli and Hamas leaders to be prosecuted for the war crimes they have committed in Gaza and Israel since the 7 October 2023 attacks. The legal net is tightening around Israel and its leaders in different ways, both individually and as a country.

This is the strategic reason why GA/12626 is extraordinary. But it is also remarkable because of the detailed content of what it says (another reason it’s unusual is that it was the first ever resolution submitted to the GA by Palestine’s Permanent Observer mission itself, exercising new privileges at the UN - still short of those of a full UN member state - that have only recently been granted). The most significant elements to my eye are the following provisions, which link back to what the ICJ said [with my comments in square brackets]:

• That Israel’s occupation of the Palestinian Territories (which is shortened in the resolution to the OPT) is unlawful and must be ended, including the withdrawal of all settlements [nothing particularly new here, but very very explicit and states that Israel must leave ALL the OPT whereas 242 is notoriously unclear on this point, by not specifying that Israel has to leave THE occupied territories, because the word THE is omitted - inside baseball I know but actually very important in how states portray the occupation]. East Jerusalem, for instance, is mentioned by name. [Some member states, such as the UK (to its shame), have stopped talking about the occupation of East Jerusalem, thereby proving the effectiveness of Israel’s long-term strategy of establishing facts on the ground, hoping - in the UK’s case correctly - that others will eventually forget the law].

• By its establishment of infrastructure around the settlements, Israel’s occupation effectively amounts to annexation [this word is new in the UN context and important, getting us past the naive notion, implied in 242, that the occupation is somehow intrinsically temporary; instead it is intrinsically a colonial project]. And that Israel’s project to acquire sovereignty over territory by the use of force is illegal. Israel has no right or reason to claim sovereignty over any part of the OPT³.

• The occupation by Israel and Israel’s conduct in the OPT breach a whole host of international laws including the UN Charter, various UNSCRs and GA resolutions, the Geneva Conventions, the International Covenants on human rights (the core international agreements on human rights), the International

  Convention on the Elimination of All Forms of Racial Discrimination, amongst others. Israel is also demanded to comply with the Genocide Convention in Gaza, as the ICJ has said in its earlier ruling on South Africa’s submission. [It’s a devastatingly long and comprehensive list, and one thing this means is that the Palestinians have opened up multiple legal avenues to attack the occupation, where this isn’t already happening].

• The resolution repeatedly reiterates the right of the Palestinian people to self-determination. [Not in itself new, but the ‘right’ to self-determination is sometimes disputed as a legal right, particularly in the West. I have a long history of involvement in self-determination struggles, including Kosovo, Somaliland, Western Sahara, South Sudan, South Yemen, Catalonia etc. Palestine’s legal right to self-determination is more strongly established than any of these recently created or would-be states (though some would debate this, particularly in the case of pre-existing states such as South Yemen or Somaliland). But again what matters is the political interpretation of that right - do other states accept it? And both the ICJ and the large majority member states of the UN emphatically do.]

Having very clearly stated the legal context, the resolution - most remarkably - then gets very specific about what the UN and its member states are required to do to end the occupation, because, as the text states clearly: ‘the obligations violated by Israel include certain obligations of an erga omnes character that are, by their very nature, “the concern of all States”’.

• To start with and, perhaps most notably, Israel is given 12 months to end the occupation and evacuate the settlements, all of them. [This is the first time that such a deadline has been imposed. Of course Israel will not leave within 12 months, thus setting the stage for further UN action at that point].

• Israel must return all the land and property it has taken from the Palestinians and also pay reparations to the Palestinians for the harm they have done [this too is new, and is a potential long-term legal bug-bear for Israel, because the GA will never let go of this].

• Then, and this is important, the resolution demands various actions by UN member states to end the occupation and fulfil Palestine’s right to self-determination, including not in any way recognising or assisting the occupation, and not establishing diplomatic missions in Jerusalem (which of course the US, under Trump, has done).

• States are also obliged to end racial or religious discrimination by Israel [interestingly, as far as I can tell, this obligation is not explicitly limited to the OPT, and could therefore be taken to mean ending what many call the apartheid of anti-Arab discrimination within the whole of Israel]

• Another important provision is about sanctions on Israel’s activities particularly settlements in the OPT. States are obliged to take steps ‘to prevent trade or investment relations that assist in the maintenance of the illegal situation’ [This gives new political if not legal cover to the movement to end all trade with settlements, for instance by the EU.]

• And, in another very important provision, states are called upon to impose sanctions on those perpetrating the occupation, which can be pretty broadly interpreted to include anyone involved in the occupation including, of course, members of Israel’s government⁴ [This is of course relevant to the Boycott, Divestment, Sanctions (BDS) movement and should give them encouragement and an important legal-political reference point. What sanctions should be applied to Israel is another story, which I plan to cover in a future post, but in short they should be targeted on the leadership]

• States should prohibit arms exports if there is reasonable suspicion that those arms may be used in the OPT [take note, UK, US, France, Germany and others].

• Then, in terms of the diplomacy and politics, the resolution calls for a conference of the parties to the Geneva Convention as well as a full UN conference on the question of Palestine⁵. Both will be occasions to demonstrate the diplomatic isolation of Israel and its backers and to ratchet up the diplomatic pressure and agree further steps, including perhaps additional sanctions.

• Finally, the Secretary-General is to present a report within 3 months on the implementation of this resolution. [This will be interesting; the Security Council will have to consider it, and the US will again be forced to block anything substantive, putting them on the back foot once more, and three months is soon: the pace of diplomacy is picking up].

And these are just some of the main points; there’s quite a lot more. You could write a book on the history and many implications of the text.

But will this resolution make a difference? I have in the past been very cynical about the huge stack of resolutions that demand that the ‘issue’ be resolved and the occupied territories relinquished by Israel. The Palestinians have not regained a single square inch of territory thanks to those resolutions (which is not stricly true if you count so-called ‘Area A’ of Palestinian control in the West Bank, which was granted under agreements that followed the Oslo accords - but many including me would dispute that Area A constitutes meaningful or untrammelled sovereignty). What’s different this time?

To start with, the mere adoption of such a forceful and substantive resolution is itself a significant milestone in Israel (and the US’s) diplomatic isolation. When the UK lost a GA vote on the Chagos Islands by a smaller margin, it was widely judged to be the end of the UK’s claim to the islands and an irreversible diplomatic defeat.

Israel’s supporters will say that the resolution is merely ‘declaratory’ and doesn’t matter. I don’t think that’s the case. The fact that Palestine itself submitted the resolution to the GA is itself part of that isolation (reinforcing the growing trend of states recognising Palestine). It’s also important to note that this resolution was passed by a clear majority of member states, in contrast to the decisions, such as they are, by the UN Security Council where substantive action has been consistently blocked by one permanent member, the US. In a way, this is the GA taking the lead away from the Security Council (and a further implicit declaration of the ineffectiveness and illegitimacy of the Security Council as currently constituted). In other words, the inability of the Security Council to act meaningfully on the occupation is rendering it irrelevant. But above all, GA/12626 sets out in the clearest possible terms the legal obligations of ALL member states to bring about the end of occupation. It’s the first time that this has been stated so indisputably and emphatically. This is no mere declaration.

The resolution is very detailed on how Israel is breaching international law, in multiple iterations, in an occupation that is illegal in all sorts of ways. The groundless but persistent quibbles that the earlier SCRs don’t really tell Israel to leave all the OPT, or that Israel has some kind of claim to the West Bank or East Jerusalem are totally blown out of the water. In GA/12626 we have a clear and fulsome account of all the relevant international law, and a powerful reiteration of the ICJ opinion in a political forum.

But…and it’s a big but. The resolution is only important if the member states treat it as important. This sounds a bit tautological or obvious, but it’s cardinal. If everyone starts calling GA/12626 a landmark then it becomes a landmark. If it is cited as a key reference point - or starting point - in any political process, then it becomes a key reference point. In my view, the timing and substance of the resolution in 2024 places SCR 242 etc into past history. The historian Rashid Khalidi, among others, thinks that 242 should in any case be rejected by the Palestinians as the framework for any negotiation, and that it was a huge mistake by the PLO to accept it in the first place (his point is that it takes no account of the original seizure of territory in 1948 or the UN partition plan). I agree with him, for reasons too long to explain here. I also think that the slaughter of Gaza and the continuing and intensifying systematic violence perpetrated by Israel in the West Bank have changed the conversation fundamentally.

The resolution is clear that in the case of Israel we are not dealing with a party of good will which is only temporarily occupying the Palestinian territories as a result of a war. Instead, we are confronting a systematic and determined actor that is annexing the territory i.e. this is a colonial project. I hope that this contributes to shifting the ‘narrative’ from the deeply naive framing of the ‘peace process’ involving two parties acting in good faith to find peace through compromise over contested territory. Instead, the task here is emphatically to end the occupation by a party that is intent on maintaining and expanding it, including by systematic violence.

This framing in turn leads to to a very different kind of discussion and political approach. Sanctions should now be the issue at hand and the main demand of those who support an end to the occupation, the violence that’s associated with it, and the liberation of the Palestinian people. The traditional western approach of calling for talks, resumption of the peace process etc etc is revealed as futile: indeed it could be interpreted as tacit endorsement of the status quo. As a lamentable example, the UK’s explanation of their abstention on GA/12626 indicates that they objected not to the ICJ decision but to the lack of clarity about a way forward on a negotiated solution, underlining this government’s continued adherence to the illusion of the ‘peace process’, an indication, and there have been others, of the Labour government’s biases. The US’s opposition was predictable - just to be clear, they oppose measures to end the occupation. That’s a revealing statement of where they stand though the Biden administration has already revealed its true colours with its disgraceful military and political support for the genocide in Gaza⁶.

To emphasise the point, GA/12626 becomes significant not only in itself but above all if states treat it as significant, as a demand, an obligation and a key reference point. The large majority that voted for the resolution indicates that for most of the world it will be regarded as such. But the EU, for instance, an important player, was split with some supporting the resolution (Belgium, Ireland, France) and many abstaining (Italy, Germany). Japan, a traditionally ‘neutral’ country on this issue, supported the resolution. So the significance will for now remain disputed; we’ll see.

I am not a lawyer so my interpretation should be read with that in mind, but I also believe that the greater import of such resolutions is political not legal and mine is a political interpretation. I will be researching more, and I hope to discuss the resolution with Philippe Sands who supported the original motion at the ICJ (his remarkable and powerful address to the court is here, during which, incidentally, he refers to the GA Chagos decision as an important precedent) as well as other experts. If I do, I will share here.

Above all, the passage of GA/12626 is one of those ‘time will tell’ moments. We will know in ten years’ time whether the resolution was indeed a landmark moment or yet another useless bit of paper.

As ever, I’d welcome comments, including where I may have made mistakes in this preliminary analysis.

1. I was head of the Middle East section of the UK Mission 1998-2002 and have worked on and off on Palestine ever since, including when Independent Diplomat advised the Palestine Mission to the UN.

2. It should be replaced by ‘Israel’s occupation of Palestinian territories’ for that is the core ‘issue’. Calling it just an ‘issue’ or ‘dispute’ contributes to the erroneous framing of the occupation as two more or less equal parties in dispute.

3. Again, the text is really explicit - ‘Israel is not entitled to sovereignty over or to exercise sovereign powers in any part of the Occupied Palestinian Territory on account of its occupation…’

4. States are called upon ‘To implement sanctions, including travel bans and asset freezes, against natural and legal persons engaged in the maintenance of Israel’s unlawful presence in the Occupied Palestinian Territory’.

5. ‘Decides to convene during the seventy-ninth session of the General Assembly an international conference under the auspices of the Assembly for the implementation of the United Nations resolutions pertaining to the question of Palestine and the two-State solution for the achievement of a just, lasting and comprehensive peace in the Middle East’.

6. If in doubt about whether Israel’s actions in Gaza constitute genocide, please refer to former head of Human Rights Watch Aryeh Neier’s article in the New York Review of Books, where he concludes that Israel’s actions, above all its blockade of food, water etc. to Gaza, do indeed constitute genocide. Aryeh, who has a long history in observing genocides, whether in Rwanda or Bosnia, is also himself a Holocaust survivor.