[Noah Feldman] Abbas’ U.N. offensive might be a step toward peace

Just what is Palestinian leader Mahmoud Abbas thinking? At the new United Nations session, he has announced, the Palestinian National Authority will ask the Security Council to recognize Palestine as a state. The application will be dead on arrival: the U.S. has already said it will veto.

Abbas, in other words, wants to lose. The veto, he must hope, will tell the world that Israel, backed by the U.S., is the barrier to peace.

At first blush, this exercise looks purely symbolic ― classic defeatism brought to you by the people who, according to the nasty adage, never miss an opportunity to miss an opportunity.

But such a dismissal would be too hasty. Faced with a continuing impasse in negotiations, Abbas is thinking outside the box. Perhaps inspired by the Arab Spring, he is pursuing nonviolent diplomacy, often the road not taken in the Israeli-Palestinian conflict. And it turns out that, appearances to the contrary, he has more options than immediate defeat.

Abbas’s situation isn’t promising. He is blocked on one front by Israeli Prime Minister Benjamin Netanyahu, who has so far been unwilling to negotiate on terms the Palestinians will accept, and has continued to build what the world (including the U.S.) considers settlements in East Jerusalem. On the other front is the militant group Hamas, which controls Gaza, fires rockets into Israel, and won’t recognize the Jewish state’s right to exist, much less negotiate with it.

Making matters worse is the failure thus far of the so-called peace process, which is increasingly viewed as a joke in the region. It has produced little but frustration over the last two decades, providing an excuse for violence. In this perverse cycle, the worse things go, the more Hamas gains. Those on the Israeli right who believe peace is a naive dream see all this as confirmation of their own preferred policies of expansion and rejection.

Given these constraints, it is understandable that Abbas would act on his own and internationalize the issue. Israel says, accurately, that unilateralism bypasses the negotiating framework of the peace process. But it is worth remembering that, just a few years ago, it was Israel pursuing a unilateral path. In 2005, refusing to wait for a Palestinian deal, former Prime Minister Ariel Sharon withdrew Israeli forces and settlers from Gaza.

That decision is now widely considered a failure. Hamas came to power in Gaza and began its rocket attacks on civilians, leading to Israeli military action. At the time, however, the Israeli public approved of the withdrawal despite ― or maybe because of ― the fact that it was unilateral.

For decades, the great mystery of the Israeli-Palestinian conflict has been why there is no Palestinian Gandhi or Mandela, and no popular, widespread nonviolent movement in Palestine. As a democracy heavily dependent on another democracy, Israel should be doubly sensitive to the potential effects of nonviolent civil disobedience on its reputation.

In the past, Palestinian leaders may have feared that their followers would perceive nonviolence as weakness. But the recent effects of peaceful protests in Tunisia and Egypt take away some of the sting of this criticism.

Now, in the fall after the Arab Spring, Abbas’s efforts at the U.N. may be interpreted as part of a move toward nonviolent resistance. A successful strategy of independence-through-nonviolence usually reaches out beyond the state from which independence is sought ― think of how the anti-apartheid movement became globalized in the 1980s. In this context, symbolism ― even in defeat ― can become a source of strength.

Peaceful domestic protests are also part of any such strategy. Palestinian Authority leaders have repeatedly emphasized that any protests over the U.N. vote should be nonviolent ― and will be kept that way by Palestinian police.

Diplomatic maneuvering in the U.N. by Palestinian leaders may therefore frustrate Israel and the U.S. But it is a sign that some Palestinians are pursuing their national aspirations peacefully, legally ― and rationally.

Abbas may also have other tricks up his sleeve. The Security Council is unlikely to vote immediately on the Palestinian request. That gives the quartet (the U.S., EU, U.N. and Russia) more time to try and jump-start negotiations. Under the right conditions, Abbas could then withdraw the request.

He could also still do what most expected him to try this week: Take his request for statehood to the U.N. General Assembly, where the U.S. has no veto. A two-thirds vote there would upgrade Palestine from “observer entity” to “observer state,” like the Vatican.

Winning in the General Assembly might be particularly effective after losing in the Security Council since it would give countries the chance to repudiate the U.S. veto. And an observer state can participate in U.N. bodies and commissions.

More practically, recognition as an observer state might help the Palestinian Authority reach its goal of getting the International Criminal Court to pronounce on Israel’s behavior in the territories and perhaps even declare the building of settlements a war crime. While the Palestinian leadership has asked the tribunal to take jurisdiction as if Palestine were a state, the ICC has never said “yes” or “no.” If Palestine becomes an observer state at the U.N., however, that might strengthen its case.

Israel would certainly argue that a U.N. observer still isn’t a real state in the sense meant by the ICC treaty. Israel would also point out that the ICC can’t act if a country that has jurisdiction over an alleged crime has adequately investigated it. Israel’s robust judicial system regularly examines claims of war crimes against its soldiers and government. The question is whether the court would buy those arguments ― and whether leverage would be gained for the peace process as a result.

None of this would transform the Israeli-Palestinian conflict overnight. But at least these steps are peaceful. The alternative, waiting in the wings, is Hamas ― and more violence. 

By Noah Feldman
Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own. ― Ed.