The Palestinians' Imaginary State

A majority of the world's countries are gearing up to recognize a Palestinian state in September. But does Palestine really qualify?

In a few weeks, an overwhelming majority in the United Nations General Assembly will likely vote for collective recognition of a Palestinian state. But which Palestinian state? Of the three Palestinian states the assembly could recognize, two are real and arguably could meet the requirements for statehood. But it is the third, purely imaginary one that the assembly will endorse, one that neither has a functioning government nor meets the requirements of international law.

According to the prevailing legal standard, the 1933 Montevideo Convention on the Rights and Duties of States, a "state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states." Both the Hamas-controlled Palestinian entity in Gaza and the rival Fatah-governed Palestinian entity in the West Bank can be said to meet all four of these criteria of the law of statehood. The one on which the United Nations will vote does not.

In Gaza, Hamas controls a permanent population in a defined territory (i.e., Gaza within the armistice lines of 1949). Gaza has a functioning, if odious, government. And Hamas-controlled Gaza already conducts international relations with a large number of states. From a narrowly legal point of view, the Hamas Gaza entity could become a state, another miserable addition to a very imperfect world.

Of course, a Hamas state in Gaza is not something most of the world wants to see. A Hamas state allied to Iran would be a severe blow to international peace and security, and it would not be a state deserving of recognition by any democracy. It would be a state arising from the military coup of June 2007, a state that engages in large-scale violations of treaty obligations and human rights. Nor does Hamas seek statehood for Gaza alone. Hamas wants eventually to rule the whole of mandatory Palestine, comprising not just the West Bank along with Gaza, but all of today's Israel too. Gaza alone is too small a prize for so grand an ambition. So this possible state is not on the table.

The Fatah Palestinian entity in the West Bank also could meet the legal requirements for statehood, and it would have more international support. It has a functioning government in the Palestinian Authority (PA), a permanent population, and international relations with a very large number of states. It also controls a defined territory, which comprises what are called areas A and B as defined under the Oslo II agreement of September 1995, plus additional territory subsequently transferred by Israel in agreed further redeployments. (Area A is the zone of full civil and security control by the Palestinian Authority, and Area B is a zone of Palestinian civil control and joint Israeli-Palestinian security control.) The Fatah West Bank entity within these lines also could be recognized as a state under international law.

But Fatah, the PA, and the broader PLO do not seek statehood for this West Bank entity that arguably could meet the legal requirements. Their minimum demand is a state that includes Gaza along with the West Bank, the eastern part of Jerusalem, and all the other parts of mandatory Palestine that were under Jordanian and Egyptian control before 1967. Fatah, the PA, and the PLO are demanding title to lands and authority over populations they do not control, being as they are under the rule of Hamas and Israel.

Unlike the two Palestinian entities that already exist, either of which could be recognized as a Palestinian state because they seem to fulfill the legal requirements, the Palestinian entity that a General Assembly majority will recognize as a state this September does not actually exist on Earth. It is imaginary and aspirational, not real. And it does not meet the legal requirements.

First, it will have two rival presidents pursuing incompatible policies. Mahmoud Abbas is presenting himself as the president of the Palestine that is pressing the claim in the U.N. General Assembly, but he is not considered to be the president anymore by Hamas, the largest political party in the putative state. And Hamas has Palestine's own laws on its side in this dispute. Abbas was elected in 2005 to serve until January 2009, so his term has expired. In 2009, he unilaterally extended his term for another year until January 2010 (an extension that also has expired), but that extension did not adhere to Article 65 of the Palestinian constitution, the Basic Law. Hamas, which controls a majority in the now defunct Palestinian Legislative Council (PLC), opposed the extension. According to Article 65 of the Basic Law, the legally empowered president of Palestine, since January 2009, has been PLC Speaker Abdel Aziz Dweik, a deputy representing Hamas. Palestine's ruling party, Hamas, considers Dweik, not Abbas, to be the legal president of Palestine, and it has a strong case.

Second, the Palestine that the General Assembly will recognize also will have two rival prime ministers pursuing incompatible policies. Hamas denies that Abbas has the authority to appoint Salam Fayyad as prime minister, because Abbas is not legally the president of Palestine under Article 65 and because Fayyad has not been empowered as prime minister by the Palestinian Legislative Council as required by Article 66 of the Basic Law. Neither his first appointment, on June 15, 2007, nor his reappointment on May 19, 2009, was confirmed by the PLC as required. Hamas, which controls the majority in the PLC, considers the legal prime minister of the Palestinian Authority to continue to be Ismail Haniyeh, a senior political leader of Hamas. Haniyeh was empowered by the PLC to be prime minister of Palestine in February 2006. Abbas dismissed Haniyeh from the office on June 14, 2007, after the Gaza coup, but Haniyeh counters that this decree violated articles 45, 78, and 83 and that he continues to exercise prime ministerial authority under Article 83. The PLC also continues to recognize Haniyeh's authority as prime minister. Here again, Hamas has the law on its side.

Third, this putative state of "Palestine" will also have a legislature that never meets. Elected on Jan. 25, 2006, for a term of four years, the PLC has enacted no laws, passed on no ministers, and conducted no meetings since 2007. Instead, Abbas says, "It is my right as a president to legislate laws and decisions that are called decrees. These decrees are legal, as long as the Palestinian Legislative Council (PLC) is not able to convene."

It is common for Palestinian observers and their supporters in the West to attribute the PLC's inaction to the fact that Israel arrested 21 of its more radical members in June 2006 after the abduction of Gilad Shalit, most of whom are still in detention. The Carter Center, for example, states, "With most of its representatives in Israeli prisons, the Palestinian Legislative Council never assembled the required quorum for meetings and hence was unable to carry out legislative functions designated to the PLC." But the PLC has 132 members, of whom fewer than 20 are detained by Israel, and a quorum of the PLC requires only one more than half the members -- 67 -- to be present. So it is not Israel that is preventing a quorum.

In fact, neither faction contending to rule Palestine actually wants the PLC to meet, for different reasons. Hamas does not want it brought to session to enact new laws or amendments to existing laws when its majority has been diluted, especially because it fears unfavorable amendments to the election law. And Fatah is only too happy to see the Hamas members in jail, because it too does not want the PLC to meet, lest it enforce the Basic Law by replacing Abbas and Fayyad. PLC Speaker Dweik, whom Hamas considers to be the legally empowered president of Palestine, has said of his own arrest by Israel, "Any action that put an end to our activity in the parliament was welcomed by many, among them the Palestinian Authority."

Fourth, this Palestine that the General Assembly will recognize will also lack the ability to hold presidential or legislative elections as required by Article 47 of its Basic Law -- not because Israel will prevent them, but again because the rival Palestinian rulers will not allow them to happen. Abbas's constitutionally defined term expired in January 2009, and the terms of the PLC representatives expired on Jan. 25, 2010, so new elections for both are overdue. The 2005 Palestinian Elections Law No. 9, Article 2, which Hamas recognizes as legally binding, and the replacement Elections Law unilaterally decreed by Abbas on Sept. 2, 2007, Articles 2 to 4, which Hamas considers an unlawful usurpation of power under the constitution, require elections by now, but no such elections are in sight. Neither of the rivals wants an election to be held under the electoral rules recognized as legally binding by the other, and neither will permit the other to compete freely on territories it controls as required by both sets of regulations.

So there you have it. The General Assembly will make a remarkable decision about all this in the next few weeks. Instead of recognizing either of the two state-like entities that already exist, each having many of the attributes of statehood required by international law, the General Assembly will create an imaginary state that has two incompatible presidents, two rival prime ministers, a constitution whose most central provisions are violated by both sides, no functioning legislature, no ability to hold elections, a population mostly not under its control, borders that would annex territory under the control of other powers, and no clear path to resolve any of these conflicts. It is a resolution that plants the seeds for civil and international wars, not one that advances peace.

Thaer Ganaim/PPO via Getty Images


The Trial of the Century

Look beyond the cage. The problems facing Hosni Mubarak’s trial lie elsewhere.

In the 1990s, I accompanied a group of U.S. federal judges on a tour of Egypt. We managed to pay a visit to the country's military court, an institution famous to this day for handling troubling political cases with ruthless dispatch. The American judges were surprised by what they saw -- a cage to hold the defendants. Such a thing would never be allowed in an American courtroom; for a jury to see the defendant behind bars would be deeply prejudicial.

They were right to be suspicious, but overlooked the real issues. Egypt has no jury trials. Judges, civilian or military, always see defendants held behind bars, and are hardly swayed. But any Egyptian legal observer could have pointed to the real problems: lack of adequate time to prepare, extremely limited rights of appeal, the absence of most procedural guarantees, and a dubious constitutional basis for military trials of civilians.

With the beginning of former President Hosni Mubarak's trial on Aug. 3, the world watched as the octogenarian deposed leader appeared stretched out on a hospital bed inside the cage -- which he shared with his sons Alaa and Gamal, former Interior Minister Habib al-Adly, and six other defendants -- while the presiding judge recited the charges against him. Mubarak, who faces accusations of corruption and ordering the killing of protesters, denied all the charges against him. The spectacle was an odd one -- but what is merely different and what is truly troubling?

In a series of conversations with Egyptian judges in June of this year, I found enormous self-confidence that the judiciary will be up to the procedural task of trying Mubarak. But there are two factors that should give even proud Egyptian judges cause for concern.

First, the enormous number of cases of corruption and abuse is daunting. One Egyptian judge remarked that if all cases were pursued at once, one half of the country would be trying the other half. The former president's case appears to be fast-tracked because of political pressure. This fact is unfortunate in itself -- but also worrying because it risks obscuring how much the system is overwhelmed with the mountains of corruption the old system was built upon.

And that leads to the second problem -- in very prominent cases, characterized by numerous angry victims and high public passions, some judges I spoke to were uncertain whether the courts could provide a secure atmosphere for the trial. They were less concerned about judges succumbing to mob pressures than the judges and courthouses themselves being mobbed. Hence the unusual venue for today's session -- the highly guarded police academy building. Nevertheless, the clashes outside the academy between Mubarak loyalists and his critics -- who repeatedly lobbed stones and bottles at one other before and during the hearing -- suggest that the judges' fears are well-justified. But not all is anarchy. When assessing the credibility of the Egyptian court system, outsiders often need a little guidance on what to look for. The good news is this: Egyptian justice is lumbering but often credible. While the opening session of Mubarak's trial may have appeared to be a media circus, it in fact had several laudable aspects.

For starters, the trial is being held by the regular judiciary. Indeed, for all the talk of the unprecedented nature of the trial, this is the real novel element. Post-revolutionary regimes have tried former political leaders many times in the Arab world -- but never before a regular court of law. What's more, the president is being tried in accordance with normal laws, not according to some vaguely specified and highly political "revolutionary" decree.

What about the apparent hyper speed of the trial? Or the bouts of shouting, rapid-fire tumble of claims from lawyers, and other strange procedures, which made the courtroom look a bit more like a train station than the set of Perry Mason?

The wheels of Egyptian justice can turn very slowly, though they tend to move much quicker for criminal than civil trials. And, yes, the courtroom scene was a bit unusual, but criminal cases are not handled in a way Americans would immediately recognize -- less a discrete trial in which testimony is delivered orally over several days than a series of brief sessions, dispersed over several months, in which papers are filed, motions are made, and judges plow through cases in quick sequence.

Even the looniest element -- when an attorney claimed that Mubarak had actually died and it was his double in the courtroom -- may simply have been an outlandish version of a standard Egyptian lawyer's ruse. Anyone wishing to delay a case can often do so by demanding some expert investigation before the trial can proceed. (Generally, the lawyer seeking delay will request something like the authentication of a signature rather than demand a DNA test to prove that the defendant isn't a doppelgänger, but perhaps in this case the attorney felt the occasion called for something special.)

This is not to say that the Mubarak trial will be an unqualified boon for Egypt's future. Experts in transitional justice would likely find the Egyptian procedures -- and even more the public atmosphere -- too focused on justice for the past and not attuned enough to the need for reconciliation in the future. While they would not argue that former leaders should be treated with kid gloves, they would likely privilege truth-telling and accounting over retribution and punishment.

There will be more procedural oddities as Mubarak's case winds its way forward. Some of the features of the trial that seem strangest will be normal, while elements that are surprising -- most notably the use of the regular judiciary -- will sometimes escape outsiders' notice. But for better or worse (and a mixture of both), the trial will simply be a thoroughly Egyptian proceeding.