Who determines whether the PA is a State: Israel's Lawyers or Politicians?

The legal opinion Israel submitted to the Supreme Court determined that the Palestinian Authority is not a state under international law and can be prosecuted in an Israeli court. Yet although the ruling rests on sound judicial reasoning, it is unlikely to serve Israel's political interest.

This week, Israel's Ministry of Foreign Affairs submitted a legal opinion to the Supreme Court stating that the Palestinian Authority does not enjoy immunity from prosecution in an Israeli court as it is not a sovereign state according to international law. This decision was in response to a question over whether Israel had the authority to prosecute the PA in 55 cases, some of which included involvement in terror attacks.

While it seems that the MFA's ruling rests on sound judicial reasoning, it is unlikely to serve Israel's political interests in light of the change in the Palestinian position regarding the establishment of a Palestinian state.

What is the issue?

One of the basic assumptions of the Oslo process was that the goal of the Palestinian National Movement was to establish an independent Palestinian state. Therefore, the establishment of a Palestinian state was considered an Israeli 'card' in negotiations.

The PA was supposed to lay the foundation for a future Palestinian state and gradually assume powers and authorities from Israel during the five-year interim period (5/94-5/99). At the end of this period, the PA's final status was to be determined in Permanent Status. However, when the interim period ended without agreement, the PA remained a non-state entity with restricted powers and authorities.

Israel has consistently expressed its opposition to recognizing the PA as a state, such as in the following instances: when the Palestinians threatened to unilaterally declare independence (5/99 and 9-11/00), during Disengagement (8/05), in different judicial issues (See Palestinian Sovereignty - Only In Court??), and during other political events such as Costa Rica's recognition of Palestinian independence (2/08).

Why is it important? Why now?

Recently, Palestinian voices rejecting a Palestinian state in favor of establishing one bi-national state in all of 'historic Palestine' have increased. Proponents of this position not only come from radical streams of Palestinian society who have always strived to create a Palestinian-Islamic state in place of Israel, but also from those considered more 'moderate' who no longer see any benefit in the political process or consider the 'Two State Solution' unviable.

Moreover, the discussion in the Supreme Court comes at the same time as growing doubts over the chances of success in current negotiations (See report from Palestinian newspaper Al Manar [3/16] that Abu Mazen is considering officially declaring the collapse of the political process).

The failure of the political process may also increase doubts over the viability of the 'Two State Solution' among the rest of the Palestinian 'peace camp' and strengthen those calling for the dissolution of the PA and returning the full burden of 'occupation' to Israel.

Policy Options

In light of the aforementioned trends, is the establishment of a Palestinian state an Israeli 'card' in negotiations or an Israeli interest? Should Israel seek to upgrade the PA's sovereign attributes or oppose such policies?

If Israel concludes that its interest lies in upgrading the PA regardless of the result of the negotiations, then the MFA's legal opinion contradicts this interest.

The failure of negotiations is likely to encourage those Palestinians aiming to dissolve the PA in order to return the burden of 'occupation' to Israel. The MFA's legal opinion may serve as an instrument for those who claim that the PA is not a state.

The closer the PA's powers and authorities are to a full sovereign state, the harder it will be to dissolve the PA. If Israel wants to prevent such a scenario, it should adopt an opposite legal opinion that the PA is a state and does enjoy sovereign immunity.

What is Gaza's status in light of the legal opinion? To date, Israel has maintained that the West Bank and Gaza are a single territorial unity and part of the PA. Therefore, after Israel's official declaration that it is no longer sovereign in Gaza, who is the sovereign power there?