By Dr. Parasaran Rangarajan
The Open-Ended Working Group of the General Assembly was established in 1992 with the support of the Non-Aligned Movement (NAM) to reform the United Nations. The use of the veto at the United Nations Security Council by the former Cold War powers in relation to blocking the membership, as well as deployment of United Nations Peacekeeping Contingents to areas where there are threats to international peace and security, is of relevance to the State of Palestine today.
Supporting the Palestinian cause is a cornerstone of India’s foreign policy as stated by consecutive External Affairs Ministers and dates back to the words of the father of the nation M.K. Gandhi in that:
“Palestine belongs to Arabs in the same sense that England belongs to the English and France belongs to the French…It is wrong and inhuman to impose the Jews on Arabs…But according to the accepted canons of right and wrong, nothing can be said against the Arab resistance in the face of overwhelming odds.”
The government of India’s support to the independence of the State of Palestine has declined due to the current Bharatiya Janata Party (BJP) led government’s close ties with Israel. This is at a time when there is increasingly more support for the State of Palestine by world renowned intellectuals due to the human rights violations and serious violations of international law Israel is committing against the Palestinian people. By aligning India’s interests with the evolution of international law where it does not intrude upon the sovereignty of the nation, it can have a greater role at the United Nations, and claim its rightful place at the Security Council.
While not a member of the International Criminal Court (ICC) and a nation built on principles of unconditional tolerance, India’s recent closer ties with Israel has been regarded as a disappointment by former Indian diplomats who have urged India to close ties with Israel. Israel is currently being investigated by the 123 member-State ICC which will issue international arrest warrants for serious violations of international law. Furthermore, the international community considers that solidarity with the Palestinian cause is one of the greatest moral obligations and struggles of our time.
As a founding member, India’s stake at the NAM is historical and can influence the organisation to vote as a bloc at the United Nations for two purposes:
- Full membership of the State of Palestine to the United Nations.
- United Nations Peacekeeping Contingent in the State of Palestine.
The 137 member NAM (including observers) has resolutions for the independence of the State of Palestine and can invoke United Nations General Assembly Resolution 377 (‘Uniting for Peace’ Resolution) since the Security Council has failed for over half-century to maintain international peace and security in the region. The rationale for using the Resolution for the mentioned purposes is detailed in this article.
The United States of America, as a permanent member of the United Nations Security Council, has opposed the membership of the State of Palestine to the United Nations as an equal member for over a half-century, a threat “to international peace and security” as specified in Article 24 of the United Nations Charter. Due to its weak foreign policy at the United Nations on a peaceful settlement to the matter by using its veto as a permanent member of the Security Council and consistently voting with Israel, it remains the one of the primary obstacles to peace in the region of what is considered holy land of the three Abrahamic Religions.
“And now a word to the Jews in Palestine. I have no doubt that they are going about it in the wrong way. The Palestine of the Biblical conception is not a geographical tract. It is in their hearts. But if they must look to the Palestine of geography as their national home, it is wrong to enter it under the shadow of the British gun. A religious act cannot be performed with the aid of the bayonet or the bomb. They can settle in Palestine only by the goodwill of the Arabs.” – M.K. Gandhi (1938)
Despite differences in the three Abrahamic religions which have fueled extremism, there have always been two states before the Islamic conquest of the region. The term “Palestine” itself is present as different terms due to linguistic/historical changes including “Philistine”, “Syria-Palestinia”, etc in the Holy Torah, Holy Bible, as well as texts concerning the history of the Roman Empire, Hellenic Empire, and Persian Empire. The Palestinian people have always had a historical right to their land.
Instead of religious views, the international legal options in the context of the ‘Uniting for Peace’ Resolution are explained, since the State of Palestine and the Holy See remain the only nations with “non-member observer State status” at the United Nations. After United Nations General Assembly Resolution 67/19  passed by over 2/3rd vote in 2012, the international legal status of Palestinian “statehood” was clarified. Attending the 2011 as well as 2012 (66th and 68th General Assembly Sessions), the then Hon’ble Prime Minister of India Dr. Manmohan Singh of the United Progressive Alliance II (UPA II or “Congress Party”), called for the equal membership for the State of Palestine in the United Nations.
On most substantial issues involving the rights of the Palestinian people, all other permanent members of the Security Council are in agreement on resolving the matter; especially with European leadership recently recognising the State of Palestine. The European Union has denounced “bi-lateral non-surrender agreements” with the ICC as a “Common Position”, unless the member of the European Union is willing to prosecute the wanted persons domestically.
ICC arrest warrants will be relevant in all of the 123 member-States of the ICC including the European Union, obligating the majority of the world to arrest wanted Israeli persons by the ICC, which may cause major diplomatic rifts to the United States of America’s main ally. The “Arab Peace Initiative (2002)” put forth by His Majesty King Abdullah of the Kingdom of Saudi Arabia remains the best option for Israel in that it receives diplomatic recognition from all members of the League of Arab States (“Arab League”) as an equal nation in exchange for Israel’s diplomatic recognition of the State of Palestine as an equal nation.
Israel itself has a large lobbying base, bankrolling the politics of the United States of America Government despite the fact that “public officials”; defined as Representatives, Delegates, or Residents of the United States of America’s Congress, cannot receive money to influence their policy or acts as per 18 U.S. Code § 201 and 18 U.S. Code § 1956. However, the United States of America may not be able to rescue Israel due to the international legal consequences and changes in public opinion in favour of the United States of America recognising the State of Palestine.
Pursuant to some of my legal assistance to the State of Palestine over the past half-decade on seeking peaceful/legal strategies, the United Nations Secretariat included the State of Palestine on its official world map for the first time in 2013  and the United Nations Educational, Scientific and Cultural Organization (UNESCO) is to release a corrected version of its World Heritage Map with international partners such as National Geographic starting from its 2016-2017 productions. This further clarifies the State of Palestine’s rightful place on the official maps of the United Nations in history, for the first time since the foundation of Israel in 1948; important due to updating customary international law which official world maps constitute a part of.
Membership of the United Nations via the General Assembly
It has been generally understood that the role of the Security Council in the membership process is required since all 193 full members of the United Nations have obtained their membership via a positive “recommendation” from the Security Council thus far; which requires that no permanent member of the Security Council can exercise its veto so it is referred to the General Assembly for its “decision”.
Membership of States to the United Nations is governed by Article 4 of the Charter which is the guiding document of the organisation, although not absolute. Membership of a State is considered a “political act”, following the advisory opinion rendered by the primary judicial organ of the organisation; the International Court of Justice (ICJ) in Conditions of a State to Membership in the United Nations (1948). General Assembly Resolutions are a part of customary international law just as ICJ advisory opinions.
Upon rejection of an application, the Security Council must still explain to the General Assembly why it rejected an application, as per Rule 60 of the Provisional Rules of Procedure of the Security Council, which is the Constitution of the Security Council.
Furthermore, the Committee on the Admission of New Members; established as a subsidiary organ of the Security Council in 1946 via Article 29 of the Charter and Rule 28 of the Provisional Rules of Procedure of the Security Council accepted views that the State of Palestine was “peace-loving” to fulfill the membership requirements of Article 4 (1) of the Charter in 2011. This is despite the fact the Committee could not recommend membership of the State of Palestine to the Security Council that year due to lack of unanimity.
When the Security Council’s lack of a “recommendation” for a “decision” to the General Assembly for membership is a “threat to peace” as it has been in the case of the State of Palestine; General Assembly Resolution 377 (‘Uniting for Peace’ Resolution) can be invoked for membership, and Charter as well as other procedural obligations have been secondary examining the history of the usage of the Resolution explained further in this article. This is applicable when the Security Council, due to its lack of “unanimity”, cannot uphold its Article 24 primary duty of the “maintenance of international peace and security”.
In relation to General Assembly Resolution 377, it may be invoked by the NAM for 2/3rd vote at the General Assembly for the membership of the State of Palestine in good faith, since the Security Council has failed its primary duty specified in Article 24. The advisory opinion of Conditions of a State to Membership in the United Nations (1948) does not forbid any factors of good faith when considering membership in relation to Article 4 (1) of the Charter.
While an application for membership cannot be referred to the United Nations General Assembly for its “decision” when the Security Council fails to make a “recommendation”, as stated in the advisory opinion of the ICJ in General Assembly for the Admission of a State to the United Nations Advisory Opinion (1950)  which forms a part of customary international law; the customary international law on the relationship between the General Assembly and Security Council was updated by General Assembly Resolution 377 later the same year.
The advisory opinion by the ICJ in Conditions of a State to Membership in the United Nations (1948) makes it clear that the political freedom of each organ, including the Security Council, in taking unilateral action for membership is limited due to Article 24 obligations, but this does not allow these obligations to affect membership unless there is a “provision” regarding the “special rules of admission which emerge from Article 4”.
General Assembly Resolution 377 provides this “provision” since it is stated in the preamble that the General Assembly recognises that one of the primary purposes of the United Nations is; “To develop friendly relations among nations based on the respect for the principle on equal rights and self-determination of peoples, and to take other measures to strengthen universal peace”.
The preamble also recognises that the purpose of the organisation is; “…adjustment or settlement of international disputes or situations which may lead to the breach of peace”. It is in the context of the principles of the United Nations that the General Assembly was given this “provision” to set aside Charter and procedural obligations, in order to take precedence over the Security Council in the interests of peace. Building upon the preamble, operative paragraph one of the Resolution allows the General Assembly to take “collective measures” when the Security Council fails to act due to its “lack of unanimity of the permanent members”, when there “appears to be a threat to peace, breach of peace, or act of aggression”.
Recent reports concerning equitable representation at the United Nations, which add to the General Assembly’s rationale in invoking the ‘Uniting for Peace’ Resolution includes the Report of the Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters related to the Security Council (2004), state that the General Assembly should be able to use the Resolution to override any Security Council veto.
Membership of the State of Palestine may be part of “collective measures” taken by the General Assembly. There is the precedent of the General Assembly interpreting membership issues when it expressly declared Israel is not a “peace-loving Member state”, called for all nations to sever all relations with Israel, and condemned the Security Council in 1982.
The General Assembly also took measures to unilaterally expel the representatives of China in 1971, the Republic of China (ROC), and restored the People’s Republic of China (PRC) as the official representatives of China at the United Nations in without involvement by the Security Council despite the fact that China is a permanent member of the Security Council. The same was the case of the suspension of the representation of the apartheid South African regime from 1974-1994, where the General Assembly determined the regime engaged in consistent violations of international law and could not participate at the United Nations. In these cases, the General Assembly has unilaterally taken “decisions” with regards to membership, citing customary international law over Chapter II of the Charter, in the interests of peace.
Therefore, General Assembly Resolution 377 can be used to settle the internationally recognised dispute between the State of Palestine and Israel, so that friendly relations based on equal rights as well self-determination are developed with the international community, by accepting the State of Palestine as a member of the United Nations.
United Nations Peacekeeping Contingent via the General Assembly
The Resolution expressly states that the “collective measures” include the “use of armed force”, irrespective of the Charter which states that only the Security Council may take these decisions.
To this end, the Resolution has been used over ten times to convene emergency sessions of the General Assembly ; even when the Security Council was discussing the issue, which is contrary to Article 12 of the Charter. An example is the call for military assistance to liberation troops in Nambia when it was illegally occupied by the apartheid South African regime in 1981 and the issue was under discussion at the Security Council.
With this “provision”, the General Assembly may take “collective measures” for membership and on the deployment of a United Nations Peacekeeping Contingent to the State of Palestine concurrently since the Security Council has failed to provide the Palestinian people with protection from serious war crimes. This is despite the numerous United Nations Reports including from the ICJ recognising there are continuing threats to peace, breaches of peace, acts of aggression, and violations of international law in the State of Palestine by the Occupying power as defined in the Fourth Geneva Convention relative to the Protection of Civilians in Time of War (1949).
The first United Nations Peacekeeping Contingent established by the General Assembly via ‘Uniting for Peace’ dates back to the mid 1950’s when the United Nations Emergency Force (UNEF I) served as a buffer between Egypt and Israel. Therefore, the Charter is not an obstacle for the General Assembly since the deployment of peacekeepers, as well as “use of armed force”, was the prerogative of the Security Council as stated in Chapters XI and XII of the Charter. The cited precedents when the General Assembly was solely involved in peacekeeping and deciding on matters related to armed forces are examples when the Charter was a secondary source. Articles 10 and 11 of the Charter allow the General Assembly to discuss as well as make “recommendations” to other members including the Security Council on any matter within the scope of the Charter including international peace and security.
Blocking the membership of a “peace-loving state”, has lead to a “threat of peace” in the past where the Security Council failed to uphold Article 24.
Vietnam’s application for membership of the United Nations was delayed till the late 1970’s due to the “international armed conflict”, as defined by Common Article 3 of the Geneva Conventions (1949), with permanent members of the Security Council such as the United States of America. Membership was blocked for “political” reasons since other permanent members of the Security Council such as the Union of Soviet Socialist Republics (USSR) suggested Vietnam met requirements for membership of the United Nations by assisting belligerents within Vietnam. Common Article 3 also applies to the State of Palestine since it has ratified the relevant international treaties and conventions.
Endorsing “collective” peacekeeping measures including the “use of armed force” as specified in General Assembly Resolution 377, the General Assembly can also admit the State of Palestine as a member to the United Nations on a “political” basis; overriding the Security Council “for the maintenance of international peace and security”. This is in accordance with updated customary international law.
The right of all States to maintain armed forces for defence was also received well by the United Nations Office of Legal Affairs (UNOLA) in a legal memo I had written for a delayed French sponsored Security Council Resolution currently being discussed; calling for the withdrawal of Israel from the internationally recognised borders of the State of Palestine – now having more diplomatic and official recognitions than Israel – where its people are in dire need of international protection due to over half-century of serious “crimes against humanity” with “discriminatory intent” (“genocide”).
“Surely it would be a crime against humanity to reduce the proud Arabs so that Palestine can be restored to the Jews partly or wholly as their national home…But I do not believe in any war. A discussion of the pros and cons of such a war is therefore outside my horizon or province.” – M.K. Gandhi (1938)