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Calling a duck a bear

Some reasons not to worry about Sweden recognizing Palestine as a state, and one good reason to welcome it

By now, everyone has heard that Sweden has recognized Palestine as an independent, sovereign state. Overlooking the fact that the borders surrounding this state remain questionable, and that this state is yet to possess one effective government, we may nonetheless find solace in the premature recognition of Palestine.

Sweden’s decision to recognize Palestine as a state has caused a frenzy of Internet-based comments and criticism. Factually incorrect arguments of Sweden being “the first Western European country” to recognize Palestine abound on the web, while Israel supporters curse the kingdom for setting a dangerous precedent, and Palestine supporters celebrate the kickstart of the long-awaited “freedom” of the Palestinian people.

Hang on. Where was the frenzy three years ago when Iceland became the (true) first Western European country to recognize Palestine? And how much has changed since then in regards to Palestinian statehood?

There are two things people need to understand before they begin plotting their revenge on Sweden (or, alternatively, before they begin sending thank you cards to the King). The first thing people need to understand is this: recognition does not create statehood. Calling a duck a bear does not turn it into one.

Under international law, there are four criteria that need to be fulfilled before a state becomes a state. It needs to have a defined territory. It needs to have an effective government. It needs to have a permanent population. It needs to have the capacity to enter into relations with other states. Sure, recognition is important for the purpose of fulfilling the last of these criteria, but in no way does recognition in and of itself make a state. The first two criteria, at least, of supposed Palestinian Statehood are currently missing. What is the defined territory of the State of Palestine? Which entity constitutes the effective government? Does this government include Hamas and Fatah?

The second thing people need to understand is that becoming a State also means you will be treated as one. One of the main problems Israel has faced over the past few decades is the fact that Hamas terrorists are non-state actors — never mind the fact that they were voted into power by the people in Gaza. Under international law, since Palestine is not a state, the actions of its “representatives” are actions committed by non-state actors.

Here is the problem with that classification. While states are bound by the international laws on the use of force, non-state actors are not. This means that, while normally, if one state attacks another state the victim state can respond in self-defense against the attacker state, this possibility is removed when the initial attack is committed by a non-state group.

There are certainly academic theories out there arguing for the expansion of the right of self-defense, to encompass responses to attacks by non-state actors as well, but as of today, there is no law expressly permitting this. In my opinion, Palestinian statehood with a unity government of Hamas, PLO, and Fatah is one of the best things that can happen to Israel, from the perspective of international credibility. It would mean that Israel’s responses to Hamas’ rocket attacks could no longer be considered absolutely illegitimate. Naturally, the responses would still have to pass the test of being proportional to the initial attack and necessary to deter future imminent attacks, but at least the first threshold would be passed.

So before you begin burning your IKEA-furniture, consider this. Yes, it was a premature, political decision by the newly-elected Swedish government, aimed at getting some international praise. Yes, it sends the message that the Palestinians can reach their goal without making any concessions or even recognizing the State of Israel. But first, how much will this recognition actually change the current state of affairs, and second, is the change entirely unwelcome?

About the Author
Olivia Flasch is an international lawyer living in London. She undertook her Bachelor's Degree in Public International Law in The Hague, The Netherlands, and has a Master's Degree in Law from The University of Oxford. Born into a Jewish family in Sweden, she writes about all things Jewish, as well as about Israel and the world from an international law perspective.