The Syria ceasefire talks opened today in Astana. In a meeting with such a short turnaround time (24 hours), outcomes are brutally dependent on how realistic expectations are.

If there has been any progress in Syria it relates to the coalescence of interests. Whereas most stakeholders – international or otherwise – in previous meetings have had different agendas, we now have a clear battlefront developing: Syria with international backers versus the armed (moderate) opposition.

In such a complex campaign this is, in fact, a major development. Excluding ISIS, at the highest level at least, Syria has entered a more manageable and classical picture of civil conflict.

From the news reports It is clear that Russia, Syria, and the UN have had the opportunity to align their expectations fairly closely – mainly around opening lines of communication, making a separation between armed groups they will negotiate with and extremists. Last Friday, even Turkey dropped its demand for Assad to go.

On the other hand, it is not clear whether the armed opposition have any unified expectations. More than 15 groups make up this side of the delegation, they are only loosely associated in the field, and presumably have priorities than harmonizing their political objectives – yet now is very much the time to do this.

The rebel spokesman, Mohammed Alloush, made reference to a political solution which respected rights “to live” to “freedom”, to “decide our fate”, to “decide the people to represent them”. These are all fair statements, but when demands shift to political negotiations it will have to be tighter than this. Assad has indicated that everything in the constitution is negotiable; now is the time for the opposition to articulate what exactly they wish to change.

Both sides would do well to further align their views – the stronger the alignment, the stronger they will be (both on or off the battlefield). It will also exponentially improve the prospects for political dialogue in Geneva.

If the opposition remains passive in this exercise, there will be no pressure for them to unite their views; without a united front, the prospects of negotiating a political settlement with (at least) 15 parties is slim. That will be to their detriment.

In any case, Astana is too short for negotiating a substantive political settlement. A political settlement is also not possible while fighting remains dynamic – as it does near Damascus – as the strength of negotiating positions may change. Participants at Astana should at this point focus on a ceasefire, or building on the one brokered by the Russians and Turks a month or so ago.

UN Special Representative Staffan de Mistura, who (correctly) decided to attend, and the U.S. who attended through their Ambassador to Kazakhstan, would both do well to study the format, tone, and views of participants at the meeting. That way they can aim to deliver the best “psychological contract” possible for participants in Geneva.

Today’s Security Council resolutions refer to occupied territories and East Jerusalem separately. The old expression found in resolutions 242 and 338, referred to “Arab territories, including Jerusalem”. The older method recognizes an entity that is distinct from the neighbouring member-States –  i.e. Israel, Jordan, and Egypt – and thus defines formal boundaries of that entity. Since that entity includes Jerusalem – as an Arab territory – it contravenes Resolution 181. Resolution 181 specifically defines Jerusalem as multi-ethnic entity distinct from Arab and Jewish states in Palestine.

As far as this special area of Jerusalem is concerned, its boundaries are legally known: it must be the area of Jerusalem defined in the Resolution 181, less the area of Jerusalem in Israel as recognised by UN as part of Israel. The remaining territory is separate by default, and that is the geographic space which is available for legally defining the State of Palestine.

Resolution 181 is therefore important. It is the basis of Israeli incorporation as a state, and admission of Israel to UN membership gave primacy of this resolution to all future dealings-with and legal expectations-of the state of Israel. Since it was recognized by the Security Council during that process, any contradictory UN Security Council resolutions are contestable. And by it, Israel is legally bound to accept the creation of two states.

Until the legal representatives of the Palestinian people also acknowledged Resolution 181 however, the nature of both non-Israeli Jerusalem and the other territories occupied by Palestinians remained undefined. Entering those undefined areas for the necessary security of the 1947-borders of Israel proper, for example, would be undesirable but not illegal.

Up until the 1980s the Palestinian leadership also rejected a two-state solution required by international law. Encroachment by the State of Israel on undefined territory also did not prejudice a internationally-permitted format of Palestinian state. Settlement activities during this uncertain period then – in the Jerusalem area as well as elsewhere – that did not include confiscation of ownership, or prejudice the rights of individuals, may have been legally defencible, or at least reside in a grey area.

In 1988 however, internationally-recognized legal representatives of Palestine declared Palestinian independence with reference to Resolution 181. Palestine’s statehood was acknowledged by many UN Member States if not explicitly by the Security Council. Thus the application of Resolution181 became normative for international relations with the State of Palestine, albeit outside the UN System. The implications of this are profound: the expectations of Security Council, Israel, and the Palestinian people/State became mutual, making the two state solution the legally-defined framework for the three parties.

From that point on, the foundation of new settlements in areas outside of 1947-Israel became incompatible with the practical implementation of Resolution 181. Since it is contrary to Resolution 181 is legally as well as morally unsound.

Five years later, Oslo 1 codified in formal terms the proper relationship between Jewish and Arab stakeholders in Palestine, as anticipated 40 years earlier in Resolution 181. Oslo 1 clarified that Jerusalem, settlements, and borders are to be negotiated.

The subsequent peace agreement with Jordan in 1994, lodged with the UN, cemented this position. The western boundaries of mandatory Palestine were recognized by the parties as being under Israeli “military government control”. Since Israel, as a UN Member State, existed contemporaneously under civilian government control, this territory has been legally accepted to be conceptually distinct from Israel. A future, negotiated settlement on Jerusalem was also referenced in the treaty. [The 1979 peace-agreement with Egypt recognized the Western border of mandatory Palestine under international treaty, in a format moderated by the United Nations].

There is thus an important body of international law cemented around two states, despite formal recognition by the UN of Palestine. There can be no legal dispute on the goal, only the mechanism to attain it. At the moment it is the Oslo peace process that remains the legally binding mechanism between the two parties; a process described within the Oslo 2 agreement as “irreversible”.

Even if the Oslo 2 agreement is unilaterally annulled, any components that have been become normative through the tacit agreement of the other party – as evidenced through implementation – sets a precedent for the end-state of Resolution 181. This includes permanent Israeli abandonment of the Gaza strip. It also includes the classification of Areas A, B and C, in the West Bank, which is normative in both Israel and the Palestinian territories. Only settlements in “Area C” can reasonably expect to remain under full Israeli jurisdiction within the final borders of the “Arab” state of Palestine.

This brings us back to the ‘normative’ status of Jerusalem. Jerusalem – as defined under Resolution 181 – is neither Arab nor Jewish. Prior to 1967 the non-Israeli parts of the city were controlled by Jordanians. Israeli Jews were not permitted at Western Wall, Jewish heritage was demolished, and Jewish residents expelled. UN resolutions have called for Israel to keep Jerusalem’s character “unchanged”, yet final settlement of Jerusalem cannot reasonably imply that the pre-1967 situation should be the yardstick for measuring change.

Further, as the final end-condition of Jerusalem is not a State, as stipulated by the UN Resolution 181, it must be a territory, and thus self-governing. It is unlikely in the extreme that the Israelis will accept to rescind control of the city. Even if Israel remains a self-appointed trustee, it can remain in compliance of the spirit of Resolution 181 so long as the physical and religious statuses of the Holy City remain intact, and Muslims and Christians can continue to pray at the holy sites. Expulsion of Palestinian Arabs from this Jerusalem entity is, however, firmly in contravention of Resolution 181.

On this line of reasoning there is nothing that limits Palestinians from also declaring Jerusalem the “complete and united” capital of Palestine too; as long as they are willing to negotiate on the practical implementation of this fact. By ring-fencing Jerusalem for negotiated settlement in the Oslo accords, the Israelis have signaled they are at least willing to bring the issue to the negotiating table.

Palestine holds permanent Observer Status at the UN, but that type of status has never been legally codified. What is the current legal status of Palestine?

To be a state, a state need only be recognized by other states, and recognised through international agreement. It does not need to be recognized as a state by the United Nations, in fact, it is a logical pre-requisite for an entity to already be a state for it to be accepted for membership in the United Nations (Article 4, UN Charter).

Although Israel is a member of the UN, it was recognized as a state beforehand – and during a more uncertain period than Palestinians find themselves in now. Palestine has been recognised as a state by numerous countries following its own declaration of independence in 1988.

Both of these states – while not recognizing the other explicitly –  have established themselves in accordance with Resolution 181; they have acknowledged the “termination of mandate, partition, and independence”, as Part A of 181 is titled, and self-identified with the states described therein. The difference between Israel and Palestine as states is in their degree of independent action – the Palestinian government does not have the ‘monopoly on violence’ within its borders.

As to whether Israel is beholden to recognize Palestine as a state is one thing; it is it its sovereign right not to do so long as Palestine is not a member of the UN. The Israeli position however, has no legal effect on whether Palestine is or is not a state. This is also true of the United Nations: the UN is restricted by its charter as to how it can term a state. Specifically: the UN charter only permits the UN Security Council, and the wider UN, to classify geographic locations into three types of place: (1) Member States; (2) non-Member States; and (3) territory’, “whose peoples have not yet attained a full measure of self-government” (Article 73 UN).  There is no legally defined “other” category. Palestine is not a Member State, so to the Security Council it has to be either a non-Member State or a “territory”.

If Palestine is a non-Member State, for as long as it is not a member of the UN, other countries are not beholden to recognize it. Palestine may, however, apply and have it membership is considered by the Security Council first, and then the General Assembly. Membership is open to all “peace-loving” states that are able to fulfil the requirements of the UN Charter (Article 4) – and the contents of the Charter are the only metric by which membership can legally be judged by the UN, including the Security Council. If membership is rejected by the Security Council on the basis of the Charter then there is only one other case, in which membership could be legally be rejected, and that is that Palestine is not sufficiently self-supporting and is a territory. In such a case, it falls by default into trusteeship status (Chapter XII and XIII UN Charter).

So what is Palestine? The answer is profound. If Palestine applies to the Security Council and is rejected on the basis that it is not peace-loving or otherwise would not fulfil the requirements of the charter, then it is legally acknowledged by the Security Council to be a state. This will set legal precedent albeit as a non-Member. On the other hand, if the Security Council rejects an application from Palestine on the basis that it is not a state, then there is only one category it can be defined as: a non-self-governing territory. As Israel holds administrative and military authority in Palestine, it would then legally assume responsibility for implementation of Article 73 of the UN Charter for that non-self-governing area in all its provisions. Further, the geographic bounds of this territory would then be further acknowledged as legally separate to the State of Israel.

In either case, a negative result from a membership application to the Security Council by Palestine would hold a positive result for Palestine, either in terms of statehood, or in terms of territory. It may even be advantageous for them to make an application even if the prospect of success is very low.

And in the unlikely event that it is accepted as a member, it would oblige Palestine to recognize Israel, and vice versa. This is because the principle of sovereign equality of all members of the United Nations does not permit variation in status of members status with respect to one another; thus all states mutually recognize one another to remain compliant with the UN charter, even if they don’t hold diplomatic relations.

Since I wrote my last blog, it seems that the incoming U.S. administration is intent on moving the U.S. embassy in Israel to Jerusalem. What are the (actual) implications of doing this?

Under international law, the ‘status’ of the “Holy City of Jerusalem” is to remain unchanged until its final status is agreed, see for example: Security Council resolution 478 of 1980. Changes are all relative to its original, official status. From a practical, legal perspective, the baseline status of the city can only be that of the partition plan of 1947 described in UN Resolution 181.

The 1947 plan contains geographic boundary conditions for Jerusalem. These boundaries were expansive and even included Bethlehem.  When Israel declared independence in 1948 it had captured a promontory up to, but not including, the western edge of the Old City of Jerusalem. The Old City is where principle ‘holy’ elements of the place are.

When Israel was admitted to the UN in 1949, the geographic area captured by Israel was recognized by the international community as legally part of the state of Israel. In other words, part of the city of Jerusalem – as a geographic location – was included in the legal status of Israel. By extension this was the next, legal iteration of the status of Jerusalem.

Under Resolution 181 Jerusalem was to be a city state administered by the UN, and holding embassies in Tel Aviv remains normative because of an early expectation of implementation of this concept. The acceptance of 1947 boundaries of Israel rendered this outcome legally unworkable however, for the region of West Jerusalem, if not practically unworkable for the remainder of Jerusalem according to its pre-1947 boundaries.

In 1967, Israel captured the Old City, areas in “East” Jerusalem, amongst others. These areas, referred to in subsequent Security Council resolutions as Arab territories acquired by “military conquest”, this includes the Old City, but not the territory in West Jerusalem which was already recognized as part of Israel.

This means that when UN Resolution 478 – which specifically addresses the issue of embassies in Jerusalem – asserts: “Those States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City.” It is referencing more than one distinct location: Jerusalem and the Holy City. The latter is a subset of the former, but they are not equivalent.

Since Resolution 181 makes no reference to state capitals, or their location. Should any state wish to move their Embassy from Tel Aviv to a location in Jerusalem that is within the pre-1967 borders, it would not be in contravention of UNSC Resolution 478. I.e. legal under international law. To remain compliant with international law however, such a move must be accompanied by the diplomatic limitations that should already be in place now for all embassies. The embassy should not, for example, officially serve outside of the 1947 boundaries, i.e. East Jerusalem, the Old City, and other areas covered by the Israeli Basic Law of Jerusalem but not within its legal state of 1947. To do so will formally acknowledge occupied areas as Israeli, and by extension breech the Geneva Convention (as specified in numerous Security Council resolutions).

Interestingly, the Jerusalem Embassy Act (1995) requires the United States to move its embassy to Jerusalem by the end of 1999 and to recognize Jerusalem as the capital of Israel. It has only been delayed through Presidential waiver. To enact this would therefore be consistent with U.S national law as well as permitted under international law.

That does not mean it would be free of negative consequence.

If this move is made by the U.S. – the main broker of Israeli/Palestinian peace talks, and world’s superpower – it would, at the least, be hugely symbolic. At most it could mark the start of a new intifada in the West Bank, and Arab League disengagement from peace talks. Even if nothing comes to pass, it would have implications for the role that the U.S. is able to play in the peace process. That would have an impact on peace in the long term, if not the short term.

I reviewed the following UN Security Council resolutions for this blog: 242(1967), 252(1968); 267(1969); 271(1969); 298(1971); 446(1979), 452(1979); 465(1980); 476(1980), 478(1980), 1397(2002), 1515(2003), 1850(2008), and 2334(2016)

U.S. Senator Ted Cruz and other prominent Republicans are bring a bill to the Senate to overturn funding to the UN unless Resolution 2334 is reversed. According to Senator Cruz, the resolution is ‘rabidly’ anti-Israel, and that “it declared Jerusalem is not the capital of Israel”.

The object of resolution 2334 is Israel, and is – rightly or wrongly – condemnatory in content. Resolution 2334 also states that Israeli developments in “East Jerusalem” have no legal validity.

Senator Cruz’s initiative raises two questions:

1. Is the passage of 2334 such a departure from the preceding body of international law to which the U.S is signatory that it is right to overturn it? And
2. Would it be possible to overturn it with a funding cut?

Resolution 2334 references 10 Security Council resolutions and is similar in wording, content and tone to all those from 1967 up to 1980. There is then a break of 22 years. The next three resolutions make no reference to borders and Jerusalem. The Security Council left those details to the peace process while it was moving forward. Resolution 2334 also directly references Resolution 478 (1980) which covers the status of Jerusalem; it says: “Those states that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City”.

Practically speaking, Security Council resolutions have never hindered the State of Israel. In the absence of peace talks, Israel has reverted to the status quo of the 1970s – annexation – which it did despite numerous resolutions.

Security Council resolutions do, however, constrain foreign policy towards Israel. 2334 reminds all states that  annexation is illegal despite Security Council silence, as are matters such as moving embassies to Jerusalem. Where the U.S. abstention on 2334 hits hardest is therefore on the U.S. itself, and specifically: the Republican Party’s future policy towards Israel.

If the incoming Republican administration has policies which conflict with the UN resolution, then therefore right to want to overturn it. If it does not, then based on previous the U.S previous voting record at the Security Council, it is just an emotive course of action.

To overturn a resolution requires convincing the members of the Security Council that their original decision to pass it was flawed. The content of 2334 is entirely consistent with previous resolutions and their arguments, so to prove a flaw requires overturning a consistent body of logic and law which spans almost 70 years.

Permanent members Security Council also do not depend on any UN funding, by-and-large. If these veto holders could be convinced to vote for withdrawal or abstain, financial pressure could potentially be leveraged against non-permanent Security Council members. Given the general level of support/bias for Palestine in the wider UN community however, such diplomacy would be an uphill struggle. As an indicator: 2334 passed by the widest margin possible for a vote condemning Israel: 14 votes for, with a U.S. abstention.

Although Senator Cruz’s bill to cut UN funding would likely have no effect on reversing resolution 2334 – i.e. probability is very low indeed – the UN would be forced to streamline and that is not a bad outcome. Numerous money-wasting UN projects would close, but then so too would many important ones. The international community of fund beneficiaries would, however, place blame for their funding cuts on Israel’s West Bank policies – thus further globalizing the Israeli/Palestinian conflict.

More immediately, and regardless of any short-term activity at the UN: the incoming U.S. administration may find that some of the policies it wants to execute are not sanctioned by the Security Council.

Syria ceasefire discussions in which Kurdish YPG, the U.S., and the UN are not participating might – on the face of it – appear of limited effectiveness. It might also seem skewed with respect to any follow-on political discussions managed by the UN in Geneva.

Unlike the mainstream track in Geneva however, the bulk of the Astana participants are actually facing off against one another on the ground. This includes the Turkish, Russian, and Iranian guarantors. If these parties can truly self-organise into a ceasefire talk, then that’s a significant milestone. Additional participants would complicate discussions.

On the political side, the main gap at Astana is undoubtedly the Kurdish YPG. It would difficult for any of the Security Council members to take issue with this though: at US request the YPG was excluded from the last Geneva meeting.

With the YPG absent, one important matter that the Astana participants will all likely be in agreement on is that Syria should not be federalized. If the group can create a “united delegation” for Geneva, as one commentator put it, they will be able to head off Kurdish federalism at the pass.

Even if the meeting is able to get past the very basics and turn political on the issue of federalism, the ramifications are still not important enough to warrant the inclusion of additional participants. That is because pushing a federal Kurdish region in Syria is probably illegal under international law: any action that creates any divisions along ethnic or linguistic grounds, amongst others, constitutes a breach of the “perspective for the future” outlined in the Geneva communique of 30 June 2012, referenced in UNSC 2554. A Kurdish federal area would be ethnically and linguistically defined.

Other political matters that could come up at this ceasefire meeting are transition, and the redrafting of the constitution. Since Turkey has a leading role in Astana, the Assad issue will not disappear in Kazakhstan, so long as the Turks have not instigated a covert change of policy.

As for the constitution, Assad explicitly acknowledges that it will form the basis of discussions, and that a referendum will determine any changes – exactly as written in the Geneva Communique. Presumably even the most hardline groups at Astana are not opposed to a constitution, rather its details and application.

From an international perspective then, many of the elements of UNSC 2554, and the Geneva Communique of 2012 would actually be fulfilled in this meeting. If people round the table in Astana can see that they now are aligned on big picture items, they could potentially set themselves up for constructive political negotiations down the line – in Geneva or elsewhere.

Today, the Turkish Defense Minister and Foreign Minister have questioned the continued use of Inçirlik airbase by US forces for airstrikes against ISIL. This is in light of a ground offensive currently being undertaken by Turkish forces along with the Syrian Free Army, for which they want US air support.

The issue of Inçirlik airbase is a sticky one. Since the end of the Cold War, its purpose and politics change by the month, rather than by the decade – as they once did.

In the current predicament, and in light of the nature of the forces agreement between the US and Turkey, these are some salient points:

• Turkey did not authorize the use of Inçirlik as a base for attacking ISIL until June 2015, some 10 months after the commencement of US airstrikes against ISIL. This was reportedly only agreed after the US allowed Turkey to implement a no-fly zone along the northern border for the purposes of controlling Kurdish military expansion in these areas.
• One year later, in July 2016, the Turkish military shut down the entire air base. This was because of the coup that had been instigated that month, and Inçirlik was viewed as a hotbed of sedition: a “think tank” of plotters. American personnel and nuclear weaponry were removed from country; strikes resumed 3 weeks later.
• The US coalition conducts approximately 10 sorties per day on ISIS in Syria, i.e. around 300 per month. Since it opened for business in 2015, thousands of sorties have been from Inç In the first three months in which Turkey opened its full campaign in Syria including a land incursion and airstrikes, Turkey only launched three airstrikes on ISIL in Syria.
• Despite being a NATO member, since August 2016, Turkey entertains the concept of allowing Russian airstrikes from Inç

The operation of Inçirlik has not been plain sailing.

What these Turkish ministers are now suggesting is that unless the US provides more air cover for their operations, then they will stop the US from using Inçirlik, as it does not benefit the Turkish people sufficiently.

Turkey is now in an alliance with Russia, and to a degree Iran, with respect to its military operations in Syria. The Free Syrian Army’s has also experienced a progressive level of collusion with Al-Qa’ida affiliated organisations. With that in mind, US reluctance to integrate operations further into the ground campaign – beyond coordination in its ongoing airstrikes against ISIL – does not seem surprising. All things remaining equal, this situation is unlikely to change prior to the new US administration taking office.

This may be frustrating, but does that mean Turkey should throw the baby out with the bathwater? If Turkey is serious about destroying ISIS, then the continued degradation of ISIS capabilities by the US coalition should come as a welcome service. The continued use of the Inçirlik airbase supports that aim, does not interfere negatively with Turkish operations, has no financial cost to Turkey, and carries local economic benefits. If these are insufficient as benefits, then all this may relate to something altogether different.

Turkey has identified the attackers at the Istanbul nightclub on New Year’s Eve. While the main suspect has not been described in the media, others have been. In addition to be described as Islamic State (the group which claimed responsibility), we are told they are from the former Soviet Republic of Dagestan in the Caucasus, and the Uighur region in China. With hindsight, the latter could have been gauged from the Chinese announcement of support to the Turkish terrorist hunt two days ago.

Attackers at Istanbul airport six months ago were reportedly from the Russian North Caucasus region too, and the former Soviet states: Uzbekistan and Kyrgyzstan. That attack came immediately following President Erdogan’s letter of apology to President Putin. The New Year’s Eve attack came at a time when Turkey and Russia were putting forward their Syrian peace proposal, and ten days after the assassination of the Russian ambassador to Turkey. There has been plenty of violence in addition, but these events have taken place on Turkish soil.

The recent attack is more intriguing in that it involves Uighurs. These Turkic-peoples are being oppressed more than is usual in China. This has recently included a ban on passports and travel for all 10 million residents of their region. There has also been a terror attack on a communist party office last week. Because of their ethnic links, China has drawn Turkey progressively into the Uighur conflict. This participation has become enshrined in an escalating amount of security cooperation – including energy and nuclear security agreements in September of last year.

Collaboration with the Chinese state against the Uighurs is highly unpopular in Turkey; since public sympathies lie quite squarely with the oppressed Turkic peoples, rather than the Han Chinese majority. Nevertheless, Turkey has been lured into these arrangements with the promise of technology transfer, and financial inducements. Recently the relationship has been used by President Erdogana as a convenient leverage point in tense discussions with NATO, Europe and the United States. President Erdogan has apparently decided to hedge with China as well as Russia.

It is however much more serious that simple political posturing. The ethos and title, if not the text, of the latest security cooperation policy between Turkey and China is bluntly incompatible with Protocol to the North Atlantic Treaty on the Accession of Greece and Turkey (1951). It conflicts because that agreement specifically precludes the use of Turkish sovereign territory against attacks on China. China is a relatively belligerent nuclear power, and NATO is – or at least should be – a nuclear deterrent arrangement. Any attack by China on a NATO member on the territory of Europe, North America, or the Mediterranean necessitates a combined response from NATO that must be able to involve Turkey if necessary.

The ‘game’ of nuclear deterrence is not one in which you can have your cake and eat it. The time will come for Turkey to decide where it stands. This discussion, and a firm outcome, will probably come sooner rather than later. In the interim, the Turkic peoples of China will likely continue to display their own displeasure at the Turkish government’s unnecessary participation in their conflict.