Of course Australia should recognise Palestine. To not do so only rewards Israel’s crimes

There is certainly doubt about the effectiveness and independence of Palestine’s government, which controls only part of the West Bank and none of Gaza, and remains subject to a near 60-year Israeli military occupation. Yet international law sometimes flexibly applies the classical criteria in hard cases and special circumstances.

This is where recognition of statehood is crucial. Normally, recognition does not create a state, but simply endorses that the legal criteria are met. In this unusual case, recognition by three-quarters of the world is powerful evidence that Palestine is considered close enough to meeting the legal criteria to be regarded as a state, even under occupation.

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A second key factor is that the Palestinians have an undisputed right to self-determination, which is the freedom to choose to become a state. Since this right has been forcibly denied by Israeli occupation for so long, most countries are persuaded that statehood can exceptionally emerge even without full independence. Last year, the International Court of Justice demanded Israel end its illegal occupation as soon as possible. The General Assembly gave Israel a deadline of this September.

Statehood matters because it confers many rights, including to control and defend national territory, govern and enforce laws, develop natural resources, trade, make treaties and engage in diplomacy, and protect its rights and citizens. It also imposes duties to respect international law, including the sovereignty and security of other countries and human rights.

Being a state, and recognition, does not guarantee these rights in practice. It cannot stop starvation and war crimes, end occupation or evacuate settlements. But it significantly raises the legal and political price for violating those rights, isolates Israel and the US, and adds momentum towards independence.

The Netanyahu government is no partner for peace. It aims to extinguish any possibility of an independent Palestine as its ever-expanding colonial settlements and annihilation of Gaza attest. Indeed, Israel has never offered Palestinians a peace deal that respects their international legal rights. The UK is naive if it believes that threatening recognition will return Israel to the bargaining table. Israel’s current war of vengeance has proved it to be a grave threat to the very survival of Palestinians, as well as endangering Israeli hostages.

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Non-recognition, and denial of statehood, rewards Israeli occupation and international crimes. It also fails to address the root causes of Hamas’ terrorism. Hamas was born to resist the occupation, as well as being antisemitic. Its methods are illegal and unjustifiable. Yet as the UN Global Counter-Terrorism Strategy emphasises, terrorism can only be defeated if we address the state violations of human rights that fuel grievances and violence.

Just as alleged Hamas war criminals must not be in a Palestinian government, Israeli alleged war criminals, including the Israeli prime minister, must be excluded from the Israeli government. Just as Palestinian armed groups must not be allowed to threaten Israel’s future security, Israel must not threaten Palestine’s security. It is, after all, Israel that has violently occupied Palestine for almost 60 years, not vice versa. Demilitarisation of a Palestinian state would be welcome if Israel did the same.

A Palestinian state cannot cure the historical injustices of Israel’s foundation, with Israel taking 78 per cent of the British Mandate of Palestine despite Jews being the minority, and the mass expulsion of refugees and theft of Palestinian property. But it is a vital step towards remedying the past, stopping extermination in the present and ensuring equality and peace in the future.

Ben Saul is the Challis Professor of International Law at The University of Sydney and the United Nations special rapporteur on human rights and counter-terrorism.