Self-determination: the Palestinian trump card

The right to self-determination of the Palestinians is inviolable, undermining legally and morally the propaganda surrounding the UN's supposed recognition of Israel

As Palestinians commemorated the Nakba, the day that Israel began to violently drive millions of Palestinians from their homeland, Israel renewed its past violence with more violence against unarmed Palestinians. Last Sunday, dozens of Palestinians were killed and hundreds injured as Israel replied to non-violent demonstrations with lethal force.
On Monday, 16 May 2011, Israeli naval forces opened fire on a civilian humanitarian aid ship as it approached the Gaza Strip. They fired live ammunition at the ship, targeting, but missing, its civilian crew. Oddly, the Israeli Navy claimed it had done so to prevent the humanitarian assistance ship from reaching the Palestinians in Gaza. Israel seems to be oblivious to the fact that preventing humanitarian assistance from reaching a people in need is a violation of international human rights law and international humanitarian law.
While these events played themselves out with live reports in the mainstream media and from Twitter, Facebook, and email, the international community remained silent. Recently, when such violence has occurred elsewhere in the Middle East it has been quickly condemned —sometimes even with the hasty use of military force against the governments involved.
One reason that Israel can get away with this gratuitous violence is that Israel denies the right to self-determination for the Palestinian people, a moral right as well as a legally binding human right under international law.
The Palestinian right to self-determination
The principle of self-determination has been long recognised for groups of people not yet falling under the sovereignty of any state. This principle was well established by 1928 when it was given significant support by the agreement of states not to use force as an instrument of foreign policy. From this time onwards, the acquisition of territory by force, which had been previously allowed under international law, was deemed illegal. This point was emphasised in the Charter of the United Nations that prohibits the use of force against the territorial integrity or political independence of a state. The charter also reiterates the principle of self-determination.
Today the principle of self-determination is much better defined. It is recognised in the UN Charter, leading human rights treaties, numerous UN resolutions, by the International Court of Justice (ICJ), and by the overwhelming majority of jurists as a leading principle of international law. Some prominent jurists have even declared the right to self-determination to be a peremptory norm of international law, or jus cogens. And the ICJ has confirmed that the right to self-determination is of an erga omnes nature, thus supporting the interest of all states in ensuring its respect.
American law professor Hurst Hannum has written that, “Perhaps no contemporary norm of international law has been so vigorously promoted or so widely accepted as the right of all peoples to self-determination.” And former UN special rapporteur on Palestine, professor of law, and anti-apartheid campaigner, John Dugard has observed that, “the right of self-determination is a legal right under international law [that] is no longer seriously challenged.”
Nevertheless, Israel continues to deny the Palestinians the right to self-determination, using all the violent and malicious means —and foreign aid —at its disposal.
The history of the right in Palestine
Israel continues to deny the Palestinians the right to self-determination by claiming an historical right to Palestine. This claim, however, has no basis in international law.
The Palestinians were not part of another existing sovereign state in 1922 or 1928 or 1948. They are independent indigenous peoples who have lived in Palestine since time immemorial, although they have sometimes been occupied by others.
Before 1928, title to territory could be acquired by the use of force or through conquest. The 1928 Kellogg-Briand Pact, which created key principles of international law, brought about a change whereby the acquisition of territory by force was no longer lawful.
Just a few years before this treaty was adopted, Palestine was part of the Ottoman Empire and then, at the end of World War I, occupied by the British. The British, however, never annexed Palestine nor exercised permanent sovereignty over it. Instead, they agreed to govern Palestine as a temporary mandate. As a consequence, the right to self-determination remained with the indigenous peoples without interruption at the end of World War I and after that transferred to a mandate holder, to be held in trust for the Palestinians and not given away to third parties as it was.
Who inhabited Palestine hundreds or thousands of years ago is irrelevant. What is relevant for international law is the nature of the government just before and just after 1928, and who were the indigenous peoples at this time. It is also relevant to understand whether these peoples ever voluntarily gave up their right to self-determination.
The history of Palestine
The history of Palestine goes back thousands of years. The Zionist movement and even the Israeli government today make claims to the land based on historical or ancient title, which it sometimes claims has been ratified by more recent events.
The founders of Israel claimed that their people have lived in the region that is generally known as Palestine for thousands of years. Indeed, about 2000 years ago the region was inhabited by Jewish tribes. But today the most established Jewish leaders are against the establishment of the State of Israel. They argue that it limits the spread of their religion. In any event, the earliest evidence of human presence in the region is of the Canaanites who were likely the decedents of people who migrated from the Arabian Peninsula around 3500BC.
From 1200BC to about 133AD, the Hebrew people were a considerable part of the population of the region known to the Romans as Judea and Assyria. At this time, it was commonplace for one people to defeat another and take their land. Under the existing customs between people, such transfers of land were part and parcel of usual affairs and normally were accompanied by the enslavement of the conquered people. In any event, the conquest of another people and their land was not illegal, as the concept of international law did not even exist at that time.
The Arab population moved into the region around 600AD bringing with them the Arab language and Islam. From the late 600's, the region was ruled by a series of Arab-Islamic rulers cumulating with the Ottoman Empire's rule of the region. Using the “Millet system” of local administration, the Ottoman ruled through the proxy of local rulers. Palestine, for example, was ruled from about 1840 to 1875 by the Arab tribal leader Al-Zaidani. Ottoman rule was only briefly interrupted by Napoleon's incursion into the region between 1799 and 1812, and by the armies of the Albanian ruler of Egypt, Mohammed Ali, between 1831 and 1840.
In 1880 about 20,000 Jews were living among a population of 450,000 Palestinians. The majority of the population of the region was Arab and this was true in 1922 and 1948, and has remained true until today when all of the areas that were historically Palestine —both the occupied territories and the area the UN mandated to be Israel —is taken into account.
In the late 1800s, the Zionist movement was already acting to establish a Jewish homeland in Palestine, but it had not yet clearly manifested an intention to act in violation of the rights of the Palestinian people. After World War I, the British occupied Palestine. The British conquerors under General Edmund Henry Allenby could have annexed the territory under existing rules of international law, but they did not.
Even when the British made the Balfour Declaration in 1917 there was no mention of a Jewish state, but rather only vague reference to a “national home for the Jewish people”.
Understood in the context of international law, such a statement must have meant that a “national home for the Jewish people” would only be established in Palestine with the Palestinians' consent.
Moreover, after a short period of military occupation and administration, the British agreed to administer Palestine as a mandatory power of the “Allied Powers-created” League of Nations. The British were granted the League of Nations Mandate under Article 22 of the Covenant of the League of Nations at a meeting held in San Remo, Italy, on 24 August 1920.
This mandate set the terms, with Britain's agreement, by which the international community would ensure the fundamental right to self-determination of the Palestinian people. The mandate was authorised by Article 22 of the Covenant of the League of Nations that governed its interpretation and implementation in relation to Palestine. This article made it clear that the mandatory power only held Palestine in trust until its people “are able to stand alone”. It is also stated unequivocally that the “wishes” of the Palestinians must be the “principal consideration in the selection of the Mandatory”.
The ICJ described the League of Nations mandates as “created, in the interests of the inhabitants of the Territory, and of humanity in general, as an international institution with an international object —a sacred trust of civilisation.” The mandate did not, in the words of the World Court, “involve any cession of territory or transfer of sovereignty” and the mandatory power exercised its responsibility “with the object of promoting the well-being and development of the inhabitants”.
The right to self-determination for peoples who were not subject to claims of permanent sovereignty by a state provided for —and still provides today —for the recognition of the will of the local community to determine their own future. Thus by virtue of their right to self-determination the Palestinian people, about 80 per cent of whom were Muslim or Arabs or both, had the right to decide their own future without the interference of any foreign state, including the mandatory power. Indeed, Britain's legal obligation under international law was to facilitate the realisation of the right to self-determination by the Palestinian people.
The British did not fulfil this responsibility. Instead, Britain worked with Jewish agencies and the Zionist Movement to allow the fate of the Palestinian people to be decided by outsiders who occupied Palestine with the assistance of Britain. Not only did this constitute the denial of the Palestinians' right to self-determination, but it also violated Britain's legal obligations as the mandatory power. In view of international law, it created state responsibility for an internationally wrongful act. The result of such an act according to international law is the creation of an illegal situation. And the consequences of an illegal situation include the duty for all states not to recognise the illegal situation created, and the duty of the state creating that situation to stop doing so and to restore the original situation. These consequences are also part of established international law.
The advent of World War II focused the attention of Palestinians of all persuasions on assistance to the Allied Powers. The Palestinians likely thought their British allies might favour their aspirations for independence, but nothing could have been further from the truth.
When the UN was formed by the Allied Powers they did so with the guilt of the Nazi extermination of hundreds of thousands of Jews haunting them. There was likely an equal sense of guilt about the law and policies that had obstructed Jews from fleeing persecution in Germany to the United States. When the UN began to consider the “Question of Palestine” immediately after its creation, it is not surprising that both guilt and past practices coloured its views. There was the feeling of a need to provide the Jews an alternative to Germany, while at the same time the lingering unwillingness of the Allied Powers to accept Jewish migrants. Sending them to Palestine must have seemed a convenient way out. This was not immediately apparent to Palestinians and their Arab neighbours. The Arab delegation to the September 1946 meetings in London discussing the future of Palestine naively proffered constitutional proposals calling for an independent Palestine made up of all Palestinians. These calls for an independent Palestinian state were ignored.
While Arab efforts were characterised by their commitment to the self-determination of the Palestinian people through the creation of a Palestinian state, Zionist efforts were aimed at creating a Jewish state, in Palestine, preferably without indigenous Palestinians. They set about this through the intensified purchase of Palestinian land, migration of Jews from abroad, lobbying of Western powers (especially the United States), and the conduct of violent attacks against Palestinian and British targets. As a result, the violence in Palestine increased significantly; first, because of attacks carried out by the Zionist Movement and then because of Palestinian attacks in response as they increasingly recognised that their right to self-determination was denied. Eventually, the British withdrew from Palestine.
Before withdrawing, the British had brought the “Question of Palestine” before the UN in February 1947. The Palestinians were represented by the Arab Higher Committee, while the Zionists were represented by the Jewish Agency for Palestine. More importantly, however, were the states behind these two representatives. The Palestinians were supported by Arab states that were just establishing themselves, and in some cases emerging from colonisation. The Zionists were supported by the wealthy Allied Powers, especially the United States, which had even profited from the war, and the British, the then-mandatory power over Palestine.
The Arab states immediately called for an end to the British mandate and the creation of an independent Palestinian state. This was, however, blocked by the Allied Powers who had committed themselves to creating a Jewish state in Palestine. Instead, a UN Special Committee on Palestine was formed (UNSCOP). This committee several times called for the urgent creation of a Palestinian state in which all Palestinians could live together. It also reported on the partition plan, informing the UN General Assembly that it was “contrary to the specific provisions of the Mandate and in direct violation with the principles and objectives of the Covenant,” and moreover that the “imposition of partition on Palestine against the express wishes of the majority of its population can in no way be considered as respect for the or compliance with” the UN Charter, including the Palestinians' right to self-determination.
The UN General Assembly was thus unambiguously informed that the Partition Plan would violate international law, including the right to self-determination that is enshrined in Article 1 of the UN Charter.
UNSCOP nevertheless submitted two plans. One called for partition and the other for a federal Palestinians state. On 23 September 1947, the UN General Assembly formed an ad hoc committee to consider two plans that were before it. In turn, the ad hoc committee created two sub-committees, which were again split between non-Arab and largely Arab and Arab sympathising states. These committees rendered recommendations. As one might have imagined, sub-committee 1 consisting of non-Arab states recommended adoption of the Majority Plan with only slight modifications. Sub-committee 2 —which had divided itself into three working groups to consider respectively the legal problems, the refugee problem and constitutional proposals, and which reported first — made several recommendations, including the recommendation that an advisory opinion be requested from the ICJ. The recommendations were put to a vote and the recommendation to seek an advisory opinion on the legality of the partition plan from the ICJ failed to get sufficient votes.
It is noteworthy that the representative of the Arab Higher Committee addressing the UN General Assembly ad hoc committee opposed the sub-committee 1 plan based on the fact that it constituted a “monstrous perversion of the principle of self-determination in Palestine”. Consequently, four draft resolutions were presented to the ad hoc committee. All three presented by sub-committee 2 (calling for the advisory opinion, calling for action to assist Jewish refugees, and calling for the establishment of a single state of Palestine) were rejected. The single resolution for sub-committee 1 calling for adoption of the partition plan was adopted. The ad hoc committee sent this recommendation to the General Assembly, which began to consider it on 26 September 1947.
Within three days, UN General Assembly Resolution 181 (II) was adopted on 29 November 1947 based on the recommendation. This UN General Assembly resolution called for the creation of two states, one Arab and one Jewish, while Jerusalem was to remain under a special international regime. It created Israel on 56 per cent of Palestine, despite it having less than 35 per cent of the population, many who had been recently imported. Palestine was left with just 44 per cent of its own territory.
On 15 May 1948, the United Nations ended the mandate of the British over Palestine, but even before it had done this the independence of the State of Israel was declared on 14 May 1948. The Palestinians and the Arab states objected. The Arab states came to the aid of the Palestinians, but with only a token force of about 20,000 soldiers the next day. The UN Security Council reacted by focusing on the issue of maintaining peace, without concern for right to self-determination or any other basic human rights of the Palestinian people.
Several other armed confrontations ensued in the next 22 years. As a consequence, what Israel was “offering” the Palestinians had dwindled from the mandate territory to about 7.5 per cent of this territory by the start of the 21st century. In other words, today Palestinians are being offered less than 10 per cent of the land to which they are entitled under international law.
A Jewish state lacking legitimacy
The Zionist Movement and later the Israeli authorities immediately claimed that UN General Assembly Resolution 181 created the State of Israel. In reality, however, Israel's independence was claimed even before it was intended to be granted by the UN. Israel's declaration was both a violation of the still existing League of Nations mandate and a violation of the Palestinian people's right to self-determination, both of which entail international legal obligations.
Israel's claim to be created by the UN General Assembly is based on the UN General Assembly resolution having legally binding authority. Nothing in the UN Charter provides for such authority. In fact, the UN Charter expressly states that the UN General Assembly makes “recommendations”, except on the limited subjects of budgetary matters.
The Zionist Movement also relied on UNGA Resolution 181 to claim their own right to self-determination. While they undoubtedly had this right, it was the right to self-determination within a state, and not to their own state in violation of the right to self-determination of the Palestinian people. The main challenge to the legitimacy of the creation of Israel is in fact that it violates a fundamental right of the Palestinian people —its human right to self-determination.
Today's violence revisited in the context of Palestinian resistance
The recent violence by Israel indicates that even today Israel is not prepared to recognise the Palestinians' right to self-determination. It also indicates that Israel is willing to go to great lengths to prevent Palestinians from realising their most fundamental human rights.
Such a position by Israel is not only indefensible legally and morally, it has the consequence of reinforcing the Palestinians' right to self-determination, while it de-legitimatises the State of Israel.
It also has the consequence of entitling the Palestinians to use all necessary mean to achieve their self-determination. As the international community has recognised, even the use of force against Israel is justified by Palestinians fighting for their self-determination, although such force should conform to the basic rules of international humanitarian law.
For the international community, the denial of the Palestinian people's human right to self-determination still remains the single greatest obstacle to ensuring human rights in Palestine. It is also one of the greatest tests of the international community's commitment to the rule of international law and human rights everywhere in the world.
The writer is a prominent international human rights lawyer.