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Palestine, When is Your Birthday?

Published on December 5, 2012        Author: 

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 Col. (Retired) Liron A. Libman, LL.M, is a former Head of the International Law Department of the Israeli Defense Forces.

On 29 November, in what some reports described as a historic vote, the UN General Assembly accorded to “Palestine” the status of a “non-member observer state” in the organization. The Palestinian Liberation Organization (PLO) has enjoyed an observer status in the UN since 1974. Since 1988 the PLO mission to the UN was designated “Palestine”. Therefore, the supposed novelty is the UN recognition of Palestine as a state.

I do not want to discuss here the question of Palestinian statehood itself: whether “Palestine” has the objective qualification of a state under international law. Rather, I want to concentrate on the Palestinian official view as to the date when the Palestinian state was established. Many states celebrate their national day on that date, so in simple words, I ask when will the Palestinians celebrate their Independence Day?

I start my inquiry with the epilogue of Dr. Abbas, chairperson of the PLO, in his speech to the General Assembly:

“Sixty-five years ago on this day, the United Nations General Assembly adopted resolution 181 (II), which partitioned the land of historic Palestine into two States and became the birth certificate for Israel.

The United Nations General Assembly is called upon today to issue the birth certificate of the reality of the State of Palestine.”

Dr. Abbas asked the General Assembly to grant a “birth certificate” to the state of Palestine. Taking this metaphor seriously, this implies that the Palestinian state already exists. To the best of my knowledge (as a father, if I may add), first, a child is born and only afterwards can the happy parents receive a birth certificate. The certificate is an official acknowledgement of a fait accompli.

However, Dr. Abbas paralleled the resolution he asks for with General Assembly resolution 181(II) of 29 November 1947, which he views as the birth certificate of the state of Israel. The problem is that clearly resolution 181(II) did not recognize an existing state of Israel, but rather recommended the future establishment of a Jewish state (alongside an Arab state) upon the termination of the British Mandate. The resolution even set a timetable for the coming into existence of the two future states.  Israel was established only about six months later, on 14 May 1948, when the Jewish People’s Council approved the Declaration of the establishment of the state of Israel. Clearly, resolution 181(II) was not the birth certificate of the state of Israel.

Perhaps, one might say, the metaphor of a birth certificate is unsuitable, so let us stick to the intention expressed to follow the precedent of resolution 181(II) and its relation to the establishment of the state of Israel. Thus, what the Palestinians were asking the General Assembly is to confer international legitimacy upon the future establishment of a Palestinian state, one not yet existing.

This interpretation is aligned with other expressions in Dr. Abbas’s speech, such as:

“We came to affirm the legitimacy of the State that must now achieve its independence, and that is Palestine.”

My emphasis is on the word “now”, suggesting that Palestine is not yet an independent state.

In addition, elsewhere in the speech I found this rhetorical question:

“Are we a surplus people, or is there a state which is missing which must be embodied on its land, which is Palestine.”

“A state that is missing” in other words, a state that still does not exist, but ought to exist.

But things are not so easy. Elsewhere in the speech, Dr. Abbas refers to the 1988  Palestine National Council Declaration of Independence, which was “adopted by your august body“. This declaration solemnly proclaims:

“The Palestine National Council hereby declares, in the Name of God and on behalf of the Palestinian Arab people, the establishment of the State of Palestine in the land of Palestine with its capital at Jerusalem.”

Dr. Abbas rightfully notes that this declaration was acknowledged by the General Assembly (in resolution 43/177 of December 15, 1988).  Since that resolution, the designation “Palestine” is used instead of “PLO” for the Palestinian mission to the UN.

Therefore, perhaps a Palestinian state has existed since the Palestinian National Council Declaration of independence in 1988? However, if so, the General Assembly already acknowledged it more than twenty years ago. What did Dr. Abbas want now?

Maybe he is well aware that in 1988, it was clear that the PLO, with its headquarters in Tunisia, had none of the qualifications of a state, as prescribed in the 1933 Montevideo Convention on the rights and duties of states: a permanent population, a defined territory, government and the capacity to enter into relations with the other states.  UN recognition at that time could not by itself create a state not existing in reality.

Today the situation on the ground is different. Dr.  Abbas heads the Palestinian authority, created by the Oslo Accords with Israel and exercising at least some degree of self-government in the West Bank. This does not mean there are not some serious doubts as to Palestinian qualifications for statehood, just that it is clear that the Palestinian case is better today than in 1988, possibly justifying, in the Palestinian view, reiterating UN recognition of statehood.

Still, if it is clear that, in 1988, Palestine was not really a state, and now the Palestinians contend it is, when exactly did this change occur?

You would not find a clear answer in Dr. Abbas’s speech, or in other Palestinian actions and statements.  For example, take the Palestinian National Authority’s 2009 plan for constructing the institutions of an independent Palestinian State within a two-year period, mentioned in the UN resolution adopted after Abbas’s speech. This plan clearly indicates that, at least before 2011, even the Palestinians did not think they were prepared for statehood.

Confused? Rightfully so. It is not clear whether the Palestinians asked the UN to confer legitimacy upon the future establishment of a state of Palestine, or whether they asked just recognition by the UN of an existing Palestinian state, and if the latter is true, when the Palestinian state was established, in the Palestinians’ own view.

This is not a formalistic, legalistic or marginal question. States are still the principal actors in the international sphere. The international community deserves certainty, at least as to the status claimed by other international actors. I claim that this ambiguity is not an accident, nor an indication of drafting incompetence. The Palestinians have a very abled and experienced legal team and did not hesitate in the past to consult top foreign international law experts. This ambiguity must be deliberate.

I dare to speculate about the motive behind this evasiveness: assuming statehood, unlike demanding the right to establish a state, has considerable burdens. States are not just the bearers of rights in the international sphere, but also the bearers of some heavy duties.

For example, a state has a duty, recognized in UN General Assembly resolution 2625 (XXV), to refrain from acquiescing in organized activities within its territory directed towards the commission of  terrorist acts in another State. What does this mean for Ramallah’s responsibility for Hamas missile attacks from Gaza, part of the Palestinian territory claimed, deliberately aimed against Israeli civilian communities?

Furthermore, under article 11 of the ILC Draft articles on Responsibility of States for Internationally Wrongful Acts, states may be responsible for acts they did not direct, if they acknowledged and adopted them as their own after the fact. Dr. Abbas sent one of his top officials, Mr. Nabil Shaath, to a Hamas “victory” rally in Gaza, after the latest round of hostilities. Mr. Shaath described Palestinian unity and praised the “armed resistance”. Does this mean that the state of Palestine acknowledged and adopted the war crimes perpetrated by Hamas?

Indeed, statehood is a responsibility. As long as Palestinians themselves avoid this responsibility, in statements and in actions, the adoption of UN resolutions can be no more than a symbolic victory in the diplomatic sphere, with no consequences on the ground. Self-determination is not just a right, but also, sometimes, an obligation to decide and take risks.

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28 Responses

  1. On top of all of this, there are the interesting questions of other status, and at various times. Since international law has NEVER been merely state-to-state and has long involved other actors such as “nations,” “belligerents,” tribes and, more recently with the U.N. Charter, “peoples,” there are intriguing issues in the background. Re: non-state actors, please see http://ssrn.com/abstract=1701992 , which identifies some non-state actors with formal roles and others.

  2. Dear Prof. Paust,
    Thank you for the interesting comment. Indeed, you make a convincing case against the common assertion that non-state actors in international law are a modern phenomenon.
    However, I hope you would agree with me that statehood still matters. In fact, this is probably one of the few things Israelis and Palestinians will agree upon…
    My point is just that those claiming it should take statehood seriously. It is not a hat you can wear and take off, whenever you find it useful.

  3. morteza

    when i read your comment .some question arose for me. 1.whats your idea about right of self determination for millions people(in Palestine ) that are without state and under occupation of Israel without any future !?
    2. which is the important in international law:
    _the national day or
    _the recognition of state by 138 countries !?
    3. you say that (( statehood is a responsibility ))yes i agree with you but i want to ask you :what are the Israels responsibility and duty under international law.
    for example under united nation charter state should be refrain from use of force .( do you think that Israel really refrain from use of force) !!!??? another example: one of the main goal in humanitarian law is draw a distinction between civilian and military target in armed conflict . are you sure that Israel acting under this duty (( specially in current conflict with Gaza))!?
    thank you…..

  4. Dear Morteza,
    I will try to answer your questions shortly and without inflaming a political debate (since it is a legal blog):
    1. I believe the Palestinian people have the right of self-determination. Israel acknowledged it first in the Camp David Accords signed with Egypt and later, directly, in the Oslo Accords signed by Israel and the PLO in 1993. I think they could have closed a deal and establish a state in 2000 and later, in 2008, but chose not to and resorted to terror instead. They can still establish the state they desire if they will engage in serious and direct negotiations with Israel, without preconditions and about all the difficult issues, including security arrangements, refugees, Jerusalem, Israeli settlements and borders. The “occupation” is not the real obstacle to peace, since Israel withdrew from Gaza unilaterally in 2005, uprooted all its civilian settlements there, and did not exactly got peace in return, as I hope you are aware.
    2. The national day has no significance in international law. I was just using it to illustrate the question of the exact moment a state is established. Perhaps this illustration was more confusing than helpful. As for recognition by many states, it is certainly important; although the majority view today is that, it is declaratory in nature and cannot constitute a state by itself. Moreover, international recognition cannot create a state where the relevant people have not decided clearly and unequivocally to establish it. That is really my point here.
    3. Israel certainly has responsibilities under international law. One of them is the obligation to refrain from the use of force against another state, unless the force is needed in self-defense, for instance, against rockets fired from Gaza to civilian population centers in Israel. As for IHL, Israel is obliged to comply with it, including the principle of distinction you rightfully mentioned. From my personal experience, the IDF made a considerable effort to implement this duty, which is not easy considering Hamas tactic of fighting from amidst densely populated areas.
    Best regards,

  5. morteza

    thank you for answers but i want to write for you about some note in your comment :
    1.you rightfully say that use of force is legal when is needed in self-defense. yes it is right and if we accept from you that use of force by Israel is needed in self_defense and Israel implemented the condition of necessity and proportionality under article (51) of the united nation charter (( that in my opinion and in reality Israel goes to another way ))
    you know that under international law it is illegal for state in self_defense occupied another countries territory but Israel after 6 day war in 1967 occupied Gaza strip ,West bank ,Golan heights , and in all of the UN general assembly and security councils resolution the phrase (( occupied territory)) use for this territory .whats your idea it is not breach or violation against United Nations charter and other Israels obligation under international law.(( you know that a territory of state shall not be object of military occupation : 2625 resolution)).
    2. about Gaza strip that you say use of force is needed in self defense .what is the legal and political relation between Gaza and Israel . if Gaza is the part of Israels territory (( that it is not))conflict is internal conflict and use of force in self_defense is meaningless , and if Gaza belonging to another country why Israel surround the Gaza and block any way in the sea , air ,and land to reaching this territory : you know that it is a violation under international law . accordance with note that mentioned above : it is Gaza that use of force in self_defense rather than Israel .

    freedom , peace ,and justice is a dream for Palestinian .

    good luck

  6. My friend,
    I am afraid we are drifting towards what could be an endless debate about every aspect of the very complex Israeli-Palestinian conflict. Forgive me for not wanting to go there in this context. Maybe some other place and time. However, I do not want to leave you entirely empty handed, so let me just comment shortly and refer you to a few documents.
    First, about the right of self-defense. Indeed, you are right that necessity and proportionality are considered conditions for its applicability. However, most scholars agree that it is very hard to look at the international practice and explain it by objective criteria, especially when it comes to proportionality. If I may recommend two excellent articles I read lately on this issue:
    Tams, Christian J., The Necessity and Proportionality of Anti-Terrorist Self-Defence (August 5, 2010).
    Kretzmer, David, The Inherent Right to Self-Defence and Proportionality in Ius Ad Bellum (March 1, 2012). European Journal of International Law, 2012.

    Secondly, as to the legality of occupation, I am not an expert on this subject, but I urge you to look carefully at the relevant clause in UNGA resolution 2625 and notice the difference between:
    “The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter.”
    And:
    “The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.”

    In seems that if a state uses force within the limits of self-defense, occupying enemy territory is not illegal. On the other hand, the prohibition on acquisition of land may be wider. The difference is probably the annexation of that territory, opposed to the temporary character of occupation.
    However, it is not clear to me how this can be considered customary international law in a world where Russia annexed the Kuril Islands (and deported all the local population) and Morocco annexed Western Sahara, just to mention two examples.
    Maybe a third and relevant example: If this was the rule in international law, Jordan had no right to annex the West Bank, as it did in 1950, after it had illegally invaded Palestine to prevent the establishment of a Jewish state according to UNGA resolution 181(II). Where were the supporters of Palestinian self-determination between 1948 and 1967? They could have established a state in the West Bank and Gaza with the consent of Egypt and Jordan alone, controlling the territory.
    Lastly, about the legal status of Gaza and the legality of the naval blockade, let me just refer you to the Turkel commission report (part A) and the Report of the (UN) Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, stating:
    “Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.”
    I join your wish that the Palestinians will live soon in their own free and independent state; I just think the only way to achieve this is through bilateral negotiation and agreement with Israel, not through unilateral actions.
    All the Best,

  7. Alan Baker

    Mr. Liebman is perfectly correct in his excellent analysis and careful responses to the politicized nature of some the comments.
    Permit me to refer readers to a paper that I recently issued on the General Assembly resolution upgrading the Palestinian UN representation:

    http://jcpa.org/article/the-palestinian-un-upgrade-setting-things-straight/

    Alan Baker

  8. morteza

    I want to thank you for compelet reply. ((nevertheless I am not agree with you about some aspect of your answer ))
    you know that creation of state is depend on some fact that illustrated in the montevideo convention in 1933 and why you((and your country)) try to depend this objective fact (( creation a state )) on a external element((negotiation with another country )) is wonderful .
    thanks a lot.

  9. ==The “occupation” is not the real obstacle to peace, since Israel withdrew from Gaza unilaterally in 2005, uprooted all its civilian settlements there, and did not exactly got peace in return, as I hope you are aware.==

    I hear this argument a lot, but I still don’t know what one means by that. Imagine that Germany occupies France. After some years Germany redraws from Bordeaux. Are the French resistance fighters supposed to stop fighting? (I acknowledge that Palestinians break international law when attacking civilians, and I grant Palestinians the right on the territory outside the green line). So why should one expect the resistance to stop fighting after the liberation of one city? And what would be the logic if Germany said: “Guys, we have redrawn from Bordeaux, and did not exactly got peace in return. You should not expect us to redraw from the rest of France.”?

  10. Dear Morteza,
    You are certainly right that the general rule on the establishment of new states does not require, as a prerequisite, a negotiated agreement with all affected parties. Looking at custom, many states were founded through struggles and conflict, especially in cases of secession. However, in this case the Palestinians pledged to the following:
    “The PLO commits itself to the Middle East peace process, and to a peaceful resolution of the conflict between the two sides and declares that all outstanding issues relating to permanent status will be resolved through negotiations” (see the exchange of letters referred to in note 6 of Ambassador Baker’s piece, referred to in his comment).
    This means that by acting unilaterally the Palestinians are violating one of the most basic obligations taken by them in the Oslo Accords.
    Since many interpret the fourth Montevideo qualification, “capacity to enter into relations with the other states”, as including the will and ability to RESPECT international obligations, not just the formal ability to sign papers, what does this violation say about Palestinian readiness for statehood?
    Yours truly,

  11. Dear Mr. Mihai,
    My answer to your question lies in the second major violation of the Oslo Accords by the Palestinians.
    The first part of the clause in the exchange of letters I just quoted is: “The PLO commits itself …to a peaceful resolution of the conflict between the two sides”.
    Another clause in the same letter by Yasser Arafat, then chairman of the PLO, states:
    “The PLO considers that the signing of the Declaration of Principles constitutes a historic event, inaugurating a new epoch of peaceful coexistence, free from violence and all other acts which endanger peace and stability. Accordingly, the PLO renounces the use of terrorism and other acts of violence and will assume responsibility over all PLO elements and personnel in order to assure their compliance, prevent violations and discipline violators.”
    So, to go back to your example: yes, if France pledged to solve the conflict with Germany peacefully and refrain from violence and terror, it should respect its obligation even without any withdrawal of Germany from its territory before the final settlement of the dispute. A withdrawal of Germany from part of the territory claimed by France cannot be a justification for continuing what was a violation in the first place. To the contrary, it should be understood as a sign of good will and bring them back to the negotiating table.
    Unfortunately (and here I go back to the Israeli-Palestinian conflict) the Israeli withdrawal from Gaza was interpreted as a sign of Israeli weakness, strengthening Palestinian extreme factions, like Hamas, that does not recognize Israel’s right to exist.

  12. Dear Ambassador Baker,
    Thank you.

  13. Now I understand what one means by it, but returning to our example. If the negotiations between France and Germany do not achieve any result, the French resistance will have to resume fighting, especially if Germany violates the accords as well from the point of view of the French.

    I mean there is some kind of strange negotiation. France does not have anything to give Germany in exchange during negotiations, and there is no good reason why she should do that. It would be absurd if France gave Germany 50% of the French territory (for instance) in exchange for liberating the rest. France does not have anything to offer Germany – and she should not do it because otherwise one would just reward the occupier. And Germany does not have any incentive to negotiate. After all, if Germany occupies France for a long time and France stops fighting and claiming the territory, Germany will acquire title over the territory.
    Thus if France does not have reasons to give Germany anything and she has nothing to give Germany, and since Germany has an incentive to prolong the occupation, sooner or later the French resistance will resume fighting.

  14. Nigel

    Thank you Col. Libman for this fascinating piece.

    Mihai raises a very interesting point, but it seems the example presented is fundamentally distinct from that concerning Israel and the Palestinian Territories (PTs).

    First, it must be noted that the territories currently “occupied” by Israel have been utilised by belligerents for purposes of hostilities ever since Israel’s independence. Hence, the sphere of necessity may be invoked, fundamentally contrasting the debated situation to that provided in the example.

    Second, it would appear from the example provided that Germany’s occupation is illegal. Despite its very critical condemnation of Israel’s policies in the PTs, only Judge Al-Khasawneh (ironically from Jordan) in the Wall Advisory Opinion advised that Israel’s “occupation” was illegal. The fact that such a notion was not echoed by the Court’s opinion (or by any other Judges) strongly suggests that the “occupation” itself is was deemed lawful by the ICJ.

    Third, if we are to inject policy into this discussion, then it should be further contrasted that never (prior to 1967) has there ever been an independent Palestinian entity in the PTs. Hence, if we are to discuss bargaining chips in their various forms, it must be considered that any sort of agreement between Israel and the Palestinians vis-a-vis the latter’s independence will surely leave the latter with surplus benefits to anything it experienced in history. Therefore, it seems rather misleading to compare the capture of land from its rightful owner to the capture of land from its unlawful owner.

  15. @Nigel
    The examples are not relevantly distinct. The population (a people) under a military occupation and within a colony, trust territory and any non-self-governing territory has the right to external self-determination. If they are under military occupation, they have the right to use military force.

    Whether the occupation was in response of a legal use of military force, is irrelevant. Even if France attacked Germany and Germany occupied France in response, the French resistance has the right to fight to liberate France.

    The fact that there was no independent Palestinian state before is irrelevant. Military occupation does not depend on an existing state. Imagine that we discover a new island where some population exists, without being a state. If Germany occupies it militarily it is still a military occupation and the population has the right to use military force. And the population has the right to external self-determination, including the right to form a sovereign independent State.

  16. Nigel

    Mihai

    Please correct me if I misunderstood you: your contention is that even if a State is lawfully occupying a territory, the population of the territory – on the basis of their right to self-determinatio – has the right to use armed force against the occupier?
    If so, I have a few questions:
    1) How does this conform to the basic principle of international law (and according to many as being of jus cogens status)prohibiting armed force (as codified in the UN Charter)? 2) Moreover, how is this the correct approach if our real-life situation concerns a State continuing a lawful “occupation”? I’m unaware of the existence of a norm permitting use of force in response to lawful acts.
    3) Where was this right of armed force recognised to an extent that it now constitutes customary international law?

  17. @Nigel
    Imagine that Israel attacks Iran next week and Iran responds by occupying Israel. It seems to me that the Israeli’s are free to defend themselves and regain their independence. Otherwise the Iraniers could occupy Israel until they have gained title to the territory and have some new province.

    In his concurring opinion in the Wall advisory opinion judge Elaraby said:
    “Throughout the annals of history, occupation has always been met with armed resistance. Violence breeds violence. This vicious circle weighs heavily on every action and every reaction by the occupier and the occupied alike.
    The dilemma was pertinently captured by Professors Richard Falk and Burns Weston when they wrote
    ‘the occupier is confronted by threats to its security that arise . . . primarily, and especially in the most recent period, from a pronounced and sustained failure to restrict the character and terminate its occupation so as to restore the sovereign rights of the inhabitants. Israeli occupation, by its substantial violation of Palestinian rights, has itself operated as an inflaming agent that threatens the security of its administration of the territory, inducing reliance on more and more brutal practices to restore stability which in turn provokes the Palestinians even more. In effect, the illegality of the Israeli occupation regime itself set off an escalatory spiral of resistance and repression, and under these conditions all considerations of morality and reason establish a right of resistance inherent in the population. This right of resistance is an implicit legal corollary of the fundamental legal rights associated with the primacy of sovereign identity and assuring the humane protection of the inhabitants.’”

  18. Nigel

    Mihai

    That scenario fails to capture the current situation to its fullest. Israel’s presence in the West Bank is a direct result of an act of self-defence (following a State’s illegal annexation of the Territory).

    I apologise for my inaccuracy earlier; Judge Elaraby (who ironically went on to be the Secretary-General of a quite anti-Israel organisation; see: http://www.ejiltalk.org/former-icj-judge-to-become-secretary-general-of-arab-league/) was the only Judge who advised that the occupation is illegal, a stance not accepted by the rest of the Court (see: Robbie Sabel, The International Court of Justice Decision on the Separation Barrier and the Green Line, 38 Isr. L. Rev. 316, 319 (2005)).

    Hence, the quote you bring does not reflect the accepted view of international law by the ICJ (apart from the fact that Richard Falk is hardly a balanced source for analysing Israeli activities; see: http://www.ejiltalk.org/a-follow-up-on-israel-and-gaza/).

  19. Dear Nigel,
    Thank you for the feedback.
    Dear Mihai,
    I suggest we look at what I see as two tacit assumptions in your “France” and “Germany” example, which make it different from the Israeli-Palestinian conflict:
    1. There is no dispute as to the territory of “France” occupied by “Germany” – this is a separate question from the recognition of a right for self-determination of the French people. I do not think the right for self-determination encompasses a right to determine unilaterally the borders of your political unit. Such a “right” would have clashed with other peoples right for self-determination. If there is a dispute over territory, your contention that one side cannot compromise for less than 100% of his claimed territory while the other side is unjust to claim even a little portion from what is not his territory, loses its basis.

    A word on the legal status of the pre-1967 lines: These were armistice lines agreed between Israel and Jordan (in the case of the West Bank) after the end of the 1948 war in the course of which Jordan invaded the territory of Mandatory Palestine in order to prevent the establishment of a Jewish State, as recommended by the UNGA.
    Jordan insisted that the armistice agreement will include the following article (VI(9)):
    ” The Armistice Demarcation Lines defined in articles V and VI of this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto”
    A more general declaration appears in article II(2):
    “It is also recognised that no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations”.
    You can find the agreement here: http://www.mfa.gov.il/MFA/Foreign+Relations/Israels+Foreign+Relations+since+1947/1947-1974/Israel-Jordan+Armistice+Agreement.htm
    Israel agreed to establish the peace process with the Palestinians, among other principles, on SC resolution 242, accepted after the 1967 war. This resolution declares that BOTH the following principles are the basis for a just and lasting peace in the Middle East:
    “(I) Withdrawal of Israeli armed forces from territories occupied in the recent conflict;
    (II) Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;”
    You can find the resolution here:
    http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/240/94/IMG/NR024094.pdf?OpenElement

    Israel claims that the resolution does not require a withdrawal from ALL territories occupied, just from some of it, based on the English text. However, even more important is the clear indication that Israel should withdraw only in the context of a comprehensive peace treaty, acknowledging its right to exist in secure and recognized boundaries.

    This means that Israeli lasting occupation is not illegal and that the establishment of secure and recognized boundaries between Israel and Palestine is a matter for negotiation and agreement, preceding Israeli withdrawal.

    2. The second tacit assumption in your example is that “France” has nothing to give in the negotiation while “Germany” has no incentive to reach an agreement. I am afraid this is a very simplistic view of the conflict, as limited only to delimitation of borders. While on the territorial aspect the Palestinians will probably be the receiving side, on other issues, such as security arrangements and the refugees problem, they will have to “give”, too.
    I wrote about it in a different Post, you can find it here:
    http://lironsblawg.wordpress.com/2012/11/29/palestinian-un-statehood-bid-and-the-promotion-of-peace/

    One important thing I want to add about Israel’s incentive to solve this conflict: Preserving its character as both a democratic state and the nation state where the Jewish people exercise its right for self-determination. A temporary military occupation (even if lasing more than 45 years) does not irreversibly change Israel’s character. However, the annexation of the West Bank will probably force Israelis to choose between giving Palestinians full civil rights, thus losing the Jewish character of Israel, or denying these rights from Palestinians inhabitants of the West Bank, thus compromising the democratic regime in Israel. This is a powerful incentive for compromise and peace.
    I agree with you that an obligation to negotiate, like any other treaty obligation, should be performed in good faith (see article 26 of VCLT, available here: http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf )
    Abusing an obligation to negotiate for the purpose of stalling and avoiding a settlement of the conflict is certainly not in good faith. As you probably know, there are different opinions as to the side responsible for the sad fact that almost 20 years after the Oslo Accords, peace is yet to be achieved. However, even if you believe there is a right to people in occupied territory for “armed resistance”, shouldn’t the principles of the UN charter and customary international law in general at least dictate that, as demanded from states acting in self-defense, such measures, inevitably causing human suffering, would be exercised only as a last resort?
    I am afraid this turned out longer than I intended. Please forgive me for that.

  20. @Dear Liron
    ==1. There is no dispute as to the territory of “France” occupied by “Germany” – this is a separate question from the recognition of a right for self-determination of the French people. I do not think the right for self-determination encompasses a right to determine unilaterally the borders of your political unit. Such a “right” would have clashed with other peoples right for self-determination. If there is a dispute over territory, your contention that one side cannot compromise for less than 100% of his claimed territory while the other side is unjust to claim even a little portion from what is not his territory, loses its basis.==

    The right to self-determination is exercised by the people. The people is defined as the whole population of a defined territory. That does not clash with the right of the minorities in the territory. The minorities exercise their right to self-determination together with the majority. In some cases the minorities have the right to internal self-determination.

    In the cases of decolonization the right to external self-determination is exercised within the whole administrative borders of the former colony.

    In the cases of trust territories or other non-self-governing territories the right to external self-determination is exercised within the whole territory of the trust or non-self-governing territory.

    Since Palestine was an Ottoman colony, the right to self-determination would apply to the majority of the population within that territory. In 1918 the Jewish population was a minority, estimated at a maximum of 11%.

    Thus this minority would have to exercise the right to self-termination together with the majority, the Arab population.

    Now the Ottoman colony became magically a mandate. But to a mandate applies the same logic. Therefore the mandate for Palestine should have become one state, not a specifically named Jewish state.

    We know that Israel was recognized in 1948 and its continuous effective control over the Israeli territory grants it the right to exist as an apart state, that otherwise would not have on basis of international law.

    This means, that whatever territory Israel occupied in 1967, Israel does not have the right to it and that the remaining population of the ex-colony, ex-mandate has the right to exercise its right to external self-determination, within the remaining territory outside the state of Israel.

    ICJ treated the Palestinians as a kind of decolonization ‘interruptus’. It seems therefore to me that the Palestinians have the right to external self-determination based on two things: (1) On basis that they are a not yet decolonized people and (2) they are a people under military occupation.

    The territory where they have the right to exercise this right to external self-determination is the leftover of the Mandate for Palestine. After all the right to self-determination is exercised within the whole territory of the previous entity, whether a colony, mandate, trust or other kind of non-self-governing territory.

  21. Dear Mihai,
    You wrote: “Since Palestine was an Ottoman colony, the right to self-determination would apply to the majority of the population within that territory. In 1918 the Jewish population was a minority, estimated at a maximum of 11%”
    “Palestine was an Ottoman colony”? I am afraid you are wrong. There was no one territorial unit called “Palestine” or encompassing the area that later became the territory of the British Mandate in the Ottoman Empire. This area was divided between three and sometimes more different districts (Sanjaks) subjected to different larger provinces (Vilayet) administered from Beirut, Damascus or independently subjected to the central government (as was the Jerusalem district). Look at this map:
    http://www.npr.org/news/specials/mideast/history/map1.html
    The territory of “Palestine” was first unified under the British Mandate, assigned by the League of Nations for the purpose of the “establishment in Palestine of a national home for the Jewish people” recognizing “the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country”, all quotes from the preamble of the Palestine Mandate, see here: . http://en.wikisource.org/wiki/Palestine_Mandate
    The way prescribed by the League of Nations to achieve this goal, of establishing a national home for the Jewish people in Palestine, was by facilitating Jewish immigration and close settlement by Jews on the land (see article 6 of the Mandate).
    Claiming, as you do, that the Jewish “minority would have to exercise the right to self-determination together with the majority, the Arab population” is simply ignoring the purpose and explicit language of the Mandate.
    The Arabs right of self-determination was not ignored by the League of Nations: it was consummated in all other Arab territories previously under Ottoman control such as Syria, Iraq and even a part of Palestine, east of the river Jordan, which was separated in 1922 to create Trans-Jordan (nowadays the Kingdom of Jordan). Furthermore, the Mandate guaranteed the civil and religious rights of non-Jewish populations in the territory designated for a Jewish national home, but not a right to establish a state.
    The whole concept was that this is a unique case needing a special solution: the Jewish people, as one of the most ancient peoples still existing, has all the attributes of a people deserving self-determination, except for a territory in which it is the majority, and this problem needs to be fixed, on the Jewish ancestral land.
    I completely understand the Arab population resistance to this purpose of the Mandate. Although there was not any Palestinian identity, separate from the general Arab identity in that time, no one wants to become a minority in the land he lives in. However, if you look at the total array of rights and needs in that time, this plan enjoyed not only international legitimacy, but was just and moral.
    If the Arabs have not impeded this plan and caused Britain to limit dramatically Jewish immigration, exactly when the gates all over the world for immigration were closing, millions of Jews in Europe could have been saved from the hands of Nazi Germany and extermination in concentration camps. These millions of Jews could have find refuge in Palestine and create the majority anticipated. Even as things turn out to be, the Jewish population in the end of the Mandate was one third of the general population, not just 11%. Since the Jewish leadership was realistic, they understood that not being the majority in the whole of Palestine requires a territorial compromise to ensure a Jewish majority in the future Jewish state. The concession in accepting the partition plan was done by the Jews, not the Arabs, although the Arabs rejected this plan.
    I guess history can be read in more than one way, but some facts should not be ignored. One should be careful not to re-shape history to suit a legal paradigm or to implement modern concepts on different times. The problem with your attitude of denying the basis in international law for the establishment of the state of Israel is that such views encourage Palestinians to continue to deny from Jews the same right they demand for themselves: the right for self-determination in their own nation state.
    Although Palestinians right for self- determination emerged “magically” (to use your phrase elsewhere) only after 1967, and not while the West Bank and Gaza were controlled by Egypt and Jordan, I do not deny that Palestinian national feelings today are genuine. Therefore, they deserve their own state. However, real peace could only be achieved if the Palestinians transcend to recognize that the tragedy in this conflict is that both sides are right.

  22. @Dear Liron

    It does not matter. The law of decolonization would still give the whole population of the whole territory the right to external self-determination, and the minorities would just have to live in the new state. Whether the Ottoman colony was united or split, that does not make any difference.

    ==League of Nations for the purpose of the “establishment in Palestine of a national home for the Jewish people” recognizing “the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country”==

    First of all this was a very unusual wording of the mandate for Palestine, different from the rest of the mandates and in violation of article 22 of the The Covenant of the League of Nations.

    Second, the mandate was drafted by jurists and the use of the term ‘national home’ instead of ‘state’ makes a big difference. Just years before they promised the Arabs an independent Arab State, so they knew the difference between a state and a national home. I’ll save myself a bunch of time and quote extensively from Kattan’s book:

    “Reading through the travaux préparatoires of what would become the British Mandate for Palestine that was drafted in the years 1919-22, it seems evident that the word ‘state’ was deliberately avoided by the Zionists, as they must have been aware that they had no chance of getting that word included in the draft. This would explain why in early drafts of the Mandate the Zionists wanted to include the phrase: ‘The reconstitution of Palestine as the national home.’ And during the negotiations over the terms of the Mandate, they hoped the High Contracting Parties would ‘recognise the historic title of the Jewish people to Palestine’.

    However they were unsuccessful with these endeavours, as the final draft of the Mandate only mentioned the words ‘establishment’ and ‘a national home’ when recalling the Balfour Declaration in the preamble, and merely recognised ‘the historical connexion [note, not title] of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country’.

    Curzon, who was Britain’s Foreign Minister when the Mandate was being drafted, said that he ‘objected to the phrase [the reconstitution of Palestine as the national home] in toto’. He minuted one of his colleagues in the Foreign Office, saying: ‘I do not myself recognise that the connection of the Jews with Palestine, which terminated 1200 [sic] years ago, gives them any claim whatsoever. On this principle we have a stronger claim to parts of France. I would omit the phrase.’ It would be difficult to describe the phrase that eventually found its way into the Mandate ‘[w]hereas recognition has thereby been given to the historical connexion of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country’ as a declaration of statehood or a promise to provide the Zionists with a basis to establish a state immediately.

    If such a state was to be created, it was to be accomplished progressively, and subject to the safeguard clauses protecting the civil and religious rights of the Palestine Arabs. As Professor Ernst Frankenstein of the Hague Academy noted:’… the Jews were given their National Home instead of a State precisely because there were others in the country. It was felt that the non-Jewish inhabitants of Palestine had to be protected against the possible consequences of a wide construction of the term “National Home”.’

    In correspondence with Field-Marshall Viscount Allenby, Curzon wrote that although the Balfour Declaration had been endorsed by the Allied and Associated Powers at the Paris Peace Conference, it did not contemplate ‘the flooding of Palestine with Jewish immigrants’, nor ‘spoliation or eviction of the present landowners in Palestine’. Furthermore, rather than Palestine being reconstituted as the national home, as the Zionists desired, the national home was to be reconstituted in Palestine. As is clear from the travaux, Curzon was adamantly opposed to the creation of a Jewish state in Palestine and was of the opinion that what was promised at San Remo, where the Balfour Declaration was incorporated into the Treaty of Sèvres, which was never ratified, ‘was far from constituting anything in the nature of a legal claim’.

    It would therefore seem from its plain and ordinary meaning that the declaration envisaged granting the ‘Jewish people’ the right to participate in the affairs of the country specifically affecting the interests of the Jewish population subject to laws and regulations of Palestine.

    Hence in early drafts of the Mandate, the Zionists desired ‘the creation of an autonomous commonwealth’. But even this was restricted by Article 3 of the Mandate, which provided that, ‘The Mandatory shall, so far as circumstances permit, encourage local autonomy.’

    In his White Paper of 1922, Winston Churchill, then Secretary of State for the Colonies provided an authoritative interpretation of what was meant by the phrase ‘the development of the Jewish National Home in Palestine’. According to the Paper, this was:

    ‘not the imposition of a Jewish nationality upon the inhabitants of Palestine as a whole, but the further development of the existing Jewish community, with the assistance of Jews in other parts of the world, in order that it may become a centre in which the Jewish people as a whole may take, on grounds of religion and race, an interest and a pride.’

    Churchill made it clear that the British Government ‘never contemplated, at any time, the disappearance or the subordination of the Arabic population, language or culture in Palestine’. After all, as he pointed out, the Balfour Declaration did not contemplate that ‘Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded in Palestine.'”

    Thus, my first assertion that the Jewish “minority would have to exercise the right to self-determination together with the majority, the Arab population” is what was meant by the text of the mandate.

    ==the Jewish ancestral land.==

    International law does not provide any population the right to a territory they inhabited 2000 years ago. Otherwise we would open the Pandora’s box and would have to redraw all the borders in the world.

    But that was then, and this is now. And since now the international law grants the right to external self-determination to all people that are not yet a part of an existing sovereign state and to the people under military occupation, and since the people exercise this right within the territory of the former administrative unit, the Palestinians qualify for the right to external self-determination within all the territory that is not part of the state of Israel.

  23. @Dear Liron

    By the way, the idea that the British or anybody else could promise anybody a state in the Palestine is absurd. That is the same as I would promise my left neighbor the house of my right neighbor. I could do it, but this would not create any legal obligation for my right neighbor to pack and leave.

  24. Dear Mihai,
    The Balfour Declaration is significant, since Britain, at the time, gained control over the relevant territory, conquering it from the Ottomans. However, More important from an international law perspective is the Mandate approved by the League of Nations. Article 80 of the UN Charter safeguard the rights the Jewish people had under the Mandate. These rights are not in any way inferior to the right to self-determination any other people has. I think the language of the Mandate is clear and more significant than some of the private correspondence you mentioned. I can continue and bring other materials to refute your arguments. However, as fascinating as history is to me, I think our dialog vividly illustrate why it cannot contribute to the settlement of the conflict. The one thing you said I could agree to is “But that was then, and this is now”. Indeed, both sides should focus on the future. When I will hear a Palestinian leader willing to admit that law and justice is not just on his side and that pain and suffering is not a Palestinian monopoly, I will know progress is near.
    Best regards,

  25. @Dear Liron

    ==law and justice==

    The Gypsies originate from the Indian subcontinent. Imagine that Soviet Union promises them some kind of internal self-determination – or a state if you wish – in India, in 1918, then invades India. The Gypsies declare themselves an independent state 56% of India in 1948. Then the Gypsies occupy more in several conflicts. Why would that be justice? And why the Indians would not have the right to the remaining 22%?

  26. My friend,
    It seems YOU ARE convinced that Palestinians have a monopoly on justice.
    This reminds me of a poem by one of my favorite poets, Yehuda Amichay, named “The Place Where We Are Right”:
    (Translated from the original Hebrew)

    “From the place where we are right
    Flowers will never grow
    In the spring.

    The place where we are right
    Is hard and trampled
    Like a yard.

    But doubts and loves
    Dig up the world
    Like a mole, a plow.
    And a whisper will be heard in the place
    Where the ruined
    House once stood.”

    If you like this poem, you can read more about the poet and his poems here:
    http://www.poetryfoundation.org/bio/yehuda-amichai

    Please accept this as a token of friendship despite our deep disagreement.

  27. @Dear Liron

    Thanks for the poem and the friendship. Have a nice peace.

  28. I’d like to comment on the following: “Israel acknowledged it first in the Camp David Accords signed with Egypt and later, directly, in the Oslo Accords signed by Israel and the PLO in 1993. I think they could have closed a deal and establish a state in 2000 and later, in 2008, but chose not to and resorted to terror instead. They can still establish the state they desire if they will engage in serious and direct negotiations with Israel, without preconditions and about all the difficult issues, including security arrangements, refugees, Jerusalem, Israeli settlements and borders. The ‘occupation’ is not the real obstacle to peace, since Israel withdrew from Gaza unilaterally in 2005, uprooted all its civilian settlements there, and did not exactly got peace in return, as I hope you are aware.”

    Failures in the peace process, be it having to do with Camp David (1978) or the Oslo Accords, are often placed on the Palestinian side of the negotiating table, indeed, this view of things is fairly widespread both in Israel and in U.S., and yet it is tendentious and historically inaccurate, as Zeev Maoz, among a few other scholars, has patiently documented. It was simply not a matter—to paraphrase—of “choosing terror instead.” First, with regard to Camp David, the “Framework” part of the peace agreement (having to do with temporary Palestinian autonomy): this was said by Begin to “refer[] only to the three-month period scheduled for finalization of the Egyptian-Israeli peace treaty, not—as the Americans and Egyptians interpreted the ‘Framework’ agreement—the entire five-year period of temporary self-rule for the Palestinians.” The other parties, in particular, the Palestinians, did not share Begin’s woefully inadequate “minimalist” conception of autonomy. But perhaps most troubling, Begin maintained that at the end of the five-year period (after the conclusion of the negotiations), “Israel would claim right to sovereignty over the West Bank.” One can see why both the Palestinians and King Hussein refused to participate in these “autonomy” talks. What is more:

    “To add insult to injury, Begin appointed Interior Minister Joseph Burg of the national Religious Party (NRP) to head the Israeli negotiation team. Not only was this a slap in Moshe Dayan’s face; it was a clear indication that Begin had no intention of having the autonomy talks lead anywhere. And, to accentuate his refusal to freeze the settlements, Begin allowed Minister of Agriculture Ariel Sharon to establish a series of settlements on the West Bank.”

    For the full account, interested readers are directed to Maoz’s discussion and references in his remarkable work, Defending the Holy Land: A Critical Analysis of Israel’s Security and Foreign Policy (2009).

    As for the Oslo Accords, it is important to point out, in Maoz’s words, that “[e]xtremists on both sides tried their best to undermine the process.” Liron cites the Palestinians resorting to acts of terrorism but appears to have forgotten incidents on the Israeli side as well, “the most notable of which was the massacre of thirty-six Palestinians by a Jewish extremist on February 25, 1994, in Hebron.” Not infrequently, Palestinian suicide bombings came in predictable response to Israeli assassinations (no doubt the Israelis knew how some Palestinians would respond). Moreover, Arafat’s security forces began to “clamp down” on Hamas and Islamic Jihad militants in the occupied territories. Netanyahu’s administration refused to resume the talks on final status in May 1996. Talks continued after the 1999 elections brought Barak to power. Maoz explains the numerous problems with the putatively “generous” American and Israeli proposals from the Palestinian perspective. The failure of the Camp David Summit was addressed by ongoing “secret” talks, yet while the two sides were negotiating in Washington, Barak allowed Ariel Sharon “to stage a provocative visit of the Temple Mount (in the Islamic world, al-haram al-qudsī ash-sharīf), followed by the Palestinian demonstrations that sparked the aptly named Al Aqsa Intifada. Talks nonetheless proceeded, only to effectively end with Sharon’s ascension to power. Maoz concludes that “the peace process was doomed to fail much before the outbreak of the intifada, and Israel and the Palestinians share equal responsibility for the failure.” While the Palestinian portion of blame is oft-discussed, ignored or forgotten is the fact “Israel has violated the spirit and text of the Oslo Accords by fundamentally changing the status quo through a widespread settlement policy [the notorious creation of ‘facts on the ground’].” From 1993-2001 there was a 73 percent increase in the number of settlers under the guise of the agreement under four different Israeli governments: “Settlement activity, more than anything else, erode Palestinian elite and public confidence in the Oslo track.” Again, much more might be said, so see Maoz for the details (read, in particular, the chapter entitled ‘The Israeli Nonpolicy of Peace in the Middle East’).

    Liron is troubled by Palestinian “preconditions,” but neglects the numerous and often unreasonable preconditions it places on the Palestinians. Finally, Israel did indeed withdraw from Gaza, but has proceeded to employ its own version of “shock and awe” on the entire population (becoming specialists in the use of indiscriminate force), continuing its long-standing policy of collective punishment, both militarily and economically, its economic siege virtually destroying what little there was of industry in Gaza. Israel’s power over and domination of Gaza persists, so much so that it is “no wonder they try to invade the space below and above them with tunnels and rockets” (Eyal Weizman). For an updated summary of recent events in historical context, see Adam Shatz’s article, “Why Israel Didn’t Win,” in the LRB: http://www.lrb.co.uk/v34/n23/adam-shatz/why-israel-didnt-win