A critical assessment of the Government of Israel’s memorandum to the ICC – Part II

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In my previous post, I argued that contrary to the view of the GOI, a Palestinian state has existed since 1919, and a Palestinian government was established – even if momentarily – in the territories occupied by the armed forces of Egypt and Jordan during the 1948 war following the termination of the mandate. This was known as the All-Palestine Government (APG). Although Jordan was opposed to the leadership of this government, it was recognised by all the other members of the Arab League. Jordan also recognised the sovereignty of the Palestinians living in the areas under its control in 1948-1949 when it sought their consent to the merger with Transjordan. The Act of Union was adopted by a parliament comprised of twenty Jordanian representatives and twenty Palestinian representatives following an election held in both territories. The Act recognised the separate identity of Palestine and the right of the Palestinian people to self-determination.

In addition, I explained that the UN Partition Plan provided for the establishment of an Arab state and a Jewish state with a special status for Jerusalem. This resolution has never been abandoned by the international community but has been repeatedly affirmed for more than seventy years. In the second part of this post, I criticise the argument in the GOI memorandum that recognition cannot be constitutive of statehood, that sovereignty over the West Bank and Gaza is in abeyance, and that the Palestinian state does not meet the criteria for statehood in international law. 

Recognition can be constitutive of statehood

Recognition of Palestine’s statehood predates the Montevideo convention (1933) and dates to a time when the constitutive theory was preferred over the declaratory theory. Palestine’s statehood was recognised in statements made during the First World War, which were repeated in Article 22 of the Covenant of the League of Nations. We should recall that the Ottoman Empire had been recognised by the European powers as a member of the Family of Nations, and that the Middle Eastern states established from the remnants of its empire (Palestine, Syria, Mesopotamia) were A mandates. This meant they had reached “a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone”.

The Albanian analogy

In other words, Palestine’s statehood claim should be assessed in the light of the international dispositive powers of the great powers in the post-war treaties. An analogous situation, which could be compared to Palestine, was the creation of Albania, which was admitted to membership of the League of Nations in 1920, even though it had been under Turkish sovereignty since 1571, had never been a separate political entity, and had no effective government when it was admitted.  

The Peel Commission had recommended membership in the League of Nations for the independent Arab and Jewish states that it envisaged would emerge in Palestine, once the United Kingdom had relinquished its authority, and UN membership was recommended in the UN Partition Plan.

The debate in Parliament in 1948

Given the special circumstances in Palestine at the end of the war, recognition played an important role during the debates on how to transfer power to the Arab and Jewish states, as the United Kingdom could not unilaterally withdraw from the mandate without the consent of the UN. On 29 April 1948, five months after the UN had adopted the Partition Plan, the United Kingdom’s Colonial Secretary explained to Parliament (col. 1250) that “the future form of government to be established in Palestine is not a matter for His Majesty’s Government but for the United Nations Assembly”. He added, “On termination of our exercise of an international Mandate it was proper that that international authority should determine the new form of government which Palestine should enjoy. The Resolution of the Assembly provides that independent Arab and Jewish States shall be established …” In the British Government’s view, the United Kingdom could not establish these independent states, as “Their recognition is a matter for international agreement…”

The recognition that the future form of government in Palestine was a decision for the UN General Assembly to make is significant, given that the UN bears a “permanent responsibility” for the resolution of the Question of Palestine (Wall advisory opinion, p. 159, §49).

Why the Palestinians issued a second Declaration of Independence

When King Hussein announced the end of the union between Palestine and Jordan in 1988, he referred to the Act of Union and the right of the Palestinian people to self-determination in a state of their own. Jordan was one of the first states to recognise the state of Palestine. Following King Hussein’s decision to dissolve the union, some Palestinian lawyers thought that it was necessary to issue a new Declaration of Independence to legitimise the new situation. Other Palestinian lawyers thought that a new declaration was unnecessary because a declaration had already been issued by the All-Palestine Government in 1948. The reason why the lawyers who favoured a new declaration in 1988 won the argument was because of the new international situation that had arisen with the Palestine Liberation Organization (PLO) accepting UN Security Council Resolutions 242 (1967) and 338 (1973), recognising Israel, and confining its claim to the territories occupied by Israel in 1967. It is worth recalling that in 1948 and until the late 1970s the Palestinian national movement claimed sovereignty over all the territories of the former Palestine mandate.

The 1988 Declaration of Independence was not the declaration of a new state that was established in 1988 but of an existing state. The declaration explicitly referred to Article 22 of the Covenant of the League of Nations, the Lausanne Treaty of 1923, and the 1947 UN Partition Plan “that guarantee the Palestinian Arab people the right to sovereignty and national independence”.

 The Palestinian Declaration of Independence issued in 1988 was acknowledged by more than 100 countries, including Jordan. The widespread support for the declaration (only Israel and the US voted against it) demonstrated that there was no other legitimate claimant to the territories occupied by Israel since 1967. The Declaration and the political communiqué that accompanied that Declaration referred to the Palestinian people’s right of self-determination eleven times. The right of self-determination is widely acknowledged as a peremptory norm of international law.

Sovereignty over the West Bank and Gaza is not in abeyance

The claim in the GOI memorandum that sovereignty over the West Bank and the Gaza Strip remains in abeyance is based on a quote from the Separate Opinion of Judge McNair in the South West Africa status opinion (1950) (see p. 17, note 53). However, in that case the mandate for South West Africa was still in force as South Africa refused to relinquish it. This was not the case in Palestine, where the UK terminated its jurisdiction in 1948. (See an Act of Parliament making provision for the termination of His Majesty’s jurisdiction in Palestine in 11 & 12 Geo. 6. C.27, 29 April 1948 in British and Foreign State Papers, Part I, Vol. 150 (1948), pp. 278-279.) The United Kingdom and the UN Special Committee for Palestine (UNSCOP) unanimously approved of terminating the mandate and granting independence to a Jewish state and an Arab state in Palestine.  (See recommendations 1 and 2 of the UNSCOP report, vol. 1, pp. 42-43). The mandate was terminated by an Act of Parliament and by the British withdrawal from Palestine.

The Palestine mandate is no longer in force

The GOI cannot advance sovereign claims to the territories it occupied in June 1967 based on the provisions of the Palestine mandate as these rights were framed as obligations imposed upon the United Kingdom. (For a reference to this “longstanding claim”, see GOI memorandum, p. 19, §30 and p. 26, §41). These were not obligations that arose independently of the relationship between the United Kingdom and the League of Nations that can be invoked by the State of Israel today to advance sovereign claims to the territories it occupied in June 1967. The mandate is no longer in force. Since 1967, Israel has been an occupying power in East Jerusalem, the West Bank and Gaza, which the international community has repeatedly affirmed belongs to the State of Palestine.

The effective control conundrum

The claim that Palestine does not meet the established criteria for statehood under international law, including effective control, is a little self-serving when we consider that Israel is preventing the legitimate government of that country from exercising this control through repeated illegal actions, from the confiscation of vast tracts of private and public lands, to outright annexation. None of these activities are consistent with those of an occupying power, especially when that occupation has endured for more than half a century. Indeed, Eyal Benvenisti has suggested that “an occupation which proposes unreasonable conditions [to end it], or otherwise obstructs negotiations for peace for the purpose of retaining control over the occupied territory, could be considered a violator of international law” (E. Benvenisti, The International Law of Occupation, second edition, OUP, 2012, p.  245). The decision by the Palestinian leadership to augment its status in the UN in 2012 should be viewed in the context of the impasse in peace talks.

Conclusion

It is significant that the GOI memo does not mention Article 22 of the Covenant of the League of Nations – even once. It also ignores the view expressed by the State Department Legal Adviser in 1948, which emphasized that the Arab and Jewish communities in Palestine were legally entitled to proclaim states of their own and establish their own governments. The GOI memo also ignores the international community’s consistent support for the UN Partition Plan expressed over a seventy-year period. The conferral of observer statehood on Palestine by the UNGA in 2012 should be viewed in the context of the international community’s engagement with Palestine for a century. Its significance lies not only in its operational effect within the UN system, but also in its reflection of the fact that so many states were willing to say that Palestine is a state in the territories occupied by Israel in June 1967 in full knowledge that Israel exercises effective control over the territory.

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Kishor Dere says

February 2, 2020

Kudos to Victor Kattan for providing critical analysis of this contested issue. It should, however, be noted that this is primarily a political and diplomatic issue. International law comes into picture and play only after the political and diplomatic questions are resolved.

Patrick S. O'Donnell says

February 5, 2020

I beg to differ with Kishor above, given that the political, diplomatic and legal issues are inextricably intertwined (historically and otherwise) and there is no warrant for according priority to the two former questions before addressing the international law issues. (I should also like to note that I have a roughly 21 pg. English language bibliography of books on the Israeli-Palestinian conflict available on my Academia page should anyone be interested.)

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2 comments

Kishor Dere says

February 2, 2020

Kudos to Victor Kattan for providing critical analysis of this contested issue. It should, however, be noted that this is primarily a political and diplomatic issue. International law comes into picture and play only after the political and diplomatic questions are resolved.

Patrick S. O'Donnell says

February 5, 2020

I beg to differ with Kishor above, given that the political, diplomatic and legal issues are inextricably intertwined (historically and otherwise) and there is no warrant for according priority to the two former questions before addressing the international law issues. (I should also like to note that I have a roughly 21 pg. English language bibliography of books on the Israeli-Palestinian conflict available on my Academia page should anyone be interested.)