III. PALESTINE AND INTERNATIONAL LAW

by Allegra Pacheco, Esq.

While more than one hundred United Nations resolutions support the establishment of an independent Palestinian state, Palestine still remains under Israeli military occupation and has been rejected as a full member of the UN. The following essay offers a brief overview of the key international UN resolutions and legal issues affecting Palestine today, as well as Palestine’s status as a “state” among the nations of the world.

PALESTINE AND THE UNITED NATIONS

The status of Palestine has been a contentious political and legal issue in the eyes of the international community since the fall of the Ottoman Empire and the establishment of the British Mandate.¹ When the British Mandate came to a close in 1947, the United Nations took responsibility for finding a political solution in Palestine. The UN General Assembly approved the “partition plan”—Resolution 181—which envisioned dividing the former British Mandate Palestine into two independent states, one for Jews and one for non-Jewish Palestinian Arabs.² The plan intended for an economic union to be formed between the two states, and for the cities of Jerusalem and Bethlehem to remain open to all sides as autonomous international entities.

Many Palestinian Arabs objected to the proposal immediately on the grounds that the land division was not proportional to the population of the region. While approximately one third of the people of British Mandate Palestine were Jewish, the partition plan granted the majority of Mandate territory to the new Jewish homeland. Objectors also claimed that the plan violated the right of Palestinians to decide for themselves the type of sovereign entity that should be established in the region.

When the British left Palestine in the spring of 1948, the partition plan was not immediately implemented. Instead, the tensions erupted into war, which ended with Israel possessing more than 78 percent of the territory the British Mandate had set out to divide. Jordan and Egypt controlled the rest.

For Palestinians, the Israeli victory was considered a disaster—they called it the Nakba, or “catastrophe.” Even beyond the dramatic loss of land, the Nakba came to be defined by Israel’s refusal to allow the Palestinians who had fled the violence—as many as 750,000—to return to their homes. Instead, Israeli forces destroyed hundreds of Palestinian villages and Palestinian cities, and seized land, buildings, banks and, other assets (including industrial equipment, agricultural stocks, and vehicles).

In response, the UN General Assembly passed Resolution 194 in December 1948. The resolution called for the return of the Palestinian refugees willing to live in peace with their neighbors, compensation for those not wishing to return, and compensation for the property taken by the Israeli government. This resolution also established the UN Conciliation Commission for Palestine, and tasked it with putting “the Palestinian refugee issue at the heart of resolving the conflict.”3 However, GA Resolution 194 was never implemented, and the Conciliation Commission ceased functioning after several years.

During the June 1967 war between Israel and its Arab neighbors, Israel took the remaining 22 percent of Palestine. These areas—the West Bank, East Jerusalem, and Gaza—would come to be known as the “1967 occupied territories.” In November 1967, the UN Security Council passed resolution 242, which reinforced the prohibition of acquisition of territory by force, and demanded that Israel withdraw from the occupied territories.⁴ However, UN Resolution 242 omitted a right of return for the Palestinian refugees, instead calling for a “just settlement” to the refugee issue.⁵ It proposed a “land for peace” formula, suggesting a two-state solution based on the 1967 borders.6⁷ UNSC 242 states:

The Security Council, expressing its continuing concern with the grave situation in the Middle East, emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security . . . affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

       •  Withdrawal of Israeli armed forces from territories occupied in the recent conflict;

       •  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.

The ideas in UNSC Resolution 242 and the subsequent UN Security Council Resolution 338 became the new paradigm for international resolution of the conflict, and the backbone of all subsequent Security Council resolutions on Palestine. However, many Palestinians expressed concern that it reflected a political compromise on the ability of refugees to return to their former land.

MILITARY OCCUPATION UNDER INTERNATIONAL LAW

As a general rule, stated by the Geneva Conventions and in the charter of the United Nations, international law does not permit or recognize territory acquired by force. However, exceptions have been made if the invasion is short term—but only until hostilities end and a peace agreement is set in place. Typically, an occupation of territory lasts only until the end of a war. During occupation, international humanitarian law delegates the responsibility of restoring order to the army of the controlling power. But international law also recognizes that an occupying force is an enemy/hostile entity, and that the civilians under the control of an occupying force are inherently vulnerable to humanitarian abuse as well as exploitation of economic resources. For this reason, humanitarian law has established an extensive set of regulations to prevent the occupying force from exploiting civilians and their resources.

Occupying powers are charged with ensuring food, water, and sanitary conditions, and must provide or allow international support for education, health, culture, and religious affairs. As much as possible, the military must preserve the resources in place before war, and are forbidden from changing the laws of the occupied territory for their own material advantage.

International humanitarian law has no clear provisions in place to address an occupation that has continued as long as Israel’s occupation of Palestine. Although international law prohibits settlements, and the United Nations has spoken out against the Israeli settlements in the West Bank, it does not provide legal guidance, punitive procedures, or remedies for such a situation. The Rome Statute, which established the International Criminal Court, declared settlement under occupation a war crime—but this cannot be enforced in Israel or Palestine, since neither has agreed to the court’s jurisdiction. However, international law is clear that as long as Israel’s military remains in Palestine, or retains effective control over the occupied population, the area is considered occupied.

UN RECOGNITION—STILL INCOMPLETE

In 1974, the General Assembly reaffirmed the inalienable rights of the Palestinian people to self-determination, national independence, and sovereignty, as well as their right to return.8 It instructed the Secretary General to contact the Palestine Liberation Organization (PLO) on all matters concerning the Palestinian people.⁹ And in November 1988, the PLO recognized the two-state paradigm by declaring the establishment of the state of Palestine in the areas occupied by Israel in 1967—the 22 percent of British Mandate Palestine established by the original 1947 UN partition plan. The UN General Assembly then voted to recognize the political leadership of PLO as representatives of Palestine. Thus, the UN recognized a political entity—if not quite a full state—called “Palestine.” The UN granted delegates from the PLO “observer” status, allowing them to attend General Assembly meetings, but not cast any votes.

Under international law, a military occupation and the occupying power’s obligations towards the civilian population end by a declaration of the UN Security Council and, ideally, with a political agreement acceptable to all sides, whereby the occupying power terminates its effective and residual control over the territory and its population. The Oslo Accords, first negotiated in 1993, were the closest that Israel and Palestine have come to such an agreement. However, they were never designed to end Israel’s full control over the territories. The accords were designed as “interim agreements” for a period of five years (effective from 1994 to 1999). The intent of negotiators was to set up the Palestinian Authority as a governing body in parts of Palestine and to “test the waters” of transferring authority over to Palestinians in the occupied territories.

Under the Oslo Accords, major authorities—including security, land planning, administration of East Jerusalem, water usage, road construction, and the population registry—remained under Israeli control. The writers of the Oslo Accords envisioned that most of the occupied territories would be under PA control at the end of the interim period and that a final status agreement would be in place to resolve the more difficult political issues still obstructing peace. Fifteen years after the target expiration date of the accords, repeated failures to reach a final status agreement have resulted in the “interim agreement” still in place. Neither side has canceled the Oslo Accords, but Yossi Beilin, one of its Israeli architects, has compared the continued application of the Oslo Accords to “keeping a twenty-year-old in kindergarten.”

Without a final status agreement in place, Palestinian leadership has pursued other avenues toward statehood. In 2011, the PLO sought admission to the United Nations as a full member. The PLO based its request on UN General Assembly Resolution 181 II from 1947, which gave “sympathetic consideration” to the Palestine application for membership in the UN, as well as the numerous UN General Assembly resolutions affirming the full respect of Palestinians rights to self-determination as an “indispensable element to the establishment of a just and lasting peace in the Middle East.”10

The UN Security Council rejected the PLO request for full membership to the wider United Nations, stating that the legal threshold to become a state had not been reached—specifically, that Palestine had not fulfilled the condition of becoming a “peace loving” entity, and lacked effective governmental control over the Gaza Strip.11

Despite the Security Council’s rejection, the UN General Assembly voted overwhelmingly the next year to upgrade Palestine’s position in the UN from “observer entity” to “non-member observer state.”¹² The change granted Palestine the ability to join international organizations and specialized UN agencies such as the World Trade Organization and the International Criminal Court. In April 2014, Palestinian President Mahmoud Abbas used this status to sign letters of accession to fifteen multilateral treaties and conventions, bringing Palestine closer to statehood in the eyes of international law. Yet Palestine is still without the power to vote in the UN General Assembly and its rights to use the International Criminal Court and other international bodies have barely been tested.

While full membership as a state recognized by the UN remains elusive, international recognition of Palestine as a state has progressed significantly. More than 130 countries, comprising 75 percent of the world’s population, recognize the “state of Palestine,” and have accorded it diplomatic status. Despite these political victories, the most important obstacle to full statehood remains in place—the continued Israeli military occupation of Palestine. The Israeli military has prevented the formation of borders for the Palestinian state and maintains control over Palestine’s economy, land use, utilities, use of resources, and the movement of its goods.

THE PATH TO STATEHOOD

The legal ambiguities that the Israeli occupation has brought to Palestinian statehood have also created an ambiguous situation on the ground. The borders of the Palestinian state are not under the control of the Palestinian government, and their final status has been delegated to political negotiations. The Palestinian president and the Palestine Authority cannot fully carry out their duties in the face of de facto Israeli control. Palestinian citizens’ movements are obstructed by the Israeli barrier wall, checkpoints, and Israeli-controlled crossings into and out of Palestine. These obstructions also block the 7 million Palestinian refugees—70 percent of the worldwide Palestinian population—from returning to their homes. As many as 500,000 Israeli citizens, generally referred to as settlers, have moved into illegal Israeli settlements in the West Bank area of Palestine, assuming control of key land areas, thoroughfares, water, and natural resources. And the declared capital of Palestine, East Jerusalem, is not in Palestinian hands—it has been annexed by Israel, pulled within Israeli borders and behind Israeli barrier walls. These conditions on the ground demonstrates how the “statehood” of Palestine is not yet fully substantiated. While most of the basic elements that define a state under international law are present—a permanent population, a government or political authority, and a (partial) capacity to enter in relations with others states—critical factors such as “a defined territory and borders” and the full capacity to carry out the UN Charter have yet to be established.

While international law supports Palestinian statehood, and most of the international community has recognized the “state of Palestine,” not one member state of the UN, nor the UN Security Council as a whole, has taken any effective steps to end Israel’s occupation—the main obstacle to effective Palestinian statehood. Their inaction not only prevents a viable peace from being established in the Middle East but also erodes the effectiveness of international law and diplomacy as a model for justice.

Allegra Pacheco is a U.S.-born lawyer currently working in the occupied Palestinian territories. A graduate of Columbia University School of Law, she is admitted to both the New York and Israeli bars. She has litigated Palestinian human rights cases in front of the Israeli Supreme Court and has worked in the United Nations. She is also married to Abdelrahman Al-Ahmar, one of the narrators in this book. For Abdelrahman’s story, see page 75.

¹ For more on the Ottoman Empire and the British Mandate of Palestine, see Appendix I, page 295.

² The United Nations General Assembly is the body of the UN comprised of all member states and its resolutions reflect the common position of the international community. It does not have enforcement powers like the UN Security Council.

³ UN Resolution 194 reaffirmed the basic international law principle of the right of every person to return to his home. See Article 13(2) of the Universal Declaration of Human Rights, 10 December 1948: “Everyone has the right to leave any country, including his own, and to return to his country.”

⁴ The word “all” territories was omitted from the English version.

⁵ Notably, UN SC Resolution 237 (14 June 1967) called on Israel “to facilitate the return of those inhabitants who have fled the areas since the outbreak of hostilities.”

⁶ For more on the Six-Day War, see Appendix I, page 295.

⁷ The UN Security Council is often considered the highest body of the UN—it is charged with enforcing international law, and its resolutions on peacekeeping, sanctions, and the authorization of international military actions bind member nations to their international responsibilities.

⁸ A/RES/3236 (XXIX) 22 November 1974.

⁹ For more information on the PLO, see the Glossary, page 304.

¹⁰ See UNGA Res 2672 (1970), UN GA Res 3236, UN GA Res 2649.

¹¹ See the International Court of Justice in 1948 which determined five additional criteria for states seeking full United Nations membership: A candidate must be: (1) a state; (2) peace-loving; (3) must accept the obligations of the Charter; (4) must be able to carry out these obligations; (5) must be willing to do so.

¹² The vote was 138 in favor to 9 against (Canada, Czech Republic, Israel, Marshall Islands, Micronesia (Federated States of), Nauru, Panama, Palau, and the United States), with 41 abstentions.