Self-determination: From principal to right

Following the horrors of World War Two, which was adjudged to be the ultimate failure of the League of Nations in tempering the egotistical will of the nation-state, the United Nations was founded in order to establish a new international legal order. As well as maintaining international peace and security through the application of international law the United Nations was also purposed with the promotion of the self-determination of peoples^[1]. Introduced as a principle in the 1945, it was not until 1960 that self-determination became a right upon the passing of United Nations General Assembly Resolution 1514, also known as the Declaration on the Granting of Independence to Colonial Countries and Peoples.

The transformation of self-determination from a principle to a right emerged during an era of national liberation movements in the former European empires, first starting in Asia, then spreading to North Africa and the Middle East before reaching Sub-Saharan Africa (Bowring 2008: 30). What had been written into international law as a principle was now being claimed as a right by people who wished to decide their own future. Although the 1960 Declaration references such movements’ “passionate yearning for freedom” and “the decisive role of such peoples in the attainment of their independence”, the colonial powers had opposed such movements and their response was “ferocious and bloody” (Bowring 2008: 30). It was in the context of victorious national liberation movements that the right to self-determination was granted. Thus, self-determination as an enforceable, tangible right was written “with the blood of the peoples” (Bowring 2008: 30).

Self-determination and Palestine: The British Mandate and the creation of Israel

Prior to 1945 the principle of self-determination of peoples did not exist in international law. However, although not mentioned specifically, the seeds of self-determination were included in the League of Nations mandate system (Fox 1998: 18) – a system which placed the former colonies of the defeated German and Ottoman empires under the administration of the League of Nations pending their establishment as independent self-determining nation-states.

The League of Nations mandate system deemed Palestine a Class A Mandate. Class A Mandates were described “to have reached a state of development where their existence as independent nations can be provisionally recognised”. However, when the League of Nations awarded the Mandate for Palestine to Britain in 1922, it specifically stated that they should also carry out the implementation of the previously agreed Balfour Declaration. The Balfour Declaration was a letter dated 2 November 1917 from the United Kingdom’s Foreign Secretary Arthur James Balfour to Baron Rothschild, a leader of the British Jewish community, for communication to the Zionist Federation of Great Britain and Ireland. The letter stated:

“His Majesty’s government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”

Although Jewish settlers had been emigrating to Palestine prior to the British Mandate and co-existing peacefully with the native population, the League of Nations instructions to the British government meant that the Zionist movement now had the “governmental approval” it needed for the realisation of their goal of a Jewish state in Palestine, which was to be achieved through the “settlement” of Palestine (sometimes translated as “colonisation”^[2]). Thus, the British were charged with the apparent contradictory task of preparing the Mandate of Palestine for nationhood – based on the “advanced” state of development as defined by the League of Nations – while also securing a national home for the Jewish people, who on the most part were yet to arrive in the region. This took the form of two independent nations, one Jewish and one Arab, with Jerusalem declared an ‘international zone’. Despite opposition from the Palestinian Arabs and the neighbouring Arab governments, the United Nations Partition Plan was put into effect following the adoption of UN Resolution 181, which was passed by a General Assembly vote of 33 to 13 on 29 November 1947.

Amid attacks on civilians from both sides and the rejection of a suggested ten year cooling-off period (Goldschmidt and Davidson 2013: 265) the 1948 UN Partition Plan, which included no deterrent for either the Zionists or Arabs from engaging in war, went ahead as scheduled (Fox 1998: 20). With the Mandate for Palestine scheduled to end on 15 May 1948, the Jewish Agency Executive Committee formally declared the parts of Palestine under Jewish control as the independent state of Israel on 14 May 1948. The next day the governments of Egypt, Jordan, Iraq, Syria and Lebanon sent their armies into Palestine to fight against the state of Israel^[3]. The war ended on 10 March 1949 with victory for Israel, which as a result now occupied one-third more of the land allotted to them under the United Nations Partition Plan, in all seventy-five percent of the former mandate. While Israeli was compelled to defend itself against the Arab invasion, the war left Israel in occupation of territory not legally defined as theirs under international law.

Palestine and self-determination: Missing the boat?

Initially as a precaution, and later because of panic and the deliberate policy of the Israeli army, almost two-thirds of the Arab populations in the land now occupied by Israel left their homes and became refugees (Hourani 1991: 30). And, it was precisely as refugees that the Palestinians were represented at the 1949 Armistice Agreements held between Israel, Egypt, Lebanon, Jordan and Syria. Under the agreements the Gaza Strip was put under Egyptian administration while the West Bank was annexed by the Hashemite Kingdom of Jordan, who also took control of East Jerusalem – a massive step back, and set-back, for a people that were deemed to be ready for nationhood only nine months earlier. And so the situation remained throughout the 1950s, an era during which the issue of self-determination for the stateless Palestinian refugees became a moot point amid UN concern for the various border incidents between Israel and its Arab neighbours (Fox 1998: 21). While the chances of the Palestinian refugees’ right of returning to their land were diminishing due to Israel’s policy of right of return for Soviet Jews (Khalidi 1988: 5), the international community assumed that the Palestinian refugees would sooner or later be absorbed into the populations of the countries where they had sought refuge (Hourani 1991: 360). In short, in attempting to promote self-determination in Palestine and give the Jewish people a national home the United Nations failed to do so in the interests of international peace and security.

The passing of UN Resolution 1514 in 1960 may have been an apt time for the United Nations to resolve the issue of Palestinian self-determination and statehood, but it was not until 1967, following the Six Day War, that the Palestinian case for self-determination was taken up in any seriousness by the International community (Fox 1988: 24). The Six Day War began on 5 June 1967 with a series of allegedly pre-emptive strikes by Israel on Egypt, Jordan and Syria^[4]. The war ended in victory for Israel and their occupation of the Egyptian Sinai peninsula, the Syrian Golan Heights and the remaining areas of the Gaza Strip and the West Bank (including East Jerusalem). The Six Day War dealt a massive blow to Palestinian hopes of self-determination; not only were the hopes of Palestinian refugees returning to land lost during the Arab-Israeli War of 1948 “shattered and dashed” (Bayoumi and Rubin 2000: xxi), Israel was now in occupation of yet more Palestinian land, where it has ruled with impunity ever since. After an attack that left the entire Palestinian population under military occupation and in the face of Israeli settler colonialism, were they now considered to be waging their own anti-colonial struggle and worthy of the right to self-determination? Apparently not.

Formed in 1964, it was not until 1974 that the United Nations recognised the Palestine Liberation Organisation (PLO) as the “sole legitimate representative of the Palestinian people” and granted the organisation observer status at the UN. However, with no territory to show for it, nor an agreement on borders for a possible future independent state, had the Palestinians received their right to determination, or merely been granted self-determination in principle? Contrasting cases brought before the International Court of Justice (ICJ) regarding the granting of the right of self-determination, Jan Klabbers argues that over time the right to self-determination has been reconceptualised and reinvented as a procedural right as opposed to a substantive right. Self-determination as a procedural right, distinct from the substantive version that had granted self-determination in the form of sovereign nations, amounts to the right of “having your voice heard” and to be “taken seriously” by the international community (Klabbers 2006: 202).

Palestinian self-determination: Procedural right, colonial response

Although the Palestinians may have been untimely in organising themselves politically and thus expressing their will to self-determine^[5], the practice of self-determination, albeit as a procedural right, was taken up in all earnest again in 2014. In July 2013 the Palestinians had been persuaded to re-enter substantive talks with Israel for the first time in years on the condition that the Israeli government would release 400 Palestinian prisoners over a period of nine months. In return the Palestinian authorities would refrain from seeking further recognition within the framework of the UN – the organisation which, in theory, holds the internationally recognised legal basis for a solution to the conflict – a two state solution along the post-1967 Six Day War boundaries (a massive concession by the Palestinians)^[6].

The talks collapsed on 29 March 2014. A day after Israel defaulted on the final batch of prisoner releases Palestinian Prime Minister Mahmoud Abbas submitted applications for 15 UN human rights covenants and conventions. Even before the applications were accepted the Israeli government voiced its opposition to Palestine becoming party to the various UN instruments, which, while not affecting Israel’s current international legal obligations, would in fact put obligations on the Palestinian authorities to uphold human rights standards and laws-of-war^[7]. However, by Palestine seeking greater UN recognition Israel (and the United States) feared the Palestinians would “gain greater support for Palestinian statehood outside the framework of negotiations with Israel”^[8] – negotiations that since their commencement have been mediated by the most biased of brokers, the US government. Moreover, Israel feared that the Palestinian actions at the UN would lead to them applying to the International Criminal Court (ICC), which they did on 1 January 2015, and which they joined on 1 April 2015^[9]. As part of this rediscovered expression of self-determination, the de facto ruling parties of the Palestinians, Fatah and Hamas, formed a coalition government, a coalition contingent on Hamas recognising the state of Israel, denouncing violence and adhering to prior Israeli-Palestinian agreements (including those on borders)^[10]. The formation of this coalition was met with threats of punitive action from Israeli Prime Minister Benjamin Netanyahu and condemnation from the US^[11].

In 2006 after decades of an ineffectual and corrupt rule at the hands of the Fatah-led Palestinian Authority, Hamas won a democratic majority throughout Gaza and the West Bank. Hamas were voted for by Muslims and Christians alike, both groups including voters that while not necessarily subscribing to Hamas’ religious doctrine were in favour of its social program, which included the provision of vital services, such as schools, medical care facilities and charity and welfare organisations (Mishal and Sela 2006: viii). Furthermore, In contrast to Fatah, Hamas were at the time more adept at responding to the immediate hardships and concerns of the local population (Mishal and Sela 2006: vii). However, following the international community’s refusal to recognise Hamas and with that the democratic principles that they had been trying to promote in the region, some reckless Fatah members attempted to seize power from the elected government. A bloody Palestinian civil war erupted that ended with Fatah taking control of the West Bank and Hamas holding on to power in their long-time stronghold of Gaza – the Palestinians in the West Bank and Gaza were now completely divided, physically and politically. Since then, Hamas’ maintenance of power in Gaza has been met with the collective punishment of its entire population in which UK Prime Minister David Cameron finally acknowledged in 2014 is in effect an open air prison. In 2007 the Israelis began their blockade on Gaza, which saw them assume control of Gaza’s borders, airspace and coastline, resulting in the rot of the local economy and a deterioration in living standards for most Gazans. While it is true that rockets have been smuggled into Gaza via the so-called terror tunnels, so have essential living items as well as much needed (re-)construction materials. Despite withdrawing from Gaza in 2005, the Israeli blockade is considered by some an effectual occupation of Gaza, a claim refuted by the Israeli state and its supporters, despite Gaza being referred to as “Occupied Gaza” in the United Nations Human Rights report concerning the 2014 Gaza War^[12]. Aside from the continued control of Gaza, since the Israeli ‘disengagement’ Gaza has been attacked on multiple occasion with devastating consequences for the civilian population, more intensely so during the wars of 2008-9 and 2014. Each conflict and attack seeing the Israeli armed forces act contra to the international legal principle of responding to attacks with proportionality – that the anticipated benefits of waging a war must be proportionate to its expected evils or harms – resulting in the massive loss of civilian life on the Palestinian side, and no change to the status quo.

The Gaza War of 2014 and the cycle of violence

On 12 June 2014 three Israeli teenagers were kidnapped and murdered in the West Bank, a brutal crime for which Hamas were immediately blamed. In response the Israeli Defence Force entered Gaza in search of the people ultimately responsible. What followed was a heavy-handed Israeli response, in which 11 Palestinian were killed and scores injured, prompting Hamas to fire its first rockets into Israel for eighteen months^[13]. In response to the rocket fire from Gaza on 8 July 2014 Israel began Operation Protective Edge aimed at destroying the Gaza tunnel system. According to the United Nations as a result of the conflict more than 2,000 Palestinian civilians (the majority of Palestinian casualties) and seven Israeli civilians were killed. On 2 September 2014 Israeli newspaper Haaretz published a story reporting that after intensive interrogations, the Israeli security services concluded that the abduction and killing of the three teenagers “was carried out by an independent cell with no links to Hamas”^[14]. What did not feature so prominently in the pre-war justification was the killing of two Palestinian teenagers by Israeli security force snipers on 15 May 2014 – for which the killing of the Israeli teens was a month later was a revenge attack. Nor did the retaliation killing of a 16-year old Palestinian at the hands of Israeli settlers on 2 July. The cyclic nature of violence, unfortunately, is not as novel as Palestinian political action functioning outside of the so-called peace process.

The breaking of the divide between the Palestinians coupled with their actions at the UN represented a step towards internal and international legitimacy in line with spirit and historical developments of self-determination, in principle and in right, only to be met with condemnation by the US and (threats of) punitive action from Israel, largely due to the involvement of Hamas in the process. It is true that Hamas have been guilty of terrorism, provocation, and pose their own problems for Palestinian politics and society, yet recognising the extreme circumstances within which they function, meeting their rise to power and sometime willingness to be involved in negotiations with boycotts, punitive action, which result in the collective punishment of the Palestinian people goes against the historical development of the right of self-determination in international law both as a substantive and procedural right.

The historical presidents for negotiating and working with groups such as Hamas have already been set, not only within the wider context of the UN’s decolonisation strategy^[15] but also particular to the Palestinian-Israeli conflict. Currently represented as the secular, Israeli-friendly alternative to Hamas, Fatah were once considered, and represented as, violent Islamic extremists unworthy of negotiating with. On the Israeli side, among other government members once labelled terrorists, Israel’s sixth President Menachem Begin was a former leader of the Zionist paramilitary organisation Irgun, which during his tenure was responsible for attacks killing Jewish and Arab civilians as well as British mandatory officials prior to the establishment of the state of Israel, most notably the bombing of the British administrative headquarters in Palestine, the King David Hotel, in July 1946, killing ninety-one people.

Endnote

The literature on the ‘day-to-day’ colonisation of Palestine from and before 1948 is well versed. What has been detailed here is the nature in which Palestinian self-determination at a political level has been hindered and responded to in a repressive colonial manner with devastating effects for the Palestinian people. Because of this, what is needed is a reconceptualization of Palestinian violence (as stemming from a legitimate grievance) in order to inform a true peace-process in-line with the historical development of the right of the self-determination of peoples, and the “cessation of colonialism in all its manifestations”, within the context of international law^[16]. The subsequent understanding which this view promotes, that the stronger party, Israel, should make concessions to the weaker party, the Palestinians, for such progress to be made is present in modern Israeli discourse. Not long after the Israeli attack on Gaza in 2014, the Israeli newspaper Hareetz published a story detailing how 106 Israeli retired military generals and spy chiefs called on Israeli Prime Minister Benjamin Netanyahu to make the effort to push for peace with the Palestinians^[17]. The precursor to this realist sentiment can also be found in early Israeli discourse. In his 1978 book, The Jewish Paradox, Nahum Goldman, a prominent Zionist, also referred to as one of the architects of modern Israel, claims that his long-lasting friend and sometime rival, David Ben Gurion, the first Prime Minister of Israel (from 1948 – 1954) remarked the following during a private conversation which took place in 1956 between the two concerning the issue of the Palestinians:

“Why should the Arabs make peace? If I was an Arab leader I would never make terms with Israel. That is natural: we have taken their country. Sure God promised it to us, but what does that matter to them? Our God is not theirs. We come from Israel, but two thousand years ago, and what is that to them? There has been antisemitism, the Nazis, Hitler, Auschwitz, but was that their fault? They only see one thing: we have come here and stolen their country. Why should they accept that? They may perhaps forget in one or two generations’ time, but for the moment there is no chance.” ^[18]

Peace

Footnotes

1. ^{^} Charter of the United Nations – Chapter I: Purposes and Principles – Article I:

The Purposes of the United Nations are:

■ To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
■ To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
■ To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
■ To be a centre for harmonizing the actions of nations in the attainment of these common ends.

2. ^{^} Below are the resolutions adopted at the first International Zionist Congress in Basel, Switzerland, in 1897, taken from Goldschmidt JR., & Davidson (2013) 252:

The goal of Zionism is the establishment for the Jewish people of a home in Palestine guaranteed by public law. The Congress anticipates the following means to reach that goal:

■ The promotion, in suitable ways, of the colonisation of Palestine by Jewish agricultural and industrial workers.
■ The organising and uniting of all Jews by means of suitable institutions, local and international , in compliance with the laws of all countries
■ The strengthening and encouraging of Jewish national sentiment and awareness.
■ Introducing moves towards receiving governmental approval where needed for the realisation of Zionism’s goals.

3. ^{^} While the Arab invasion was as much in opposition to the establishment of the state of Israel in Palestine as it was for the protection of the Palestinian-Arab population, the Arabs were also acting upon their own regional ambitions. Transjordan’s King Abdullah had designs on a establishing a ‘Greater Syria’ incorporating Syria and Lebanon into the Hashemite Kingdom. This was opposed by the Egyptian and Saudis, of who the former aspired to be the leading Arab country (Goldschmidt and Davidson 2013: 298). This intra-Arab competition and resultant lack of co-ordination between the Arab forces was an important factor in the Israeli victory.

4. ^{^} The validity of Israel’s claims that it was truly acting in self-defence (deemed legal under international law, under Article 51 of the UN Charter) has been subject much debate, not to mention accusations of colonial intentions and ‘land grabbing’. For more see Chapter 4: Pre-emption and Preventive War in HM, Hensel, ed. The Legitimate Use of Military Force: The Just War Tradition and the Customary Law of Armed Conflict. (Farnham: Ashgate Publishing Limited, 2008) and Chapter 8: Pre-emption in A.J. Bellamy, Just Wars: From Cicero to Iraq. (Cambridge: Polity Press, 2006).

5. ^{^} It may also be argued that the Palestinians were unable to express their will to self-determine prior to the formation of the PLO. Not only due to actions of the Israel government, but also due to the regional ambitions of their Arab neighbours. United in their opposition to the state of Israel (and mistreatment of Palestinian Arabs), the Arab invasion of 1948 was also as much an extension of their own conflicting regional ambitions – [see footnote #3].

6. ^{^} See Chomsky and Pappe (2015) for a criticism of the two-state solution in favour of a one-state solution.

7. ^{^} ■ Convention on the Elimination of All Forms of Discrimination Against Women, adopted by the UN General Assembly in 1979 ■ International Covenant on Economic, Social and Cultural Rights, adopted by the UN General Assembly in 1966 ■ International Covenant on Civil and Political Rights, adopted by the UN General Assembly in 1966 ■ Convention on the Rights of Persons with Disabilities, adopted by the UN General Assembly in 2006 ■ International Convention on the Elimination of All Forms of Racial Discrimination, adopted by the UN General Assembly in 1965 ■ United Nations Convention Against Torture, adopted by the UN General Assembly in 1984 ■ United Nations Convention Against Corruption, adopted by the UN General Assembly in 2003 ■ UN Genocide Convention, adopted by the UN General Assembly in 1948 ■ Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the UN General Assembly in 1974 ■ Convention on the Rights of the Child, adopted by the UN General Assembly in 1989 ■ Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) ■ Convention with Respect to the Laws and Customs of War on Land (Hague II) ■ Vienna Convention on the Law of Treaties ■ Vienna Convention on Consular Relations ■ Vienna Convention on Diplomatic Relations.

8. ^{^} Human Rights Watch, “US: Stop Blocking Palestinian Rights” Human Rights Watch 6 April 2014 <http://www.hrw.org/news/2014/04/05/us-stop-blocking-palestinian-rights>.

9. ^{^} Palestinian acceptance to the ICC has given the court jurisdiction over war crimes, crimes against humanity, and genocide committed in Palestine, by the Israelis and Palestinians, in theory at least. Although the Palestinians have sought to charge Israel with the crime of Apartheid and several other counts including various war crimes, Israel is not party to the court’s Statute and thus have no legal obligations arising from the court’s rulings.

10. ^{^} The deal also saw Hamas turn over governance of to the Palestinian Authority (PA), The PA also sent several thousand security forces were sent to Gaza’s borders and crossings with no reciprocal positions for Hamas in the West Bank security apparatus – Noam Chomsky in On Palestine by Noam Chomsky and Ilan Pappe (2015: 187).

11. ^{^} The Guardian, “US has nothing to show as deadline for Israel-Palestine peace talks passes” 29 April 2014 <http://www.theguardian.com/world/2014/apr/29/israel-palestine-peace-talks-deadline-passes>

12. ^{^} For the full report, see here: http://www.ohchr.org/EN/HRBodies/HRC/CoIGazaConflict/Pages/ReportCoIGaza.aspx#report

13. ^{^} Hundreds of Hamas members were detained in the West Bank – many the same people that had been released in the recent Israeli prisoner armistice (Chomsky and Pappe 2015: xx)

14. ^{^} Haaretz, “Notes From an Interrogation: How the Shin Bet Gets the Lowdown on Terror” 2 September 2014 <http://www.haaretz.com/news/diplomacy-defense/.premium-1.613576>

15. ^{^} In which, despite committing acts of terrorism in their wars of independence, certain National Liberation Movements’ were brought into the political process in the interests of achieving peace.

16. ^{^} The UN Declaration on the Granting of Independence to Colonial Countries and Peoples, paragraph 6 <http://www.un.org/en/decolonization/declaration.shtml>

17. ^{^} Haaretz, 106 Retired Israeli Generals, Spy Chiefs Urge Netanyahu to Push for Peace 3 November 2014 <http://www.haaretz.com/news/diplomacy-defense/1.624251>

18. ^{^} The Jewish Paradox is the personal memoir of Nahum Goldman concerning the history of modern Jewry. They were published five years after the death of Ben Gurion, as such he was unable to comment upon the quote attributed to him.

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