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Statehood and International Protection of Peoples in Armed Conflicts in the ‘Brave New World’: Palestine as a UN Source of Concern

Published online by Cambridge University Press:  21 July 2009

Abstract

The East-West detente has uncovered the importance of statehood for the international protection of peoples in international conflicts. The importance becomes obvious from a comparison between the legal position of the Kuwaitis with that of the Kurds and, more in particular, the Palestinians in that respect. The Gulf war urged the Security Council to enforce Iraq's compliance with the 1949 Fourth Geneva Convention. The Council has also taken the position that Israel should apply this convention de jure in the 1967 occupied Palestinian territories, albeit lessforcefully. This is partly due to the fact that the UN itself has caused confusion concerning the legal status of these territories. History shows that the Palestine Mandate should not be considered as indivisible in such a way that the creation of Israel automatically implied the termination of the mandate as a whole. The Palestine Mandate still exists for the area of the Arab state, defined in the General Assembly Resolution 181 (II) of November 29,1947, recommending a partition plan for Palestine. Subsequent resolutions of both the General Assembly and the Security Council imply that the Palestinian people can only claim the West Bank including East Jerusalem -hereafter referred to as the West Bank- and the Gaza Strip as its future territory. The Palestinian people appears to have resigned itself to this fact of life since its acceptance of Security Council Resolutions 242 of November 22,1947, and 338 of October 22,1973. In doing so it has stopped any further erosion of its claim to an independent state by virtue of its right to self-determination. Neither the Gulf war nor an international peace conference on the Middle East can alter the new situation one bit anymore. For the first time since 1947 the General Assembly is now in the position to keep the promise of self-determination towards the Palestinian people as well. The 1950 advisory opinion of the International Court of Justice on the international status of South West Africa gives it a good point of departure for assuming its full responsibility for doing justice to the right to self-determination of the Palestinian people. Legally speaking the role of the UN in the development of the International Peace Conference on the Middle East is crucial for the future of Israel and Palestine.

Type
Leading Articles
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1992

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References

1. S.C. Res. 242 of Nov. 22. 1967.

2. U.N. G.A. Res. 2628(XXV) of Nov. 4, 1970 adopted by 57 against 16 with 39 abstentions.

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4. U.N. G.A. Res. 43/177 of Dec. 15, 1988, adopted by 104 against 2 (Israel, United States) with 36 abstentions.

5. U.N. G.A. Res. 437/176 of Dec. 15, 1988, adopted by 138 against 2 (Israel, United States) with 2 abstentions (Canada, Costa Rica).

6. Palestinian National Charter, Art. 19.

7. Id., Art. 20.

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15. In an effort to meet the arguments against the legality of the Palestine mandate Van de Craen goes too far when he considers the Palestine Mandate as sui generis in that the views and opinions of the Palestinian population were not as such legally binding upon the League and the Mandatory, supra note 14, at 276. Other mandates did not differ from the Palestine Mandate in that respect.

16. The expression civil rights in the Palestine Mandate might be understood as civil and political rights.The expression “has in English a political rather than a legal flavour, being close to the rotunder ‘civilliberties’ […] to be maintained not so much against other individuals as against the community as a whole, and particularly against the State as the focus of its power”. See Fawcett, S.E.S., The application of the European Convention on Human Rights 134 (1987). This explains that the “‘expressions ‘civil rights’ or’ civil and political rights’ have been adopted to describe the contents of the C.P.R. Covenant […]”, id., at 135, italics added PdW.Google Scholar

17. Van de Craen points out that the Palestine Mandate did not contain a direct provision for the granting of independence, supra note 3, at 276. However, according to Article 1. the mandatory had all powers so far as not restricted by the provisions of the mandate. These provisions did not exclude the (provisional)recognition as independent nation in accordance with Art. 22(4) of the Covenant of the League of Nations.

18. The Palestine Mandate offers an important example of the problems to which a radical change of international law may give rise. The Zionist movement have had an interest in upkeeping traditional law by virtue of which the United Kingdom as a victorious power could pave the way fora national home for the Jewish people and with that for the creation of Israel if necessary without regard to Arab opposition.The Arab states and the Palestinian people have been more interested in the immediate effect of the radical change, i.e. the unconditional application of the right to self-determination as a ‘sacred trust ofcivilization’. In this kind of situations international jurisdiction should have played an essential role. Seealso Tavernier, P., Recherches sur l' application dans le temps des actes et des regies en droil internationalpublic (Problimes de droit intertemporel on de droit transitoire) 310(1970).Google Scholar

19. The number of United Nations resolutions on Palestine and the Arab-Israeli conflict increased substantially in the course of years. They have been collected by the Institute for Palestinian Studies in Washington. Three volumes have been published up to now covering the periods 1947–1974.1975–1981and 1982–1986. Although the number of years decreased the number of pages increased from 294 (Volume I) to 393 (Volume 3).

20. U.N. G.A. Res. ES–7/6 of Aug. 19. 1982 calling for the free exercise in Palestine of the inalienable rights of the Palestinian people to self-determination without external interference and to national independence, adopted by 120 against 2 (Israel. United States) with 20 abstentions.

21. de Waart, P., Subscribing to the ‘Law of Geneva’ as Manifestation of Self-determination, the Case ofPalestine, in Delissen., A., Tanja, G. (eds.), Humanitarian Law of Armed Conflict: Challenges Ahead(Essays in Honour of Frits Kalshoven) 483484 (1991).Google Scholar

22. U.N. G.A. Res. 181 (II) of Nov. 29. 1947 recommending a partition plan for Palestine, adopted by 33 against 13 (Afghanistan). Cuba, Egypt, Greece. India. Iran. Iraq. Lebanon. Pakistan. Saudi Arabia. Syria, Turkey. Yemen with 10 abstentions (Argentina. Chile. China. Colombia. El Salvador. Ethiopia.Honduras. Mexico. United Kingdom, Yugoslavia): S.C. Res. 69 of March 4. 1949, recommending the admission of Israel to membership in the UN. adopted by 9 against I (Egypt) with one abstention (United Kingdom); U.N.G.A. Resolution 273 (III) of May 11. 1949, admitting Israel to membership in the UN, adopted by 37 against 12 (Afghanistan, Airma. Egypt. Ethiopia. India. Iran. Iraq. Lebanon. Pakistan.Saudi Arabia. Syria, Yemen) with 9 abstentions (Belgium, Frazil. Denmark. El Salvador. Greece, Siam (Thailand), Sweden, Turkey, United Kingdom).

23. U.N. G.A. Res. 43/176. See text accompanying note 5 and also U.N. G.A. Res. 45/68 of Dec. 6.1990 on the convening of the International Peace Conference on the Middle East, adopted by 144 against 2(Israel. United States) with no abstentions.

24. International Status of South West Africa. 19501.C.J. Rep. 132.

25. Schwarzenberger, G., International Law as Applied by International Courts and Tribunals (International Law, Volume I, third edition) 97 (1957).Google Scholar

26. As for East Jerusalem, the illegal Israeli annexation did not set aside the international status. Thismoreover holds true because Israel had accepted the intended international regime for Jerusalem as a whole. See U.N. G.A. Res. 194(111) of Dec. 11, 1948, adopted by 35 against 15 with 8 abstentions. This resolution was referred to by the admission resolution as well. See also infra note 48.

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29. International Status of South West Africa, 19501.C.J. Rep. 136–137.

30. Verzijl., J. International Persons. II International Law in Historical Perspective 569 (1969): “Impatient of the lack of progress in the liquidation of the Mandate, the United Kingdom took the unusual and, in my opinion, illegal step of authoritatively renouncing her Mandate as from 15 May 1948, thus provoking the unilateral proclamation of the sovereign Slate of Israel by those controlling the Jewish people, along the lines of the Partition Plan of 1947, a concentric attack by the surrounding Arab countries on the new State […]”.Id., at 106–107.Google Scholar

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32. Verzijl., J. supra note 30. at 559.Google Scholar

33. U.N. G.A. Res. 181 (II) of Nov. 29.1947. Plan of Partition with Economic Union. Part l(A. I).

34. Doc. ST/SG/SER.F/I/Part II, Ch. VI. The study was made by (he Special Unit on Palestinian Rights established by the UN Secretary-General under U.N. G.A. Res). 32/40/Fof Dec. 2. 1977, adopted by 95 against 20 with 26 abstentions.

35. See lastly U.N. G.A. Res. 45/67 A of Dec. 6.1990, adopted by 122 against 2 (Israel. United States)with 23 abstentions.

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38. See infra text accompanying notes 41 and 42.

39. van de Craen, F., supra note 14, at 277. His interpretation of the pertinent U.N. G.A. Res. 186 (S–2)would imply the UN General Assembly clearly acting ultra vires in the light of the ICJ opinion on the international status of mandated territories.Google Scholar

40. U.N. G.A. Res. 186(S–2)Pt. IlIofMay 14. 1948. adopted by 31 against 7 with 16 abstentions. Part II empowered a UN Mediator in Palesline, amongst others, to promote a peaceful adjustment of the future situation in Palestine. The efforts of the mediator resulted in the appointment of the UN Conciliation Commission for Palestine, which was instructed, amongst others, to take sleps to assist the governmentsand authorities concerned to achieve a final settlement of all questions between them. The main defect of that commission “has been its tendency to consider itself, rather purposely, a sole organ of conciliation, at a time when it was invested with other functions of a mandatory character”. Hamzeh., F. International Conciliation with Special Reference to the Work of the United Nations Commission for Palestine 148(1963).Google Scholar

41. This appears from the fact that the admission resolution refers to the partition resolution, see supra notes 22 and 26. The statehood of Israel is neither the result of U.N. G.A. Res. 181 (II) nor of the unilateral Declaration of Independence of May 14. 1948 but of the admission resolution.

42. U.N. Charter, Art. 18(2). See South West Africa voting procedure. 1955 I.C.J. Rep. 74.

43. Supra Para. 1.

44. But.see Rosiow's, E. comment in 84 AJIL 718719 (1990)Google Scholar on Roberts, A., Prolonged Military Occupation:the Israeli Occupied Territories since 1967. 84 AJIL 44103 (1990) and the lalter's reply, id., at 722. According to Roberts the “contrast with the South West Africa mandate, the continuation of which can be traced like a continuous thread through the International Court of Justice and UN decisions is striking.If the continued existence of the Palestine Mandate “were to be advanced seriously on the diplomatic level, it would be interesting to see what Israel and other UN members would take on certain key issues: (1) the measures taken to carry out its provisions over the years: (2) submission to the 1CJ of any disputes about its interpretation or application: and (3) possible modifications of its terms”.Google Scholar

45. Id. at 719. See also Dugard, J., The Enforcement of Human Rights in the West Bank and the Gaza Strip, in Conference Friefing No. 4 of Jan. 25, 1988Google Scholar of the International conference on the administration of occupied territories, organized by Al Haq Law in the Service of Man during Jan. 22–25. 1988; Al Haqis the West Tank affiliate of the International Commission of Jurists Geneva. Dugard suggested an indirect model for the enforcement of human rights in the occupied territories in which the General Assembly would request the International Court of Justice to give an advisory opinion on the legal status of theoccupied territories; Foy le, F. A., The Creation of the State of Palesline, 1/2 European Journal of International Law 301304 (1990).Google Scholar But see Crawford, J., The Creation of the State of Palestine: too much loo soon?, id., at 311312.Google Scholar

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47. Id., at 313.

48. U.N. G.A. Res. 273(111). supra note 22.

49. The admittance resolution also recalled U.N. G.A. Res. 194(111) of Dec. II. 1948 on. amongst others, the permanent international regime for Jerusalem. The pertinent Israeli declarations and explanations, of which the General Assembly took note in respect of the implementation of that resolution, stated amongst others: “The Government of Israel advocates and supports the establishment by the United Nations of an international regime for Jerusalem […]. If such a regime is established my Government will co-operate with it. […] Integration of the Jewish part of Jerusalem into the life of the Slate of Israel has taken place as a natural historical process arising from the conditions of war. from the vacuum of authority created by the termination of the Mandate, and from the refusal of the United Nations to assume any direct responsibilities. This integration, which is parallelled by a similar process in the Arab area is not incompatible with the establishment of an international regime charged with full juridical status for the effective protection of Holy Places, no matter where situated”. Consequently the UN condemned the annexation ofEast Jerusalem by Israel in 1980, S.C. Res. 465 (1980) of March I. 1980 and U.N.G.A.Res.35/207 of Dec. 16, 1980. As for the UN position on the termination of the mandate see supra text accompanying note 34.

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51. Res. of April 18, 1946. See International Status of South-West Africa, 1950 I.C.J. Rep. 137.

52. U.N. G.A. Res. 106(S-I)of May 15, 1947. According to (his resolution the Special Committee “shall conduct investigations in Palestine and wherever it may deem useful), receive and examine written or oral testimony, whichever it may consider appropriate in each case, from the Mandatory Power, from representative of the population of Palestine, from Governments and from such organisations and individuals as it may deem necessary […]”.

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54. Supra text accompanying note 24.

55. A. Roberts, supra note 44, at 101–102. Roberts has in mind questions such as whether the 1949 Fourth Convention relative to the Protection of Civil Persons in Time of War “is applicable in the occupied territories on a dejnre basis and in its entirety: whether the Convention embodies customary law, and ifso, to what extent; whether, in a prolonged occupation, there might be some room for variations within, oreven departures from, the law of occupation, and if so on what grounds”. See on the scope of applicability and the de jure versus de facto issue de Waart., P. supra note 21. at 484487.Google Scholar

56. However, this example does not apply as both the League of Nations mandate system and UN trusteeship system underlie the view that obtaining statehood should not depend on a unilateral decision of either the colonial (administering) powerorthe people(s) belonging to the non-self-governing territory.Foth systems reserved the right to grant independence to the Council of the League of Nations and theGeneral Assembly respectively; see Covenant of the League of Nations. Art. 22: U.N. Charter, Art. 85.

57. U.N. G.A. Res. 2625(XXV) of Oct. 24. 1970.

58. Id. and also U.N.G.A.Res. 1514 (XV)ofDec. 14.1960. Declaration on the Granting of Independence to Colonial Countries and Peoples. Para. 6.

59. Makinson., D. Rights of Peoples: Point of View of a Logician, in Crawford, J. (ed.). The Rights of Peoples 73 (1988): “A people is a kind of collectivity, or group of human beings: a State is a kind of governing and administering apparatus”.Google Scholar

60. U.N. G.A. Res. 3314(XXIX) of Dec. 14. 1974. The restriction of the definition of aggression to states only prevents (he Security Council from acting effectively in situations of civil wars such as the one which recently arose in Yugoslavia).

61. In itsS.C. Res. 688 of April 5, 1991 on humanitarian efforts in Iraq the Security Council explicitlyrecalled Article 2(7) of the UN Charter and reaffirmed the commitment of all member states to thesovereignty, territorial integrity and political independence of Iraq and of all states in the region.Moreover, S.C. Res. 706 of Aug. 15, 1991 made the effectiveness of the intended humanitarian assistance to the Iraqi peoples completely dependent on the willingness of the Iraqi government to export petroleumand petroleum products to an amount not exceeding $1.6 billion for the humanitarian purposes set out in the resolution and subject to a number of exceptionally severe conditions.

62. In its S.C. Res. 713 of Sept. 25.1991 the Security Council expressed its full support under Chapter VIII of the UN Charter -regional arrangements- for the collective efforts of the European Community with the support of the Conference on Security and Cooperation in Europe “‘consistent with the principles of that Conference”. These principles exclude any enforcement action against Yugoslavia without the consent of that state. It is true that the Security Council proclaimed underChapter VII ageneral and complete embargo on all deliveries of weapons and military equipment to Yugoslavia, but that decision was meant to protect the territorial integrity of Yugoslavia. This appears from the very first preambular consideration that Yugoslavia has welcomed the convening of the Security Council meeting.

63. This holds true in particular for Palestine, in my opinion, for the mandate system implies that the creation of Palestine is not so much a matter of the Palestinian people itself and of individual slates as of the UN General Assembly. See supra Para. 3.2 and infra Para. 5.

64. S.C. Res. 660 of Aug. 2. 1990.

65. S.C. Res. 662 of Aug. 9, 1990.

66. Mostyn., T. supra note 11.366.Google Scholar

67. Tothe., M. Occupation, Belligerent, in Femhardt, R., 4 Encyclopedia of Public International Law 65(1982).Google Scholar

68. S.C. Res. 674 of Oct. 29. 1990, preamble and Para. 3.

69. Id., preamble and Para. 6. See also S.C. Res. 666 of Sept. 13, 1990. Para. 2.

70. Fourth Geneva Convention. Art. 28. The same applies lo prisoners of war (Third Geneva Convention relative to the Treatment of Prisoners of War, Art. 23). It is noteworthy that, during the military action, the Security Council did not adopt any resolution on the Kuwaiti question, not even one condemning Iraq for violating the Third Geneva Convention in this and other respects. The explanation may be that S.C.Res. 678 of Nov. 28, 1990, authorizing member stales cooperating with the government of Kuwait to use all necessary means to uphold and implement S.C. Res 660 of Aug. 2. 1990 and all subsequent relevant resolutions, was too weak a basis to launch an armed attack. Putting violations of the Third Conventionto a vote might have challenged the alleged unanimity among the permanent members and the support of temporary members. The latter could have prevented the required affirmative vole of nine members.

71. S.C. Res. 674 of Oct. 29, 1990, Paras. 5 and 7.

72. Id., Paras. 8 and 9.

73. S.C. Res. 686 of March 2, 1991. preamble Para. 5.

74. S.C. Res. 686 of March 2, 1991, Para. 2(b) and 687 of April 3, 1991. Paras. 16, 18 and 19.

75. S.C. Res. 688 of April 5, 1991.

76. Id..

77. MSssner, J., Humanitarian Intervention, in fernhardt, R., supra note 9, at 212213.Google Scholar

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79. Kalshoven, F., Constraints on the Waging of War 5960 (1987).Google Scholar

80. Protocol II, Art. 1(1).

81. Id., Art. 1(2).

82. See Arts. 1, 3, 5 and 10.

83. International Covenant on Civil and Political Rights, Art. 4(2). See Chowdhury., S. Rule of Law in a State of Emergency 146148 (1989).Google Scholar

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87. S.C. Res. 666 of Sept. 13, 1990. The Committee referred to was established under S.C. Res. 661 of Aug. 6, 1990. It consists of all the members of the Security Council.

88. S.C. Res. 678 of Nov. 28, 1990.

89. Charter., U.N. Art. 48.Google Scholar

90. The Palestinian Declaration of Independence slates that U.N. G.A. Res. 181(11) of 1947 continues to guarantee the Palestinian people the right to sovereignty and national independence. Moreover, the Political Communique’ has accepted S.C. Res. 242 (1967) and 338 (1973)as the basis of the final settlementof the Palestinian question, thus recognizing Israel's statehood. See U.N. G.A. Res. 43/177 of Dec. 15.1988, adopted by 104 against 2 (Israel, United States) with 36 abstentions (including OECD member slates, except for Turkey and United States).

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92. See supra note 55.

93. Doc. S./27919/Add.l of Nov. I. 1990.

94. S.C. Res. 681 of Dec. 20, 1990 urged “the Government of Israel to accept Ihe tie jure applicability of the fourth Geneva Convention of 1949. to all Ihe territories occupied by Israel since 1967 and to abide scrupulously by the provisions of the said Convention”. On Jan. 4. 1991 Ihe President of the SecurityCouncil made the following stalemenl on behalf of the Council: “Die members of the Council […] reaffirmthe applicability of the Fourth Geneva Convention of 1949 to all the Palestinian territories occupied by Israel since 1967, including Jerusalem, and request that Israel, ihe occupying Power, fully comply with the provisions of the Convention”. See Doc. S/22046 of Jan. 4, 1991. This interpreiative siatement is in line with previous resolutions of the Security Council such as 446 of March 22. 1979 and 465 of March 1. 1980.

95. S.C. Res. 681 of Dec. 20, 1990, Para. 6. See also Doc. S/22472 of April 9, 1991. Report submitted to the Security Council by the Secretary-General in accordance with Resolution 681 (1990).

96. U.N. G.A. Res. 41/128 of Dec. 4. 1986.

97. The UN Declaration on the Right to Development was adopted by 146 against 1 (United States) with 8 abstentions (Denmark. Finland. Federal Republic of Germany. Iceland. Israel. Japan. Sweden and United Kingdom). As for Israel it may be argued that its abstention expressed a positive attitude, forotherwise it would not have isolated its reliable voting-pal. Unlike Israel Iraq is a party to the International Covenants on human rights.

98. Principle 6(1). The Declaration was adopted by the International Law Association (ILA) in 1986. See Report of the Sixty-second Conference held in Seoul. Aug. 24 to Aug. 30. 1986. at 1–12.

99. The UN Declaration on (he Right to Development recognizes that “development is a comprehensive economic, social, cultural and political process), which aims at the constant improvement ol'ihc well-beingofthcentirc population and of all individuals on the basis oflheiraclive. Tree and meaningful participation in development and in the fair distribution of benefits resulting therefrom”.

100. Chowdhury., S., de Waart., P. Significance of the Right lo Development, in Chowdhury., S., Denters., E., de Waart, P. (eds.). The Right to Development in International Law (forthcoming).Google Scholar

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102. The ambiguity on the legal status of the occupied Palestinian territories has been maintained by all parties concerned, including the United Nations. It seduced the General Assembly and ihe Security Council to be biased either towards the Palestinian people (General Assembly) or towards Israel (Security Council).

103. Chowdhury, S., supra note 83. at 62.Google Scholar

104. Hohmann., H., de Waart, P., Compulsory Jurisdiction and the Use of Force as a Legal Issue: The Epoch-making Judgment of the International Court of Justice in Nicaragua v. United Slates of America. XXXIV NILR 186187(1987).Google Scholar

105. UN. G.A. Res. 3379(XXX) of Nov. 10. 1975.

106. The creation of a home for the Jewish people in Palestine, secured by public law, was the main purpose of Zionism: E.J. Osmariczyk. supra note 12. at 956.

107. Such a conclusion may be drawn from the joint academic project “Dynamics of Self-determination”of the Arab Thought Forum (Jerusalem), the International Center for Peace in the Middle East (Tel Aviv).Rijksuniversiteit Gent. Katholieke Universiteit Nijmegen. Vrije Universiteil (Amsterdam) and the International Dialogues Foundation (Driebergen). see Denters., E., Klein, J. (eds.). Proceedings of the seminar ‘Economic aspects of a political settlement in the Middle East”. Nijmegen. April 18–21, 1990(1991); Panels, W. (ed.), Proceedings of the seminar “The Israeli-Palestinian conflict: security-dilemmasand -alternatives in the light of the Gulf Crisis’, Amsterdam. Nov. 21–24. 1990 (1991): M. Cogen, Proceedings of the seminar ‘The Israeli-Palestinian conflict: the impact of shifting perceptions on collective identities and political prospects’. Gent. Sept. 12–14. 1991 (forthcoming).Google Scholar