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ISRAELI-PALESTINIAN CRISIS: LEGAL ISSUES INVOLVED. By
INTRODUCTION Since the idea of the creation of the State of Israel was muted and the actual creation of the state of Israel in 1948, the whole territory known as Palestine before 1948 and in some cases, the whole of the Middle East has been engulfed in crisis and wars that seems to have no end in sight. In the last 18 months especially, since the beginning of the Intifada, no week passes without reports of deadly attacks with very painful casualties been recorded on both sides.
This paper intends to look at the issues involved in this crisis from a historical and legal perspective and then an attempt would be made to proffer suggestions or recommendation, which we believe would lead to the eventual achievement of a lasting peace for both peoples and the region as a whole.
It is important to point out from the onset that this work is not an attempt to propagate the arguments or ideals of any side involved in this conflict. In the same vein also, this work should not be seen as pro-Israeli, pro-Palestinian or pro-Arab; rather this work attempts to profer a realistic and practical approach and solution to this thorny problem plaguing the Middle East. This we would attempt to do, devoid of any sentiments, illusions or fantasies.
This paper has as its fundamental bedrock, the notion that peace would only be achieved in this region as a result of compromise and appliance of the spirit of give and take.
1 HISTORICAL BACKGROUND OF THE MIDDLE EAST CRISIS In the last quarter of the 19th century, there existed groups of Jews in Europe, some of whom were affluent and powerful, but generally, they were treated as second-class citizens in the countries where they lived. In Eastern Europe in particular, they were subject persistently to persecution, and in 1881, there was a series of pogroms in Russia, which stirred the consciousness of the Jews in the world into forming plans for their escape.1
For the Eastern Jews, Palestine could be the only destination. The pogroms led to the formulation in Russia of a movement called Hovevei Zion (Lovers of Zion) and also a large community of Jews in the Kharkov region within that movement formed another movement called Bilu. They proposed to secure a place in Palestine, through the aid of the Sultan of Turkey, in whose empire Palestine lay, but the Sultan was not interested in their cause.2
1.1 THE BALFOUR DECLARATION OF 1917 Influential Zionists, notably Dr. Chiam Weizmann saw their opportunity to press Britain for a commitment to provide a home for the Jews in Palestine and secured the help of Judge Louis Brandeis, a leading U.S. Zionist and principal adviser to president Woodrow Wilson in bringing the U.S. into the war on the side of the allies in April 1917. This led to the Balfour Declaration, which was contained in a letter from Arthur Balfour to Lord Rothschild on behalf of the Zionist Federation, dated November 2nd, 1917. It 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 the object, it being clearly understood that nothing shall be done which may prejudice the existing civil and religious rights of non-Jewish communities in Palestine, or the rights and political status of Jews in other countries'. The Arabs on their own part bitterly opposed the Balfour Declaration and the immigration of the Jews into Palestine.3
1.2 ALLOCATION OF THE MANDATE OVER PALESTINE On April 24th 1920, at the San Remo Conference, the Allied Powers decided to allocate the mandate over Palestine to Great Britain under the newly formed League of Nations. The terms included a restatement of the Balfour Declaration and provided that an appropriate Jewish agency should be established to advise and co-operate with the Palestinian Administration in matters affecting the Jewish national home and to take part in the development of the country.4
This gave the Zionist organization a special position, because the mandate stipulated it should be reorganized as such an agency if the mandatory authority thought it appropriate. Britain, however took over the mandate in September, 1923.5
The Arabs still bitterly opposed these developments and in 1936, there was an effective six months general strike of the Arab population, which was followed by a large-scale rebellion, which lasted until the outbreak of the 2nd World War.6
1.3 THE PARTITION RESOLUTION AND SUBSEQUENT CREATION OF THE STATE OF ISRAEL. Worldly sympathy was with the Jews due to the horrifying Nazi programme of exterminating Jews-a programme that was to reach even more frightful proportions after the outbreak of the war. This directly resulted in Jews all over Europe trying to escape into Palestine, but the British Government was against this mass immigration of Jews into Palestine, because it was against its official policy, which was stated in a white paper in 1939 that Britain would not continue to develop the Jewish national home beyond the point already reached. It was proposed that 75,000 more Jews be admitted over five years and then immigration should cease. Finally, it proposed that self-governing institution should be set up at the end of the five years7. This would have preserved the Arab majority in the country and its legislature.
Zionists and Jews generally regarded the white paper as a betrayal of the terms of the mandate and when the Jewish agency in New York in 1942 held an extra-ordinary conference, it completely rejected the white paper and reformulated its own Zionist policy.8 This action led to serious antagonism between the Jews and the Palestine Government before the war was over. The Jewish Agency started organizing the escape of Jews from Europe and the British Authorities in accordance with its 1939 policy tried to prevent their entry.
The attempt to stop the Jews from entering Palestine however, was a total failure. Furthermore, the Jewish agency had formed its own military organization, the Haganah and its shock troops, the Palmach and towards the end of the war, they embarked on a policy of violence designed to implement the 1942 programme. They successfully made the mandate unworkable and Britain referred it to the United Nations (which by then had replaced the League) on April 2nd, 1947.9
The U. N. Assembly sent a special commission (UNSCOP)10 to report on the situation. Its report issued on 31st August 1947 proposed two plans11: a majority plan for the partition of Palestine into two states, one Jewish and the other Arab, with economic union; and a minority plan for a federal state. The assembly adopted the majority plan on November 29th, 1947 by 33 votes to 13, with ten absentions.12 The plan divided Palestine into six principal parts, three of which comprising 56 percent of the total area were reserved for the Jewish state, and three with the enclave of Jaffa, comprising 43 percent of the area for the Arab state. It provided that Jerusalem would be an international zone administered by the UN as a holy city for Jews, Moslems and Christians13. The Arabs refused to accept this decision and in the subsequent disorders, about 1,700 people were killed. In April 1948, the Jewish forces launched a full-scale attack on the Arabs and by the time the mandate was terminated on May 14th 1948, about 400,000 Arabs had evacuated their homes to become refugees in the neighbouring Arab countries.
The mandate was relinquished by Britain at 6.00pm Washington time, at 6.01, the state of Israel was officially declared by Jewish authorities in Palestine; at 6.11 the United States accorded it recognition and immediately, the Soviet Union did likewise14.
1.4 THE MIDDLE EAST SINCE 1948 The Arab state belatedly came to the aid of the Palestinian Arabs, but the attempt to overthrow the new state failed and Israel was left in possession of more territory than had ever been allotted to her under the UN Partitioning Plan, including the new (non-Arab) Jerusalem.
The war of 1948 was concluded by four Armistice Agreements signed by Israel with Egypt, with Lebanon, with Jordan and with Syria15. The Arabs, however continued to insist that the creation of Israel was a usurpation of Arab territory and a denial of UN principles and despise the Armistice Agreements, the situation between Israel and neighbouring Arab States continued to be tense and explosive and was punctuated by breaches of the armistice. The most serious of these breaches of the armistice was the Suez war (1956-1957) 16.
In 1964, a Palestinian National Congress convened at Jerusalem and in the name of three million Palestinians proclaimed the establishment of the Palestine Liberation Organization (PLO), and its Political Programme, it was said, aimed at the restoration of the national rights of the Palestinians in their own country.
Ten years after the Suez war, on the 5th June 1967, Israel committed another aggression by launching a surprise attack on Egypt, Syria and Jordan. This was a short war that lasted six days, but during that time Israel was able to occupy the old city of Jerusalem, what remained of Palestine (the West Bank and Gaza Strip), the Sinai Peninsula and the Golan Heights in Syria 17. The UN and the world powers occupied themselves with the search for peace, and on November 22nd 1967, after many attempts, the UN Security Council adopted Resolution 242.
On October 6th 1973, on Yom Kippur, the Jewish Day of Atonement, Egyptian troops suddenly crossed the Suez Canal to the East Bank, washed away with water canons the sand walls erected by the Israel along the waterways, captured and occupied the East Bank for a distance of several miles. At the same time, the Syrian forces smashed their way into Syrian territory occupied by the Israel in 1967. But with American aid, the Israelis mounted a counter attack and made up all their losses and even attempted to advance on Damascus18.
Meanwhile the Security Council had been considering how it could bring the hostilities to an end. It finally adopted, on 22nd October 1973, Resolution 338, which ordered a ceasefire effective on that day and called upon the parties to implement Security Council Resolution 242 of 1967 and under appropriate auspices, to start negotiations aimed at establishing a durable peace in the Middle East19.
But the UN, despite the passage of resolutions every year calling for Israeli withdrawal, found all its efforts to devise a settlement blocked by Israel's refusal to relinquish its 1967 conquest. A dangerous mood of frustration enveloped the Middle East and the world community.
A permanent peace settlement suddenly seemed possible when President Anwar Sadat visited Jerusalem in November 1977 and addressed the Knesset (Israeli Parliament). Talks between Sadat and Prime Minister Begin of Israel continued, and after delays an unexpected breakthrough occurred in September 1978 after talks at Camp David in the United States of America under the guidance of President Carter when Begin and Sadat signed two Agreements20. But like all other previous initiatives, the Camp David Accord did not achieve much success because of fundamental differences on both sides.
The situation in the Middle East remained practically the same until November 15 1988, when Yasser Arafat, Chairman of the PLO in Algiers added yet another dimension to the whole crisis. He declared the independent State of Palestine, which according to him, would be situated in the West Bank and Gaza Strip, with East Jerusalem as its capital. Also in the Declaration, Arafat said the PLO now recognized Israel as a state and is ready to work out a settlement on the basis of Resolution 242 and 338. Since this Declaration, the State of Palestine has been recognized by at least 54 countries21, most of them Arab, Asian and African Countries.
However, despite the Algiers' Declaration, not much was achieved in arriving at a lasting peace to the Middle East problem, with America and Israel at that time refusing to recognize not just the state of Palestine, but also the Palestine Liberation Organization (PLO) who they branded as terrorists.
But on October 30th 1991, another hope appeared in the horizon, with wide- ranging peace talks beginning in Madrid between the Arabs and Israel. This was significant, because it was the first time Israel had attempted to sit at a convened conference with the Palestinians. But this, like other peace initiatives dragged on with no fruitful solutions coming up.
In 1992, Yitzhak Rabin won elections as the Prime Minister of Israel and he promised to reach an autonomy accord with the Palestinians within a year. On August 29 1993, Israel and the PLO reported that they had struck an agreement on Palestinian self-rule beginning in the West Bank town of Jericho and the Gaza Strip. Consequently on Monday 13th September 1993, the world virtually stood still in relief as the international media relayed the historic ceremony of the signing of a new peace accord between Israel and the Palestinian Liberation Organization. The 17 articles and 4 annexes of the accord indicates that they are firmly intended to lead to some final political settlement. The document, which was painstakingly drafted, covered at least in outline, the most sensitive concerns of both sides. It provided for Israeli withdrawal from the 365 sq. km. Gaza strip with its 770,000 Palestinians and the West Bank town of Jericho, an ancient Jordan Valley town of about 20,000 people, a thin silver of the 1 million Palestinians who live in the West Bank.
Within six months, according to the accord, Palestinians were able to take over the administration of these two places, with Israel retaining responsibility only for their external security and protection of Jewish settlers. The army will withdraw from Palestinian Population Centres in Gaza strip and the West Bank City of Jericho. This actually took place in May 1994, when Israeli troops withdrew from these areas and handed over these said areas to a Palestinian Police Force.
At the same time, according to this Accord, the West Bank will move towards what was called "early empowerment"; a kind of preliminary self-rule in education, health, social services and taxation. The Palestinians will also win control of the tourist industry, which had suffered greatly, but could be quite profitable. Israeli occupation authorities were to remain for a while, but only until a Palestinian Interim Self-Government Authority is elected to govern the whole of the territories22.
This interim deal, it was hoped would not last more than five years, and two years after it is in place, Israel and the Palestinians were to begin negotiating the emotionally charged arrangement for what will come next. The Palestinians insisting on having their own state, a result the Israelis were not (and are still not) eager to see. The hottest issue was (and still is) Jerusalem, which the Palestinians want as their capital, but Israel is vehemently opposed to this23.
It was hoped that this peace accord, which was referred to as "the peace of the brave" would lead to a gradual emergence of a Palestinian State and a Peaceful resolution of the Israeli-Palestinian crisis, but this dream has not quite been realized, though significant and landmark progress was made as a result of the signing of this accord. This accord led to the realization and establishment of the Palestinian Authority.
The peace process staggered on after this with various Prime Ministers emerging in Israel. In this respect, it is worth noting that with the election of Ehud Barak as Prime Minister of Israel in 1994 a lot of hope was raised in the horizon with both parties under the influence of Bill Clinton (former U.S. president) coming close to signing a Peace Accord. This accord, it was hoped would lead to the realization of a Palestinian State. But this, like other peace initiatives before it, sadly fizzled away.
In the year 2001, Ariel Sharon, a hardliner was elected as Prime Minister of Israel. His tenure in office as Prime Minister has been marked with unprecedented violence and terror being unleashed by both sides. As a matter of fact in the last one year, a week hardly passes without a suicide attack being launched by the Palestinian extremist and terrorist groups; or the Israeli Defence Forces responding violently to these suicide attacks by carrying out state sanctioned extra-judicial killings of suspected extremist and terrorist. In responding to these attacks, the government of Ariel Sharon is also pursuing a policy of systematically dismantling the structures of the Palestinian Authority and the gradual military occupation of Palestinian towns and villages.
This present state of affairs unfortunately has thrown the peace process or whatever is left of it in jeopardy and violence seems to be the order of the day now. The Americans, the European Union and the International Community is now watching helplessly as the Middle East has once again being turned into a theatre of unwarranted violence and bloodshed with no political agenda clearly on the table.
2.0 TERRITORIAL DEFINITION IN PALESTINE After the six-day war of 5th June 1967, the United Nations and the world powers occupied themselves with the search for peace. On November 22nd 1967, after many attempts, the UN Security Council adopted Resolution 242, which stated that the establishment of a just and lasting peace in the Middle East should include the application of the following principles: 1 Withdrawal of Israeli Armed Forces from the territories occupied in the recent conflict; and 2 termination of all claims or state 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 Security Council affirmed the necessity for: (a) Guaranteeing freedom of navigation through international waterways in the area; and (b) Achieving a just settlement of the refugee problem; (c) Guaranteeing the territorial inviolability and political independence of every state in the area through measures including the establishment of demilitarized zones.
Resolution 242 has been the basis of all peace negotiations since 1967. It is therefore important to mention this resolution, since we believe that it is the most realistic peace initiative on the Middle East crisis and in our opinion should form the basis of any peace negotiations between the Palestinians and the Israelis.
Yasser Arafat in his Algiers Declaration of November 15 1988 also accepted Resolution 242 as the only viable basis for peace in the Middle East. On the whole, Resolution 242 envisages and acknowledges two states in the territory formerly covering all of Palestine (i.e. the pre-1948 Palestine), which is essentially in accordance with the UN General Assembly Resolution 181 (11) or Partition Resolution of November 29, 1948.
2.1. THE ALGIERS DECLARATION OF NOVEMBER 15, 1988 For the first time since its 24 years of existence, the Palestine Liberation Organisation (PLO) through its parliament-in-exile, the 338-member Palestine National (PNC) declared on Tuesday 15th November 1988, an independent State of Palestine. Yasser Arafat, Chairman of the PLO, declared that the new state should be situated in the West Bank and Gaza strip with its capital in East Jerusalem.
A very important aspect of the declaration was the recognition of the State of Israel by the PLO and the acceptance of the UN Resolution 242 and 33824. In essence, the Algiers Declaration also envisages two states, which is essentially in accordance with UN General Assembly Resolution 181 (11) or Partition Resolution of November 29, 194825.
This Declaration was historic, because it was the first time that the PLO dangled on olive branch before Israel, resolving not just to accept Resolutions 242 and 338, but also recognized the state of Israel and its right to exist with its pre-1967 borders. Yasser Arafat also said that the PLO has renounced violence and terrorism and was prepared to work out a peaceful solution to the Middle East crisis.
It is important to point out here that the recognition of the State of Israel by the Palestinians through the Algiers Declaration in itself has some legal significance under international law. It is significant because where a state or an entity recognizes a state, the recognizing state acknowledges or recognizes the right of the state, new or old to such a territory that it occupies and cannot therefore lay a claim to such territory. Henry Cattan26, in discussing this said that: "where the recognizing state itself possesses a claim over such territory, then in such an event, recognition would be tantamount to a waiver of its claim"
In essence, recognition estops the state, which has recognized the title of a state from contesting its validity. This issue is particularly important because as mentioned earlier, the Palestinians bitterly resisted the creation of the state of Israel and questioned absolutely its legality; but by this recognition, they waived their claims over the territory occupied by Israel, at least within its pre-1967 borders as was clearly stated in the Algiers Declaration.
From this analysis, it is very clear that whatever rights the Palestinians have, can only be asserted in respect of the West Bank, Gaza Strip and East Jerusalem. This brief analysis is important, so as not to confuse the issue of the territorial claims of the Palestinians in Palestine. What this means essentially is the arrangement envisaged by the UN General Assembly, Partition Resolution 181 (11) of 1948 and Security Council Resolutions 242 and 338.
2.2 THE STATEHOOD OF ISRAEL It is important for us at this juncture to look at the question of the statehood of Israel, to see if it satisfies the requirements of statehood under international law as was clearly stated by Article 1 of the Montevideo Convention of 1933 on the Rights and Duties of states which provides that a state as a person of international law should possess the following qualifications: (a) a permanent population (b) a defined territory (c) a government, and (d) the capacity to enter into relations with other states.
At this point, we would attempt to ascertain whether or not Israel as a state has fulfilled or met the requirement stated above.
Firstly, with reference to the requirement of a permanent population, it is important to point out that a state need not have a fixed population, for people are constantly moving in and out of a state and because of natural causes like births and deaths, and sometimes unfortunate incidents like natural disasters and accidents, you cannot have a fixed and precise population of any country; but this does not detract from the requirement. Brownlie opines that this requirement must have been used in association with that of a stable community27.
What this means is that there must be some reasonably stable community occupying a territory. This is rather significant because in the absence of the physical basis for a community, it will be difficult to establish the existence of a state. With respect to Israel, its population according to the 1972 official census was 3,147,683 and the UN estimated 3,610,000 inhabitants in 197728. With this it could be safely concluded that Israel as a state has fulfilled the first requirement, having a permanent population.
Secondly, with respect to the requirement of a defined territory, the size of the territory or the population does not matter. The requirement of a defined territory does not necessarily mean having consistent and specific frontiers. Michael Akehurst states, "absolute certainty about a states frontier is not required, many states have long-standing frontier disputes with their respective neighbours."29
Ian Brownlie was even more explicit when he stated that: "There must be a reasonably stable political community and this must be in control of a certain area. It is clear from past practice that the existence of a fully defined frontier is not required and that what matters is the effective establishment of a political community."30 This then means that uncertainty as to the specifics of a country's borders does not necessarily negate the statehood of an entity.
In the light of this discussion, it is important to point out that despite the fact that Israel has been having border disputes since its creation, it could be said to have a defined territory under international law, since it has a stable community which is in control of a certain area or territory. Umozurike, writing on this matter states that: "The imprecision of state territory is not fatal: Israel was not clearly defined when it was admitted into the UN in1949. Thus, boundaries between adjoining states remain disputed"31.
Thirdly, under international law, a state must have government capable of maintaining effective control over its territory. In this context, a state could be said to be a stable community, supporting a legal order in a certain area. The existence of an effective government, with centralized and legislative organs is the most crucial evidence of effective government.32
With respect to Israel according to Funk & Wagnall's New Encyclopedia: Israel is a parliamentary democracy with supreme authority in the legislature. The nation has no written constitution The Head of State, the President, is elected by the legislature for a five-year term. The executive body is a cabinet of about 15 ministers headed by a premier. It remains in office as long as it retains the confidence of the legislature The Israeli legislature, or Knesset is a unicameral body of 120 members elected for four years on the basis of proportional representation Israel has two court systems, one civil, one religious in the late 1970's, Israel maintained a standing army of 128,000 persons and a small navy to augment the land forces.
With this, it could be conveniently concluded that Israel as a state is a stable political community with a government which has control over its territory and supporting a legal order with centralized and legislative organs.
With respect to the fourth requirement of statehood i.e. the capacity to enter into relations with other states, it is important to point out that the state is a political community in which one central political authority, the government represents the state internally and externally. Such a government must be capable of conducting relations with other states.
It is pertinent to point out that closely linked to this requirement of capacity to enter into relations with other states is the concept of independence. Many writers have stressed Independence as the decisive requirement of statehood. Brownlie states that: "in the enumeration contained in the Montevideo Convention, the concept of independence is represented by the requirement of capacity to enter into relations with other states".33
Looking at this very issue, it clears that to a very large extent, this contention is plausible, because the capacity to enter into relations with other states flows from the independence of that state, because strictly speaking a dependent state does not possess the capacity to enter into relations with other states. Independence, it must be pointed out is an essential attribute of statehood and it connotes the power to take decisions without reference to another party or authority.
With respect to Israel as a state, it is clear that it has the capacity to enter into relations with other states. From all indications, Israel is an independent state and has entered into relations with other states. It has diplomatic relations with other states, and it has economic relations with other states in terms of trade. Their main exports are polished diamonds, citrus fruits and their by-products, metals and textiles.34
On the whole, it could be said that Israel has fulfilled all requirements of statehood under International law as laid down by Article 1 of the Montevideo Convention on the Rights and Duties of States, signed on 26th December 1933.
In the same vein, it is also important to point out that Israel is recognized by about two-thirds of the states of the world with diplomatic relations with most of these states; and it is also a member of the United Nations. This is rather important because the normal method for a new state to acquire international personality is to obtain recognition from existing states or subjects of international law. Schwarzenberger,35 rightly spines that "there is no fixed form for the grant of international personality. The usual method is by a unilateral act of recognition".
And in defining international personality, the learned author says that: "International personality means capacity to be a bearer of rights and duties under international law. Any entity, which possesses international personality, is an international person or a subject of international law, as distinct from a mere object of international law."36
It can therefore be safely argued that Israel is a subject of international law acquiring all rights and duties that accrue from such international personality. It then follows logically that Israel is an entity, which has the right to protect its sovereignty and territorial integrity, and as such it cannot be ignored (as some extremist in the Middle East would want to). Also remarkably significant is the fact that the Palestinians (through the Algiers Declaration) have recognized Israel as a state and its right to exist within its pre-1967 borders.
It is also evidently clear from all these issues described above that any discussion on the legality of the creation of the state of Israel is now purely academic and at best could be viewed as a matter of mere historical and academic interest.
2.3 THE STATEHOOD OF PALESTINE Having discussed the question of the statehood of Israel, and concluded that the state of Israel is a legally constituted state within its pre-1967 borders, the next issue that naturally arises is the question of the statehood of Palestine.
It is important to point out here that in the Algiers' Declaration of November 15 1988, Yasser Arafat declared the independent state of Palestine. In that Declaration, Yasser Arafat declared that the new state would be situated in the West Bank and Gaza strip with its capital in East Jerusalem. At this juncture, we would try to ascertain whether this state could be said to have fulfilled the requirement of statehood under International Law. In our previous discussion on the statehood of Israel, we stated that Article 1 of the Montevideo Convention of 1933 on the Rights and Duties of states provides that a state as a person of International Law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) a government and (d) the capacity to enter into relations with other states. In the subsequent discussion, we would endevour to ascertain whether or not the Palestine have fulfilled or met these requirements stated above.
First, is the requirement of a Permanent Population. In 1948, the total population of Palestine amounted to 1,956,000 inhabitants, comprising 1,203,000 Moslems, 145,000 Christians and 608,000 Jews.37 This shows that before the creation of Israel in 1948, there were inhabitants there, who were citizens of Palestine. Also in 1964, when the Palestinian National Council convened at Jerusalem, it proclaimed the Palestinian Liberation Organization (PLO) in the name of three million Palestinians.38
Also of importance is the fact that despite Israel's occupation and developments of settlements beyond its pre-1967 territories, the West Bank, Gaza strip and East Jerusalem are predominantly Palestinian areas.
This shows clearly that there is sufficient evidence that in the West Bank, Gaza strip and East Jerusalem, there is a permanent Palestinian population and juxtaposing the discussion on the requirement of a permanent population as it concerns Israel, it is clear that there is a permanent Palestinian population and this satisfies the requirement of a permanent population under International Law.
The second requirement of statehood is that of a defined territory. In the Algiers' Declaration, Yasser Arafat declared an independent state of Palestine to be situated in the West Bank and Gaza strip, with East Jerusalem as its capital. But there is a problem; in 1967, Israel attacked and occupied the West Bank, Gaza strip and East Jerusalem and has since been militarily present there, despite calls for its withdrawal by many states and the UN as specifically embodied in Resolution 242 and 338. The crucial issue here is the legality of the occupation of the West Bank, Gaza strip and East Jerusalem by Israel.
First of all, the territory occupied by Israel was acquired through an act of aggression or war and as such could be said to be a belligerent occupation, which is not recognized under International Law as a means of acquiring title to any territory and as such could be said to be illegal. Lauterpacht39 states that: "title by conquest has been abolished". Cattan40 also states that: "conquest cannot give title and this is regardless of whether a conquest is or is not by itself an aggression".
In several resolutions concerning the Israel-Palestinian conflict and Israeli occupation of the West Bank and Gaza strip and the annexation of East Jerusalem after the war of 5th June 1967, both the Security Council and the General Assembly have proclaimed "the inadmissibility of acquisition of territory by war" or by military conquest41. Referring to the principle of inadmissibility of territory by war laid down in the Security Council Resolution 242 of 2nd November 1967, Quincy Wright stated that: "The principle goes beyond the principle of 'no fruits of aggression'. It says, there shall be no territorial fruits from war. Using the later term in material sense of a considerable use of armed force. Its application therefore, does not depend on determining who was the 'aggressor' in 1967 hostilities, a difficult question to answer. There can be no doubt that whether or not Israel was the aggressor, its occupation of territory was achieved by the use of armed force.42
Dr. Funso Adaramola writing on this issue also states that: "The fact is that International Law now places invariable obligation on states not to recognize any claim of title to territory based on military conquest or on forcible annexation. It is a general principle of law recognized by civilized nations that a legal right cannot flow from an illegal act, and since war and conquest have been outlawed under modern international law, acquisition of territory through the use of force constitutes an illegality which cannot confer title in any event. In short, conquest today is null and void ab initio and this nullity is incurable no matter the length of time that may have passed over it. Thus, no recognition of an illegal acquisition is possible".43
In 1966, the International Court of Justice furnished a judicial stamp of authenticity for the new principle when in the South-West Africa cases, Judge Jessup declared authoritatively that "it is common place that (modern) International Law does not recognize military conquest as a source of title".44
Also, the General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in accordance with the charter of the United Nations states that: "Every state has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the United Nations. Such a threat or use of force constitutes a violation of international law and the charter of the United Nations and shall never be employed as a means of settling international issues.
A war of aggression constitutes a crime against peace, for which there is responsibility under international law Every state has a duty to refrain from the threat or the use of force to violate existing international boundaries of any state or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of states.45
It is also pertinent to point out that the principle of non-acquisition of territory by conquest or aggression informed the reaction of the United Nations, the United State of America and the International Community when Iraqi troops invaded Kuwait in 1990 leading to the Gulf war in January, 1991.
Based on our discussion above, it is clear that the belligerent occupation of Palestinian territory certainly does not affect the statehood of Palestine. Brownlie,46 states that "it follows that illegal occupation cannot itself terminate statehood". He further states that "a belligerent occupation clearly does not affect statehood: the occupant ex hypothesis does not displace the territorial sovereign though the incident of statehood are affected."47
Dr Funso Daramola, in the same vein states that: "It is therefore submitted, that even though Israeli occupation and purported annexation of Arab territories in Palestine antedate the creation and existence of the Palestinian state and therefore these illegal acts cannot be said to be against the 'territorial integrity or political independence of another state', it is incontrovertibly an act which is clearly inconsistent with the purposes of the UN under the charter. The Israeli acts are also caught by the provision of the 1949 Draft declaration on the Rights and Duties of states, in that the purported annexation were obtained in a manner that is inconsistent with international law and order. Consequently, the purported territorial expansion by Israel into Arab lands beyond its pre- 1967 border is null and void and legally incapable of depriving the new Palestinian State of Sovereignty over the whole of its territorial possession. In spite of the Israeli occupation and annexation therefore, these territories are and continue to be Palestinian". 48
Also worthy of note is the fact that as mentioned earlier in our discussion on the Statehood of Israel, the requirement of a defined territory does not necessarily mean having consistent and specific frontiers. Micheal Akehurst in the same vein, states that, "absolute certainty about a State's frontier is not required, many states have longstanding frontier disputes with their respective neighbours".49
Also in the Duetshe Continental Gas case, the tribunal automatically declared: "In order that a State exists.it is enough that its territory has a sufficient consistency even though its borders have not yet been accurately demarcated".50 Speaking specifically on the State of Palestine, Dr Funso Adaramola states that: With respect to the requirement of territory, there can be no suggestion that the new State of Palestine is bereft of territory. Palestinian Arabs are no wandering Gypsies. The large issue however, may center on the ascertainability of the extent of boundaries of the Palestinian State, particularly in view of the fact that a substantial part of it is under military occupation of Israel. It is contended that in spite of the unascertainable nature of the extent or limit of its territory at present, the state of Palestine nonetheless qualifies for international recognition. At customary international law, it is not required that the territory of a community be thoroughly delineated or meticulously demarcated before it can be accorded recognition.
A few leading examples will be given in support of this submission; at the time when Albania was engaged in a territorial dispute with Greece concerning northern Epirus, it was admitted to the League of Nations in 1920. When Pakistan applied for the membership of the UN in 1947, it was embroiled with Afghanistan over the demarcation of its north- western frontier. In spite of this, Pakistan was admitted into the world body. Again when Siam (now Thailand) applied to join the UN in 1946, it was involved in a territorial dispute with France, yet it gained admission to the organization. Similarly, the frontiers of Yemen at the time of its admission into the world body in 1947, was far from being clear. Also, when in 1963, Kuwait filed its application for the membership of the UN, Iraq's claim of historic title to the entire Kuwaiti territory did not prevent the formers admission.
Paradoxically, the most germane precedent to the present Palestinian case is the admission of the modern State of Israel to the United Nations. Immediately after its proclamation of Statehood in 1948, the new state of Israel submitted its application for admission into the UN. At that time, Israel did not possess a defined territory and the Arab members of the world body were quick to point this apparent defect out. Yet by March 1949 and in-spite of this defect, all the members of the UN Security Council (except Egypt) and well over two- thirds of the entire UN General Assembly membership had recognized Israel. Speaking on that occasion as the US representative on the Security council with juristic accuracy, Professor Jessup (later a Judge of the ICJ) said that although the classical writers are not in full agreement on the point yet "both reason and history demonstrates that the concept of territory (of a state) does not necessarily include precise definition of the boundaries of that territory" 51
So in the light of these antecedents, we can safely and respectfully conclude that despite it's undefined boundaries, the occupation and /or annexation of it's territories the state of Palestine has fulfilled the second requirement for statehood.
The third requirement of statehood is that a state must have a government. A state must have a government capable of maintaining effective control over its territory. But it is pertinent to note that in the case of Palestine, it's territory is under the belligerent occupation of Israel despite the fact that on the basis of the 1993 Peace Accord between Israelis and the Palestinians, the Palestinian Authority was set up with some very limited security and administrative powers in some part of the West Bank and Gaza Strip. As a matter of fact it has been disheartening to note that in the last two months, Yasser Arafat, the president of the Palestinian Authority has been virtually imprisoned in his office in Ramallah by the Israeli defence forces.
The question that readily comes to mind is; under these circumstances described above, could the Palestinians be said to have a government? In answering this question it is pertinent to note that in the case of Palestine, its territory is under the belligerent occupation of Israel and therefore it is not possible for her to have an effective government in Palestine, which would be capable of maintaining effective control over its territory. In the last one year, under the government of Prime Minister Ariel Sharon, we have seen the Israeli Defence Forces under the guise of hunting down terrorists, carry out a massive military attack on the Palestinian people; where due to it's superior military edge over the Palestinians, extra-judicial killings and a systematic destruction of the infrastructural and bureaucratic structures of the Palestinians has become the order of the day.
Under the present state of affairs, it is not realistic for anyone to expect a government in Palestine, which is capable of maintaining effective control over its territories. This argument can be further enhanced by the fact that in the practice of states for instance, where a country is under belligerent occupation, the existence of a government-in-exile had been seen as a well-constituted government in the light of the situation. According to Brownlie52 " it is not correct to describe governments-in-exile as states without people or territory when the displacement is caused by a belligerent occupation". James Crawford also states that: "It is well established that belligerent occupation does not affect the continuity of the state; as a result, governments-in-exile have frequently been been recognized as governments of an enemy occupied state pendante belico"53.
It is pertinent to point out here that this argument makes a lot of sense, because you do not expect a state under illegal military occupation to have a representative government capable of maintaining effective control over it's territory. So based on this discussion above, we can safely conclude that the state of Palestine has fulfilled the third requirement of statehood.
The fourth requirement of statehood is that a state must have the capacity to enter into relations with other states. In this respect, it is important to point out that the state is a political community in which one central political authority, the government, represents the state internally and externally. Such a government must be capable of conducting relations with other states.
In our earlier discussions on the issue of statehood of Israel, we pointed out that closely linked to this requirement of capacity to enter into relations with other states, is the concept of independence. In the case of the state of Palestine, it is pertinent to point out that the Algiers' Declaration was a declaration of independence and as we noted earlier, the capacity to enter into relations with other states flows from the independence of that state.
It is worth mentioning at this juncture that one of the manifestations of the capacity to enter into relations with other states is the ability to evolve and sustain diplomatic relations with other states. In this respect it is important to point out that the declared state of Palestine has diplomatic relations with quite a number of states in Africa and Asia, including Nigeria. In the case of Nigeria for instance, the Palestinian ambassador to Nigeria was in 1993 doyen of the Diplomatic Corps. This in our humble opinion is evidence of the capacity to enter into relations with other states.
Based on our discussion above, on the requirements of statehood under International Law, it could be safely concluded that the state of Palestine as declared by Yasser Arafat in Algiers in 1988 has fulfilled the requirements of statehood as provided by Article 1 of the Montevideo Convention of 1933 on the Rights and Duties of States.
From the forgoing, it is safe to conclude that the territory known as Palestine before 1948, now legally has two states which are the state of Israel and the state of Palestine; which is essentially in accordance with the UN General Assembly Resolution 181(ii) or Partition Resolution of November 29, 1948 and Security Council Resolutions 242 and 338.
3. CONCLUSION In the course of this paper, a number of conclusions have been drawn in relation to the Israeli-Palestinian crises. In arriving at these conclusions we discussed the territorial definition of the area called Palestine before 1948. In doing this, we looked at the UN Security Council Resolution 242 of November 22, 1967 and we remarked that this resolution has been and should be the basis of all peace negotiations. We also discussed briefly the Algiers Declaration of November 15, 1988. In the same vein, we proceeded to look at the question of statehood of Israel and Palestine, and we concluded that the territory called Palestine before 1948, now legally has two states which are the state of Israel and the state of Palestine; which is essentially in accordance with the UN General Assembly Resolution 181(ii) or Partition Resolution and Security Council Resolutions 242 and 338.
It is important to point out here that the conclusion drawn above seems to be the only realistic and practical solution to the Middle East problem. That was why the Algiers Declaration and it's acceptance of resolutions 242 and 338 was seen by many observers worldwide as a laudable step toward the achievement of peace in the middle east. In it's editorial captioned ' Independent Palestine: A historic move', The New Outlook, a Nigerian daily newspaper stated that: The 15 November Proclamation was necessary if both peace and a homeland for the Palestinians must be guaranteed, because it seems that even though the proclamation of a Palestinian state appears to have come a bit late, Yasser Arafat is in tune with the true situation in the Middle East54
It is also important to note that it was a rather remarkable step taken when the Palestinians and the Israelis signed a peace agreement in September 1993 (the peace of the brave). This agreement led to the emergence of the Palestinian Authority. It was hoped at the time that this agreement would lead eventually to the emergence of a Palestinian state. If this momentum was sustained, the unprecedented violence being witnessed right now in the Middle East would have been avoided and we would have been close to seeing the realization of a Palestinian state.
It is important to point out here that the withdrawal of Israel to it's pre-1967 borders and the emergence of a Palestinian state is the only way true and lasting peace can be guaranteed in the Middle East. The European Union seems to appreciate this and it has consistently pursued this objective and has not in any way supported the agenda of the Israeli government under Ariel Sharon to destabilize and dismantle the Palestinian Authority. To achieve this, both parties must go back to the negotiating table, for this present cycle of violence being unleashed by both sides would only worsen the situation.
In this vein, the Palestinian Authority must do more to contain and curtail the incidents of terrorist attacks against the Israelis and the Israelis on the other hand must exercise restraint in it's handling of the crisis. This is why the latest peace plan by the crown prince of Saudi Arabia, Prince Abdalllah is noteworthy. According to this plan, Saudi Arabia and all the Arab states are willing to recognize Israel if it would withdraw to it's pre-1967 borders and allow the emergence of a Palestinian state. This Saudi plan seems to be in tune with the reality on the ground, for it is the only practical and realistic way to end this crisis that has gone on for over half a century.
It is however worth noting that on both side (i.e. Palestinian and Israeli) there are pockets of extremists who are committed to derailing and frustrating whatever peace plan is put on the table. For this group, there is the unrealistic vision of greater Israel or the illusion of control over all Palestine. It is also disheartening that for these groups of people, violence and terror is seen as a means towards achieving their goals. This is a rather sad dimension to the whole problem, because if such views are not discarded now, we would be very far away from achieving the long sought peace which the region badly needs.
It must be realized that what both sides should be straining towards is an abiding settlement based on the twin principles of security for Israel and self-determination for the Palestinians.
It must also be acknowledged by all concerned that peace will only come as a result of compromise and the appliance of the spirit of give and take. Rigid and hard-line positions would not achieve peace; rather, it would cause further violence and chaos in the region.
The Parties concerned should therefore realize that both lives and properties has been lost on both sides, but it is now time to forget all of these bitter experiences. They must as a matter of urgency, practicality and survival of the region, be prepared to forge ahead together as neighbors and brothers.
On the whole, the acceptance of UN Resolutions 242 and 338 is a key factor to the achievement of peace in the Middle East. Peace, it must be pointed out is urgently needed in the Middle East, because a lot of damage has been caused to both lives and properties. The International community and parties concerned must acknowledge the fact that both the Israelis and the Palestinians need a home where they can conveniently develop themselves as peoples and to freely develop their various cultures and religions and to give their children a sense of belonging and a home to live in and be proud of.
END NOTES 1. The Middle East and North Africa, 29th ed., (London: Europa Publications Ltd., 1982-83) pp. 468-469 2. Ibid. 3. Ibid 4. Cattan, H. Palestine and International Law, 2nd ed., (London: Longman, 1976) p.16 5. The Middle East and North Africa, op cit., p.469 6. Ibid. 7. Ibid. 8. Ibid 9. Ibid 10. United Nations Special Commission on Palestine 11. Cattan, H., op cit., pp 24-25 12. the Middle East and North Africa, op cit. 13. Ibid 14. Ibid 15. Cattan, H., op cit., pp 24-25 16. Ibid, p.26 17. Ibid 18. Cattan, H., op cit., 29-30 19. Ibid, p.30 20. The Middle East and North Africa, op cit., p.476 21. National Concord, November 28th,1988, p.6 22. Times, International Newsmagazine, September 13, 1993, pp.27-28 23. Ibid., p.28 24. News watch, News Magazine, November 28, 1988, Vol. 8.22, p.24 25. New Outlook, Sunday, November 27, 1988, p.7 26. Cattan, H., op cit., p.102 27. Brownlie, I., Principles of Public International Law, 3rd ed., (London: Oxford University Press, 1979), p.75 28. Funk and Wagnall's New Encyclopedia, Vol.19 (New York: Funk and Wagnall's Inc.) P.10 29. Akehurst, M. A. Modern Introduction to International Law, 4th ed., (London: Goerge Allen and Urwin, 1982), p.53 30. Brownlie, I., loz cit. 31. Umozurike, U. O., Introduction to International Law, (Ibadan: Spectrum Law Publishing, 1993) p.38 32. Brownlie, I.,loz cit. 33. Ibid. p.76 34. Funk and Wagnall's op cit., p.14 35. Schwarzenberger, G., A Manual of International Law, 6th ed., (Oxford: Professional Books Ltd., 1978) p.56 36. Ibid., p.42 37. UN Document A/AC 14/32, 11th November, 1947, p.304 38. Cattan, H., op cit., pp.36-37 39. Lauterpacht, H., Private Law Sources and Analogies of International Law, (London: Longman, 1970) p.107 40. Cattan, H., op cit., p.110 41. Security Council resolutions 242 of 22nd November, 1967, 252 of 21st May 1968, 267 of 3rd July 1967, 271 of 15th September,1969, 298 of 25th September, 1971, and General Assembly Resolutions 2628 of 4th November 1970, 2799 of 13th December 1971, and 2949 of 8th November 1972. 42. Wright, Q., The Middle East Problem, (1970) AJIL, p.270 43. Adaramola, F., The Recognition of the state of Palestine: A score Evened at International Law, (1990), the Calabar Law Journal, Vol. III, No.1, p.174 44. SAW Cases, 2nd Phase, (1966) ICJ Reps.6 at pp. 418-419 45. Brownlie, I., ed., Basic Documents in International Law, 2nd ed., (Oxford: Oxford University Press, 1972), pp.34-35 46. Brownlie, I., Principle of Public International Law, 3rd ed., (Oxford: Oxford University Press, 1979) p.68 47. Ibid 48. Adaramola, F., op cit., p.172 49. Akehurst, M. A., op cit, p.53 50. Cited by Adaramola, F., op cit., p.173 51. Ibid 52. Brownlie, I., op cit., p.83 53. Crawford, J., The Creation of States in International Law, (oxford: Clarendon Press, 1979), p.407 54. New Outlook, Sunday, November27, 1988, p.7. Echeonu is a legal practitioner and lecturer in the University of Jos, Nigeria. I obtained my Bachelor of Laws in 1989 from the University of Jos and was called to the Nigerian Bar in the subsequent year. I also hold a Masters degree in International Law from the University of Jos and I am currently working on my PHD thesis, which is focusing on the United Nations and Peace Enforcement: The Operational and Legal framework. April 2002
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