Who
Speaks For The Palestinians?
By
Dan Lieberman
19 December,
2007
Countercurrents.org
It
is obvious who will speak for Israel at the peace negotiations. Israel’s
elected officials, despite some well-managed contrary rhetoric, will
speak for Israel, and probably offer no significant concessions. Israel’s
Vice Premier Haim Ramon has already clarified the future of the negotiations
by a statement that circulated in an Associated Press report, Dec, 9,
2007: “Israel intends to hold on to all Jewish neighborhoods in
Jerusalem, a position that undercuts the Palestinians' claim to the
eastern part of the city for their future capital.”
Who can speak
for Palestine? The West Bank Palestinians are economically and politically
separated from their relatives in Gaza, and both operate separately
from the Palestinian community in the Diaspora. Hamas is divided. Fatah
is divided. The Palestinians have no cohesion to create a unified voice,
no power to present a coherent voice, no means to manage a compromising
voice. It seems that the Palestinians have no voice, but the appearance
is deceiving; the Palestinians have potent voices of international law
and international reason. A major problem is they lack active support
from an international community that has been negligent in providing
the necessary means to implement United Nations (UN) resolutions and
mandating accepted international laws.
Legal voices
have been quietly suppressed; their arguments confined to conferences
and journals. These voices are receiving a renewed impetus to take the
stage in this decades old struggle and be heard before international
institutions, and for good reason; the route described by international
law might be the only road that has a solution which brings peace with
justice to the Middle East. A disparity between contenders that does
not allow for meaningful negotiations has provoked the international
community to re-examine resolutions that censored Israel’s checkered
development.
Several interlocutors
have presented the need for intercession of international law in the
Palestinian/Israeli dispute. (Isn’t the use of law the accepted
measure for resolving international disputes?) Many of the legal opinions
support the Palestinian case before the court of law. These opinions
from respected international legal experts, which give a voice to the
Palestinians, cannot be conveniently summarized. Nevertheless, some
of their more cogent arguments illuminate the legal thrust.
Note: The
specific arguments are only presented in order to demonstrate that the
legal aspect is most important in resolving the struggle and that the
Palestinians have a sympathetic legal voice. There is no intent to conclude
these are the only legal opinions and that these opinions are the final
conclusions from international laws governing the dispute.
Ohio State
University Law Professor John Quigley, in a lecture at a 1999 Case University
symposium: The Legal Foundations of Peace, and prosperity in the Middle
East: The Role of Law in a Palestinian-Israeli Accommodation, explored
the issues to be addressed in final status negotiations.
“The
United Nations had long viewed the rights of the Palestinians as being
in jeopardy, particularly since the 1967 war, when Israel occupied the
Gaza Strip and the West Bank of the Jordan River, two sectors of historic
Palestine that it had not occupied in 1948. As suggested by the United
Nations General Assembly, an international conference would be convened
with certain principles understood in advance to protect the rights
of the Palestinians. These rights would include the right of return
for displaced Palestinians, the right of self-determination of the Palestinian
people and their right to establish a state, an Israeli withdrawal from
the Gaza Strip and West Bank, including Jerusalem, and a rejection of
the permissibility of Israeli settlements in the Gaza Strip and West
Bank. The United Nations had previously determined Israel to be in violation
of international law on these issues. Thus, protection of rights was
built into the contemplated peace process.
That approach
was abandoned, however, in 1991, when the United States and the Soviet
Union hosted a conference in Madrid to promote instead a negotiation
between the two parties alone, rather than an international conference,
and with no explicit prior specification of the rights to be protected.”
Borders –
“Belligerent occupation yields only a right of temporary possession,
not title to territory. The sovereign right of the legitimate sovereign
remains intact, even though it is not able to exercise control. Thus,
even apart from what Resolution 242 may mean, Israel is under an obligation
to withdraw from the Gaza Strip and West Bank.”
Settlements
– “Under the law of belligerent occupation, the establishment
of civilian settlements is unlawful. Article 49 of the Geneva Civilians
Convention states, "The Occupying Power shall not . . . transfer
parts of its own civilian population into the territory it occupies
“
Displaced
Persons – “The only exception to a right of return is that
in which a person voluntarily takes on a new citizenship in a manner
that indicates a renunciation of residency rights in the former locale.
The right of return is not defeated by a change in sovereignty in the
territory from which a person was displaced…This norm requiring
a state to repatriate the displaced is followed in international practice.
In dealing with military conflict situations, the United Nations Security
Council requires states to repatriate the displaced.”
“An
Israel-P.L.O. agreement that fails to vindicate the legally protected
interests of Palestinians would leave claims of individuals to be resolved
by whatever international mechanisms that may be in a position to consider
them. Rather than resolving the outstanding issues, such an agreement
would let these issues fester, causing difficulties for decades to come.”
Jerusalem
- “In the absence of any legal base put forward by Israel itself,
various scholars have argued, in support of Israel's claim to sovereignty
in Jerusalem, that Palestine had no sovereignty when Great Britain abandoned
in 1948 its League of Nations role as mandatory power in Palestine.
According to this argument, Palestine was open to occupation by whoever
might take it, and on this basis Israel has sovereignty over whatever
territory it controls, including west Jerusalem from 1948, and east
Jerusalem from 1967. This theory enjoys little following, however, because
under the League of Nations arrangement, sovereignty lay in the community
of citizens of Palestine, not in Great Britain. A population under a
League mandate was deemed to be a subject of international law with
a legal interest in the territory that was separate from that of the
mandatory power. In Palestine under the mandate, the inhabitants carried
a Palestinian citizenship. When Britain withdrew, the community of citizens
was entitled to exercise sovereignty. The majority of that community
of citizens was represented by a political organization, the Arab Higher
Committee, that was recognized by the United Nations, and which asserted
a right to establish a government for Palestine. Thus, Britain's departure
left no void of sovereignty…The international community has given
little support to Israel's claims over Jerusalem. Regarding the eastern
sector, it has considered it to be under belligerent occupation, and
therefore not subject to appropriation by Israel. Regarding the western
sector, it has continued to view the proposal for an internationalized
status as viable, and nearly all states that maintain diplomatic relations
with Israel have declined to locate their embassies in Jerusalem.”
In another
article "International Law and the Palestinian Refugees,"
Hastings International and Comparative Law Review, 2005 Professor Quigley
argues “that the conflict is best understood – and poses
the greatest chance of ultimate resolution – in the context of
international law.”
“that
under the established norms of international law, the Palestinian people
have been unlawfully displaced and have a right to repatriation that
is not able to be negotiated away through the international political
process…The displaced Palestinians should not have to lobby for
their right of return vis-à-vis Israel or vis-à-vis the
Palestinian leadership. The right is guaranteed by human rights norms.
Just as a state that tortures is obliged to desist without being cajoled
and without negotiation, so a state that refuses to repatriate is obliged
to desist, namely, by repatriating.”
Anthony D'Amato,
Leighton Professor of Law, Northwestern University School of Law presents
controversial opinions in his legal survey of the conflict in an article:
The Legal Boundaries of Israel in International Law, JURIST, April 8,
2002
“…the
Kellogg-Briand Peace Pact of 1928, as definitively glossed by the International
Tribunal at Nuremberg in 1948, has abolished forever the idea of acquisition
of territory by military conquest. No matter who was the aggressor,
international borders cannot change by the process of war. Resort to
war is itself illegal, and while self-defense is of course legal, the
self-defense cannot go so far as to constitute a new war of aggression
all its own. And if it does, the land taken may at best be temporarily
occupied, but cannot be annexed. Thus after all the wars, the bloodshed,
aggressions and counter-aggressions, acts of terror, reprisals, and
attendant UN resolutions, nothing has changed the legal situation as
it existed after Resolution 181 in 1947. The legal boundaries of Israel
and Palestine remain today exactly as they were delimited in Resolution
181.”
Professor
D’Amato examines another aspect of the controversy in an article,
THE WEST BANK WALL, JURIST Guest Columnist, February 24, 2004
“In
my view, the controversy does not solely concern Israel and Palestine.
Palestine, it will be recalled, was a Mandate under the League of Nations.
Unlike the League’s other mandated territories, it was not transferred
to the UN Trusteeship Council when the League dissolved in 1946. But
the lack of transfer does not mean that the mandate expired, any more
than the death of a trustee would terminate a trust. The “administration”
of the Palestine Mandate legally devolved upon the General Assembly.
In 1947, the General Assembly passed a resolution partitioning the Mandate
into two areas, one to be governed by a new Jewish state and the other
to be governed by a new Arab state. Although Israel became a state in
1948, Palestine did not become a state. In my reading of this (admittedly
complex) history, the Palestine Mandate has therefore never legally
been terminated. Until it is terminated-that is, until a new Arab state
is created-the General Assembly retains its supervisory powers over
the Palestine territory. While the extent of that supervisory power
is disputable given all the events that have occurred since 1947, at
the very minimum it entitles the General Assembly to retain a legal
interest in the proper disposition of the mandated territory.”
International
law is neither precise nor entirely accepted by all nations. Nevertheless,
it has been used together with other means to resolve similar conflicts
in South Africa, Rwanda, Bosnia and Kosovo. The Palestinian/Israel conflict
begs for the force of de jure and the forces of nations; the same economic,
political, material and military forces used to resolve previous disputes.
Those who are concerned with the effects on Israel by imposition of
international law should realize that if Israel is lessened by international
law, it will only be due to Israel having ignored international law;
if Israel is reshaped by the context of international law, it will only
be due to Israel having distorted the context of international law in
order to reshape the Middle East in accord with its own vision.
Everyone
should realize that the conflict goes beyond the Israelis and Palestinians.
This conflict has bred terrorism, caused other severe conflicts, stimulated
arms races, strengthened religious extremists; brought death and destruction
to many parts of the globe and has a tendency to engulf our entire civilization
in a cataclysm. The international community must be assured that the
solution is not worked to suit the agenda of a relatively few; but correctly
responds to the alarms of all.
The inability
to force responses to UN resolutions and provide a legal context to
the Israeli/Palestinian conflict is a principal reason for continuation
of the decades old conflict. The corollary is that only enforcement
of UN resolutions and adherence to international law will resolve the
conflict.
Dan Lieberman has been active in alternative politics
for many years. He is the editor of Alternative Insight , a monthly
web based newsletter. He can be reached at [email protected]
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