Bo J Theutenberg

Presentation of the author:

Ambassador Bo J Theutenberg, LL D, started his diplomatic career at the Swedish Ministry for Foreign Affairs in 1966. He was appointed the Ministry’s Chief Legal Adviser on international law in 1976 as well as he was Professor of international law at Stockholm University. He was appointed ambassador in 1982. He has served as a diplomat in Baghdad, New York and Moscow. He has been lecturing in sharia-law at several universities, i. a. in Amman in November 2001. In 2002 he was appointed professor of international law (specialising in the Palestine and Middle Eastern situation) at the University of Jordan in Amman. He is among the founders of the Middle East Institute of International Law in Amman, Jordan. This book is based upon his works in international law, including studies of the Israeli-Palestinian conflict and studies of the Islamic sharia- law, especially the concept of jihad.

© Bo J Theutenberg

Published by Bo J Theutenberg and the Middle East Institute of International Law, Amman, Jordan. Address: P.O. Box 940909, Amman 11194, Jordan

ISBN 91-631-4097-7

Printed in Sweden 2003 Solveigs Tryckeri, Skara

Palestine, Iraq and International Law

Bo J Theutenberg

Is ”customary law” moving in the direction of a paradigm shift in the corpus

of International law?

The importance of utilising arguments based on international law

A brief history of the Palestinian question

The Hussein – McMahon Letters of 1915

British support to an independent Arab Nation – the Mandate of 1920

The Balfour Declaration of 1917 – ”the Jewish National home scheme”

The Palestinian question before the United Nations in 1947

The UNSCOP Committee’s Partition Plan of 1947

U N General Assembly Partition Resolution no 181 of 1947

The Israeli proclamation of independence 1948

The rights under international law of the Arab Palestine state

The responsibility of the U N Security Council and the U N General Assembly

Israeli annexations and occupations are illegal under international law

Secure and Recognised Boundaries – the Refugee Problem

The State of Palestine – a Unilateral Proclamation of Independence and Full Statehood

Is ”customary law” moving in the direction of a paradigm shift in the corpus

of International law?

There are three events in particular that make it necessary to reanalyse the substance of the rules of international law, namely the terrible event of 11 September 2001 in New York and the subsequent wars in Afghanistan and Iraq. These three events touch deeply upon Arab/Islamic countries as well as upon Islamic law, sharia-law. The event in New York was immediately coupled to the concept of jihad (the holy war), and automatically all was linked to Islam and sharia-law. It was the ancient concepts of sharia-law that were more or less automatically seen as the platform for the hostile attacks. The terror attacks released in their turn a broadened interpretation of the right of self-defence and the military action against Afghanistan. Here the U N Security Council played an active role, by legitimising a broader interpretation of the right of self-defence.

After the acts of terror in New York on 11 September 2001 Chapter VII of the U N Charter was invoked in connection with the unanimous adoption of Security Council Resolution No S 2001/1373, which was preceded by the unanimous Security Council Resolution No S 2001/1368, both supporting United States action against terrorism. Even though an armed attack does not emanate from a state, actions are allowed to be taken under the concept of the right of self-defence against terrorist networks. It seems that such a concept has already become a recognised part of the customary international law.

Soon after the military action against the Islamic country of Afghanistan the US-led coalition marched against the Islamic country of Iraq under the assumption that Iraq was harbouring weapons of mass destruction and that the country constituted a threat to world peace. The military action against Iraq was however launched without the authorisation of the U N Security Council, the body that was created by the World Community in 1945 to handle threats to peace. In accordance with treaty law, and here it should be stressed that the U N Charter is binding on all states because they have voluntarily signed the Charter, it is the U N Security Council alone that is authorised to release the use of force against another country. No single country has the right to act as a substitute for the Security Council, or to act in place of the Security Council, or to take upon itself to carry out the duties of a ”failing” Security Council.

The UN Charter of 1945 is not construed so as to give a single country, or a group of countries, the right to use force against another state, no matter how grave accusations are brought forward against that state. This is basically a question of respect for treaty law, and respect for the signature that a state once put under the U N Charter in 1945. Is a state allowed, under its own discretion, to disregard its duties as a signatory to the U N Charter? Or is there a kind of constitutional development regarding the U N Charter that nowadays gives a state, or a group of states, the ”right” to use force against another state without the authorisation of the competent body of the U N, namely the Security Council?

Has this something to do with the weakness of the United Nations system? Every time atrocities occur, every time human lives are spilled, every time human rights are trampled upon, it is usually not the United Nations that has the power to intervene physically. Usually, it is a coalition headed by the only remaining superpower the United States that intervenes. Since the sources of international law are made up of treaty law as well as customary law, the argument could very well be put forward that what we are really witnessing in world politics, as well as in the corpus of international law, is a development along the lines of customary law, through which an opinio juris seems to materialise that it is the ”right” of the only remaining superpower, because of the weakness of the world organisation, to take upon itself to organise different kinds of armed interventions here and there worldwide.

During the past decades, no doubt we have witnessed how some kind of right of ”armed humanitarian intervention” has developed in customary law, for the purpose of saving lives in urgent situations. The question may be put whether we are now witnessing the development of a phenomenon that may be called ”intervention for democracy” in customary law? One should not underestimate the force of customary law as one of the weighty constituent factors in the corpus of international law. The truth is that a development of the rules of international law usually starts with some kind of ”breaches” of the established rules of international law. Here the development of the Law of the Sea may be taken as good example. The states that first moved their sovereign rights outwards into the High Sea were surely breaking treaty law as well as customary law. But by once starting a development of this kind customary law was set in motion. The result was the new Law of the Sea Convention, confirming all originally illegal moves made by states.

The fundamental question for the stability of international law is whether we are now witnessing the same kind of motions in the corpus of international law? It must surely be stressed that the corpus of international law is not static. It moves along with the political developments in the world. The present day rules of international law are not the same as those existing during the 17th century, when Hugo Grotius laid the foundation for so called modern international law. Modern international law grew up in a European environment and surely became a Euro-centric creation. Since its birth, modern international has progressed hand in hand with the increasing strength of the European colonial powers, dominating – also legally – other parts of the world.

International law (juris gentium), the law of order among sovereign states, can never be static. Since world politics move on, political conditions change. Powers come and go. New powers are created, others disappear, e.g. the empire of the Soviet Union. This could be seen as being of the same magnitude as the fall of the Roman Empire in the 5th century. Rome governed the world, Rome was the centre. Rome owned the world! After the fall of Rome history changed – as did Roman law – and also the rules of inter- state relations. There is no need to describe the history of the development of the ”national sovereign state”, but the concept of ”nation” and the concept of ”sovereignty” has long been the lode star for inter-state relations. Since the world came to consist of sovereign and independent nations it became necessary to develop some kind of body for inter-state cooperation. This was necessary to maintain peace and stability among the sovereign nations.

After the 1^st World War, the League of Nations was created by the Versailles Peace Treaty of 1919. The sovereign states ”gave away” some parts of their sovereignty to the organ of inter-state cooperation. This construction could not face the threats preceding the outbreak of the 2^nd World war. At the end of this war, the United Nations was created by the victorious powers. For political reasons, the U N Security Council came to harbour five permanent members, the victorious powers of the 2^nd World War. This was the balance that was necessary to give birth to the new organ for inter-state cooperation.

But after the fall of the Soviet Empire, and all subsequent dramatic changes in world politics, experiences from history should tell us that the rules for inter-state relations and behaviour are again under the process of change. Here reference could be made to what was said earlier about the force of customary law as one of the strong decisive factors behind changes in the

corpus of international law. If – as during the time of the Roman Empire – only one superpower now exists, with all possibilities of steering the world militarily, economically, politically and culturally, what remains of traditional international law? What remains of the United Nations and the Charter of the United Nations? Is the world organisation becoming obsolete, as did once the League of Nations? Is the Charter of the United Nations becoming obsolete? Is international law, in its traditional sense, becoming obsolete? Has the new unilateralism of the world come to substitute the ”old UN system” with its own interpretation of the rules of international law – and of the U N Charter?

Is the war in Iraq, initiated by virtue of the power of the only remaining superpower, one of the first signs of a ”Post United Nations” era? We are here touching upon absolutely fundamental question for the existence and the future of international law. Is the World, as during the days of the Pax Romana, being subordinated to a Pax Americana? Who could oppose, or dare to oppose, the interpretation of the rules of international law by the only remaining world power, with all its might and power?

But – in the long run – a superpower is also in need of a well functioning system of rules for inter-state relations. International law does not only deal with questions of the magnitude of war and peace, but with a variety of matters. International law is the vehicle for smooth inter-state relations in general. Would the superpower put this at risk by leaning towards a pronounced unilateralism? After all, international law is giving and taking in inter-state relations. For this reason, it is important that the dialogue continues, that the discussion continues about the nature of international law; as well as about the future of the United Nations and its Charter, the treaty that is binding on all its signatories. Or is it possible for a state to formally withdraw from the U N Charter? Thereby freeing itself from its obligations? Of course if such a development were to start it would mean the death of the organisation.

As stated earlier, it is the laws of the Islamic countries, based upon the religious sharia-law, that have come into focus in the general political discussion. Many Western experts have e.g. tried to analyse the concept of jihad as contained in sharia-law. Is jihad the ”vehicle of terror”? Is jihad the vechicle for dar al-Islam (the World of Islam) to overcome the dar al-Harb (the World of the non-believers)? Here we are touching upon basic concepts of sharia-law regarding the nature of inter-state relations. Many Western experts tend to believe that jihad is the ”vehicle of terror”, however without

realising the true nature of the concept of jihad and sharia-law in general. Many make pronouncements without having any knowledge of the nature of sharia-law.

The religious sharia-law has its roots in the holy Quran and in the Sunnah of the Prophet Muhammad. Since the 7th century it has undergone a development, mainly based upon different schools of interpretation. Among Western experts, as well as in Western literature, the concept of jihad is frequently misunderstood. It has also been grossly manipulated by different Islamic groups and movements, thus contributing to a wrong perception in general of the Islamic law system. It could very well be argued that by such manipulated interpretations of Islamic concepts these groups have actually intrigued the dramatic changes in the corpus of international law mentioned above. Would the attacks on Afghanistan and the war in Iraq have ever taken place but for the role that the Islamic concept of jihad came to play in the general consciousness of the West? Suppose that all this happened because of grave misunderstandings and the lack of knowledge about the true nature of Islam and the Islamic law system? Wars and attacks because of lack of knowledge, because of lack of dialogue! This must not happen.

In view of the situation in Palestine, Afghanistan and Iraq it is of paramount importance to discuss the role of international law in the shaping of a New World Order, which in many ways will affect the situation of the Arab/Islamic countries in the Middle East. How can international law be utilised to solve the ever lasting conflict between Israel and Palestine? How can international law better protect the civilian population in Palestine from eternal military action by the occupying power Israel? How can the state of Palestine finally be realised, as decided by the U N General Assembly in its Resolution No 181 of 1947. Achieving the establishment of a Palestinian state constitutes an essential part of respect for international law. The U N resolutions pertaining to Iraq came to be enforced through the use of military force. When will the same kind of energy be exercised to enforce all the U N resolutions that relate to the status of Palestine and the Palestinian people?

The importance of utilising arguments based on international law

It is of great importance for the future of the Arab/Islamic countries not to passively observe changes in the corpus of international law in one direction or another, but instead to actively take part in analyses and discussions related to these extremely important matters. It is in the interest of Arab/ Islamic countries to embark on an active path in this regard, to create and

preserve a predominant position in discussions about the nature and the role of international law.

The violence in Palestine is increasing day by day. The occupying power Israel is about to totally crush its twin-state Palestine and to annihilate the people of Palestine. It is high time that this direction of events be changed. Even if the state of Israel maintains the view that it has the right to undertake daily military actions against the civilian Palestinian population, from the point of view of international law, this is not the case. Even if Israel holds the view that it is the result of the use of force that will decide the final solution to the Palestinian problem, this is not the case. It is clear that international law does not recognise acquisition of territory by the use of force. This is one of the main principles of international law. If the Israeli arguments supporting the use of force are not met by strong relevant counter- arguments, it may soon be that we are witnessing a development along the lines of ”customary law”, whereby Israel of its own will constitute a kind of de facto law for Palestine; and this without any protests from other sovereign nations!

Since the occupied Palestinians actually have one of the ”best legal cases” in the world, it is of paramount importance that the Arabs and the Palestinians instead of launching ”suicidal attacks” on innocent Jewish civilians embark upon a new legalistic way of arguing their case. Their arguments under international law are, as a matter of fact, so outstanding that it is ”insane” to jeopardise their good cause by turning to primitive methods like suicidal attacks on civilians; thereby also turning World Public Opinion against their cause. It is of the greatest importance for the Arabs/Palestinians to build up effective mechanisms to bring their just cause to World Public Opinion in a better way.

If the suffering Palestinians seem incapable of utilising all the good arguments in favour of their just cause, it is even worse that the United Nations and the U N Security Council after 56 years still is letting the Palestinian issue rest at its feet without doing anything to bring a solution closer. When innocent lives are lost because of unrest and terror, it is a normal procedure for the U N Security Council to act in accordance with Article 39 of the U N Charter. Troops and peace-keeping forces are dispatched to maintain law and order and to keep belligerent groups apart. Why is this normal routine procedure not applied in the case of Palestine? It is utterly disturbing that innocent lives, Palestinian as well as Jewish, are lost day after day without the World Organisation doing anything to effectively

stop it. All is left to the parties themselves. Especially after all the energy exercised in relation to Iraq, the passive period pertaining to Palestine must end. It is a question of fairness and of respect for international law.

After the debacle of the United Nations in the matter of Iraq and its lost position in world politics, incentives must exist for the organisation and the five permanent members of the U N Security Council to take a grip on the desperate situation in Palestine and to stop bloodshed in the area. If the political will is there, which it should be under prevailing circumstances, it is possible for the United Nations to institute proceedings in accordance with chapter VII of the Charter, which is the ”enforcement chapter” of the Charter. It is on rare occasions that chapter VII has been invoked. Proposed actions in accordance with chapter VII have generally been blocked by veto from one of the five permanent members of the Security Council. However, after the terrorist attacks in New York on 11 September 2001, chapter VII was unanimously invoked in Security Council Resolution No S 2001/1373, which was preceded by the unanimously adopted Security Council Resolution No S 2001/1368. Chapter VII was likewise invoked to create the Criminal Tribunal for Ex-Yugoslavia, as it was invoked in the case of Kuwait in 1991.

As indicated, the enforcement chapter of the U N Charter was made operable in 2001 in the fight against terrorism. One of the rare occasions in the history of the United Nations again occurred. No veto was cast and the resolutions mentioned above were adopted. The permanent members of the Security Council, as well as the non-permanent members, agreed to exercise all the power that is embodied in the U N Charter. When a decision is taken under Chapter VII, with no veto, the result is that all members of the United Nations are compelled to follow the decision of the Security Council. Following such a decision, troops for peace enforcement could be dispatched to the area without the consent of the parties concerned. The legal base for dispatching such forces is Chapter VII itself. It is only Chapter VII that legally binds all states. Chapter VI of the Charter does not have any element of enforcement character.

Considering the magnitude of the Palestinian question it is proper that the Security Council now take action in accordance with Chapter VII of the Charter. It is now that the window of opportunity is open to the United Nations as well as to the Arabs and the Palestinians. Considering the increased violence in the area, the window of opportunity could close soon enough. If the window of opportunity closes again without the Palestinians having made any progress, probably another decade, or decades, will follow in total despair

for the Palestinian people. The Israeli occupation of Palestine territory would become a permanent feature. Thus, Israel will have constituted a de facto law for Palestine. This will lead to an ever increasing aggravated situation in the Middle East, ultimately sealing the fate of both the Palestinians and the Israelis. No state can continue to exist under warlike conditions for decades to come. In the long run even its closest allies will cease to support a state that never brings its turmoil to an end.

A brief history of the Palestinian question

Let us look into the history of the Palestinian question. History shows that the Palestinian people have not deserved their fate. The story begins centuries ago. For our purposes we can start with the fall of the Caliphate after the First World War 1914 – 1919. When the Ottoman Sultan-Caliph Mehmed V in Constantinople (later Istanbul) at the beginning of the First World War in 1914 allied the Ottoman Empire with the Central powers Germany and Austria-Hungary, he officially proclaimed jihad against the enemy, the Triple Entente, that is to say Great Britain, France, Russia and other countries (at a later stage the United States). The alliance with the Central powers and the proclamation of jihad entailed catastrophic consequences for the Ottoman Empire and the Caliphate. It led to the extinction of the Ottoman Empire and the demise of the Caliphate (in 1924). The Caliph, the central figure of Islam, vanished.

Since the late 18^th century the Ottoman Sultans-Caliphs in Constantinople, as keepers of the insignia of the Prophet and as guardians of the Holy places of Medina and Mecca, had reemphasised their role as leaders of the Sunni Muslims. After the fall of the Caliphate, it was the Triple Entente Powers Great Britain and France that took over the Ottoman Empire territories in the Middle East, including Palestine. In November 1914 Great Britain had definitely abandoned its traditional foreign policy to maintain the integrity of the Ottoman Empire into quite the opposite, namely the dismemberment of the Ottoman Empire. Great Britain would instead herself hold or control the territories adjacent to the Red Sea and the British Suez Canal, the artificially constructed link between England and colonial British India that stood ready for use in 1869. This colonial strategy came to decide the fate of the Arabian peninsula as well as the fate of the Arabs in Palestine.

It is important to note that when the Sultan-Caliph in November 1914 proclaimed jihad against the Triple Entente Powers, the Hashemite Emir Hussein ibn Ali, the Sharif of Mecca and the Hereditary Guardian of the

Holy Places of Mecca and Medina, refused to obey the proclamations of jihad of the Caliph. Consequently, no proclamations of jihad were allowed to be made from the Holy places under the control of Sharif Hussein. This act of the Sharif secured him a role in the creation of an independent Arab nation. His aims were to acquire freedom from the Ottoman Empire and to create a new independent Arab state, as he would claim to take over the title of Caliph. With these purposes in mind, he initiated negotiations with Great Britain (see below chapter 5).

The Hussein – McMahon Letters of 1915

It is the content of the letters that in 1915 were exchanged between Sharif Hussein ibn Ali and the British High Commissioner in Egypt, Sir Henry McMahon, that laid the foundation for the future independent ”Arab Nation”. But it is also the ambiguity of these letters that has contributed to the still ongoing crises in Palestine. On 19 August 1915, the High Commissioner received in Cairo, through a messenger, an unsigned and undated note from Sharif Hussein in Mecca, which was accompanied by a letter to the High Commissioner from the Sharif’s son Abdullah, later to become Emir and King of Transjordan/Jordan. The note stated that the Arabs had decided to regain freedom (from the Ottoman Turks) and to assume self-government and that they felt it was in Britain’s interest to support them in this endeavour. Pending future negotiations between the Arabs and the British the note proposed an Anglo-Arab alliance in six clauses, where the first clause reads as follows: ”England to recognise the independence of the Arab countries, bounded on the north by Mersina and Adana up to the 37:o of latitude … up to the border of Persia; on the east by the borders of Persia up to the Gulf of Basra; on the south by the Indian Ocean, with the exception of the position of Aden to remain as it is; on the west by the Red Sea, the Mediterranean Sea up to Mersina”. In geographical terms the claims of the Sharif for the ”Arab Nation” comprised the whole Arabian peninsula from the Indian Ocean in the south up to Anatolia in Turkey in the north. The western borders of the ”Arab Nation” would be drawn along the extension of the Red Sea and along the eastern shores of the Mediterranean. The eastern borders of the ”Arab Nation” would be drawn along the Gulf of Basra and then northwards following a line to the east of the cities of Basra, Baghdad and Mosul. As is perfectly clear from the wording of the Sharif Palestine was also included in his claims. In a subclause of the note British approval was also requested for the establishment of an ”Arab Caliphate”. Since Sharif Hussein was a

direct descendant of the Prophet Mohammad he was a legitimate heir to the title of Caliph, which had been taken over by the Ottoman Sultans.

In a letter to Sharif Hussein dated 24 October 1915 the High Commissioner in Cairo accepted, on behalf of the British Government, the creation of an independent Arab nation, comprising the whole area from the Turkish frontier in the north to Persia and the Gulf of Basra in the east, to the Indian Ocean in the south and the Red Sea and the Mediterranean in the west. This recognition would be given in exchange for Arab military assistance against the Central Powers, i e Germany, Austria-Hungary and the Ottoman Empire. However, from the territory of the future independent Arab state the following exclusions were to be made, namely ”The two districts of Mersina and Alexandretta and portions of Syria lying to the west of the districts of Damascus, Homs, Hama and Aleppo cannot be said to be purely Arab, and should be excluded from the limits demanded”. The letter continues: ”With the above modifications and without prejudice to our existing treaties with Arab chiefs, we accept these limits and boundaries, and with regard to those portions of the territories therein, in which Great Britain is free to act without detriment to the interests of her ally France, I am empowered in the name of the Government of Great Britain to give the following assurances and make the following reply to your letter: Subject to above modifications, Great Britain is prepared to recognise and support the independence of the Arabs in all the regions within the limits demanded by the Sharif of Mecca. Great Britain will guarantee the Holy Places against all external aggression and will recognise their inviolability”. From the Arab/Palestinian side it is clear that the area promised by the British also included Palestine.

It is the exclusion of the ”two districts of Mersina and Alexandretta and portions of Syria lying to the west of the districts of Damascus, Homs, Hama and Aleppo” that long afterwards came to be interpreted as excluding Palestine from the ”McMahon Pledge” to recognise and uphold Arab independence, as it was expressed by Sharif Hussein himself in his first letter to McMahon in August 1915. Even if no originals exist of the Sharif’s letters in Arabic, only bad and inaccurate translations of these into English, it is obvious that the British interpretation of the ”excluded areas” changed after the end of the First War, and this was for political reasons. After the British Government in 1917 had accepted the idea of the creation of a ”National Home” in Palestine for the Jewish people (see below the Balfour Declaration) it became opportune to advance the view that Palestine actually was never included in the ”British Pledge” to recognise and uphold Arab independence.

However, if studying the historical background, and the existing documents on the British side, the conclusion seems inevitable that later British interpretations do not correspond to the actual facts of 1915. At that time the British Foreign Minister, Sir Edward Grey, as well as the Minister of War, Lord Kitchener, were both anxious to secure the outbreak of the Arab revolt, under the leadership of Sharif Hussein, against their Ottoman enemy. Grey’s instructions to McMahon in Cairo underlined that it was important to give the assurances that will prevent the Arabs from being alienated. Grey even instructed McMahon to indicate to the Sharif that immediate negotiations could take place between the Arabs and the British regarding the boundaries, a directive that McMahon chose not to convey to the Sharif. Grey instructed McMahon: ”The simplest plan would be to give an assurance of Arab independence saying that we will proceed at once to discuss boundaries if they send representatives for that purpose, but if something more precise than this is required, you can give it”.

It was not Foreign Minister Grey or his Ministry in London that laid the ground for the later misinterpretations of the Hussein – McMahon letters. It was Sir Henry McMahon himself. With a poor linguistic background, no knowledge of Arabic, no understanding of the Ottoman system of administration of its provinces and districts, he seems to have failed to act in accordance with instructions from his superiors. In his Anglo-Arab Relations and the Question of Palestine 1914 – 1921 (London 1977) A.L. Tibawi states the following: ”The shortcomings of the British side were more in individual officials than, at this stage, in their government. The foregoing pages would have shown how far Grey and Kitchener were in advance of McMahon and Storrs in their attitude to the Arab question. It was often plain that the prejudice, and even the ignorance, of the juniors were suffered to direct, and even deflect, the policy of their seniors. Too often was amateurishness of the juniors was allowed to hide behind delays, evasions and obscure language in dealing with the Arabs whose national character and speech are notoriously explicit. Next to Sykes, McMahon and Storrs, were the ‘experts’ who bedevilled the first steps in Anglo-Arab relations”.

It was Sir Henry McMahon who on his own initiative, without having any idea about the difference between the Ottoman notions of vilayets (province) and sanjaqs (districts), added the word ”districts” (sanjaqs) before the names of the town Damascus, Homs, Hama and Aleppo, thereby disturbing the correct understanding of the sentence: ”… portions of Syria lying to the west of the districts of Damascus, Homs, Hama and Aleppo”. British

documents preceding McMahon’s unfortunate letter to Sharif Hussein mention only the names of the towns of Damascus, Homs, Hama and Aleppo (without the word district). The circumstances give evidence to the fact that the intention behind the description was to state that it was only the area lying to the west of a line drawn from Damascus in the south – over Homs and Hama – to Aleppo in the north that would be excluded from the ”British Pledge” to Arab independence (that is to say only the northern coast of Syria). Palestine is located too far south to be included in ”the areas of exclusion”. Under the Ottoman administrative system the word ”district” could also have the meaning of ”province”. With such a meaning behind the word ”district” the ”areas of exclusion” in the ”British Pledge” would be unduly extended. The ”linguistic mistake” of Sir Henry McMahon (to put in the word district without knowing the meaning of it) was repeated in his telegram on 18 October 1915 to the Foreign Minister in London. McMahon’s mistake ended up by serving as a key phrase in British Middle Eastern policy for a long time to come. In a secret report to the Foreign Office in London, dated 26 October 1915, McMahon himself verifies that by the ”districts of Damascus, Homs, Hama and Aleppo” he meant only ”the northern coast of Syria”, i. e. the area lying to the west of the line Damascus – Aleppo. Supported by Sir Henry McMahon’s own interpretation from October 1915, the conclusion is beyond doubt that Palestine was not included in those areas that were to be excluded from the Arab independence and sovereignty. As stated above this is an interpretation that later materialized in the British foreign policy.

However, as early as in 1922 Winston Churchill stated: ”But this promise (of McMahon) was given subject to a reservation made in the same letter (of 24 October 1915), which excluded from its scope, among other territories, the portions of Syria lying to the west of the district of Damascus. This reservation has always been regarded by His Majesty’s Government as covering the vilayet of Beirut and the independent sanjaq of Jerusalem. The whole of Palestine west of Jordan was thus excluded from Sir H. McMahons pledge”. However, historical facts, as well as the British documents themselves, show that Mr Churchill’s statement does not contain the full truth. Earlier the directives and guidelines of the British Foreign Minister Sir Edward Grey were quoted, who never gave any instruction to McMahon to exclude the ”districts of Damascus, Homs, Hama and Aleppo” from the ”British pledge” to Sharif Hussein to recognise the independence of the ”Arab Nation”. Grey’s main wish was to preserve the political and military alliance with Sharif Hussein and his Arabs. Thus it seems that mistakes, misinterpretations and even disobeyance of instructions by British

junior colonial officials were allowed to guide British foreign policy in relation to the Arabs for several decades. If Palestine was included in the ”British pledge” to the Arabs – which it historically was – it heavily reinforces the Arab/Palestinian claims on Palestine.

British support to an independent Arab Nation – the Mandate of 1920

But soon after the British solemn promises to Sharif Hussein, the British involved themselves in secret talks with the French, resulting in January 1916 in the so called Sykes-Picot-Agreement (see above about Sir Mark Sykes). Here, the area of the future ”Arab Nation” that the British had promised to the Sharif was instead divided into British and French ”zones of influence”: ”(a) Arab state to be divided between England and France into spheres of commercial and administrative interest, the actual line of demarcation to be reserved … (c) That the coast as far south as Beirut should be policed and protected by France. (d) Jerusalem to form an enclave, its boundaries yet to be defined. The Sharif was kept completely outside these secret arrangements between the two colonial powers. It was the new revolutionary Soviet state that in 1917 broke the secrecy surrounding the Sykes-Picot- Agreement and published the text of it, to the great shock of the Arabs. Sharif Hussein had been deceived all along.

Trusting the British promises made on behalf of the British Government by Sir Henry McMahon in 1915 Sharif Hussein and his four sons Ali, Feisal, Abdullah and Zeid, initiated the Arab revolt on 5 June 1916 (4 Shaban 1334) against the Ottomans. For the sake of order it should be emphasised that the revolt of Sharif Hussein was primarily directed against that political faction that has become known as the ”Young Turks”. Their program was mainly based on Turkish nationalism, leading to the oppression of the Arabs. Through a coup d´etat in 1909 the ”Young Turks” under Enver Pascha had deposed the Sultan Adbulhamid II and put his brother Mehmed V on the throne. It was under the ”Young Turk Regime” of Enver Pascha that the Ottoman Empire proclaimed jihad against the Triple Entente and entered the First Word War on the side of the Central Powers. At about the same time the Sharif and his Arab troops entered the war on the side of the Triple Entente Powers against the Central Powers, which included the Ottoman Empire. The independence of the ”Arab Nation” was proclaimed, as had been agreed in the Hussein-McMahon Letters. But breaking their promises, the British did not recognise Sharif Hussein as the king of the ”Arab Nation”. Nor did they formally recognise him as king of Hijaz, which position he only

maintained for the short period of 1916 – 1924, when he was forced into exile.

Sharif Hussein lost the Kingdom of Hijaz to his competitor Ibn Saud (now supported by the British) because he did not bow to British ultimatums. As a condition for recognising the Sharif as king of Hijaz, a British demand was put forward that he should formally sign the Peace Treaties of Versailles and San Remo after the end of the First World War. Only after such a signature would the British recognise him as king of Hijaz, and following the signing of the treaties they would financially support the kingdom of Hijaz. As is clear from what has been written here it was through the Peace Treaties of Versailles and San Remo that the Mandate system was created, which actually deprived the Palestinians of their independence and their statehood. It has been maintained that King Hussein of Hijaz lost his kingdom by upholding his principles, one of those being the right of the Arabs of Palestine to national independence. This was not a popular idea since the British Government – now with Prime Minister Lloyd George and Foreign Minister Arthur James Balfour – had come to change its policy towards the Arabs, and instead supported Jewish claims on Palestine, which they simultaneously had promised to the Arabs in exchange for their military support. Without the Arab revolt in 1916 and Arab military support, the victory of the Triple Entente Powers, among those Britain and France, would have been in jeopardy.

On 9 December 1917 allied troops, including Arab troops, conquered Jerusalem from the Ottomans. The same year allied forces took over Baghdad and in 1918 Damascus fell into their hands. The son of Sharif Hussein, Feisal, was proclaimed King of Syria. However, in 1921 he was driven away by the French from the throne in Damascus: all in accordance with the provisions of the notorious Sykes-Picot Agreement. In 1923 Feisal was instead proclaimed King of Iraq. He was succeeded by his son Ghazi, who was succeeded by his son Feisal II, who was murdered in the Abdul Karem Kassem coup d’etat of 1958. Abdullah, the other son of Sharif Hussein, the king of Hijaz, was proclaimed Emir of Transjordan in 1923, from 1946 known as the kingdom of Transjordan. In 1949 the name was changed to the kingdom of Jordan. King Abdullah I of Jordan was murdered by a Palestinian at the entrance of the Al Aqsa mosque in Jerusalem on Friday 20 July 1951, after having visited the tomb of his father Sharif Hussein ibn Ali, the king of Hijaz, who is buried at the Al Aqsa mosque. Present at the assassination of king Abdullah was his fifteen-year-old grandson Hussein, who in 1952 succeeded his father Talal I as king of Jordan.

During the First World War an extremely complicated picture developed in the area. At the same time as the British solemnly had agreed to recognise Arab independence over almost all Arab territory in the Middle East, they had simultaneously entered into secret agreements with France establishing special ”zones of influence”. At about the same time as Sharif Hussein became king of Hijaz, Palestine was transformed into the British Mandate of Palestine. A first decision to that effect was taken at the San Remo Peace Conference on 25 April 1920 (one of the many Peace Conferences after the First World War, where the Peace Treaty of Versailles in 1919 is the central Peace Treaty between the victorious Triple Entente and the defeated Germany and Austria-Hungary). However the British Mandate over Palestine was not formally ratified by the League of Nations until 24 July 1922 and came into force as late as September 1923. Thus, between 1920 – 1923 Great Britain exercised its power over Palestine based on no other formal legal grounds than the rights of an occupying power over occupied territory. It is a fundamental rule of international law that an occupying state may never change the status of the occupied territory. From the point of view of international law such changes are illegal and must be rectified after the end of the occupation.

On 10 August 1920 the Peace Treaty of Sèvres, the peace treaty between Ottoman Turkey and the Entente powers that was never ratified, laid down the legal basis for the Mandatory system, which was also confirmed by Article 22 of the Covenant of the League of Nations, which stipulated that the mandatory system be applied to territories detached from Germany and Ottoman Turkey. The Covenant of the League of Nations entered into force at the same time as the Peace Treaty of Versailles was ratified, namely on 10 January 1920. By the Treaty of Sèvres, which was never ratified, the Ottoman Empire was dissolved, obliging Ottoman Turkey to renounce all her remaining rights over Arab Asia and North Africa. Through Kemal Atatürk, the Treaty of Sèvres was renegotiated and the final peace treaty between Turkey and the Entente was concluded in Lausanne on 24 July 1924. As is quite obvious legal peculiarities and ambiguities are visible also here, clearly affecting the legality of the Mandate system itself. How could, for instance, Ottoman Turkey be stripped of its territories by a treaty never ratified? How could the Mandate system be established by a never ratified treaty? If a treaty is never ratified it does not enter into legal force!

The events of 1914 – 1920 constitute the roots of the everlasting conflict between Jewish Israel and Arab Palestine. In 1915 the British had

guaranteed an independent Arab state to Sharif Hussein of Mecca. At about the same time through the Sykes-Picot-Agreement they had entered into a secret agreement with France relating to British-French control over the same territory.

The Balfour Declaration of 1917 – ”the Jewish National Home Scheme”

But not only that. As mentioned above the British had also committed themselves to the Jewish question. In the Balfour Declaration dated 2 November 1917, issued by Arthur James Balfour, British Foreign Minister under Prime Minister Lloyd George, the British Government declared that ”it views with favour the establishment in Palestine of a national home for the Jewish people”. The Balfour Declaration is characterised as ”a declaration of sympathy with the Jewish Zionist aspirations which has been submitted to, and approved by the Cabinet”. The declaration also emphasises that nothing shall be undertaken that would prejudice ”the civil and religious rights of existing non-Jewish communities in Palestine”. Of course a dramatic change had occurred in British policy towards the Arabs, drastically different from the days of the ”British Pledge” of Arab independence over almost the whole Arabian peninsula. Obviously, the British had forgotten all the Arab lives that had been spilled for their cause during the First World War.

It should be underlined that the notion of a ”Jewish National Home” originated in the Zionist movement, dating back to the so called Basel Programme of 1897. Although the British intention was actually to place a very restrictive construction on the ”National Home Scheme” from its very inception, the notion of a ”National Home” came henceforth to play an extremely crucial role for the creation of a Jewish state in Palestine. The notion came to transform itself from a general idea of ”a home for the Jewish people” into the very basis for the establishment of an independent Jewish state. This transformation from a general idea into the fundaments of international law partly took place during the process of the formulation of the text of the Mandate, which was given to the British Government by the San Remo Peace Conference on 25 April 1920, later to be formally confirmed by the League of Nations on 24 July 1922. Thus, the basics of the Balfour Declaration happened to find their way into the Mandate text of the League of Nations. It should be stressed that no Arab state was a member of the League of Nations at the time of the adoption of the Mandate text.

It is absolutely clear that modern international law does not give any state the right to put forward any territorial claims originating thousands of years ago, as is the case with Israel’s so-called ”Biblical claims” to Eretz-Israel. It should be noted that no Jewish state had existed in the region since the days of David and Solomon around 1000 BCE. Independent Jewish states also included the Hasmonean kingdom of Judas Maccabeus and his successors from approx 150 BCE until 63 BCE. In September 63 BCE, the Roman general Pompey put down this kingdom and entered into the Temple.

In spite of the clear commandments of modern international law that territorial claims dating back to ancient times can never be recognised without continuous possession of the territory, there is a passage included in the Mandate text of 1920 (formally 1922) that refers to the ”historical rights” of the Jewish people in Palestine: ”Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home in that country”. The Arab view is, as indicated, that the Mandate given to the British was illegal from its inception. In spite of the pledges given in 1915 to the Arabs by Great Britain, their land – possessed by them from ancient times – had been ”taken away” from them by the occupying colonial power Great Britain, and partly redistributed to another people and another state, namely the State of Israel. The Mandate was further in contradiction of article 22:4 of the Covenant of the League of Nations, dealing with areas conquered from the Ottoman Empire. The view is that Palestine, being part of the old Ottoman territory, should, at least provisionally, have been recognised as an independent State. After such recognition, a Mandatory Power could have been selected only for a limited time. Upon the completion of a short Mandate period, Palestine should have been given full self-determination, independence and sovereignty. The Arab view is also that Article 20 of the Covenant of the League of Nations invalidates both the Sykes-Picot-Agreement of 1916 and the Balfour Declaration of 1917.

For further detailed information of the conditions surrounding the Mandate of 1920 (1922) I recommend the newly published book A Broken Trust, Herbert Samuel, Zionism and the Palestinians by Sahar Huneidi (London & New York 2001). In this book the role of the first British High Commissioner in Palestine Sir Herbert Samuel, of Jewish origin, is analysed. To be able to judge Arab behaviour in connection with the United Nation’s treatment of the Palestine question, it is important to be aware that the Arabs regarded the British Mandate as an illegal construction from its inception in 1920 (1922), upon which no legal action could be taken by the Occupant/

PALESTINE

PLAN OF PARTITION

Mandatory State. The Mandate merely came to serve as a ”formalized prolongation” of the British/French occupation of the area after the end of the First World War – without the consent of the original Arab inhabitants of Palestine or the other Arab states.

Some statistics could be taken into consideration here. In 1922 some 84 000 Jews inhabited Palestine. In 1945, after substantial immigration following the adoption of the Balfour Declaration in 1917, the number of Jews had increased to 600 000. Against this number stands, in 1947, some 1 200 000 Arab Palestinians. The original inhabitants became rapidly outnumbered by a flow of Jewish immigrants, not least from Eastern Europe (where atrocities against Jews were particularly serious), which were granted permission to enter and take residence in Palestine by the British Mandatory Power on the basis of the Balfour Declaration of 1917. Controversies between immigrating Jews and native Arabs became increasingly prevalent in the years to come.

Because the two nationalities were not able to coexist the Mandatory Power undertook study upon study in order to come up with some solution to all the more serious armed confrontations between Jews and Arabs. In 1936, the British Peel Commission recommended a partition of Palestine into one Arab state and one Jewish state. The hopes for reconciliation between Arabs and Jews could no longer be maintained, the Peel Commission stated. For religious reasons there should be a British enclave established consisting of Jerusalem, Bethlehem and Nasareth. The Palestinian area was defined as follows: ”the Sub-Districts of Nablus, Ramallah, Jerico, Hebron, Gaza and Beersheba, and parts of the Sub-Districts of Beisan, Jenin, Tulkarm, Jaffa, Ramle, Jerusalem and Bethlehem”. The Arab State would thus comprise the West Bank and Gaza.

The 1936 Partition Plan of the British Peel Commission was rejected by Jews and Arabs alike. New proposals of different kinds were presented. For instance The Partition (Woodhead) Commission of 1938, The British White Book of 17 May 1939, The Anglo-American Committee of Inquiry 1946, The Plan for Provisional Autonomy 1946 (also called the Morrison Plan) and The Cantonization Plan 1947 (also called the Bevin Plan).

The Palestinian question before the United Nations in 1947

The Second World War aggravated the situation in Palestine. The World Zionist Organisation and The Jewish Agency for Palestine adopted in 1942

the radical Biltmore Programme, whereby the idea of the formation of a joint Arab-Jewish community was definitely abandoned. From now on it is the idea of Palestine as a ”Jewish Commonwealth” that became the leading idea for all Jewish organisations. Against the idea of Palestine as a Jewish state stood the Arab view that their native country had been taken away from them by the illegal construction of the Mandate, which made it possible for the Mandatory Power Great Britain to redistribute the Arab homeland to an increasing numbers of immigrating Jews from Europe and other parts of the world. In a situation approaching civil war between Jews and Arabs the Mandatory Power was unable to solve its Mandatory mission, given to it in 1920 by the San Remo Peace Conference and later confirmed by the League of Nations. The Mandatory Power decided to refer the whole matter to the successor of the League of Nations, namely the United Nations, which was established in 1945 after the end of the Second World War. Great Britain requested the General Assembly of the United Nations ”to make recommendations under Article 10 of the Charter, concerning the future government of Palestine”.

The unsuccessful Mandatory Power wished to be relieved of its functions as Mandatory Power and turned to the organisation that had succeeded the League of Nations, which in 1922 had formally granted the Mandate over Palestine to the British Government. The General Assembly of the United Nations convened on 28 April 1947, whereby the United Nations Special Committee on Palestine (UNSCOP) was established for the purpose of studying all the conditions and to recommend a solution to the problem. Following members were elected to the Committee: Australia, Canada, Czechoslovakia, Guatemala, India, Iran, the Netherlands, Peru, Sweden, Uruguay and Yugoslavia. The Committee became active in studying conditions pertaining to the Palestine issue. However, the Palestinians, as well as all Arab States, refused to have anything to do with the Committee. The arguments given for the non-participation of the Arab/Palestinian side were, as indicated above, that the Palestinian-Arab rights over the area were so obvious that no studies were necessary. It could be argued that the non-participation of the Arab/Palestinian side produced the unfortunate result that the just cause of the Arab Palestinians never came to receive the wide public attention that the Jewish case came to receive.

Considering the circumstances Arab/Palestinian non-participation in the work of the U N Committee UNSCOP was a very unfortunate direction of events. From now on it could be maintained that the Jewish case enjoyed much better opportunities to assert itself legally and politically – and above all to

assert itself in the eyes of World Public Opinion. The Arabs felt offended and remained silent. Considering the importance ”to play on public opinion” it was a bad choice, negatively affecting the situation of the Arabs/ Palestinians for fifty years to come. Since it was the recommendations of UNSCOP that came to establish the very base for the adoption of the U N General Assembly Partition Plan for Palestine (Gen Ass Resolution No 181) on 29 November 1947 it could be argued that this decision was adopted without the full consideration of Arab/Palestinian views. However, it should be stressed that the Partition Plan of 1947 later, during the armistice negotiations in Lausanne in 1949, was actually recognised by the Arab states. But two years had then elapsed since the adoption of the Partition Plan.

The UNSCOP Committee’s Partition Plan of 1947

The UNSCOP study of 1947 of the question of Palestine constitutes one of the basic documents under international law for the solution of the Palestinian question. Again, it is unfortunate that Arab/Palestinian views were not presented before the decision was taken. The UNSCOP Committee stated the following:

The basic premise underlying the partition proposal is that the claims of Arabs and Jews, both possessing validity, are irreconcilable and that among all of the solutions advanced, partition will provide the most realistic and practicable settlement, and is the most likely to afford a workable basis for meeting in part the claims and national aspirations of both parties.

It is a fact that both of these peoples have their roots in Palestine, and that both make vital contributions to the economic and cultural life of the country. The partition solution takes these considerations fully into account.

The basic conflict in Palestine is a clash of these intense nationalisms. Regardless of the historical origins of the conflict, the rights and wrongs of the promises and counter-promises, and the international intervention incident to the Mandate, there are now in Palestine some 650 000 Jews and some 1 200 000 Arabs who are dissimilar in their ways of living and, for the time being, separated by political interests which render difficult full and effective political co-operation among them, whether voluntary or by constitutional arrangements.

Only by means of partition can these conflicting aspirations find substantial expression and qualify both peoples to take their places as independent nations in the international community and in the United Nations (U.N. Doc A/364, September 3, 1947).

There was unanimity in the Committee that the British Mandate of 1920 (1922) should cease. As to the question of the actual partition of the territory between the State of Palestine and the Jewish State, opinions differed between the majority and the minority (India, Iran and Yugoslavia) of the Committee.

As stated above, the General Assembly adopted in its Resolution No 181 (the Partition of Palestine) the majority view of the Committee, however, that the Arab/Palestinian side was awarded some further parts of the Negev desert and the enclave of Jaffa. In total 56 states participated in the adoption of Resolution No 181. 33 states (the Great Powers, including the United States and the Soviet Union as well as Western and Eastern European states) voted in favour of the Partition Plan, while 13 states, including Arab/ Islamic states, voted against. 10 states abstained.

Although Resolution No 181 was adopted by the General Assembly with the support of the Great Powers it is important to note that Arab/Islamic states voted against its adoption, because they considered the partition of Palestine illegal. As explained above, this opinion was mainly based on their view that the British Mandate of 1920 (1922) was already an illegal construction and therefore null and void. In spite of the resistance of Arab states, the Partition Plan of Palestine was adopted by the General Assembly. As is well known, the resolutions of the General Assembly do not carry any legal force in themselves. It is, as stated above, only decisions taken by the Security Council under Chapter VII, with no veto, that carry compelling legal force for all states. However, resolutions adopted by the General Assembly carry semi-legal, political and above all a kind of moral force. It could also be argued that a constitutional development in the United Nations has awarded the recommendations of the General Assembly even greater weight and force.

U N General Assembly Partition Resolution No 181 of 1947

The important theme of the Partition Resolution No 181 is that even though the resolution in itself lacks compelling legal force (since it was a General

Assembly resolution and not a Security Council resolution adopted in accordance with Chapter VII) it came all the same to constitute the legal basis under international law for the creation of the Jewish State of Israel. Thus, it could be maintained that this particular resolution of the U N General Assembly carries special legal force, since the State of Israel in its Declaration of Independence issued on 14 May 1948 specifically refers it. If the opinion is held that Resolution No 181 provides the legal base, or some kind of legal base, for the creation of the Jewish State of Israel, the argument could be forwarded that Resolution No 181 provides the same legal base for the creation of the State of Palestine, in spite of the negative voting of the Arab states at the time of the adoption of that resolution.

Since it is absolutely clear that the Society of States, as represented in the U N General Assembly in 1947, never had any intention of creating only a Jewish state, but two states – one Jewish and one Arab Palestinian – which were to exist side by side and which were to be created simultaneously, in my opinion the view may be asserted that the Partition Resolution No 181 also awarded the legal basis, or some kind of legal basis, for the creation of the Arab State of Palestine. Actually, from this point of view, the Palestine State holds exactly the same legal elements in its hands as the Jewish State of Israel. The difference between the Jewish State of Israel and the Arab State of Palestine, both being ”created” at the same time in 1947 through General Assembly Resolution No 181, is that the Jewish State ”played the game” and issued its Declaration of Independence on 14 May 1948 while the Arab State did not.

Within minutes of its declaration of independence, the State of Israel was diplomatically recognised by the United States. Soon after that by several other states, including the Soviet Union, Great Britain and France. These subsequent diplomatic recognitions of the Great Powers and other countries of the State of Israel constitute heavy and decisive legal factors supporting Israeli statehood. The newly established State of Israel became a member of the United Nations on 11 May 1949, whereby it declared that ”Israel is a peace-loving State which accepts the obligations of the Charter and is able and willing to carry out those obligations”. Here it is of utmost importance to underline that all diplomatic recognitions of the State of Israel following its Declaration of Independence in 1948 are directly related to the territory awarded the State of Israel by Partition Resolution No 181- and nothing more. Thus, the international community has never recognised Israel’s annexations, nor its occupations, of territories that were never intended for the State of Israel, that is to say East Jerusalem, the West Bank, Gaza and

the Golan Hights. Possibly several more areas that were not included in the territories allotted to Israel in Partition Resolution No 181 of 1947. According to the rules of international law, no state has any right to expand into areas to which it has no legal title. Annexations are utterly illegal, as also occupations lasting long enough to become in reality annexations.

The Israeli Proclamation of Independence 1948

Here it is interesting to quote parts of Israel’s Declaration of Independence of 14 May 1948: ”On 29th November 1947 the United Nations General Assembly passed a resolution calling for the establishment of a Jewish state in Eretz-Israel; the General Assembly required the inhabitants of Eretz- Israel to take such steps as were necessary on their part for the implementation of that resolution. This recognition by the United Nations of the right of the Jewish people to establish their state is irrevocable. This right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign state. Accordingly, we … hereby declare the establishment of a Jewish state in Eretz-Israel, to be known as the State of Israel”. The new state of Israel also undertook a solemn promise that it be faithful to the Charter of the United Nations, as it also promised to co-operate with the United Nations in carrying out the Partition Plan that created the State of Israel. This promise by Israel is important to remember these days when Israel is crushing its twin-state Palestine, having exactly the same legal rights as Israel, since the two states simultaneously were created by the same Resolution No 181.

Here it should be noted that the belligerence between the State of Israel and the Arab states that followed Israel’s declaration of independence in 1948 was brought to an end by several armistices negotiated in 1949 by the U N mediator Ralph Bunche, following the Jewish Stern Gang’s assassination of the Swedish mediator Count Folke Bernadotte on 17 September 1948. At the time of the assassination of the Swedish mediator Israel was occupying an area covering 50 % more territory than was awarded Israel by the U N Partition Plan of 1947. However, it must be stressed that lines following armistice agreements do not carry any legal force from the point of view of definition of territory. A state can never define its territory after temporary armistice agreements. The definition of state territory is always based on the permanent borders of the state. As long as Israel has no defined and internationally recognised borders, the international recognition of Israel must be regarded as a provisional one, awaiting the final definition of its borders. As long as Israel has no defined borders, the

State of Palestine has no defined borders. Israel can only achieve permanent borders together with its twin-state, the State of Palestine.

In spite of the obvious fact that during its fifty five years of existence the State of Israel has had no defined and internationally recognised borders, it must be stated that under the rules of international law the creation of the Jewish State of Israel is well-founded. Israel’s proclamation of independence in 1948 was recognised by the Great Powers and several other nations, upon which followed the establishment of diplomatic relations with a great number of states. Israel also became a member of the United Nations in 1949. This state of affairs has been upheld for 55 years. Thus, it is difficult for the Arab/Islamic countries to seriously advance the view that the establishment of the State of Israel is illegal and lacking legal force. This seems to be a futile exercise leading nowhere. More constructively it could, instead, be argued that the same Resolution that provided Israel with its legal foundation also provides the State of Palestine with its legal foundation. If Israel chooses to contest such an argument it would, as a matter of fact, be putting its own legal foundation into jeopardy. How could Israel deny its twin-state Palestine’s utilisation of the same legal foundation as Israel itself once utilised, namely the U N General Assembly Resolution No 181. As stated above, Israel explicitly refers to this resolution in its Declaration of Independence dated 14 May 1948. Consequently, it is clear that Israel regards the U N Partition Plan of 1947, as adopted by the U N General Assembly in its Resolution No 181, as the main founding element for its own statehood.

The rights under international law of the Arab State of Palestine

It is also clear that the Arab State of Palestine could have come into existence as early as 1947, provided the Arabs/Palestinians had adopted a different attitude towards the U N Committees and the Partition Plan of 1947. It is true that the Partition Plan of 1947 was far from the ultimate goal of the Arabs/Palestinians, but an acceptance of the Plan in 1947 would have provided the Palestinians with a statehood 55 years ago. The Arab State of Palestine would have come into existence, and negotiations with its twin- state Israel could have brought better solutions regarding the frontiers of the two states. In retrospect it seems that such a solution 55 years ago would have been far better than the desperate situation that has prevailed for the Palestinian population for the last 55 years in which the State of Israel has been pushing forward its positions all the time, mainly by exaggerating its right of self-defence far beyond the limits of a reasonable

interpretation of the rules of international law. Nowadays, few or no countries seem to bother to protest against such exaggerated interpretations of the rules of international law. All seem to accept the behaviour of Israel as the occupying power of Palestine? It must be stated that if no protests are ever made against clear violations of the rules for an occupying power over occupied territory, or clear breaches of the humanitarian rules of armed conflicts (i. e. the Geneva Conventions of 1949 and the Additional Protocols of 1977), the status and the stability of international law is at stake. These rules can probably never be applied in future conflicts if the occupied territories of Palestine are treated as they are by the occupying power without clear protests from other states.

Since the State of Israel came into being following the adoption by the General Assembly of the U N Committee Partition Plan of 1947, under which the new State of Israel was awarded fixed geographical areas, it follows that the State of Israel does not possess any right to expand these original areas through an exaggerated interpretation of the right of self- defence. The inherent and normal right of self-defence, as defined by Article 51 of the Charter of the United Nations, in the case of Israel is limited by the fact that the British Mandate of Palestine in 1947 was divided into two well- defined states, namely the Jewish State of Israel and the Arab State of Palestine. Israel has no greater right to this area than the State of Palestine. The annexations and the occupations by Israel cannot change these fundaments of international law.

The responsibility of the U N Security Council and the U N General Assembly

It could very well be argued that the question of the partition of Palestine, as appeared in Resolution No 181, is still the responsibility of both the General Assembly and the Security Council of the United Nations. This is not a matter only for the Israeli Government and the Palestinian Authority to discuss bilaterally. It should be stressed that when the General Assembly adopted the Partition Resolution No 181 in 1947 it appealed to the Security Council to take all necessary actions ”as provided for in the plan for its implementation”. The Assembly urged the Security Council to consider whether the situation in Palestine constituted a threat to peace. The General Assembly stated further: ”If it (the Security Council) decides that such a threat exists, and in order to maintain international peace and security, the Security Council should supplement the authorisation of the General

Assembly to taking measures, under Articles 39 and 41 of the Charter, to empower the United Nations Commission, as provided in the resolutions, to exercise in Palestine the functions which are assigned to it by the resolutions”.

It is perfectly clear from the wording of the Partition Resolution No 181 that the General Assembly is urging the Security Council to take its share of the responsibility in accordance with Chapter VII of the U N Charter in regard to the situation in Palestine. The ground was laid for the ”enforcement articles” 39 and 41 to come into operation, but events in the area came to overshadow all efforts by the United Nations to advance its plan for the partition of the area. All these events are too well known to be repeated here. Israel’s armed forces expanded Israeli domination over areas that Israel was never intended to have. It is of extreme importance that the Arab/Palestinian side urge the Security Council and its permanent members to resume its work to implement the Partition Plan of 1947. The ultimate aim is, of course, the long overdue formal creation of the State of Palestine. Here we are dealing with pure justice for the Palestinian people and their right to self-determination, a clear principle of international law. Why, of all people in the world, should the Palestinian population be denied these fundamental human rights of international law?

Israeli annexations and occupations are illegal under international law

As stated above, all Israeli annexations and long-lasting occupations of land that was intended for the State of Palestine are, of course, utterly illegal from the point of view of international law. An exaggerated interpretation of the right of self-defence cannot lay the legal ground for an expansion of the Israeli territory far beyond the limits decided by Partition Plan Resolution No 181. It could be argued that the whole question of Palestine still rests with the Security Council and the General Assembly. The Security Council should, even if 56 years have elapsed since 1947, ”still be seized with the matter”, as it is put. Perhaps nowadays better opportunities exist to force the Great Powers and the Security Council to carry out their responsibilities for the situation in Palestine, something that the Security Council was entrusted with 55 years ago – and failed in. Again, it is possible to see a clear link between the grossly neglected question of Palestine and today’s formation and maintenance of the U S Anti Terror Coalition.

To fight terror is of extreme importance, but some difference must, from the point of view of international law, be made between ”Evil Terror” and the fight from Resistance Movements to regain illegally annexed or occupied territories. Here, examples could be taken from the Norwegian and Danish Resistance movements that fought the Nazi occupation of Norway and Denmark during the Second World War. Such examples could be multiplied. Touching upon the fights of Resistance Movements it should be clearly stated that from the point of view of international law, armed actions should never be allowed to hit or directly or indirectly affect civilian populations. Basic principles of international law always safeguard the innocent lives of civilian population.

Secure and Recognised boundaries – the Refugee Problem

Apart from the basic General Assembly Partition Resolution No 181, adopted in 1947, Security Council Resolutions No 242 (adopted on 22 November 1967) and No 338 (adopted on 22 October 1973) are of relevance from the point of view of international law. Resolution No 242, which was unanimously adopted by the Council, reads as follows:

”The Security Council,

Expressing its continuing concern with the grave situation in the Middle East,

Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,

Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter,

Affirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

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

Termination of all claims or states of belligerency and respect for and acknowledgment 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;

Affirms further the necessity

For guaranteeing freedom of navigation through international waterways in the area;

For achieving a just settlement of the refugee problem;

For guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;

Requests the Secretary-General to designate a Special Representative to proceed to the Middle East to establish and maintain contacts with the States concerned in order to promote agreement and assist efforts to achieve a peaceful and accepted settlement in accordance with the provisions and principles in this resolution;

Requests the Secretary-General to report to the Security Council on the progress of the efforts of the Special Representative as soon as possible.

Security Council Resolution No 338 was adopted at the 1747th meeting of the Council on 22 October 1973 by 14 votes to none and China abstaining. It reads as follows:

The Security Council

Calls upon all parties to the present fighting to cease all firing and terminate all military activity immediately, no later than 12 hours after the moment of the adoption of this decision, in the positions they now occupy;

Calls upon the parties concerned to start immediately after the cease-fire the implementation of Security Council resolution 242 (1967) in all of its parts;

Decides that, immediately and concurrently with the cease-fire, negotiations shall start between the parties concerned under appropriate auspices aimed at establishing a just and durable peace in the Middle East.

From the point of view of international law it is clear that at least two fundamental pillars exist, namely General Assembly Resolution No 181 and Security Council Resolution No 242, which is supported by Resolution No 338. Since no other basic documents related to the ”territories of Israel” exist other than the Partition Plan Resolution No 181 of 1947, the text of

Security Council Resolution No 242 calling for the ”withdrawal of Israel armed forces from territories occupied in the recent conflict” must be interpreted in the light of Resolution No 181. As mentioned above this is the only existing document of any kind that relates to the extent of the ”territories of Israel”, and which was passed by the General Assembly in 1947. It is also Resolution No 181 that Israel itself referred to in its Declaration of Independence of 14 May 1948 as the main founding element in its own independence. Since Resolution No 242 in no uncertain terms reiterates the ”inadmissibility of the acquisition of territory by war” it goes without saying that the meaning of Resolution No 242 is that Israeli forces shall withdraw from those territories that Israel has ”acquired by war”, i.e. all land that was occupied and annexed in the subsequent wars from 1948 and onwards. In other words from all territory that was not allotted to Israel by Resolution No 181. This is the grim reality following from an interpretation of the documents related to the foundation of the State of Israel and its territories.

What is contained in the resolutions quoted above is of fundamental importance for a solution to the Palestine question. Apart from these resolutions the United Nations has repeatedly adopted resolutions confirming the ”inadmissibility of the acquisition of territory by war”, thereby denying Israel any right to annex or occupy such territory that was not intended for Israel in Partition Resolution No 181 of 1947. It is worth noting that the U N Security Council has passed over eighty resolutions pertaining to this conflict, starting with its Resolution No 42 adopted on 5 March 1948. The overriding principle is that Israel has no legal rights to annexed or occupied territories, even though the State of Israel today is militarily in control of these areas. In accordance with the Laws of War, an occupation is a provisional arrangement and can never serve as a ground to changes of the fundamental status of the occupied area. Again it should be stressed that armistice lines are only provisional lines, upon which no permanent legal claims to territory can be based. These are fundamental principles of international law that must be upheld. It should also be repeated that, at some stage, the State of Israel must define its own territorial boundaries so that the recognition extended to Israel in 1948 and subsequent years is transformed into a final recognition of a state with definite boundaries, which, as a matter of fact, is a condition of international law.

After having concentrated on the ”territorial issues” it must further be added that there is also a grim human dimension to the Palestinian question, namely the Refugee problem. Here it is General Assembly Resolution No 194, adopted on 11 December 1948, that constitutes another basic pillar for the

solution of the Palestinian problem, since it is this resolution that resolves that refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible. This is a human dimension of the Palestinian question that must never be forgotten. Human beings and families were uprooted from their native land and sent somewhere as refugees. To compensate the Arab Palestinians for a behaviour mainly rooted in the colonialism of past days, the ”Western World”, the actors of the 19th and the 20th century disasters ought to create some kind of ”Marshal Plan” for the rehabilitation of the Arabs who lost their possessions and were forced to leave their land as refugees when the Mandate came into operation in the early 1900’s.

15. The State of Palestine – a Unilateral Proclamation of Independence and Full

Statehood

To my mind it is possible that a formal unilateral Proclamation of Independence and Full Statehood by the State of Palestine, in spite of the grave situation now prevailing in its occupied territories, could be recognised by other states. If the State of Palestine in a unilateral proclamation of independence should appeal for urgent international recognition, this should be seen in the light of the creation of the State of Palestine by the Partition Plan Resolution No 181 in 1947, which actually created both the Jewish State of Israel and the Arab State of Palestine. It could be argued that the State of Palestine does not control its territories and that its state organs are in disorder. This is partly true, but states contemplating to extending to the State of Palestine full diplomatic recognition must really look behind the scene, thereby discovering the real reasons for this desperate state of affairs, namely the illegal

annexation and occupation by the State of Israel, performed in a way that create the worst possible situation for the state organs and the population of Palestine.

With reference to those ”emergency factors” that are inherent in the corpus of international law, nothing should prevent other states from extending to the State of Palestine their full diplomatic recognition, in order to contribute to the survival of that state. The State of Palestine is about to be annihilated by an aggressive occupying state openly denying compliance with all UN Resolutions as well as with the rules of international law. To let such behaviour continue will, as stated before, put the status and the stability of international law in jeopardy. Can the Society of States afford any longer to let one state openly defy the system of international law – as well as the United Nations – decade after decade? Shall one state be allowed to ruin the whole system of international law built up over many centuries? While the Great Powers choose to look for other perpetrators of crimes against international law – as in the case of Iraq.

When judging the possibility of a Palestinian unilateral proclamation of independence and full statehood it should be remembered that after the Palestinian Intifada of 1988 the Palestinian National Council (PNC) at its session in Algiers on 15 November 1988 issued a Declaration of Independence of Palestine, which read: ”Through the exercise by the Palestinian Arab people of its right to self-determination, political independence and sovereignty over its territory: the Palestine National Council hereby declares, in the Name of God and on behalf of the Palestinian Arab people, the establishment of the State of Palestine in the land of Palestine with its capital at Jerusalem”.

The Palestinian National Council which issued the Declaration of Independence originated at the so called First Palestinian Conference that was held in Jerusalem on 28 May 1964 with the participation of prominent Arab leaders. It was this conference that decided to establish the Palestine Liberation Organization (PLO) as it also adopted the Palestine National Charter, consisting of 29 articles. The conference further decided to transform itself into the permanent body of the Palestine National Council (PNC), that is to say the body that in Algiers in 1988 issued the Declaration of Independence of the State of Palestine.

Because of the Palestine National Council pronounced its declaration of independence from ”foreign soil” (i.e. Algiers) and owing to the fact that the

Council did not possess any precise sovereign functions over a more well- defined Palestinian territory this declaration of independence put many Legal Advisers at different Foreign Ministries into difficulties as to how to interpret this declaration. Since the proclamation was issued from ”foreign soil” – not from Palestine itself – it also brought into the analysis the complicated matter of ”recognition of Exile Governments”, which during the Second World War became a very complicated issue. For these reasons the 1988 Declaration of Independence was not generally recognised among states. A substantial number of states, mainly Arab, African and Asian states, did however extend full diplomatic recognition to the State of Palestine on the basis of the 1988 Declaration of Independence, while many states today enjoy full diplomatic relations with the State of Palestine.

Since the days of 1988 the situation has changed. Following the so-called Peace Process there is today a Palestinian Government on Palestinian soil, today under the name of the Palestinian Authority (PA), governing a comparably well-defined Palestinian territory, albeit the territory has been annexed and occupied by a foreign power. These annexations and occupations have never been recognised by the international community while they rest null and void from the point of view of international law. The Palestinian government would, no doubt, have had full control over its territory had it not been for these illegal annexations and occupations, which are systematically destroying all ways and means to exercise sovereign functions over Palestinian territory.

With regard to the Palestinian Authority it should be explained that on 13 September 1993 the Palestine Liberation Organization (PLO) and the Government of Israel signed the Declaration of Principles on Interim Self- Government Arrangements at the White House in Washington D.C. The declaration was preceded by an exchange of letters of mutual recognition between the Government of Israel and the PLO on 9 September 1993. The two sides agreed on a framework for the Israeli-Palestinian negotiations within the Middle East Peace Process with the aim, among other things, ”to establish a Palestinian Interim Self-Government Authority. The PLO Central Council met in Tunisia 10 -12 October 1993 and endorsed the acceptance of the agreement with Israel. The PLO Central Council also authorized the Executive Committee to form the Council of the Palestinian National Authority and chose Yasser Arafat as the President of the Council of the Palestinian National Authority. In July 1994, following the signing of the Cairo agreement, he returned to Gaza and Jericho and was, on 20 January 1996, elected President of the Palestinian National Authority (PA).

As indicated above some of the formal prerequisites for a diplomatic recognition of the State of Palestine are lacking today, foremost the prerequisite of ”full control over the territory”. Considering, however, the legal history of the twin-states Israel and Palestine, and the fact that the stronger twin is crushing the weaker twin, such dogmatic formalities may, to my mind, owing to the extraordinary circumstances prevailing, be overlooked. If Palestine is now unilaterally proclaimed and thereafter recognised as an independent and sovereign State by a number of other nations, it will become a full member of the Society of States, as well as a member of the United Nations (however it has to be acknowledged as such also by the Security Council, where, of course, one of the permanent members could cast its veto). Should, however, no veto be cast against the membership of the State of Palestine in the United Nations, Palestine will then be awarded full support and protection by the United Nations Charter, and will assumes all obligations under international law to behave peacefully and friendly towards its twin-state Israel. As indicated above, this was already stated in the UNSCOP Partition Plan of 3 September 1947 (U.N. Doc A/364), which stated: ”Only by means of partition can these conflicting aspirations find substantial expression and qualify both peoples to take their places as independent nations in the international community and in the United Nations”.

For the first time in the history of the U N Security Council, the Council, under the chairmanship of Norway, in its Resolution S/2002/1397, adopted on 13 March 2002, mentions the State of Palestine besides the State of Israel. The relevant part of this resolution reads: ”Recalling all its previous resolutions, in particular 242 (1967) and 338 (1973), Affirming a vision of a region where two States, Israel and Palestine, live side by side within secure and recognised borders”. Thus it took 56 years for the Security Council to recognise Resolution No 181 already adopted by the General Assembly in 1947. But still there is a long way to go. The Arab State of Palestine is still denied its full independence and statehood, and membership of the United Nations. It should be underlined that it is not for the State of Israel, nor for United States, nor for anybody else, to award any territory to the State of Palestine through bilateral or multilateral negotiations. The State of Palestine was basically already created by the United Nations in 1947, as was the State of Israel. The legal foundation for Palestinian statehood has existed ever since 1947, as also the extent of its territory (which was defined in the Partition Plan Resolution No 181). From the point of view of international law the provisional armistice lines of 1949 can never provide legal foundation

for the definition of Israeli territory, nor the territorial gains in the war of 1967. All this is provisional, without any permanent legal implications.

The conclusion is that the Palestinian Authority should take the destiny of the Palestinian people into its own hands and unilaterally proclaim the State of Palestine, on the basis of the statehood that was created by the United Nations in Partition Plan Resolution No 181 of 1947, the same resolution that created the State of Israel. It is not for the occupying state, nor for any other state, to award any territory to the State of Palestine through negotiations, since Palestine’s existence and territory is as old as the State of Israel. If Israel denies its twin-state this right, it puts its own foundation as a state in jeopardy. The territorial gains made by Israel from 1948 and onwards have, from the point of international law, no legal value. All is of provisional nature. It would be far better to start to negotiate a fair solution with its twin-state Palestine, which has exactly the same legal rights to the former British Mandate of Palestine as Israel has. By adopting such an attitude international law would also be saved, as well as the United Nations. And probably ”terrorism” would cease, since much of this has its roots in the perpetual and extremely mismanaged conflict between the Jews and the Arabs in Palestine. Can the ”World” afford to let this go on any longer?

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Palestine, Iraq and International Law

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