Palestine and Statehood: An historical overview
Published Tuesday 23/08/2011 (updated) 01/09/2011 12:18
Until 1923, Palestine was part of the Ottoman Empire. In December 1917, British troops entered Jerusalem and ended 400 years of Ottoman rule. In 1922, the League of Nations issued the Mandate of Palestine which authorized the United Kingdom to become the Mandatory Power in Palestine.
The Mandate Document, however, included several paradoxical stipulations contrary to the Mandate System as set forth in Article 22 of the League's Charter.
The Mandate Document included several paragraphs, which were considered by many historians and international lawyers as flagrant breaches of the word and spirit of the Mandate system. The system was intended to protect the territories occupied by the British and French from the axis enemy (Germany, the Austro-Hungarian Empire and the Ottoman Empire), and to develop these territories to independence and freedom for their populations.
The MD, contrary to that system, stipulated that the UK must develop the territory of Palestine in cooperation with the Jewish Agency in order to achieve a national home for the Jewish people, ignoring the real interests of the vast majority of Palestinian Arabs or Palestine.
In 1922 Palestine was still considered as a part of the sovereignty of the Ottoman Empire, which became Turkey after that date. It wasn't until Turkey signed the Lausanne Treaty in 1932 that Turkey relinquished her claim to sovereignty on Palestine. Thus, the MD was in clear breach of the rules of international law.
The Legal Status of Palestine
The UK's rule over Palestine contained flaws and several breaches. The Mandatory Power (UK) was considered, by many international lawyers, as a colonial power, which should have supervised the Mandate Territory and developed it as an honest trustee, which it failed to do.
In regards to sovereignty over Palestine during the years of the Mandate, many international experts consider that sovereignty was inherent to the people of that territory and was temporarily in the hands of the League of Nations. Palestine was considered as an embryo of a state.
It had its constitutions in 1922, its nationality law in 1925 and several other laws and by-laws covering almost all aspects of life and social and economic activities.
The Mandatory Power exerted all its efforts to help the Zionist Organizations, represented by the Jewish Agency, the Jewish Keren Ha' Kayemet, the Jewish Keren Ha'yesud and the Zionist Haganah [the armed organization of the Jewish agency], to bring an influx of Jewish immigrants into the Mandated Territory, to develop their own independent economy, arms and to construct armed settlements, in all Palestine.
All of this was claimed to be in conformity with the MD of Palestine, which was the legal fig-leaf in concealing the real goals of both the imperial power and Zionist Organizations.
During the whole of British rule, Palestinians revolted and demonstrated, but the British forces dealt with these revolutionary acts in utmost cruelty, putting them down and killing thousands of Palestinian Arabs and deporting or imprisoning tens of thousands.
In 1947, the UK government, unable to control the strong Zionist terrorist organizations, decided to refer the whole issue to the United Nations General Assembly which issued in November 26, 1947 a resolution dividing Palestine into two states: A Jewish state consisting of 54 percent of the territory of Palestine, an Arab state consisting of 44 percent of that territory, and the Jerusalem Area, as a Corpus Separatum, consisting of 2 percent of Palestine.
Furthermore, the Resolution decided to have an Economic Union between the two states and stipulated that the Jerusalem Area, which included Bethlehem, should be a separate area under the control of the UN.
The Zionist leadership pretended to accept the resolution, relying on the fact that it would be refused by the reactionary Arab leadership.
After the UN Resolution, clashes broke out among the two communities. The armed Zionist organizations, well prepared and organized, as well as heavily armed, defeated the poorly armed Palestinians and the weak unorganized Arab armies.
They occupied and annexed 70 percent of Jerusalem and 50 percent of the territory allocated to the Arab State, and on May 15, 1948, declared the State of Israel on 78 percent of historical Palestine territory, leaving the Palestinians without a state and in limbo.
All these events happened in collusion among the colonial British government, the Jewish Agency and some Arab regimes, ruled and/or controlled by the British.
Aftermath of the 1948 War
As mentioned above, there was an enlarged Jewish state [Israel], but the remaining territories of Palestine were either annexed to Jordan [The West Bank], or put under Egyptian rule [The Gaza Strip].
So, the Palestinian people, who constituted 67 percent of the population of Palestine in 1947 and owned 93 percent of its land, were betrayed and left in a state of destitution.
Sixty-two percent of them were driven out of their home under gunpoint and in several massacres committed by armed Zionist organizations.
At present, there are 10.5 million Palestinians, including around 5 millions refugees, scattered in several Middle Eastern countries and other Diaspora states.
As for Palestinian Statehood: The UN General Assembly by great majority has recognized the right of the Palestinian people to self determination and statehood in more than 40 resolutions.
Most famous of these resolutions were the two issued in October, 1974: 3236 and 3237. The latter recognized the PLO as the legitimate representative of the Palestinian people and stipulated that it would be granted the status of Observer in all UN organs and affiliated organizations and its sponsored conferences.
In December 15, 1988, a month after the declaration of the State of Palestine by the PLO conference in Algiers, the UN General Assembly decided in its resolution of December 15, 1988 to recognize the PLO declaration of the State of Palestine and to substitute the use of PLO for the name of Palestine in all its organs and conferences.
After the Oslo accords in 1993 and the failure of peace negotiations which lasted for 18 years, the PLO intends to bring to the UN General Assembly once again, through the UN Resolution number 377 of 1950, the issue of recognition of the State of Palestine on the basis of the June, 1967 borders.
Such resolutions, if issued by the UN General Assembly, could have some legal, political and media ramifications, but, nevertheless, it will not have any practical impact on the Israeli Government and some of its allies.
The State of Palestine will still lack a major element of a sovereign state: That is the "effective control" over territory and population. This can only be achieved when the Israeli occupation is compelled to withdraw from Palestine. This fact may push many members of the International Community to support Palestine to end the occupation.
However, there will be a slim chance for the admission of the state of Palestine into the United Nations if the US, or any other permanent members of the UN Security Council uses the Veto in this regards. In this situation, the General Assembly cannot vote for the Admission of Palestine, as the International court of Justice ruled in its Advisory Opinion of March 3, 1950, in its interpretation of the provisions of Article 4 of the UN Charter.
The best procedure to be conducted in this regard is one of the following:
a) To apply to the General Assembly of the UN asking them to denounce the continuing Israeli occupation and to declare the strict and unchangeable will of members of the United Nations to end the occupation of all Palestinian lands occupied in 1967 and their confirmation of the right of the Palestinian People to self-determination and statehood in a "full fledged independent state on all occupied Palestinian Territories occupied in 1967, including East Jerusalem" living in peace side by side with Israel.
b) To ask the UN General Assembly to demand from the ICJ an Advisory Opinion on the right of the Palestinian people to self-determination and statehood on the occupied territories.
A resolution of the UN General Assembly, if taken by great majority of more than 75 percent of the members and an Advisory Opinion from the ICJ could have a great impact on most states and members of the international community. They would also carry an important moral pressure on both states and international civil society.
The Palestinians, Arab States, Arab public opinion and civil society and other friends and supporters of the Palestinian people, should play a very active role in organizing and administrating all possible measures to properly invest and harness the said Resolution and/or Advisory Opinion.
One can give an example of the fruits of such good investment by referring to what the prominent Israeli leading newspaper Ha'aretz wrote in June 2011.
It referred to what several Israeli jurists and international law experts were aware of: "Palestine adhering to the Rome Statute of 1998 (the ICC Statute), thus becoming a member of the ICC capable of invoking its jurisdiction in cases of Israel committing war-crimes of other similar crimes".
Such membership is possible if many states and/or members of the ICC Statute are finally convinced that Palestine is a state which is worth becoming a member of the said convention. In this regard, it must be highlighted that the ICC Statute does not provide for states to become members of the ICC but that they should be members of the UNO. It only demands in all its Articles that Member States should be "States".
If support for Palestine is very high, it constitutes great pressure on several states and may be a turning point in their attitude towards Palestinian Statehood.
Abdullah Abu Eid is a professor of international law and human rights at Birzeit University