A Comprehensive Analysis of the

UN’s Approach to “the Palestine Question”

From the Perspective of an Ordinary Israeli Jew

Chaim Handler
November 2020

The views of the UN, and consequently the world community, regarding the rights of the Jewish People and
the Palestinians, are a compilation of preconceived arguments compiled over a century, seldom challenged or
debated objectively. No document better demonstrates this than the oft quoted “Advisory Opinion” issued by
the International Court of Justice in 2004 regarding the “legal consequences” of the security barrier. In this
essay I attempt to point out the subjectivity and illogic of assertions, taken for granted by the world
community as valid criticisms of Israel, using materials published by various academic sources, in the hope
that individuals and governments will reevaluate their positions with regard to the respective rights and
responsibilities of the Israeli and Palestinian people, allowing everyone to better understand each other’s
claims, thereby enabling us to arrive at a mutually beneficial solution to the conflict. Disclaimer: I personally
am neither a legal authority nor an academic. I welcome comments and corrections from knowledgeable
individuals and remain open-minded to opposing views.
Table of Contents

Table of Contents .................................................................................................................................................. 1

Preface .................................................................................................................................................................. 2
Analysis of ICJ Advisory Opinion ........................................................................................................................ 2
I. Resolution ES-10/14 – UN request for ICJ Advisory Opinion ...................................................................... 2
II. Paragraphs 46-47 – Consent ......................................................................................................................... 8
III. Paragraphs 70-74 – Selective History ......................................................................................................... 8
IV. Paragraph 75 - Jerusalem .........................................................................................................................10
V. Paragraphs 77-78 – Since the signing of the Oslo Accords .......................................................................11
VI. Paragraph 88 – Self Determination ...........................................................................................................13
VII. Paragraphs 90-95 – Occupation of What? ...............................................................................................16
Conclusions .........................................................................................................................................................18
Palestinian Territory........................................................................................................................................19
Palestinian Peoplehood ...................................................................................................................................20
The Human Right of Self-Determination........................................................................................................21
Israeli Culpability and Compliance ................................................................................................................25
The first transformation - from World War I through the inception of the Mandate. .....................................25
The second transformation - from the British declaration in February 1947 giving notice of its resignation
as Mandatory, through the formal annexation of the “West Bank” by Jordan ..............................................25
The third transformation - June 1967, when the Arab populations of the Egyptian occupied Gaza Strip and
Jordanian occupied “West Bank” came under Israeli control.......................................................................28
The fourth transformation - between October 1973 and November 1975 ......................................................30
The fifth and final transformation - the creation of the Palestinian Autonomy as a result of the 1993 Oslo
Accords ...........................................................................................................................................................33
In Summary.....................................................................................................................................................35
Justification for Unilateral Actions .....................................................................................................................36
Bibliography .......................................................................................................................................................37

1
Preface
Allegations are bandied about freely, accusing Israel of violating international law by its “hostile occupation” of
Palestinian territory; by denying the Palestinians’ right of self-determination; and by violating the Fourth Geneva
Convention regarding the protection of populations under occupation. To many people, primarily Jews and Israelis, these
allegations seem absurd. When the UN proposed partition, creating Jewish and Arab States, the Arabs refused to create an
Arab State. Instead they tried to destroy the Jewish State and seize everything for themselves. There never was Arab
sovereignty in Palestine, so how can Israel be occupying something that never was? The so called Palestinians carry out
aggression after aggression, with rockets, suicide bombs, remote controlled bombs, incendiary bombs carried by balloons
and kites, firearms, knives, even cars. They have walked out of negotiations where for example, according to US
President Clinton, Israel agreed to nearly all of the Arab’s demands. And still Israel is branded the criminal and the
Palestinians the victim.
The closest any court has come to publishing a verdict as to the accuracy of these allegations is the Advisory Opinion
returned by the International Court of Justice in July 2004 1, as to the legal consequences of the construction of the
security barrier, built in response to the bloody uprising in which a thousand Israeli civilians were butchered by
Palestinian terrorists and thousands more wounded. The “opinion” essentially rubber stamps earlier resolutions by the
General Assembly and Security Council, all of which condemned Israel in every possible way. Israel’s written arguments
were all summarily dismissed as irrelevant. There has never been a court proceeding where oral arguments were
presented by advocates for both sides, before a judicial panel, for dispassionate debate. Unfortunately impartial judicial
authorities, with no preconceived opinions on the subject, don’t seem to exist in any event.

Analysis of ICJ Advisory Opinion

What follows are excerpts from the 2004 Advisory Opinion with my personal commentary as to how they are, from a
layman’s point of view, incorrect or biased. Afterwards I will explain how I believe the opinion of the UN and the
proponents of the assertions of Israeli wrongdoing came to diverge so dramatically from the reality as it is perceived by
myself and other Israelis, as well as others who support the Israeli position.

I. Resolution ES-10/14 – UN request for ICJ Advisory Opinion

The Advisory Opinion begins by publishing the UN resolution requesting that the ICJ supply an Advisory Opinion as to
the “legal consequences arising from the construction of the wall”:
Guided by the principles of the Charter of the United Nations2,
But not by the principle stated in Chapter XII Article 80 of the Charter, which states: “…nothing in
this Chapter shall be construed in or of itself to alter in any manner … the terms of existing
international instruments to which Members of the United Nations may respectively be
parties.” This clause of the UN Charter as essentially an admission that if the specific terms of the
Mandate for Palestine conflict with the general “principles” of the UN Charter, the terms of the
Mandate must take precedence.
Aware of the established principle of international law on the inadmissibility of the acquisition of territory by force,
And yet unaware that the armistice line of 1949, mentioned several times in this letter, is the
direct result of the efforts by Transjordan and Egypt to acquire territory by force. Its use to
determine the extent of title to territory violates this very principle as well as the explicit terms of
the armistice agreements themselves, which stated in no uncertain terms: “The Armistice
Demarcation Lines defined in articles V and VI of this Agreement are agreed upon by the Parties
3
without prejudice to future territorial settlements or boundary lines”

1
ICJ – Advisory Opinion – Legal Consequences of the Construction of a Wall in the OPT
2
Charter of the United Nations – Full Text
3
Israel – Jordan Armistice Agreement, April 3, 1949
2
Aware also that developing friendly relations among nations based on respect for the principle of equal rights and
self-determination of peoples is among the purposes and principles of the Charter of the United Nations,
And yet also unaware that the terms of the “existing instrument”, which according to the UN
Charter must not be altered, was demonstrably to apply the principle of self-determination not
based upon the current population, which was undeniably 90% Arab, but to the land’s original
4
owners, the Jewish people in exile. The Mandate for Palestine was exceptional as compared to
all other mandates in that it explicitly recognized “the historical connection of the Jewish people
with Palestine and to the grounds for reconstituting their national home in that country” –
“reconstituting” as in restoring its former status as an independent national entity. It instructed
the Mandatory to “place the country under such political, administrative and economic
conditions as will secure the establishment of the Jewish national home”; to recognize “An
appropriate Jewish Agency … as a public body for the purpose of advising and co-operating
with the Administration of Palestine in such economic, social and other matters as may affect
the establishment of the Jewish national home and the interests of the Jewish population in
Palestine”; to “facilitate Jewish immigration under suitable conditions and shall encourage …
close settlement by Jews, on the land”; and to “facilitate the acquisition of Palestinian
citizenship by Jews who take up their permanent residence in Palestine”. These clauses were
clearly necessitated in order to ensure that, despite the Jews’ status as a minority within the
Palestine at the time, the right to self-determination in Palestine would be applied to the Jewish
nation, and despite the fact that at the time 99.6% of the Jewish nation was still residing in exile.
Had these clauses not been added it would have been obvious that self-determination should be
applied to the resident majority at the time the Mandate was written. Therefore the fact that
they do appear is a clear indication that the League of Nations intended that the Mandate would
result in Palestine becoming a predominantly Jewish independent entity.
Furthermore, the Mandate provided for equal civil, cultural, and religious rights for the Arab
population, a provision that would only be relevant if the Arab population would become a
minority. It provided for self-determination for “Palestinians”, but only after the Mandatory,
having abided by Articles 6 and 7 of the Mandate, would have ensured that the majority of
“Palestinians” were Jews. Unfortunately Great Britain not only did not “facilitate” Jewish
immigration, it went so far as to send shiploads of escaping Jews back the Nazi extermination
camps, or to die when their unseaworthy ships sank. In the final analysis the application of self-
determination of the people of Palestine to the land’s original owners, the Jewish people, as
intended by the League of Nations, has been achieved. Today, a mere 70 years after the founding
of the Jewish State, fully half of the Jews in the world do indeed reside in Israel, the national
home of the Jewish nation, and the proportion of Jews in Israel as opposed to the diaspora, is
constantly rising.
Recalling relevant General Assembly resolutions, including resolution 181 (11) of 29 November 1947 5,
which partitioned mandated Palestine into two States, one Arab and one Jewish,
And yet conveniently neglecting the fact that Resolution 181 was rejected by the Arabs, who
refused to proclaim an Arab State in accordance with the resolution. Instead the Arabs initiated
hostile aggression to eradicate the Jewish State, when it was proclaimed. The UN failed to
implement any of its commitments in the resolution, including the orderly transfer of control
from the Mandatory to the UN Palestine Commission, and the mobilization by the Security
Council of peacekeeping forces as required by the resolution 181: “the Security Council should
supplement the authorization of the General Assembly by taking measures, under Articles 39
and 41 of the Charter, to empower the United Nations Commission, as provided in this
resolution, to exercise in Palestine the functions which are assigned to it by this resolution”.

4
League of Nations Mandate for Palestine
5
UN General Assembly Resolution 181
3
Recalling also the resolutions of the tenth emergency special session of the General Assembly,
Chiefly resolutions submitted by the Arab League and Arab and Muslim States (as specified in
articles 18-23 of the ICJ “Advisory Opinion”), most of whom are openly belligerent to what they
refer to as the “Zionist entity”, refusing to recognize the legitimate right of Israel to exist, despite
Israel’s status as a member in good standing of the UN since 1949.
Recalling further relevant Security Council resolutions, including resolutions
242 (19671 of 22 November 1967, 338 (1973) of 22 October 1973, 267 (1969) of 3 July 1969,
298 (1971) of 25 September 1971, 446 (1979) of 22 March 1979, 452 (1979) of 20 July 1979,
465 (1980) of 1 March 1980, 476 (1980) of 30 June 1980, 478 (1980) of 20 August 1980,
904 (1994) of 18 March 1994, 1073 (1996) of 28 September 1996, 1397 (2002) of 12 March 2002
and 1515 (2003) of 19 November 2003,
Yet conveniently neglecting the fact that most of these resolutions included obligations of both
6
sides in the conflict. For instance, resolution 242 predicated Israel’s withdrawal from
“territories” on the: “Termination of all claims or states of belligerency and respect for and
acknowledgement of the sovereignty, territorial integrity and political independence of every
State in the area and their right to live in peace within secure and recognized boundaries free
7
from threats or acts of force.” The declaration by the Arab League Summit in Khartoum that
stated: “NO RECOGNITION, NO NEGOTIATION, NO PEACE!” was the de-facto rejection of the
terms of resolution 242. Resolution 242 asked far more of the Arab belligerents than it did of
Israel. To respect and acknowledge the sovereignty and independence of Israel, and the right of
Israelis to live in peace within secure and recognized borders (which in no way describes the 1948
armistice line) was not something the Arab States were prepared to do and they said so. Those
who drafted this document suffer from selective recollection, which recalls only the burdens
delegated to the Jewish State, never those incumbent upon its adversaries. The UN has no
difficulty disregarding the text of its own resolutions if doing so serves to promote its politically
motivated agenda.
Reaffirming the applicability of the Fourth Geneva Convention8 as well as Additional Protocol 19 to the Geneva
Conventions to the Occupied Palestinian Territory, including East Jerusalem,
The UN has a tendency to make assertions and then use the fact that the UN made those
assertions as proof that they are valid. The applicability of the Geneva Convention is a legal
dispute and the UN does not have the legal authority to affirm or reaffirm the applicability of
articles of the Geneva Convention relating to settlement activity to what they claim to be
Palestinian territory. Protocol I, which was drafted in 1977, ten years after the Six Day War, and
rejected by Israel and the US among others, essentially legitimizes terrorist activities under the
guise of “armed conflicts which peoples are fighting against colonial domination and alien
occupation and against racist regimes in the exercise of their right of self-determination”. The
terminology used in incessant false allegations, that Israel a colonialist endeavor carried out by
“European occupiers”; is a racist “apartheid” regime; and that Israel denies the Palestinians their
right of self-determination, are all deliberate efforts to legitimize the violence and aggression by
Palestinian terrorists against Israeli citizens, as per this clause within “protocol I” of the
Convention.
Recalling the Regulations annexed to the Hague Convention Respecting the Laws and Customs of War on Land of 1907 10,
Welcoming the convening of the Conference of High Contracting Parties to the Fourth Geneva Convention on measures
to enforce the Convention in the Occupied Palestinian Territory, including Jerusalem, at Geneva on 15 July 1999,

6
UN General Assembly Resolution 242
7
Arab League Summit, Khartoum, September 1, 1967
8
Fourth Geneva Convention
9
Protocol I of Geneva Convention – June 8, 1977
10
Hague Convention Concerning War on Land – 1907
4
Expressing its support for the declaration adopted by the reconvened Conference of High Contracting Parties at Geneva
on 5 December 2001,
Welcoming and expressing support for measures to enforce resolutions promoted by parties
external to a conflict, who do not conceal their belligerence towards one party in the conflict and
benevolence towards the other, exposes the deception that the UN’s role in the conflict is one of
impartial mediator. It cannot “welcome” a decision partial to one party and still claim to be
impartial.
Recalling in particular relevant United Nations resolutions affirming that Israeli settlements in the Occupied Palestinian
Territory, including East Jerusalem, are illegal and an obstacle to peace and to economic and social development as well
as those demanding the complete cessation of settlement activities,
Recalling relevant United Nations resolutions affirming that actions taken by Israel, the occupying Power, to change the
status and demographic composition of Occupied East Jerusalem have no legal validity and are nuIl and void,
Once again here the UN invokes its own arbitrary resolutions to support its own assertions. The
UN is a collection of political appointees, and here they are informing the court what they believe
to be illegal, knowing that this court exists under the UN framework, and can therefore be relied
upon to base its deliberations on the pre-conceived assertions they have provided with, rather
than upon legal considerations.
Noting the agreements reached between the Government of Israel and the Palestine Liberation Organization in the context
of the Middle East peace process.
Gravely concerned at the commencement and continuation of construction by Israel, the occupying Power, of a wall in
the Occupied Palestinian Territory, including in and around East Jerusalem, which is in departure from the Armistice Line
of 1949 (Green Line) and which has involved the confiscation and destruction of Palestinian land and resources, the
disruption of the lives of thousands of protected civilians and the de facto annexation of large areas of territory, and
underlining the unanimous opposition by the international community to the construction of that wall,
Gravely concerned also at the even more devastating impact of the projected parts of the wall on the Palestinian civilian
population and on the prospects for solving the Palestinian-Israeli conflict and establishing peace in the region,
And yet decidedly unconcerned by the massive death and destruction caused by Palestinian
bombings and killings of Israeli civilians and non-civilians as part of the ongoing violent “uprising”,
which obviated the necessity for the construction of the security barrier.
Welcoming the report of 8 September 2003 of the Special Rapporteur of the Commission on Human Rights on the
situation of human rights in the Palestinian territories occupied by Israel since 1967, in particular the section regarding
the wall,
Naturally a report which details the harsh consequences suffered by Palestinians at the hands of
Israel is welcomed for its capacity to cause prejudice towards Israel. The hardships described, in
exaggerated terms, should not be welcomed. What would have been just would have been for
the commission on human rights to provide a correspondingly vivid description of the death and
destruction perpetrated by the Palestinian uprising upon the citizens of the State of Israel, the
protection of whose right to life should be of no less concern to the commission as those of the
Palestinians. The uprising against Israel and its citizens was initiated by the Palestinian people
and continued for a period of over four year without regard to Israeli attempts to protect its
citizens and create deterrence. As such the Israelis are the victims of the Palestinian aggression.
The consequences to the Palestinians ceased the moment their aggression ceased. Justifying the
uprising violates the basic principle of the UN charter requiring that disputes be settled by
peaceful means rather than by violence. It was the uprising itself that endangered international
peace and security, and yet the UN has never condemned Palestinian violence, only Israeli
actions to prevent its citizens from being victimized by Palestinian violence.

Affirming the necessity of ending the conflict on the basis of the two-State solution of Israel and Palestine living side by
side in peace and security based on the Armistice Line of 1949, in accordance with relevant Security Council and General
Assembly resolutions,

5
 Article 33 of the UN Charter states: “The parties to any dispute … shall, first of all, seek a
solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort
to regional agencies or arrangements, or other peaceful means of their own choice.” Every time
the UN asserts what it considers the necessary terms of the resolution of the conflict need to be,
it is violating this principle. In this clause the UN asserts that the only solution acceptable to it is a
“two-State solution”; with borders based upon the 1949 Armistice agreements between Israel
and Egypt and between Israel and Jordan; and that the solution reached has to be in compliance
with “relevant Security Council and General Assembly resolutions.” By making this assertion the
UN is rendering any attempt to reach a negotiated settlement between the two parties
redundant. It is imposing terms rather than allowing the parties to the dispute to compromise. As
such it is the UN’s imposition of terms that poses the greatest obstacle to any genuine attempt at
reconciliation from taking place.
Having received with appreciation the report of the Secretary-General, submitted in accordance with resolution ES-10/1311,
Having read the report myself, I’ve found appreciable content that supports Israel’s assertion
that the purpose of the security barrier is to protect the lives of its citizens, and not to annex
territory or cause hardship to the Arabs who live proximate to it. For instance it admits that the
decision to build the “barrier” came “after a sharp rise in Palestinian terror attacks in the spring
of 2002”. The document explicitly rejects the use of the term “Wall” to describe this security
measure, noting that “Concrete walls cover about 8.5 kilometres of the approximately 180
kilometres of the Barrier”. The Palestine Liberation Organization and the resolutions of the
General Assembly refer to it as a “Wall”. The ICJ writes in its “Advisory Opinion”: “the other
terms used … are no more accurate … In this Opinion, the Court has therefore chosen to use the
terminology employed by the General Assembly” (par. 67) rather than the more “impartial”
terminology used by the UN’s secretary general. I think it is obvious that the use of the term
“Wall” is intended evoke the recollection of politically motivated “Walls” such as the Berlin Wall.
That intention is inherently prejudicial and is indicative of the partiality of the parties who choose
to use the term “Wall”.
Kofi Annan, the UN Secretary General who wrote this report, makes the observation that “I
acknowledge and recognize Israel's right and duty to protect its people against terrorist
attacks. However…” From the time that the Palestinian uprising began until the day this report
was published 720 Israeli civilians were murdered in 200 incidents of shootings, bombings, and
stabbings, all within the framework of this politically motivated guerrilla war waged against non-
combatants, many of whom were children under the age of 10, and elderly people over the age
of 70. These are only the number of people killed. Many times this number were wounded or
maimed in these attacks. The bloodshed continued unabated for years. The Wikipedia page
12
entitled “List of Israeli civilian casualties in the Al-Aqsa Intifada” lists details of each attack and
the names and age of the victims. And this only relates to the number of civilian casualties. Many
Israeli citizens who were called upon to defend their fellow citizens were killed and injured in
battles with armed Palestinian militants as well.
Each of these bombings, shootings, and stabbings are atrocities, and, if protocol I is to be
invoked, then they are nothing short of war crimes. Yet not a word about them is mentioned.
What is mentioned in great detail, undoubtedly using inflated statistics provided by the PA, is
how the security barrier inconveniences some Palestinians who purportedly find themselves on
the opposite side of the barrier as resources they require or agricultural territory they supposedly
cultivate. Not that they aren’t permitted to cross the barrier, only that doing so can be
inconvenient. It does admit that much of the barrier does closely follow the 1949 armistice line. I
would add three observations of my own. 1) There can be no rational argument of
proportionality when weighing humanitarian, social and economic inconvenience to a small
minority of the Palestinian population against the maintenance of international peace and
security, specifically the obligation of the government of Israel to prevent the arbitrary slaughter
of Israeli civilians. 2) No international law immunizes a population from having to suffer

11
Secretary General Report Regarding Security Barrier
12
Wikipedia – List of Israeli Civilian Casualties in the al-Aqsa Intifada
6
 consequences of their political violence perpetrated against an adversary. 3) In light of the
elemental principles of the UN Charter to maintain world peace and human rights, I find it
incomprehensible that the UN has been so reticent about such a staggering volume of violent
attacks against the civilian population of a member nation, which so clearly disrupted world
peace and violated the fundamental right of the Israeli citizen to life, as well as to be able to live
free of the threat that at any moment they would find themselves amid a firestorm, with body
parts flying in every direction.
Yet incredibly, the UN did not take the Palestinians to task for their aggression, but instead
“reaffirmed” the “rights” of guerrilla militants; denied that these blatant atrocities are
attributable to the PA government; and repeatedly castigated Israel for responding with
“disproportionate” force even though the force brought to bear was insufficient to deter
continued hostilities on the part of the Palestinians. What principle of international law states
that a country must allow its citizens to be murdered rather than inflicting “disproportionate”
casualties among the adversary perpetrating those murders?
One of Kofi Annan’s final observations was that “each party should be making good-faith
confidence-building gestures, the Barrier's construction in the West Bank cannot, in this regard,
be seen as anything but a deeply counterproductive act.” Putting a stop to terrorist murder of
Israeli citizens would not only have constituted a good-faith confidence-building gesture on the
part of the Palestinians, but was a fundamental principle of the Oslo Accords, by virtue of which
the Palestinian Autonomy came into existence. There have never been any good-faith
confidence-building gestures on the part of the Palestinians to my recollection. There can be
nothing more productive towards achieving peace than the prevention of acts of war. The
decision to invest millions of dollars in the construction of a security barrier was only made in
response to the al-Aqsa uprising, which was nothing short of a declaration of war. The existence
of the Security Barrier has proven itself as an effective means by which to prevent the repetition
of the sort of confrontation initiated by the Palestinians twenty years ago, and lasted more than
four years. And as an Israeli citizen, I will never view anything done by my government to
prevent my death or the deaths of the members of my family, or any human being, as
“counterproductive”.
Bearing in mind that the passage of time further compounds the difficulties on the ground, as Israel, the occupying Power,
continues to refuse to comply with international law vis-à-vis its construction of the abovementioned wall, with all its
detrimental implications and consequences,
Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice,
pursuant to Article 65 of the Statute of the Court, to urgently render an advisory opinion on the following question:

“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying
Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of
the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva
Convention of 1949, and relevant Security Council and General Assembly resolutions?”
Note that the question posed to the ICJ is not whether the West Bank falls under the legal category of
Occupied Territory, or whether such occupation is a violation of international law. It isn’t whether Israelis
are violating International law by residing in the territory in question. It is not even asking whether the
construction of the Security Barrier is a violation of International law. All these questions are portrayed as
forgone conclusions based upon decisions by the UN General Assembly or Security Council, despite the fact
that these parties are not qualified to adjudicate international law. And, unsurprisingly, the ICJ, in its
“advisory opinion”, agrees unconditionally with all of the assertions in this document. What the ICJ was
asked to deliberate upon was what “legal consequences” could be brought to bear against Israel as a result.
The response by the ICJ was a. the “wall” is illegal, b. Israel should comply with international law and
dismantle the “wall”, c. Israel must compensate all Palestinians damaged by its construction, d. other States
must reject the “wall” as illegitimate and must not “aid in maintaining the situation created by the
construction” of the “wall”, and e. the UN General Assembly and Security Council should consider what
further actions can be taken to end the situation created by the construction of the “wall”. In other words,
the ICJ didn’t explicitly authorize the UN to impose its will upon the State of Israel as was probably hoped. It
simply threw the ball back and told the UN to decide for itself how to proceed.

7
Sections II through VII are excerpts from the ICJ’s Advisory Opinion, and how, in my opinion, they are flawed:

II. Paragraphs 46-47 – Consent

It has been contended in the present proceedings that the Court should decline to exercise its jurisdiction because of the
presence of specific aspects of the General Assembly's request that would render the exercise of the Court's jurisdiction
improper and inconsistent with the Court's judicial function. The first such argument is to the effect that the Court should
not exercise its jurisdiction in the present case because the request concerns a contentious matter between Israel and
Palestine, in respect of which Israel has not consented to the exercise of that jurisdiction. According to this view, the
subject-matter of the question posed by the General Assembly "is an integral part of the wider Israeli-Palestinian
dispute concerning questions of terrorism, security, borders, settlements, Jerusalem and other related matters". Israel
has emphasized that it has never consented to the settlement of this wider dispute by the Court or by any other means of
compulsory adjudication; on the contrary, it contends that the parties repeatedly agreed that these issues are to be settled
by negotiation, with the possibility of an agreement that recourse could be had to arbitration.

In an Advisory Opinion of 1950, the Court explained that:

"The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation
is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question
actually pending between States. The Court's reply is only of an advisory character: as such, it has no binding force. It
follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion
which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should
take. The Court's Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the
Court, itself an 'organ of the United Nations', represents its participation in the activities of the Organization, and, in
principle, should not be refused."

It is essential in my opinion to keep in mind, when quoting from this “Advisory Opinion”, that it
does not constitute a verdict as to whether or not laws have been violated and how the
perpetrator should be disciplined, much less a decision as to the proper resolution of a conflict. In
fact it is a basic principle of the UN that, where a “contentious dispute” between parties is
concerned, the UN cannot intervene without the consent of both parties, and if the parties do
come to an understanding between themselves, the legal issues raised by the parties are no
longer matters for UN consideration.

III. Paragraphs 70-74 – Selective History

… on 29 November 1947 adopted resolution 181 (II) on the future government of Palestine, which "Recommends to the
United Kingdom ... and to al1 other Members of the United Nations the adoption and implementation ... of the Plan of
Partition" of the territory, as set forth in the resolution, between two independent States, one Arab, the other Jewish, as
well as the creation of a special international régime for the City of Jerusalem. The Arab population of Palestine and the
Arab States rejected this plan, contending that it was unbalanced; on 14 May 1948, Israel proclaimed its independence on
the strength of the General Assembly resolution; armed conflict then broke out between Israel and a number of Arab
States and the Plan of Partition was not implemented.

“... armed conflict then broke out between Israel and a number of Arab States…” That is by far
the most egregious misrepresentation of the truth I have ever heard or seen. This turn of phrase
alone should be sufficient to disqualify the ICJ as an impartial authority with regard to the Arab
Israeli conflict. At midnight of May 15, 1948 the entire armed forces of Egypt, Transjordan, Syria,
Iraq, and Lebanon converged upon and invaded what was until a few hours earlier Mandatory
Palestine, with the express intention of eradicating the Jewish State. The nascent State of Israel
had no tanks, no air force, hardly more than rifles to defend itself against the Arab onslaught.
Israel’s War of Independence was nothing less than a war of aggression perpetrated by five Arab
States, on foreign soil, in direct contempt of the UN charter and resolution 181. It was precisely
the sort of military incursion that the UN exists to prevent.

8
 But the violent Arab aggression to obstruct the establishment of the Jewish State did not begin
with the military invasion on May 15. The UN’s own Palestine Commission reported on April 10
that: “The commission has the duty to report to the General Assembly that the armed hostility
of both Palestinian and non-Palestinian Arab elements, the lack of co-operation from the
Mandatory Power, the disintegrating security situation in Palestine, and the fact that the
Security Council did not furnish the Commission with the necessary armed assistance, are the
factors which have made it impossible for the commission to implement the Assembly’s
13
resolution.” (A/532) Armed conflict did not “break out”. The armed conflict was a concerted
effort to thwart the implementation of the partition plan, by Palestinian and non-Palestinian
ARAB elements, in collusion with the British Mandatory administration which did everything in its
power to obstruct the UN commission while allowing armed Arab irregular forces to infiltrate
Palestine unimpeded. The Security Council is also at fault for failing to abide by the explicit
clauses within resolution 181 obligating it to provide the necessary peacekeeping support that
would be required to ensure the orderly and peaceful transfer of control from the Mandatory
Power to the UN commission, and from them to the provisional Arab and Jewish governments
that were to be formed. These are the reasons that the Partition plan was not implemented, and
here you have the representatives of the UN declaring this to have been the unvarnished truth,
placing the blame squarely on Arab aggression, British obstruction, and Security Council inaction.

By resolution 62 (1948) of 16 November 1948, the Security Council decided that "an armistice shall be established in all
sectors of Palestine" and called upon the parties directly involved in the conflict to seek agreement to this end. In
conformity with this decision, general armistice agreements were concluded in 1949 between Israel and the neighboring
States through mediation by the United Nations. In particular, one such agreement was signed in Rhodes on 3 April 1949
between Israel and Jordan. Articles V and VI of that Agreement fixed the armistice demarcation line between Israeli and
Arab forces (often later called the "Green Line" owing to the color used for it on maps; hereinafter the "Green Line").
Article III, paragraph 2, provided that "No element of the ... military or para-military forces of either Party ... shall
advance beyond or pass over for any purpose whatsoever the Armistice Demarcation Lines ..." It was agreed in Article
VI, paragraph 8, that these provisions would not be "interpreted as prejudicing, in any sense, an ultimate political
settlement between the Parties". It was also stated that "the Armistice Demarcation Lines defined in articles V and VI of
[the] Agreement [were] agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or
to claims of either Party relating thereto". The Demarcation Line was subject to such rectification as might be agreed
upon by the parties. In the 1967 armed conflict, Israeli forces occupied al1 the territories which had constituted Palestine
under British Mandate (including those known as the West Bank, lying to the east of the Green Line). On 22 November
1967, the Security Council unanimously adopted resolution 242 (1967), which emphasized the inadmissibility of
acquisition of territory by war and called for the "Withdrawal of Israel armed forces from territories occupied in the
recent conflict", and "Termination of al1 claims or states of belligerency".

According to the “Hague Convention Respecting the Laws and Customs of War on Land” of 1907,
“an armistice suspends military operations by mutual agreement between the belligerent
parties. If the duration is not fixed the belligerent parties can resume operations at any time,
provided always the enemy is warned within the time agreed upon, in accordance with the
terms of the armistice.” Suspension of hostilities implies a temporary condition. It is absurd for
the ICJ to assert that, after 18 years of the “suspension” of full-scale warfare, when hostilities
resumed and the Jordanian occupier withdrew from the territory that it had acquired as the
result of military incursion into foreign territory, that it was Israel who was in violation of the
terms of the armistice, by “advancing beyond or passing over for any purpose whatsoever the
Armistice Demarcation Lines.” The resumption of hostilities marks the end of the armistice and
the demarcation of the armistice no longer holds significance. Moreover, the armistice
agreement was an accord between two parties, the State of Israel, and the Hashemite Kingdom
of [Trans]Jordan. On August 1, 1988 Jordan formally renounced claims to the West Bank, and on
October 26, 1994 Jordan signed the peace treaty with Israel, completing the “ultimate political
settlement between the Parties”, and fixing the Jordanian border at the Jordan River. How the
armistice demarcation line retains any relevance at this point in time is incomprehensible.

13
UN Palestine Commission Report – April 10, 1948
9
 I find it odd that the incursion of the military forces of five countries onto foreign soil and their
initiation of hostilities was not condemned by the UN as a threat to world peace. I find it odd that
the annexation by Jordan of the territory it occupied by virtue of the armistice with Israel, was
not condemned in accordance with the same rule of the “inadmissibility of acquisition of
territory by force” that is applied to Israel in order to vilify it and accuse it of violating
international law. In fact there is no law stating that territory cannot be acquired by force, at
least there was none in 1967. UN charter article 2 states “All Members shall refrain in their
international relations from the threat or use of force against the territorial integrity or
political independence of any state.” One could infer from this that, since force is frowned upon,
then benefits gained from force are “inadmissible”. One could also infer from it that it applies to
those countries that initiate aggression by use of military force, or even threaten to, rather than
to those that are threatened or attacked.
UN charter article 2 also states: “All Members shall settle their international disputes by
peaceful means in such a manner that international peace and security, and justice, are not
endangered.” The Khartoum Arab League Summit declared on September 1, 1967: “no peace
with Israel, no recognition of Israel, no negotiations with it.” Resolution 242, adopted
November 22, more than two months later, could just as easily have declared the Khartoum
resolution as contrary to international law. For that matter the UN could have, for 20 years,
accused the Arab countries that rejected resolution 181, threatened the use of military force, and
then attempted to destroy the State of Israel through the use of massive military force, of
endangering world peace and security in direct and obvious violation of the UN charter, which
they were signatories to at the time, as opposed to the nascent, beleaguered Jewish State that
had, against all odds, succeeded in defending itself. I have yet to discover a UN resolution
condemning the Arab States for violating international law by their actions from the time of the
ratification of resolution 181 onward, or one condemning the Jordanian annexation of the
territory it occupied as a result of that aggression.

IV. Paragraph 75 - Jerusalem

From 1967 onwards, Israel took a number of measures in these territories aimed at changing the status of the City of
Jerusalem. The Security Council, after recalling on a number of occasions "the principle that acquisition of territory by
military conquest is inadmissible", condemned those measuires and, by resolution 298 (1971) of 25 September 1971,
confirmed in the clearest possible terms that: "al1 legislative and administrative actions taken by Israel to changethe
status of the: City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation
aimed at the incorporation oî the occupied section, are totally invalid and cannot change that status".

Later, following the adoption by Israel on 30 July 1980 of the Basic Law making Jerusalem the "complete and united"
capital of Israel, the Security Council, by resolution 478 (1980) of 20 August 1980, stated that the enactment of that Law
constituted a violation of international law and that "al1 legislative and administrative measures and actions taken by
Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem
... are nuIl and void". It fùrther decided "not to recognize the 'basic law' and such other actions by Israel that, as a result of
this law, seek to alter the character and status of Jerusalem".

For 18 years the Jordanians defied the terms of the armistice and did not permit Jews access to
the “Holy City of Jerusalem”. In fact the Jordanians destroyed and defiled all of the Jewish holy
14 15
places and any remnants of thousands of years of Jewish presence in the Old City , and yet,
this was never condemned despite all the mention of respect for the religions of others,
particularly in Jerusalem, in official documents from the Balfour declaration onward. East
Jerusalem was ethnically cleansed by the Jordanians of its Jewish population in 1948, but is that a
violation of human rights? Clearly not.

14
Letter to Secretary General Regarding Jordanian Desecration of Jewish Holy Sites
15
Wikipedia – Islamization of East Jerusalem under Jordanian Rule
10
 The West Bank was designated to be part of the Arab State, and perhaps that could be reconciled
with Jordanian annexation which granted Jordanian citizenship to the Arab Palestinians, but
16
Jerusalem was designated to be “internationalized” according to res. 194 . For 18 years it was
the Jordanians who illegally claimed sovereignty over the city in direct violation of that
resolution. And, unlike Israel, which, after regaining control of the Old City, has been
conspicuously careful to respect and promote the religious rights and sensibilities of every
religion, the Jordanians displayed only contempt for the religion that built the city, 1700 years
17
before the first Moslem set foot in it .
The Jerusalem law of 1980 was preceded by the law passed by the Knesset on December 13,
18
1949 , which declared Jerusalem Israel’s capital, followed by the first session of the Knesset in
Jerusalem on December 26. As I have stated previously, there is no significance to an armistice
demarcation line once hostilities are resumed and the armistice is no longer in effect. Jerusalem
is a single entity. It has been the capital of Israel since December 1949 and will remain the capital
of Israel as long as the State of Israel continues to exist.
Nevertheless, according to the memoirs of US President Bill Clinton, on December 23, 2000,
Israeli Prime Minister Ehud Barak accepted the recommendation that “the Arab neighborhoods
be in Palestine and the Jewish neighborhoods be in Israel, and that the Arabs should have
sovereignty over the temple mount/Haram al-Sharif and the Israelis sovereignty over the
19
Western Wall.” In the more than three and a half years between Arafat’s refusal to reach any
compromise and the publishing of this “Advisory Opinion”, the subsequent Palestinian uprising
claimed the lives of over 720 Israeli civilians, mostly women and children, in the shootings,
stabbings and bombings of public buses, shopping malls, cafes and restaurants. Yet despite
Israel’s readiness to reverse what this “Advisory Opinion” calls “legislative and administrative
actions” with regard to the Arab populated areas of East Jerusalem, it is Israel that is repeatedly
condemned for its continued presence in East Jerusalem, while the intransigence and violent
aggressions and hostilities perpetrated by the Palestinians, in direct contempt of article 2 of the
UN Charter, are completely and utterly ignored.

V. Paragraphs 77-78 – Since the signing of the Oslo Accords

A number of agreements have been signed since 1993 between Israel and the Palestine Liberation Organization imposing
various obligations on each Party. Those agreements inter alia required Israel to transfer to Palestinian authorities certain
powers and responsibilities exercised in the Occupied Palestinian Territory by its military authorities and civil
administration. Such transfers have taken place, but, as a result of subsequent events, they remained partial and limited.

The Palestinian Autonomy is hardly limited. Prior to Oslo all of the residents of the “occupied
territories” were governed by Israel’s “Civil Administration”, which provided all of the residents’
needs. Since the establishment of the Palestinian Autonomy, nearly all the functions provided by
any independent country are provided by the PA. There was a democratically elected Parliament
until Mahmoud Abbas shut down the Palestinian Legislative Council in 2007 and has since ruled
as a dictatorship. They have their own telephone, cellphone, and internet networks, complete
with their own international dialing code and internet suffix. They have their own electricity and
water utilities, and they have even built their own power generation station, although they still
purchase much of their electricity and water from Israel. They had an international airport of
their own on the Gaza Strip, until it was closed down during the uprising, and was never
reopened after Hamas overthrew Palestinian Authority control of the Strip.

16
UN General Assembly Resolution 194
17
Wikipedia - History of Jerusalem
18
Transfer of Knesset to Jerusalem, December 13, 1949
19
Excerpt from Bill Clinton Memoir: “My Life”
11
 Every function that was provided by Israel has had to be duplicated because Israelis do not have
access to the Autonomous areas. Only the IDF can enter the Autonomous regions of the West
Bank, and then only to make arrests of suspected terrorists. In the Gaza Strip they cannot do
even that. The PA has no independent currency, not that they couldn’t establish their own
currency if they chose to. There are hospitals in the Autonomy however it is often necessary for
residents of the Autonomy to seek medical care in Israeli hospitals that are better equipped to
deal with some medical issues. The PA and Hamas employ tens of thousands of Palestinians in a
multitude of police and para-military security forces. The PA (with the assistance and funding of
the UNRWA) operates a full range of schools, from day-care up to university level. All of this came
into being as a result of the agreements downplayed here as being “partial and limited.” Fully
97% of all the Palestinians in the “occupied territories” are governed by the PA. 100% of the
residents of the Gaza Strip are fully governed by the Hamas regime that had taken power there.
The complete and total withdrawal of Israeli forces and “settler” population from the Gaza Strip
in 2005 is also not deemed a relevant development by the ICJ in its recounting of history, nor is
the overwhelming victory of Hamas over Fatah (PLO) in the January 2006 PLC election; the violent
military coup whereby Hamas seized control of the Gaza Strip between June 10 and 15, 2007,
leaving over 160 Palestinians dead and 550 wounded; and the suspension of democracy
throughout the Palestinian Autonomy during the 13 years that had elapsed since. Nor are the
thousands of rockets launched from within the Hamas controlled Gaza Strip indiscriminately into
Israeli cities worthy of mention or condemnation as acts of war that threaten world peace and
security.

The Court would observe that, under customary international law as reflected in Article 42 of the Regulations Respecting
the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907 (hereinafter "the
Hague Regulations of 1907"), territory is considered occupied when it is actually placed under the authority of the hostile
army, and the occupation extends only to the territory where such authority has been established and can be exercised.
The territories situated between the Green Line and the former eastern boundary of Palestine under the Mandate, were
occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these
were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these
territories, as described in paragraphs 75 to 77 above, have done nothing to alter this situation. All these territories
(including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.

The court makes no effort to justify the assertion that: “Subsequent events in these territories …
have done nothing to alter this situation. All these territories (including East Jerusalem) remain
occupied territories and Israel has continued to have the status of occupying Power.” The
International Red Cross (ICRC) is one of the most vociferous critics of Israeli occupation, and yet
Dr. Tristan Ferraro, legal adviser in the Legal Division of the ICRC, published an article in the Red
Cross International Review in the Spring of 2012 called “Determining the beginning and end of
20
an occupation under international humanitarian law” , in which he discusses the wide ranging
and controversial legal opinions as to whether, and to what extent, rules of occupation continue
to be in effect following the withdrawal of occupying forces and the transfer of administrative
functions to the indigenous population. In the article Dr. Ferraro states: “one cannot justify on
the basis of IHL the continued application of occupation law to foreign forces that have
withdrawn completely from a territory formerly under their effective control and that no longer
exert key elements of authority therein.” He suggests that the criteria for recognizing the end of
occupation should mirror the criteria for defining occupation to begin with.

20
Determining the Beginning and End of an Occupation under International Humanitarian Law
12
 In other words, when de-facto effective control is relinquished the second pre-requisite for
occupation as per the Hague Convention is no longer in effect, rendering the territory no longer
formally under Occupation. Ferraro writes: “it is submitted here that ‘authority’ under Article 42
of the Hague Regulations, should refer to the notion of governmental functions exercised by the
hostile foreign armed forces, since occupation has to do with political direction of the territory
concerned and cannot be enforced by anything short of governmental functions.” There is
therefore some legitimacy to the argument that the areas under autonomous rule do not fall
strictly under the Geneva Conventions definition of occupied territories. Of course the areas
between the security barrier and the 1949 armistice line are defined for the most part as area C
and not within the autonomy. So for the purpose of this “advisory opinion”, if “Occupation”
applies anywhere within the West Bank, then it does reasonably apply to the territory in
question.

VI. Paragraph 88 – Self Determination

The Court also notes that the principle of self-determination of peoples has been enshrined in the United Nations Charter
and reaffirmed by the General Assembly in resolution 2625 (XXV) cited above, pursuant to which "Every State has the
duty to refrain from any forcible action which deprives peoples referred to [in that resolution] ... of their right to self-
determination." Article 1 common to the International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights reaffirms the right of all peoples to self-determination, and lays upon
the States parties the obligation to promote the realization of that right and to respect it, in conformity with the provisions
of the United Nations Charter.

The Court would recall that in 1971 it emphasized that current developments in "international law in regard to non-self-
governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination
applicable to all [such territories]". The Court went on to state that "These developments leave little doubt that the
ultimate objective of the sacred trust" referred to in Article 22, paragraph 1, of the Covenant of the League of Nations 21
"was the self-determination ... of the peoples concerned". The Court has referred to this principle on a number of
occasions in its jurisprudence. The Court indeed made it clear that the right of peoples to self-determination is today a
right.

The UN and its affiliated judicial arm, the ICJ, assert that there are territories inherently
Palestinian; that Palestinians are definable as a distinct “people”; that independence, or at least
the option to choose independence, is a basic human right for all “peoples”; and that for the
State of Israel to control territories they deem inherently Palestinian constitutes both hostile
occupation and the illegal violation of the Palestinian “people’s” human right to “self-
determination”. There are countless scholarly papers pointing out that the definition of a
“people” is applied arbitrarily, and that there are few cases aside from that of the “Palestinians”,
where the claim by a sub-group to a right of territorial sovereignty, is pursued in terms of the
denial of that group’s right to self-determination by the sovereign country controlling the
territory in question. Since the UN and the ICJ are those who make the laws, they are also those
in a position to choose when and where to arbitrarily apply those laws.
Here the ICJ attempts to prove that the League of Nations was bound by a sacred trust to ensure
that the Palestinian people achieve self-determination, by quoting something they themselves
stated in a ruling in 1970. Article 22 of the 440 Article Versailles Treaty deals with the
establishment of the Mandate system, in which “the tutelage of such peoples should be
entrusted to advanced nations who by reason of their resources, their experience or their
geographical position can best undertake this responsibility, and who are willing to accept it,
and that this tutelage should be exercised by them as Mandatories on behalf of the League.”
The “responsibility” being to ensure their “well-being and development.” The “peoples” referred
to in this article are “those colonies and territories which as a consequence of the late war have
ceased to be under the sovereignty of the States which formerly governed them and which are
inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the
modem world.” These are not “peoples” in the sense of a distinct common ethnic nationality, but

21
Covenant of League of Nations (from within the Treaty of Versailles)
13
 simply the inhabitants of a particular geographic location, that was formerly ruled by foreign
powers and is no longer. The article does not relate in any way to an ultimate objective or an
“inalienable right” for any collection of people to independence. It relates exclusively to the
imposition of Mandatory administration on the territories, making the observation that different
places have different requirements with regard to the nature of the Mandatory administration,
and in the case of some formerly Turkish ruled territories Mandatory involvement is required
“until such time as they are able to stand alone.” The term self-determination never appears at
all, much less as a fundamental moral imperative.
There is an interesting article in the Journal of the Society for Historians of American Foreign
Relations entitled “The Fable of the Fourteen Points: Woodrow Wilson and National Self-
22
Determination.” The author claims that “Wilson promoted the civil right of self-government,
by which he meant participation, by all constituents of a polity, in determining its public
affairs.” World War I liberated a substantial area from Ottoman imperial rule. The purpose of
Wilson’s advocating what he called self-determination was to ensure that the populations of
those liberated territories were given the opportunity to govern themselves. Another relevant
article was published in 2011 in the Human Rights Law Review, entitled “The Normative Status of
Self-Determination in International Law: A Formula for Uncertainty in the Scope and Content of
23
the Right.” This article discusses the subjective nature of the term “peoples” with regards to
the legal imperative to grant self-determination.
It also mentions that the emphasis on the self-determination issue was connected to initiatives
for de-colonization: “The commitment of the international society of states to the self-
determination of all peoples was demonstrated with the signing of the United Nations (UN)
Charter in 1945… Nevertheless, the backdrop to the emergence of the legal right to self-
determination was the movement for decolonization during the 1960s. This helps to explain
why, in spite of self-determination as a political principle having a number of different
dimensions, the core meaning of the legal right to self-determination centres on the idea of
freedom from subjugation. For instance, the UN General Assembly’s Declaration on the
Granting of Independence to Colonial Countries and Peoples 1960 states that ‘the subjection of
peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental
rights, is contrary to the Charter of the United Nations...’ And provides that ‘all peoples have
the right to self-determination; by virtue of their right they freely determine their political
status and freely pursue their economic, social and cultural development’. This is the basis for a
people subject to colonial rule to be given the choice of how they wish to be constituted:
independence, integration or association with another state.”
What made the League of Nations Mandate for Palestine extraordinary was that, unlike the other
Mandates, which indeed had the objective of self-government for “Certain communities,
formerly belonging to the Turkish Empire…", the Mandate for Palestine had a unique objective
of re-establishing self-determination for an actual “people”. It explicitly states: “recognition has
thereby been given to the historical connection of the Jewish people with Palestine and to the
grounds for reconstituting their national home in that country”. The League of Nations took the
stance that the objective of self-determination for the Jewish people, in parallel with self-
government for the community in Palestine overall, could be achieved through the mass
immigration of sufficient Jews into Palestine that by the time Palestine is capable of standing
alone the Jews would comprise a substantial majority of Palestinian citizens. The unique clauses
within the text of the Mandate mentioned earlier make abundantly clear that this was indeed the
League’s objective in the exceptional case of Palestine.
Of course it would be naïve to suppose that the League of Nations came to the decision to
support self-determination for the Jewish people through independent philo-Semitism. Twenty
years of political lobbying by the Zionist movement influenced members of the British cabinet,
for a variety of reasons, to promote the idea, and the British played a leading role in the League.
Conversely, Arab opposition to self-determination for the Jewish people in Palestine during the

22
The Fable of the Fourteen Points: Woodrow Wilson and National Self-Determination
23
The Normative Status of Self Determination in International Law
14
 28 years that followed had the opposite effect. The Arabs had far less political and diplomatic
influence than the Zionists, but what they lacked in political savvy they made up for with a
penchant for violent intimidation.
The UN’s predisposition towards the Arab position, when assuming the role formerly filled by the
League of Nations, was understandable. The founding principle of the UN is to promote peace
and self-determination. Since its inception the UN has never recognized the premise of the
Mandate that restoring the national home of the Jews constituted self-determination for the
rightful “people” of Palestine. From the UN’s perspective Palestine was no different from Syria or
Iraq or Lebanon. The population present geographically at the time that these territories were
liberated from Turkish imperial rule and divided into Mandates, are the people to whom “self-
determination” applies, and in the case of Palestine, at that time the population was 90% Arab,
therefore it cannot be admissible that Arabs in Palestine do not achieve independence. Thus the
ICJ in this Advisory Opinion cites the general reference in the League of Nations charter which it
interprets as a sacred commitment to self-determination, while omitting any mention
whatsoever of the explicit commitment in “the League of Nations Mandate for Palestine” to the
reconstitution of the Jewish national home.
Arab violent opposition to the Mandate in Palestine included most prominently murderous
24 25
rioting in 1920, 1929, 1933 , and full scale revolt from 1936-9 . The British attempted to
26
appease the Arabs with “White Paper” edicts in 1922, 1930, and 1939 . Meanwhile British
interests in the Arab and Moslem world multiplied to the point that Great Britain no longer
supported the premise of the Mandate they themselves engineered. To a great extent World War
II revolved around the Jews. The violence in Palestine focused exclusively upon the national
aspirations of the Jews. It seemed that where there were Jews there was violence and hatred.
That the Jews are the victims of this violence and hatred does not change the fact that the
presence of Jews seems to result in the sort of upheaval the UN exists to prevent. It should come
as no great surprise that neither the UN nor the Great Britain no longer considered the principle
of the reconstitution of the Jewish national home to be of paramount importance. Nevertheless,
a third of the population of Palestine were Jewish by the time of the birth of the UN, despite
efforts by the British to restrict rather than facilitate Jewish immigration. Hundreds of thousands
of displaced Jewish holocaust survivors were living in camps throughout Europe. The obligation
to create a Jewish home as per the Mandate could not be ignored entirely.
The Mandate refers to the reconstitution of the Jews’ national home, and it is common
knowledge that the national home of the Jews was the Kingdom of Judea, which did in fact exist
th 27
in the location of Palestine, centuries before the Arab conquests of the 7 century . Note that
the term Jew is itself derived from the name of the Jews’ homeland, Judea, just as Greek is
derived from the name of the Greeks’ homeland, Greece, etc. The UN seems to have endorsed
the misrepresentation of the national home concept that suggests that the Mandate intended
that there should exist a sanctuary or shelter, a safe haven for Jews to escape to in times of
persecution, located within a predominately Arab Palestine. But nothing within the text of the
Mandate proposes the establishment of political institutions within Palestine aside from those
belonging to the Jewish Agency. If the intent of the Mandate was for Palestine to remain
predominately Arab it would not have needed to explicitly provide for the civil and religious
rights of the Arab population. On the contrary, it would have been necessary to explicitly provide
for the civil and religious rights for the Jewish minority. Endorsing this misinterpretation of the
“Jewish national home in Palestine” served to support the validity of partition as a manner of
fulfilling the Mandatory obligation to establish the Jewish national home in Palestine on one
hand, while abiding by what was viewed as the UN Charter obligation to promote “self-
determination” for the Palestinian Arabs.

24
Wikipedia – List of Killings and Massacres in Mandatory Palestine
25
Wikipedia – 1936-9 Arab Revolt in Palestine
26
Wikipedia – British White Paper Edicts in Mandatory Palestine
27
Wikipedia – Islam in Palestine
15
 The UN continued to refer to Palestine after the Mandate ended and the State of Israel was
proclaimed. It would therefore seem as though it made no difference whether the Arabs
proclaimed a corresponding Arab State or not. The remainder of Palestine, not internationally
recognized as part of the Jewish State, remained Palestine from the UN’s point of view. The UN’s
opinion seems to be that Israel’s existence within Palestine is a concession to the League of
Nations departure from the sacred principle of self-determination, and to the reality that existed
following World War II. The UN only seems to recognize the “inalienable right to self-
determination” of the original Palestinian population, 90% of whom were Arab. Jewish
colonization of the “national home” is justified by the Mandate, but does not appear to be
genuinely recognized by the UN as the fulfillment of a fundamental human right to self-
determination of the Jewish people.

VII. Paragraphs 90-95 – Occupation of What?

With regard to the Fourth Geneva Convention, differing views have been expressed by the participants in these
proceedings. Israel, contrary to the great majority of the other participants, disputes the applicability de jure of the
Convention to the Occupied Palestinian Territory. In particular, in paragraph 3 of Annex 1 to the report of the Secretary-
General, entitled "Summary Legal Position of the Government of Israel", it is stated that Israel does not agree that the
Fourth Geneva Convention "is applicable to the occupied Palestinian Territory", citing "the lack of recognition of the
territory as sovereign prior to its annexation by Jordan and Egypt" and inferring that it is "not a territory of a High
Contracting Party as required by the Convention".

After the occupation of the West Bank in 1967, the Israeli authorities issued an order No. 3 stating in its Article 35 that:
"the Military Court ... must apply the provisions of the Geneva Convention dated 12 August 1949 relative to the
Protection of Civilian Persons in Time of War with respect to judicial procedures. In case of conflict between this Order
and the said Convention, the Convention shall prevail."

Subsequently, the Israeli authorities have indicated on a number of occasions that in fact they generally apply the
humanitarian provisions of the Fourth Geneva Convention within the occupied territories. However, according to Israel's
position as briefly recalled in paragraph 90 above, that Convention is not applicable de jure within those territories
because, under Article 2, paragraph 2, it applies only in the case of occupation of territories falling under the sovereignty
of a High Contracting Party involved in an armed conflict. Israel explains that Jordan was admittedly a party to the Fourth
Geneva Convention in 1967, and that an armed conflict broke out at that time between Israel and Jordan, but it goes on to
observe that the territories occupied by Israel subsequent to that conflict had not previously fallen under Jordanian
sovereignty. It infers from this that that Convention is not applicable de jure in those territories. According however to the
great majority of other participants in the proceedings, the Fourth Geneva Convention is applicable to those territories
pursuant to Article 2, paragraph 1, whether or not Jordan had any rights in respect thereof prior to 1967.

The Court notes that, according to the first paragraph of Article 2 of the Fourth Geneva Convention, that Convention is
applicable when two conditions are fulfilled: that there exists an armed conflict (whether or not a state of war has been
recognized); and that the conflict has arisen between two contracting parties. If those two conditions are satisfied, the
Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties.
The object of the second paragraph of Article 2 is not to restrict the scope of application of the Convention, as defined by
the first paragraph, by excluding therefrom territories not falling under the sovereignty of one of the contracting parties. It
is directed simply to making it clear that, even if occupation effected during the conflict met no armed resistance, the
Convention is still applicable.

This interpretation reflects the intention of the drafters of the Fourth Geneva Convention to protect civilians who find
themselves, in whatever way, in the hands of the occupying Power. Whilst the drafters of the Hague Regulations of 1907
were as much concerned with protecting the rights of a State whose territory is occupied, as with protecting the
inhabitants of that territory, the drafters of the Fourth Geneva Convention sought to guarantee the protection of civilians
in time of war, regardless of the status of the occupied territories, as is shown by Article 47 of the Convention.

16
 This section goes to great lengths to argue that the Fourth Geneva Convention applies in the
“Occupied Palestinian Territories” regardless of whether Jordan had a legitimate right to possess
the territory from which it had retreated. This appears to validate the assertion that from the
UN’s perspective, although the armed conflict that resulted in Israeli occupation of the West
Bank was between Jordan and Israel, the territory being occupied is not Jordanian territory, but
rather Palestinian territory. It is as if the two parties were vying to possess the property of a third
party to which neither of the two adversaries had a legitimate right of possession.
The essential difference between the Israeli and Jordanian occupation of the West Bank was that
28
at the December 1948 Jericho conference representatives of the Palestinian Arabs beseeched
King Abdullah to merge Palestine and Transjordan, and accept the role of King over the
Palestinians as well as the Jordanians. King Abdullah agreed. He granted the Palestinians
29
citizenship; changed the name of Transjordan to Jordan; and formally annexed the West Bank .
While this annexation was not internationally recognized, it did qualify as a form of self-
determination for the Arab Palestinians in most of the remaining territory of what it still viewed
as Palestine. The UN saw no purpose in condemning Jordan for carrying out the desire of the
Palestinians, whose rights they still felt obligated to protect.
The UN’s point of view now seems clearer to me, even if I disagree with it. What it comes down
to is a conceptual dichotomy between the Jewish/Zionist position, adopted by the League of
Nations, and the position of the Arab world, adopted by the UN, for the most part. The former
position being that Palestine constitutes the national home of the Jewish “people”, and, in
accordance with the principle of self-determination, the Jewish “people” have a right to reclaim
their homeland, while recognizing the democratic equal rights of the non-Jewish population. The
latter position being that the principle of self-determination, as applied by the League of Nations
to other Mandates, in parallel with Palestine, and as defined prominently in the UN charter, must
be applied to the local population, rather than to colonists arriving afterwards, to redefine the
demographic constitution of the territory in question. The UN and the Arab world differ on the
legitimacy of the Jewish State established within Palestine. The UN, which played a central role in
the establishment of Israel, views the existence of Israel within Palestine as legitimate, but
apparently not by virtue of the Jews’ right to self-determination. The Arabs, until recently at
least, view the existence of a Jewish home within Palestine, in any form, as the occupation of
Palestinian territory by Zionist invaders, no less so than the occupation of the West Bank and
Gaza Strip.

28
Wikipedia – Jericho Conference, December 1948
29
Wikipedia – Jordanian Annexation of West Bank
17
Conclusions
In the prior section I wrote that the UN and its affiliated judicial arm, the ICJ, assert that there are territories inherently
Palestinian; that Palestinians are definable as a distinct “people”; that independence, or at least the option to choose
independence, is a basic human right for all “peoples”; and that for the State of Israel to control territories they deem
inherently Palestinian constitutes both hostile occupation and the illegal violation of the Palestinian “people’s” human
right to “self-determination”. Let’s look at each of these assertions individually.

The UN position seems to be that, by definition, all of what had been defined as Palestine during World War I, remains
inherently Palestinian. However, the areas of Palestine recognized as part of the Jewish State have been acceded to the
Jewish people for use as the Jewish home in Palestine. International recognition of the State of Israel took place in most
cases after the armistice lines were fixed in place. As a result the 1949 armistice lines have become the de-facto limit of
the territory of the Jewish State within Palestine.

The UN position seems to be that the identity “Palestinian” is not, as one might assume, the parallel identity to the
“Israeli”, despite the fact that no Arab State was proclaimed concurrently with the Jewish State, Israel. Rather, the
“Palestinians” are the people who lived in Palestine at the time Palestine was defined as an entity during World War I,
and their descendants. The significance of the “Palestinian” identity is that the objective of liberating them from Ottoman
rule was for them, the people residing in Palestine, to rule themselves. The fact that the Arabs in Mandatory Palestine
rejected the title “Palestinian”, and never considered themselves a distinct nationality from the other Arab “peoples” in
the region, is irrelevant. The Jews, Zionist colonists, had immigrated to Palestine with the intention of ruling Palestine in
place of the Arab “Palestinians” who constituted 90% of the population when Palestine was defined as an entity. They
may have been granted Palestinian citizenship by the Mandatory administration, but they, nor any other Zionists who
arrived since, are not members of the Palestinian “people”.

As to the assertion that self-determination is a fundamental human right, the “Declaration on Principles of
International Law Friendly Relations and Co-Operation Among States In Accordance With The Charter Of The
United Nations”30, adopted by the General Assembly on 24 October 1970 as resolution 26/25 (XXV), says: “By virtue of
the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all
peoples have the right freely to determine, without external interference, their political status and to pursue their
economic, social and cultural development.” Clearly the UN considers self-determination to be a fundamental right.

Finally, as to the assertion that by Israel’s control of the West Bank violates the Palestinians’ human rights, the
“Declaration” continues: “…every State has the duty to respect this right in accordance with the provisions of the
Charter. Every State has the duty to promote, through joint and separate action, realization of the principle of equal
rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to
the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of
the principle, in order to promote friendly relations and co-operation among States; and to bring a speedy end to
colonialism, having due regard to the freely expressed will of the peoples concerned; and bearing in mind that
subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well
as a denial of fundamental human rights, and is contrary to the Charter.” I think it is reasonable to say, in light of this,
that the UN does indeed view Israel’s presence in and control of areas of “Palestine” (as per their definition) outside of
the limits recognized as granted them for use as the mandated “Jewish home”, as a violation of the “Palestinians’” (as per
their definition) human right of self-determination.

These four assertions are interdependent. There are a multitude of arguments that dispute each assertion, making the
conviction of Israel’s detractors of Israel’s evildoing and the Palestinians’ innocence indicative of bias. Once again let us
take each assertion individually.

30
Declaration on Principles of International Law - Friendly Relations and Cooperation Among States
18
Palestinian Territory
The sub-division of Ottoman Asia was first proposed in the Sykes-Picot agreement of 191631. At that time the Ottoman
Empire had undisputed sovereignty over the entire region. After the Ottoman were defeated those vast territories came
under the jurisdiction of the Occupied Enemy Territory Administration32. It could be said that until the Treaty of
Lausanne33, when the Turks renounced their claim to these regions, that they had the status of Turkish sovereignty in
abeyance34. Sovereign territories under occupation assume that status, with the presumption that the former sovereign
power will either resume sovereignty at the time occupation ends, or will negotiate a treaty transferring sovereignty to
another power.

The League of Nations Mandate system complicated the concept of sovereignty. A 1950 Advisory Opinion published by
the ICJ regarding South West Africa 35 stated: “Sovereignty over a Mandated Territory is in abeyance; if and when the
inhabitants of the Territory obtain recognition as an independent State, as has already happened in the case of some
of the Mandates, sovereignty will revive and vest in the new State.” In the case of “occupation” of territory that had
previously belonged to a sovereign entity, “revive” would refer to the re-establishment of the sovereignty of the former
Power over the territory. However, in the context of provisional Mandatory rule, this should be interpreted as meaning
that during the period of Mandatory rule no sovereignty exists over the territory. The concept of sovereignty is what is
revived and vested in the newly formed State.

The Partition Plan described in resolution 181 clearly details the establishment of two individual sovereign States. It
cannot be construed as meaning the establishment of one “new” sub-State within an existing entity known as Palestine. If
one were to argue that the issuance by League of Nations of a mandate in and of itself had the power to establish such a
“State of Palestine in abeyance”, then surely the mandate would also have had the power to designate the nature of the
State as defined by the Mandate as follows: “Whereas the Principal Allied Powers have also agreed that the Mandatory
should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the
government of His Brittanic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a
national home for the Jewish people.”

The Mandate did indeed serve as a provisional government intended to be replaced by an independent state at some future
time, but that entity could only come into existence when it is proclaimed and is capable of enforcing sovereignty over its
territory and executing the functions of self-government. At that time the principle of sovereignty would be revived with
regard to the territory formerly under mandatory rule. On May 14, 1948 the State of Israel was proclaimed and was
demonstrably capable of enforcing sovereignty over its territory and executing the functions of self-government. No other
State was proclaimed, and even had it been, it would neither have been capable of enforcing sovereignty over its territory,
nor of executing the functions of self-government. From this perspective, the legitimacy of the existence of the sovereign
State of Israel since May 14, 1948 seems absolute. The assertion that Palestine was or is an entity with the status of
“sovereignty in abeyance”, on the other hand, seems to have no rational or legal basis.

The paper entitled “Palestine, Uti Possidetis Juris, and the Borders of Israel”36 by Abraham Bell and Eugene
Kontorovich makes a compelling argument that the principle of “Uti Possidetis Juris” should apply in the termination of
the Mandate for Palestine. It presents a multitude of cases, including mandates, where, despite conflicting arguments,
borders of newly founded States were confirmed as the borders of the entities they replaced. Really the only significant
argument against applying “Uti Possidetis Juris” to the termination of the Mandate for Palestine is the argument that self-
determination for the Arab population of Palestine would have taken precedence, and precluded the Jewish State’s
sovereignty over the entirety of what was formerly Mandatory Palestine. In other words, the validity of this assertion is in
fact dependent upon validity the other assertions being examined.

31
Sykes-Picot Agreement
32
Wikipedia - OETA – Occupied Enemy Territory Administration
33
Treaty of Lausanne
34
The Concept of Suspended Sovereignty in International Law and Its Implications in International Politics
35
ICJ Advisory Opinion Regarding Status of South West Africa
36
Palestine, Uti Possidetis Juris, and the Borders of Israel
19
Palestinian Peoplehood
It is ironic to argue that the Mandate for Palestine violated the principle of self-determination of the Palestinian Arabs, by
recognizing the right of the Jewish People to exercise its right to self-determination in its national homeland. It is an even
greater irony that after 72 years of independence, when fully half of the Jewish People in the world have exercised their
right to self-determination, and actually reside in the land in which the Jewish People originated, we are still being
berated for having usurped the purported right of those who lived there while we were in exile, to rule over our homeland
in our stead.

In my comments on Paragraph 88 of the Advisory Opinion I cite two papers, one that considers the varying opinions of
what constitutes a “people” entitled to self-determination, and another that explains the context of President Wilson’s use
of the term “self-determination” and the meaning implied in the Treaty of Versailles, in which the League of Nations was
chartered. The former paper concludes that the classic meaning of “people” refers to national identity, whereas the
modern usage refers to the contemporary population of a geographic region, particularly one that has undergone de-
colonization. That the Jews are a “people” in the classic sense was and is common knowledge and is undeniable. It is
equally undeniable that the Arabs of Palestine are a “people” only in the modern sense. The latter of the two concludes
that the criteria by which a “people” is deemed suitable for self-determination is intentionally vague so as to allow UN
member nations to avoid the demands of ethnic groups in their midst for independence.

In 1916, at the time Sykes-Picot delineated Palestine as a distinct sub-division of Ottoman Asia, if not in its final form, all
the peoples of Ottoman Asia were of one distinct Arab nationality. In fact, if the British had granted Hussein bin-Ali, the
Sharif of Mecca, the single pan-Arab caliphate throughout Ottoman Asia under his rule, as promised in the McMahon –
Hussein correspondence37, that would have qualified as the achievement of self-determination for the Arab people in the
classic sense.

This was in fact the declared Arab Palestinian desire. The 1920 third Palestine Arab Congress38 called for Palestine to be
part of the pan-Arab caliphate promised in the McMahon–Hussein Correspondence. That was after the 1919 first
Palestine Arab Congress39 declared:

- We consider Palestine nothing but part of Arab Syria and it has never been separated from it at any stage.
We are tied to it by national, religious, linguistic, moral, economic, and geographic bounds.
- Our district Southern Syria or Palestine should be not separated from the Independent Arab Syrian Government and
be free from all foreign influence and protection.

The 1920 third Palestine Arab Congress also declared that it…
- Condemned the notion of a homeland for the Jewish people.
- Objected to the recognition of the World Zionist Organization as an official body
and the use of Hebrew as an official language.
- Opposed Jewish immigration.

The Palestine Arab Congress had no false illusions that the Arabs of Palestine were a distinct people or that the Jews were
not a distinct people. They did not desire their own independence, only to prevent the Jews from having the ability to
exercise their own right to self-determination.

Twenty eight years later, on December 1, 1948, in Jericho, a conference was held, presided over by the mayor of Hebron,
that included leaders from Jerusalem, Hebron, Bethlehem, Nablus, and Ramallah, as well as representatives of refugees
from Israeli-occupied cities and towns. It was attended by 1,000 delegates, including mayors, tribal chiefs, mukhtars, and
military governors from all over Palestine. The conferees voted unanimously to request unity with Transjordan;
proclaimed Abdullah ibn Hussein (the son of Hussein bin-Ali, Sharif of Mecca) to be king of all Palestine. Once again the
Palestinians declared that they do not view themselves as a distinct people but rather part of the Arab collective. The Arab
League even condemned the Palestinian Arab resolutions at the Jericho conference as a violation of their own right to
self-determination, which is ironic since the Palestinian Arabs choice to be united with Transjordan was a clear
expression of their self-determination. If self-determination only refers to independence it would not be called self-
determination.

37
McMahon – Hussein Correspondence
38
Wikipedia – Third Palestine Arab Congress (1920)
39
Wikipedia – First Palestine Arab Congress (1919)
20
The Human Right of Self-Determination
An article entitled “Self-Determination: a Human Rights Approach”40, published in the October 1994 edition of the
International and Comparative Law Quarterly, may help put the modern concept of self-determination into perspective.
The following are excerpts from that article.

The Declaration on Principles of International Law, which stated the internationally agreed
basic principles of international law, clarified the content of this right when it stated: “that
subjection of peoples to alien subjugation, domination and exploitation constitutes a
violation of the principles [of equal rights and self-determination of peoples], as well as a
denial of fundamental human rights, and is contrary to the Charter of the United Nations.”…
The right of self-determination is a right which reflects the importance given to communities,
collectives and families in many societies and the general inherent communal quality of
humans. The purpose of the protection of this right is to enable these communities as
communities to prosper and transmit their culture as well as to participate fully in the
political, economic and social process, thus allowing the distinct character of a community “to
have this character reflected in the institutions of government under which it lives.”

This paper confirms the assertion that the original purpose of the principle of self-determination was to end colonialism. It
is therefore no wonder why Israel’s detractors invariably represent the Palestinians as “oppressed and colonized”, terms
used frequently in international treaties and instruments dealing with decolonization and subsequent achievement of self-
determination for the population living under colonial rule. The application of the principle of self-determination has
since been expanded to cover various injustices to minority populations in non-colonial situations as well.

…it is clearly accepted by the international community that de-colonisation was an exercise of
the right of self-determination. There is less consensus as to whether this right can be applied
to non-colonial situations. Certainly the focus of the right in the Declaration on Granting of
Independence to Colonial Countries and Peoples 1960 was on "the necessity of bringing to a
speedy and unconditional end colonialism in all its forms and manifestations"… State
practice outside these treaties also supports a broader application of the right of self-
determination beyond strictly colonial confines… While a couple of these situations may be
analogous to colonialism, each of them involved independent States where the right of self-
determination was expressly applied by other States as it was considered that some type of
oppression of peoples by means of subjugation, domination or exploitation had occurred or
was occurring. Indeed, the International Commission of Jurists, in its report on Bangladesh's
secession, stated that “if one of the constituent peoples of a State is denied equal rights and
is discriminated against, it is submitted that their full right of self-determination will
revive.”

The article goes on to describe “external” and “internal” self-determination:

This application of external self-determination is seen in the three main methods for
exercising the right of self-determination mentioned in General Assembly Resolution
41
1541(XV) : ”emergence as a sovereign independent State; ... free association with an
independent State; or ... integration with an independent State.” Importantly, it can be seen
in this Resolution that the right of self-determination does not imply that independence, or
secession from an independent State, is the only, or even the necessary or appropriate,
means of exercising the right. Nevertheless, the right does require that all people within a
territory must be consulted before any change in sovereignty over that territory can occur,
particularly if it is a colonial territory.”

40
Self-Determination: A Human Rights Approach
41
UN General Assembly Resolution 1541
21
This seems to imply that the appearance of consent by the population claiming the right to self-determination is a factor in
whether measures towards obtaining that goal are valid. That may, by the way, explain the PA’s uncompromising
objection to efforts towards “normalization” between Palestinians and Israelis. The PA needs to maintain the pretense of
subjugation to justify the continued demands for independence. Also of note is that resolution 262542 adds a fourth valid
option for the achievement of self-determination: “the emergence of any other political status freely determined by a
people”.

The "internal" aspect of the right concerns the right of peoples within a State to choose their
political status, the extent of their political participation and the form of their government…
The potential for the wide application of internal self-determination was stated in the
Declaration on Principles of International Law, as it is provided that only “a government
representing the whole people belonging to the territory without distinction as to race,
creed or colour” can be considered to be complying with the right of self-determination. The
exercise of this right can take a variety of forms, from autonomy over most policies and laws
in a region or part of a State, such as the canton system in Switzerland and, perhaps,
Greenland's relationship with Denmark; to a people having exclusive control over only certain
aspects of policy, such as education, social and/or cultural matters. The type of exercise of
the right of self-determination will usually depend on the constitutional order of the State
concerned and may challenge the present centralised structure of most States. This variety of
possible exercises of the right occurs because “the concept of self-determination is capable
of embracing much more nuanced interpretations and applications [than just that of
independent Statehood], particularly in an increasingly interdependent world in which the
former attributes of Statehood mean less and less."

Self-determination, it explains, unlike other human rights, is not absolute.

It has already been demonstrated that the international community now applies the right of
self-determination to any situation, internal and external, where peoples are subject to
oppression by subjugation, domination and exploitation. However, both the "peoples" and
"territorial" approaches to the right imply that there are no limitations at all on the right once
it can be shown that either a people exists or that a territory is capable of being divided.
However, the right of self-determination is not an absolute right without any limitations. Its
purpose is not directly to protect the personal or physical integrity of individuals or groups as
is the purpose of the absolute rights and, unlike the absolute rights, the exercise of this right
can involve major structural and institutional changes to a State and must affect, often
significantly, most groups and individuals in that State and beyond that State. Therefore, the
nature of the right does require some limitations to be implied on its exercise.

These limitations on the right of self-determination, designed to protect the rights of

everyone (not just those seeking self-determination) and the general interests of the
international community, can be appropriately dealt with by a human rights approach. This is
because the international human rights law framework acknowledges the limitations on rights
and offers a means to consider the exercise of the right in the context of the interests of all
those potentially affected by its exercise. This framework also accepts the need for a State to
act for the overall benefit of all the inhabitants on its territory, to the extent of its margin of
appreciation, and thus allows the State to limit the exercise of the right to protect the above
rights and interests, although this action by the State cannot be oppressive.

In resolving these competing rights the human rights approach, by using the international
human rights law framework, aims to protect all rights and not the right of self-determination
in isolation. Rights can then be balanced and a solution can be found which protects both
rights as far as possible in the particular circumstances. Thus, instead of secession being the
only option, peoples would be able to exercise their right of self-determination by such
methods as the creation of a federation; guarantees of political power to defend or promote
group interests; the giving of special assurances (as with minority rights); providing for a

42
UN General Assembly Resolution 2625
22
 specific recognized status to a group; or by "consociational democracy". This framework
allows flexibility in resolutions of conflicts and even allows flexibility in sovereignty and so
would allow the possibility that nationality be given to citizens of another State, for example
by giving Serbian nationality to a Serbian citizen of the State of Bosnia-Herzegovina.

Coincidentally the example of Serbian citizenship being given to a resident of Bosnia-Herzegovina is precisely what the
UN proposed in resolution 181, in which it explicitly stated that Arabs residing in the Jewish State would be entitled to
choose to possess citizenship of the Arab State rather than the Jewish State, and visa-versa.

There is the general interest of international society in maintaining international peace and
security, which creates a limitation on the right of self-determination. This general interest is
often expressed in two ways: territorial integrity of States and the maintenance of colonial
boundaries (uti possidetis juris).

1. Territorial integrity - A part of the general limitation on the right of self-determination is

the specific limitation of territorial integrity. The Declaration on Principles of
International Law provides that the right of self-determination shall not "be construed as
authorizing or encouraging any action which would dismember or impair, totally or in
part, the territorial integrity or political unity of sovereign and independent States".
This limitation is an extension of the desire in most societies to create a social and legal
system which is relatively stable. In the international community, dominated as it is by
States, the stability desired primarily concerns territorial boundaries… Territorial
integrity, as a limitation on the exercise of the right of self-determination, can apply only
to those (minority of) States in which the government represents the whole population in
accordance with the exercise of internal self-determination.

2. Uti possidetis juris - Where the exercise of the right of self-determination is to become
independent from a colonial power or to secede from an independent State, the
limitation of the principle of uti possidetis may apply. The aim of this principle is to
achieve stability of territorial boundaries by preserving the colonial boundaries of a State.
It is a limitation based on the maintenance of international peace and security… In a
world where boundary disputes are a constant source of instability and tension, this
principle of uti possidetis seems to have been adopted by some international tribunals as
a broad limitation on the exercise of the right of self-determination. Despite the
uncertainties in the universal application of the principle of uti possidetis, it is a principle
which does need to be considered as a limitation on the right of self-determination.

The article concludes with the following observations.

Too frequently there has been resort to armed conflict as the means to resolve claims arising
from the right. Despite the political, social and moral aspects of any resolution, international
law needs to devise a coherent legal framework so that a structure for peaceful settlement is
created which can apply to all the potentially competing claims and interests concerning the
right of self-determination.

The right of self-determination applies to all situations where peoples are subject to
oppression by subjugation, domination and exploitation by others. It is applicable to all
territories, colonial or not, and to all peoples. The legal approaches to the right of self-
determination which have been used so far have focused on the "peoples" and on the
"territory" involved. These have been shown to be too rigid to be able to be used in the
present variety of applications and exercises of the right, especially to internal self-
determination.

The human rights approach to the right of self-determination recognizes that the right is a
human right but is not an absolute human right. This approach relies on the general legal
rules developed within the international human rights law framework to enable the
limitations on the right to be discerned and elaborated. By interpreting the right in the
23
context of current State practice and current international standards, full account can be
given to the development of the right over time and to its broad range of possible exercises,
in contrast to the restrictive "territorial" approach which limit its exercise to secession or
independence. Use can also be made of the broad and flexible rules concerning who is a
"victim" able to bring a claim for violation of a human right to give a flexible definition of
"peoples", which avoids the barrenness and rigidity of the "peoples" approach.

The approach provides a coherent and consistent body of general legal rules by relying on the
framework of international human rights law. By using this framework, the limitations on the
right are discerned and considered. The right of self-determination does have limitations,
both to protect the rights of others and to protect the general interests of society, especially
the need to maintain international peace and security. But those limitations are applicable
only in certain circumstances, such as where internal self-determination has already occurred,
and where there is a pressing need for the limitations in the society concerned.

While the human rights approach does not make it possible to say in the abstract which
peoples have the right of self-determination and the extent of any exercise of this right, it
does provide a framework to enable every situation to be considered and all the relevant
rights and interests to be taken into account, balanced and analysed. This balance means that
the geopolitical context of the right being claimed—the particular historical circumstances—
and the present constitutional order of the State and of international society, is
acknowledged and addressed. Thus a claim for the exercise of the right of self-determination
by secession may be considered contrary to the pressing social need in the particular society
for territorial integrity, or it may be able to be exercised by different means, such as by
internal self-determination. The decision by the State as to the balance between its interests
and the rights that need to be protected within its territory against the right of self-
determination claimed by peoples within its territory is very important but it is not conclusive,
as the State, and the international community, must still comply with obligations under
international human rights law. The increasing acceptance by States of these obligations
could assist to foster international adjudication on claims concerning the infringement of the
right of self-determination.

24
Israeli Culpability and Compliance
Finally, the fourth assertion is that Israel’s failure to furnish the Palestinians with independent sovereignty is a violation
of their human right, as a people, to self-determination, and thus Israel should be dealt with as a criminal entity.

What was defined as “Palestine” underwent five major transformations during the 20th century. Let us consider how at
each stage the rights of the Palestinian people were addressed.

The first transformation - from World War I through the inception of the Mandate.
The one and only instance of classic national self-determination in Ottoman Asia that presented itself to the Allied
Powers during World War I (as opposed to geographic self-determination of people living under imperial rule) was that
of the Jewish people in Palestine. The vast majority of the population of Ottoman Asia was uniformly Arab Moslem,
sharing a common culture, language, and religion, from Iraq through to the Arabian Peninsula. It was decided by the
Allied Powers, Britain chief among them, to facilitate the achievement of self-determination of the Jewish people, even
before President Wilson pressured the Allies to establish the League of Nations and to implement self-determination for
the newly de-colonized territories liberated by the war. In fact at the time that Palestine was delineated as a sub-division
of Ottoman Asia, and the decision to restore Jewish national self-determination was made, there was no recognized
principle of the right of people living under imperial rule to self-determination.

The Mandate for Palestine did not violate self-determination. On the contrary, it embraced the classic form of self-
determination by restoring the national homeland to an exiled nation. The Mandate recognized that the moral obligation
to correct two thousand years of subjugation and oppression, by granting the Jewish people the opportunity to exercise its
right to self-determination, outweighed the right of one particular segment of the overall Arabic people of Ottoman Asia
to retain political predominance in the subdivision of Ottoman Asia in which it resides. The drafters of the Mandate saw
no contradiction between the first paragraph of the document, invoking Article 22 of the League of Nations covenant, and
the second paragraph, instructing the Mandatory to facilitate the establishment of the Jewish national home. The Arab
population of Palestine would not be denied self-determination, but would benefit from “internal” self-determination in
the democratic Jewish national home, where their civil and religious rights would be protected. Even if one were to argue
that “internal” self-determination is predicated upon consent, at the time the Mandate was drafted it was assumed that
there would be consent, and, regardless, lack of consent on the part of the Arab population is not adequate justification for
denying the Jewish people’s right to self-determination. Today, over a century later, disputing the decision of the Allied
Powers and the League of Nations is academic. The Mandate was valid, legal, and legitimate, and was legally binding.

The second transformation - from the British declaration in February 1947 giving notice of its
resignation as Mandatory, through the formal annexation of the “West Bank” by Jordan
What was entirely theoretical thirty years earlier was strikingly real in 1947. The Jewish population had grown, mainly
through immigration, from one-tenth to one-third of the population, despite efforts by the Mandatory administration to
restrict Jewish “Aliya”. The Arab population had doubled in that time. The Jews were fully prepared to execute the
functions of self-government and defense. There was no question that Mandatory Palestine contained two distinct
“peoples”, even if one had existed for thousands of years and the other no more than thirty. Both parties were confident of
their exclusive right to self-determination, however one party, the Arabs, was confident that would be capable, with the
help of its Arab brethren beyond the borders of Palestine, to defeat the Jews, and seize exclusive possession of Palestine.
The Jews were desperate and unsure that they could survive should foreign Arab armies invade, and were therefore open
to any compromise that would ensure the existence of an independent and secure Jewish State, despite the belief that the
Mandate allocated all of Mandatory Palestine west of the Jordan river to the Jewish national home.

As far as I can tell, the United Nations had no direct jurisdiction over “non-self-governing territories”, but only over UN
members having responsibilities for the administration of such territories, unless those territories were transformed into
UN trusteeships. Article 73 of the Charter defines the obligations of Great Britain as a UN member that had assumed the
responsibility to administer a “non-self-governing territory”:

25
 Members of the United Nations which have or assume responsibilities for the administration of
territories whose peoples have not yet attained a full measure of self-government recognize
the principle that the interests of the inhabitants of these territories are paramount, and accept
as a sacred trust the obligation to promote to the utmost, within the system of international
peace and security established by the present Charter, the well-being of the inhabitants of
these territories, and, to this end:
a. to ensure, with due respect for the culture of the peoples concerned, their political,
economic, social, and educational advancement, their just treatment, and their protection
against abuses;
b. to develop self-government, to take due account of the political aspirations of the
peoples, and to assist them in the progressive development of their free political
institutions, according to the particular circumstances of each territory and its peoples and
their varying i stages of advancement;
c. to further international peace and security;
d. to promote constructive measures of development, to encourage research, and to
cooperate with one another and, when and where appropriate, with specialized
international bodies with a view to the practical achievement of the social, economic, and
scientific purposes set forth in this Article;
e. to transmit regularly to the Secretary- General for information purposes, subject to such
limitation as security and constitutional considerations may require, statistical and other
information of a technical nature relating to economic, social, and educational conditions
in the territories for which they are respectively responsible other than those territories to
which Chapters XII and XIII apply.

Article 77 mentions that Mandates are eligible to become trusteeships, however to become a trusteeship an agreement
detailing the terms of the trusteeship would have had to been negotiated and signed. Article 80 states that “nothing in this
chapter shall be construed in and of itself to alter in any manner the rights whatsoever of any states or any peoples or
the terms of existing international instruments to which members of the United Nations may respectively be parties.”
This is taken to mean that the terms of the Mandate, which is an existing international instrument, must be honored by
the UN. However none of this is relevant because Palestine never became a UN Trusteeship. In fact I would surmise that
one reason the Mandate was not transformed into a trusteeship could have been to avoid accepting the obligation within
the Mandate to ensuring the existence of the Jewish national home.

Great Britain was bound by both its obligations as Mandatory as per the “Mandate for Palestine” agreement, and as a
member of the UN, to the “Charter of the United Nations”. The UN was not bound to the terms of the Mandate, which
obviously gave precedence to the rights of the Jews in Palestine over those of the Arabs, who outnumbered the Jews two to
one, and at the time the mandate was drafted, ten to one. The UN Charter, on the other hand, gave precedence to de-
colonization resulting in self-determination for those who had been subject to colonial/imperial rule. It is therefore no
wonder the British could no longer reconcile the two conflicting obligations, and chose to resign as Mandatory.
Technically, if I am not mistaken, the only party bound by the terms of the Mandate was Great Britain, and, once Great
Britain abrogated its responsibility to maintain the Mandate, the terms of the Mandate expired. However, although the UN
did not have direct jurisdiction over Palestine itself, it had a general commitment to promoting world peace and self-
determination. Forming UNSCOP and ratifying resolution 181 were valiant attempts at fulfilling those commitments.

The partition plan was a masterpiece in compromise. It addressed the rights of Jews to self-determination. It addressed the
rights of Arabs to self-determination. It addressed the religious rights of Jews, Moslems, and Christians throughout the
world to access to “the Holy City of Jerusalem”. Its only fatal flaw was that the only people willing to cooperate with the
plan were the Jews of Palestine. In the words of the Folke Bernadotte, in his July 12, 1948 report to the Security Council,
as UN mediator: “The partition plan boundaries were based on the assumption that a very close cooperation between
the two proposed states would render such unusual boundaries workable. Only one of the two proposed new States
emerged, and the cooperation hoped for was clearly not forthcoming.” The Arabs of Palestine initiated a brutal civil
war, with the assistance of volunteers from Arab countries, organized by the Arab League and trained and outfitted in
Syria. The British turned a blind eye to the infiltration of Arab irregular forces and refused to allow the UN Palestine
Commission to enter Palestine and administer the orderly transfer of power, as per paragraph 2 of the resolution 181,
which read:

26
 The administration of Palestine shall, as the mandatory Power withdraws its armed forces, be
progressively turned over to the Commission; which shall act in conformity with the
recommendations of the General Assembly, under the guidance of the Security Council. The
mandatory Power shall, to the fullest possible extent, co-ordinate its plans for withdrawal
with the plans of the Commission to take over and administer areas which have been
evacuated. The mandatory Power shall not take any action to prevent, obstruct or delay the
implementation by the Commission of the measures recommended by the General Assembly.

The British did in fact obstruct the implementation of the resolution, ensuring that it could not be realized.

The Security Council was also remiss in carrying out its responsibilities with regard to resolution 181:

The General Assembly … requests that … the Security Council take the necessary measures as
provided for in the plan for its implementation;
And that … the Security Council consider, if circumstances during the transitional period
require such consideration, whether the situation in Palestine constitutes a threat to the
peace. If it decides that such a threat exists, and in order to maintain international peace and
security, the Security Council should supplement the authorization of the General Assembly
by taking measures, under Articles 39 and 41 of the Charter, to empower the United Nations
Commission, as provided in this resolution, to exercise in Palestine the functions which are
assigned to it by this resolution;
And that … the Security Council determine as a threat to the peace, breach of the peace or act
of aggression, in accordance with Article 39 of the Charter, any attempt to alter by force the
settlement envisaged by this resolution;

Minutes of Security Council meetings show several discussions of the crisis as reported by the UN Palestine Commission,
and the passage of a resolution asking both sides to stop fighting. Those discussions were the extent of the Security
Council’s efforts to enable to implementation of G.A. resolution 181.

Despite the fact that the Mandate implied that the Jewish national home was to be in sole possession of Palestine, within
which the civil and religious rights of the Arab population was to be protected, the Jews not only cooperated with the
UN’s proposal for partition, it even mentioned resolution 181 as the basis for its legitimacy within its declaration of
independence43, and guaranteed equality for the non-Jewish citizens within Israel:

The State of Israel … will foster the development of the country for the benefit of all its
inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of
Israel; it will ensure complete equality of social and political rights to all its inhabitants
irrespective of religion, race or sex; it will guarantee freedom of religion, conscience,
language, education and culture; it will safeguard the Holy Places of all religions; and it will be
faithful to the principles of the Charter of the United Nations.
The State of Israel is prepared to cooperate with the agencies and representatives of the
United Nations in implementing the resolution of the General Assembly of the 29th
November, 1947, and will take steps to bring about the economic union of the whole of Eretz-
Israel.

Hours after the State of Israel was proclaimed, the invasion by the armed forces of Egypt, Transjordan, Syria, Lebanon,
and Iraq began44. All these countries, with the exception of Transjordan which was not admitted to the UN until 1955,
were UN members since 1945, bound by the UN Charter to “settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not endangered.”. Doing so was a clear violation
of the UN Charter to which they were signatories, a clear violation of international law. And yet Transjordan and Egypt
were awarded the prize of armistice agreements allowing them temporary possession of territories they had seized by
force, namely the West Bank and Gaza Strip.

43
Israel’s Proclamation of Independence
44
UPI archives: Arab Nations Attack Israel
27
As previously mentioned, the Palestinian Arabs had expressed clearly their desire to be merged with Transjordan in
December 1948. Had Transjordan formalized their annexation of the West Bank by negotiating a peace treaty with Israel
at the time, it would have been internationally recognized as the achievement of the Palestinian Arabs’ self-determination,
in lieu of independent statehood, which the Palestinian Arabs were unprepared to implement in any case. Instead the
Arabs stubbornly refused to recognize Israel’s legitimacy and vowed to resume hostilities and recapture the remainder of
Palestine by force, and so the Jordanian presence continued to be viewed internationally as occupation, until the territory
was liberated from Jordanian occupation in June, 1967.

Just as the Mandate was not a violation of the principle of self-determination, but rather the realization of self-
determination for the Jewish people, with additional consideration for the self-determination of the non-Jewish population
of Palestine, so too the partition plan was the realization of self-determination for the Jews as well as the Arabs in
Palestine. While the Jews embraced the plan, endorsing the efforts of the UN to achieve self-determination for the Arabs
as well as the Jews, the Arabs and the British repeatedly violated their commitments to the UN, resorting to violence and
aggression, which resulted in the ultimate failure to obtain self-determination for the Palestinian Arabs. And the rest of
the world community willingly sat back and allowed the Jews and Arabs to have at each other rather than taking part in
what could have been a peaceful, orderly solution to a complex and contentious conflict. Many players can be held
accountable for the failure of obtaining self-determination for the Palestinian Arabs during this second transformation, but
Israel is not one of them.

The third transformation - June 1967, when the Arab populations of the Egyptian occupied Gaza Strip
and Jordanian occupied “West Bank” came under Israeli control.
For eighteen years these territories were accepted as de-facto Jordan and Egypt. Particularly in the case of Jordan, the
population was accepted as Jordanian, of Palestinian descent. That does not change the fact that they were occupied rather
than sovereign territories, obtained by force, and governed under “state of emergency” parameters for the entire period.
Neither the extended period of time, nor the premise of annexation, changed the fact that when hostilities resume an
armistice becomes null and void.

Resolution 242 stated the following:

The Security Council … affirms that the fulfillment of Charter principles requires the
establishment of a just and lasting peace in the Middle East which should include the
application of both of the following principles:
i - Withdrawal of Israel armed forces from territories occupied in the recent conflict
ii - Termination of all claims or states of belligerency and respect for and acknowledgement
of the sovereignty, territorial integrity and political independence of every State in the
area, and their right to live in peace within secure and recognized boundaries, free from
threats or acts of force.

The phrase “both of the following principles” clearly gives equal weight to the obligation of Israel to “withdraw from
territories” as to the “termination of ALL states of belligerency” as well as “respect for and acknowledgement of …
EVERY State in the area”. One without the other cannot achieve the objective of the resolution. While the first
paragraph is only incumbent upon Israel and is expressed as a general principle, the second is incumbent upon each and
every country in the region and requires a total and absolute resolution of all of the disputes existing between them.

The obvious interpretation of paragraph (i) is that the “withdrawal” constitutes the restoration of authority, in the
territories in question, to those that possessed the territory prior to the “recent conflict”, modified to ensure “secure and
recognized boundaries”, if such boundaries were possible at any point west of the Jordan river. Had such an accord been
reached at that time, as part of what was termed as a “land for peace” agreement, between Israel and Jordan and / or
Egypt, no one would have argued that this is a misinterpretation of the resolution, and that the territory in question
belonged to the Palestinian Arabs rather than to Jordan or Egypt.

As I’ve mentioned previously, the resolution was academic anyway, since over two months before resolution 242 was
ratified the Arabs had already declared their refusal to recognize Israel’s legitimacy, negotiate with it, or make peace with
Israel, at the Arab League Summit in Khartoum. If anything, the resolution, by demanding impossible goals from every
party in the conflict, guaranteed, in practical terms, that the status quo would remain in effect indefinitely.

28
It was noted in our discussion of self-determination that the “right of self-determination” can apply even to an oppressed
sub-group residing within a sovereign State. Thus to say Uti Possidetis Juris cannot apply because the right of self-
determination is paramount, is not a valid argument. Even if the territories are deemed to belong to the State of Israel,
Israel would be required to address the rights of the Palestinian Arab population residing within its territorial borders in
accordance with its obligations under the UN Charter. The true issue is not Israeli occupation of Palestinian territory but
Israeli control of the Palestinian Arab population, undeniably a different “people” than the Israeli population. Israeli
control of the territory upon which they reside is not the problem in and of itself. Granting the Palestinians independence
within the territories in question may or may not be provide a solution to their lack of self-determination, but, as I quoted
earlier, “the right of self-determination does not imply that independence, or secession from an independent State, is
the only, or even the necessary or appropriate, means of exercising the right.”

At the time, many of the resolutions with regard to human right and self-determination did not yet exist. Asserting Israeli
sovereignty over the liberated territories would have meant governing a population that was undeniably alien. It would
also have meant dismissing the possibility of a “land for peace” agreement. In the afterglow of Israel’s stunning victory,
Israel had overwhelming international support. The choice not to assert Israeli sovereignty was not a difficult one, despite
internal popular pressure to do so. The only other alternative, as to the governing of the population of the liberated
territories, was to proceed as if they were occupied territories, and to govern the population in accordance with the
practices described in the Fourth Geneva Convention regarding the administration of occupied territories. This does not
mean that Israel could not have made the argument for its right to assert sovereignty over the territory, but only that it
made the conscious choice to refrain from imposing Israeli sovereignty upon an alien population against its wishes.

The article entitled “Assessing the Scope of Palestinian Territorial Entitlement” 45, published in the Fordham
International Law Journal in 2019, expresses the opinion that “effective control of a territory by a foreign state amounts
to occupation not only when the state that is the legitimate sovereign of the territory withholds its consent to such
control, but also when sovereignty over the territory is vested in no state … was to ensure that the special protections
provided to residents of an occupied territory by international humanitarian law extend to all individuals governed by
a foreign power. The need for such protections arises whenever the residents of a territory are not the nationals of the
state exercising effective control over the territory, regardless of whether or not a dispossessed sovereign can be
identified, because such situations are characterized by an ‘inherent conflict of interests between governments and
those governed,’ resulting in a ‘potentially hostile environment’ for the local population.” The article then qualifies this
“expansion of the spatial scope of occupation to include disputed areas” as follows:

… the rationale for defining occupation broadly, which concerns humanitarian protections,
does not justify granting any party a territorial title that did not exist before the occupation.
Occupation produces title to the territory neither for the occupant nor for any other party, be
it another state or a people. International treaty law has gone a long way to reassure states
that viewing a territory under their control as occupied, which is necessary for the application
of humanitarian protections, does not diminish their claim to sovereignty over that territory.
The First Additional Protocol to the Geneva Conventions (“Protocol I”) explicitly states that
“neither the occupation of a territory nor the application of the Geneva Conventions and
this Protocol shall affect the legal status of the territory in question.” It has been noted that
the purpose of this provision was “to allay states’ concerns that by recognizing their status as
occupants they might concede their lack of sovereignty claims over the occupied area.” The
Eritrea-Ethiopia Claims Commission thus adopted the view that title to an occupied territory
may be contested and unclear. This view finds support in the legal literature.

Hence, the conclusion that a territory is occupied does nothing to resolve a territorial dispute
concerning it, regardless of whether such dispute is between the occupant and a state that
previously administered the territory, or between the former and a people that is yet to
obtain statehood. By themselves, the territorial boundaries of occupation do not indicate the
location of an international frontier. Determining the scope of Palestinian territorial
entitlement requires resorting to legal principles outside the definition of occupation.

45
Assessing the Scope of Palestinian Territorial Entitlement
29
The people inhabiting the territory that was, for 18 years, under Jordanian and Egyptian occupation, could have achieved
“self-determination” by the method defined by UN resolution 1541(XV): “... integration with an independent State”
simply by Jordan and Egypt negotiating treaties with Israel recognizing Jordanian and Egyptian sovereignty over the
territories they had occupied. The population gave their assent in December 1948. The obstacle to this outcome was not
Israel’s objection to Jordanian sovereignty west of the Jordan River. The obstacle was the Arab insistence upon denying
the rights of the Jews to self-determination in any form, even after their 1967 defeat, and in direct contravention of
resolution 242.

If Israel had a truly nationalist government at the time, Israel would have asserted its sovereignty over the liberated
territories, and done whatever would have been necessary to integrate them into the State, as was done with reunification
of Jerusalem. It took another seven years and one very difficult war for popular pressure to bring down the Labor
government and force the Israeli government to allow Israelis to reside in the territories. Had Israel asserted its
sovereignty, it would no doubt have claimed the right to do so in accordance with Uti Possidetis Juris, and would have
extended its government to include the residents of the territories. It would most likely have succeeded with a minimum
of consequence. Instead Israel took the high road and chose to govern the territories as occupied, in accordance with the
broader definition of occupation, as described above.

The fourth transformation - between October 1973 and November 1975

The Yom Kippur War, in October 1973, marked the end of the Arab-Israeli conflict per se’. While it exposed the fiction
of Israeli invulnerability, it ended with Israeli forces in Egypt, 100 Km from Cairo, and the Egyptian Third Army
besieged by IDF forces in the Sinai. The IDF had recaptured the Golan and were within 40 Km of Damascus. Only Henry
Kissinger’s “shuttle diplomacy” rescued the tens of thousands of Egyptian soldiers trapped by IDF forces in the Sinai,
and convinced Israel to withdraw from Syrian territory, with no gains for the Syrians whatsoever. Egypt and Syria had
their fill of direct military conflict with Israel.

An article in the Wall Street Journal, from September 2003, entitled “The KGB’s Man”46, was written by Ion Mihai
Pacepa, the former Romanian intelligence chief who defected to the US. According to Pacepa, he was directly involved in
the KGB’s efforts to “create” Yasser Arafat. Pacepa claims that in a February 1972 meeting with Yuri Andropov, he was
told that “We would make Arafat into just such a figurehead and gradually move the PLO closer to power and
statehood. Andropov thought that Vietnam-weary Americans would snatch at the smallest sign of conciliation to
promote Arafat to statesman in their hopes for peace.” He was given the KGB’s personal file on Arafat. “He was an
Egyptian bourgeois turned into a devoted Marxist by KGB foreign intelligence. The KGB trained him at its
Balashitkha special-ops school east of Moscow, and in the mid-1960s decided to groom him as the future PLO leader.
First, the KGB destroyed the official records of Arafat’s birth in Cairo, replacing them with fictitious documents
saying that he had been born in Jerusalem.”

Yasser Arafat founded the Fatah guerrilla force in 1957, and was chairman of the PLO from 1967 until his death. The
PLO was founded in 1964. Arafat continued to head Fatah, while coordinating the activities of all the organizations
within the PLO. On October 14, 1974 the UN General Assembly passed resolution 3210 47 inviting Arafat to address the
GA. On November 13, 1974, Arafat, the gun toting, uniformed “statesman”, addressed the General Assembly48. Nine
days later resolutions 323649 and 323750 were passed, recognizing the Palestinians as a “people” with an “inalienable”
right to self-determination in accordance with the Charter of the United Nations. It goes so far as to specify that the
Palestinians have “the right to national independence and sovereignty”, despite the fact that in resolution 1541
independence is only one of the three methods of achieving external self-determination, and 2625 added as an option “the
emergence of any other political status freely determined by a people”.

46
The KGB’s Man – Wall Street Journal, September 22, 2003
47
UN General Assembly Resolution 3210
48
Yasser Arafat address to the General Assembly
49
UN General Assembly Resolution 3236
50
UN General Assembly Resolution 3237
30
Resolution 3237 recognized the Palestine Liberation Organization as the Palestinians’ representative and granted the PLO
a seat in the General Assembly as an “observer organization”, inviting it to participate in the sessions and the work of the
GA, and of all international conferences convened by the GA. Resolution 337651 of Nov. 1975 mandated the
establishment of a special “Committee on the Exercise of the Inalienable Rights of the Palestinian People”, which has
since grown into the “Division for Palestinian Rights”, a unique “division” within the UN dedicated exclusively to the
vilification of Israel and denial of the right of the Jews to self-determination. No other ethnic minority throughout the
world has its own division of the UN to advocate for it, just as no other refugee population has an exclusive organization
such as UNRWA to provide all of their needs at the expense of UN members, including the terrorist indoctrination
provided in UNRWA schools. Finally, resolution 337952 branded Zionism as a form of racism.

Resolution 3236 also recognized their “right” to “regain its rights by all means”. Those “means” would seem to include
the following PLO member activities under Arafat’s chairmanship, from 1968 through May 1974: July 22, 1968
hijacking of El Al flight 42653 in Rome; September 4, 1968 explosion of three bombs in central Tel Aviv 54; November
22, 1968 car bomb in Jerusalem market killing 12 and wounding killing 12 and wounding 52; December 26, 1968
shooting in Athens at El Al flight 25355; February 18, 1969 shooting in Zurich as El Al flight 43256; February 21, 1969
bombing of supermarket in Jerusalem killing 20 and wounding 20 57; August 29, 1969 hijacking of TWA flight 840 from
Rome to Tel Aviv58; September 8, 1969 grenade bombing of El Al office in Brussels 59; November 11, 1969 grenade
bombing in Athens El Al office killing a two year old Greek baby; October 22, 1969 bombing in Haifa60 killing 4 and
wounding 20; February 10, 1970 attack in Munich Airport61 using grenades and sub-machine guns; May 22, 1970 RPG
attack on school bus62 killing 9 children and three adults, and wounding 25; May 8, 1972 hijacking of Sabena flight 57163
from Vienna to Tel Aviv; May 30, 1972 massacre at Lod airport64 killing 26 and wounding 78; September 5, 1972
massacre at Munich Olympics65 of 11 Israeli athletes and one German police officer; April 11, 1974 massacre of 8
children and 10 adults in Kiryat Shmona 66, including 15 additional wounded; May 15, 1974 Ma’alot massacre67 of 22
schoolchildren and 9 adults and wounding 70.

PLO affiliated terrorism continued unabated even after Arafat, the “statesman”, was given a seat in the General
Assembly. If these were the “means” cited in resolution 3236 as being “in accordance with the purposes and principles
of the Charter of the United Nations”, then Israel had very little interest in subjecting itself to the UN’s hypocritical
moralism. At best the UN chose to turn a blind eye to the activities coordinated by the PLO chairman. The UN also chose
to ignore the content of the PLO charter68 and Arafat’s speech to the UN, both of which clearly insist that Palestine is
indivisible, thereby rejecting out of hand the continued existence of the State of Israel. It may or may not have been
substantive that the Secretary General of the UN at the time, Kurt Waldheim, concealed the fact that he had served in the
Nazi Wehrmacht as an intelligence officer attached to units alleged to have committed serious war crimes including
executions of thousands of Yugoslav partisans and the deportation of thousands of Greek Jews to Nazi extermination
camps.

51
UN General Assembly Resolution 3376
52
UN General Assembly Resolution 3379
53
Wikipedia - Hijacking of El Al flight 426
54
Chronology of Terrorist Attacks in Israel 1968-1977
55
Wikipedia – Attack Against El Al Flight 253
56
Wikipedia – Attack Against El Al Flight 432
57
Wikipedia – 1969 PFLP Bombings in Jerusalem
58
Wikipedia - Hijacking of TWA flight 840
59
The Airline War – New York Times, March 1, 1970
60
Wikipedia – Terror and Other Attacks 1968-1987
61
Wikipedia – 1970 Munich Bus Attack
62
Wikipedia – Avivim School Bus Bombing
63
Wikipedia – Sabena Flight 571
64
Wikipedia – Lod Airport Massacre
65
Wikipedia – Munich Olympics Massacre
66
Wikipedia - Kiryat Shmona Massacre
67
Wikipedia - Ma’alot Massacre
68
PLO Charter – 1968 version
31
The “bottom line” here is that the Yom Kippur War and the UN’s embracing of the Palestinian cause and de-
legitimization of the State of Israel, were all part of the USSR’s Cold War strategy to undermine the United States. The
USSR controlled both the Eastern European and Arab/Moslem voting blocs in the UN, giving it a virtual carte blanche to
pass whatever UN resolutions it desired. Yuri Andropov was correct that the KGB could catapult the terrorist they created
into a figurehead who would lead the Palestinian cause to the brink of statehood. Their tactics worked so well that even
after the demise of the Soviet Union the UN continues to support the Palestinians unconditionally and to treat Israel as the
bastard child conceived in sin.

The other part of the transformation that occurred in 1974 was the birth of the Israeli settlement movement. The liberation
of the heartland of the Jewish homeland six years earlier gave Israelis hope. By 1974 Israelis saw only stagnation. There
was no movement towards an end to the conflict. There seemed to be no purpose to Israel’s presence in the territories, if
Israel had no intention of reintegrating them into Israel. The Six Day War symbolized Israel taking control of the situation
and asserting the rights of the Jewish People. After six years treading water some Israelis felt it was time once again to
move things along purposefully. The settlement movement began as a fringe, anti-government effort. The Yom Kippur
War, and the rise of the PLO, caused Israelis to seek new, bold solutions, solutions that were pro-active rather than
waiting for change, which was all Labor seemed to have to offer. Six years of deteriorating hopes seemed to indicate that
waiting was counter-productive.

Prior to this transformation Israel considered itself trapped in a position of occupying territory being held as leverage
against land for peace negotiations with countries that rejected the very concept of peace negotiations. Repeatedly
condemning Israel could not change the situation, when the party that abandoned the territory had no interest in
reclaiming it. The revised situation was even more untenable. The UN had taken the stance that Israel’s only legitimate
recourse would be to empower an organization dedicated to its destruction, and that had been carrying out brutal attacks
within Israel and worldwide. The PLO was less likely by far to negotiate with Israel than Jordan ever was. For 18 years
Jordan co-existed alongside Israel, for the most part respecting Israeli sovereignty, if not formally recognizing Israel. The
PLO, on the other hand, was an organization with an extreme ideology and no concept of the pragmatic realities of
coexistence. The UN’s demands were unattainable, thus Israel could only continue to ignore its condemnations and
proceed as best it could, regardless.

Meanwhile many of the citizens of Israel were dissatisfied with the government’s management of the situation, as well as
its failures with regard to the war. From the viewpoint of the opposition Likud party, as far as the Palestinians in the
territories are concerned “integration with an independent State” (i.e. Jordan) did not resolve the conflict, and
“emergence as a sovereign independent State” would be an existential threat to Israel, especially under PLO rule.
Menachem Begin came to power in May 1977 and six months later Anwar Sadat came to Jerusalem, initiating the process
leading to peace with Egypt, the Camp David Accords. The treaty with Egypt was the first peace treaty between Israel
and an Arab country, and Egypt was without question Israel’s most formidable adversary, making the accomplishment
that much more significant. Naturally this move towards the peaceful resolution of conflict was summarily condemned by
the UN, where, despite what the UN Charter says, peace was of less concern than its sacred duty of achieving Palestinian
self-determination. Not that the Camp David Accords 69 made no mention of Palestinian self-determination. In fact the
Palestinian Autonomy is a direct result of Israel’s commitment in the Camp David Accords to create an interim autonomy
in the territories.

From Begin’s point of view, as from the point of view of most Israelis, there was no issue of Israeli control of
“Palestinian” territory, only of the “Palestinian” population. As noted previously, the territories were governed as
occupied territory due to the necessity of governing the population and providing them with the protections afforded
populations which are not self-governing. Right or wrong, it was the position of the Israeli government that rules
prohibiting settlement applied only in cases where title to territory that is occupied is vested in another sovereign State.
Proponents of the settlement movement reasoned that Jews and Arabs coexist as equal citizens in Israel, the same
situation could exist in Yesha (the West Bank and Gaza Strip) if Jews and Arabs would both reside in Yesha. The prior
government had already permitted the establishment of a few settlements, most notably those in the Etzion bloc and
Kiryat Arba outside Hebron. Begin gave his approval to Gush Emunim to plan settlements throughout the territories, with
the condition that they would only be located in areas designated by the Jordanians as state owned land, within
unpopulated and uncultivated wilderness. The bulk of the settlements existing today were established in the early 1980’s,
in accordance with these plans. Construction was carried out privately and the choice to purchase a home in the territories
was that of the individual homeowner.

69
Camp David Accords – Israel / Egypt Framework for Peace
32
Since there seemed to be no prospect for Palestinian independence compatible with Israel’s continued existence,
Palestinian self-determination would, in theory, have eventually been addressed in some other way. Two possibilities
available were integration with Israel, as with the Palestinian Arab citizens of Israel, or autonomy as an internal form of
self-determination, implemented in dozens of countries, particularly countries that hypocritically condemn Israel for
denying the Palestinians their right to independence70. Meanwhile Israeli citizens would no longer be prohibited from
residing in Yesha if they wish to do so.

The fifth and final transformation - the creation of the Palestinian Autonomy as a result of the 1993
Oslo Accords71
The very idea of Israel and the PLO signing any agreement, when the PLO’s existence is based upon the illegitimacy of
Israel, demonstrated a suspension of fundamental beliefs on both sides. It is likely that the primary influence that led the
PLO to enter into an agreement with Israel was the settlement movement. Not only were the territories slowly becoming
bi-national, but the Arab population was beginning to become accustomed to coexistence with the Jews. This conflicted
with the PLO’s aspirations of Palestinian Liberation. Oslo not only gave the PLO a foothold on the ground, but also
created a monolithic Palestinian society, isolated from Israelis. That isolation was reinforced by violence against Israeli
citizens, causing Israel to discourage and eventually prohibit entry into the Autonomy.

Hamas also played an important role in bringing Oslo into being. Rabin promoted Oslo as a means to suppress Hamas,
after a series of stabbings by Hamas terrorists. He even convinced the government to supply Arafat with weapons to use
against Hamas. And, of course, Hamas never compromised its principles by making or honoring any agreements with
Israel. During the al-Aqsa intifada (uprising) Hamas suicide bombers gave Arafat plausible deniability. Hamas’ victory in
the 2006 elections, following Israel’s disengagement from the Gaza Strip was a blow to Fatah/PLO power, but their
takeover of the Gaza Strip in June 2007 freed Fatah from the burden of governing the Gaza Strip, and provided an excuse
to avoid completing a final status agreement with Israel, which could be blamed upon Israel. Neither Arafat nor Abbas
objected to allowing Hamas to attack Israelis with their rockets, while they sat back and enjoyed the show.

As I asserted earlier, the issue created by Israeli “occupation” was not Israel’s control of territory itself but rather of the
Arab population. Oslo ended Israeli control of 97% of the Arab population of the West Bank and 100% of the population
of the Gaza Strip, and it did so with the consent of the PLO, the supposed “sole legitimate representative of the
Palestinian people.” The fact that many countries have recognized Palestinian statehood de-jure in itself is an indication
that Israel has addressed Palestinian self-determination through the creation of the Palestinian Autonomy, and to some
legal authorities the autonomous regions are no longer legally subject to the laws governing “occupation”. Israel is within
its rights, even as far as the UN Charter is concerned, to insist that the question of independence and/or sovereignty for
the Palestinian people be decided through direct negotiation between Israel and the representatives of the Palestinians.
Whatever agreement is reached, regardless of all of the plethora of resolutions “expressing”, “recalling” and
“reaffirming” what the GA believes is the required and necessary solution, will be the final and legal conclusion of the
conflict.

Such negotiations had taken place at Camp David in 2000. President Clinton mediated the negotiations, and in his
memoirs he describes the solution he proposed.

On territory, I recommended 94 to 96 percent of the West Bank for the Palestinians with a
land swap from Israel of 1 to 3 percent, and an understanding that the land kept by Israel
would include 80 percent of the settlers in blocs. On security, I said Israeli forces should
withdraw over a three-year period while an international force would be gradually
introduced, with the understanding that a small Israeli presence in the Jordan Valley could
remain for another three years under the authority of the international forces. The Israelis
would also be able to maintain their early-warning station in the West Bank with a Palestinian
liaison presence. In the event of an “imminent and demonstrable threat to Israel’s security,”
there would be provision for emergency deployments in the West Bank.

70
Wikipedia - List of Autonomous Areas by Country
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Oslo Accords – Declaration of Principles
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 The new state of Palestine would be “non-militarized,” but would have a strong security
force; sovereignty over its airspace, with special arrangement to meet Israeli training and
operational needs; and an international force for border security and deterrence.

On Jerusalem, I recommended that the Arab neighborhoods be in Palestine and the Jewish
neighborhoods in Israel, and that the Palestinians should have sovereignty over the Temple
Mount/Haram and the Israelis sovereignty over the Western Wall and the “holy space” of
which it is a part with no excavation around the wall or under the Mount at least without
mutual consent.

On refugees, I said that the new state of Palestine should be the homeland for refugees
displaced in the 1948 war and afterward, without ruling out the possibility that Israel would
accept some of the refugees according to its own laws and sovereign decisions, giving priority
to the refugee population in Lebanon. I recommended an international effort to compensate
refugees and assist them in finding houses in the new state of Palestine, in the land-swap
areas to be transferred to Palestine, in their current host countries, in other willing nations, or
in Israel. Both parties should agree that this solution would satisfy United Nations Resolution
194.

Finally, the agreement had to clearly mark the end of the conflict and put an end to all
violence. I suggested a new UN resolution saying that this agreement, along with the final
release of Palestinian prisoners, would fulfill the requirements of resolutions 242 and 338.

Barak’s cabinet endorsed the parameters with reservations, but all their reservations were
within the parameters, and therefore subject to negotiations anyway. It was historic: an
Israeli government had said that to get peace, there would be a Palestinian state in roughly
97% of the West Bank, counting the swap, and all of Gaza where Israel also had settlements.
The ball was in Arafat’s court.

Right before I left office, Arafat, in one of our last conversations, thanked me for all my efforts
and told me what a great man I was. “Mr. Chairman,” I replied, “I am not a great man. I am a
failure, and you have made me one.” I warned Arafat that he was single-handedly electing
Sharon and that he would reap the whirlwind. Arafat’s rejection of my proposal after Barak
accepted it was an error of historic proportions.

Twenty years have elapsed since the Camp David Summit. Arafat’s wife, Suha, reported on an interview on Dubai TV on
December 16, 201272, that he warned her not to return from Paris after he returned from Camp David, because he was
planning on starting an Intifada. The al-Aqsa Intifada claimed the lives of a thousand innocent Israeli civilians, wounded
thousands more, and efforts to end the bloodshed cost even more Palestinian lives. What was Israel’s response? It built a
barrier to impede infiltration by terrorists. What was the UN’s response? Condemn Israel for violating the rights of
Palestinians. Was Arafat condemned for initiating the Intifada? Arafat, the Nobel Peace Prize recipient? Of course not!

What else did Israel do in response to Arafat’s Intifada? Unilaterally withdraw all its forces from the remainder of the
Gaza Strip, and bulldoze 21 Israeli towns, dragging over 8,000 Israeli citizens from their homes, kicking and screaming,
sending Israel to the brink of civil war. What was the Palestinian response? Desecrate the synagogues left standing; rip to
shreds the hothouse industry, worth millions, left for their benefit; and vote in droves for Hamas extremists, and against
Arafat’s Fatah party. What happened next? Hamas fought a six day bloody coup d’etat in Gaza, leaving over 160
Palestinians dead and 550 wounded 73. Since the Hamas takeover in Gaza in 2007 the Palestinian Authority has had no
authority in the Gaza Strip, and has governed the West Bank by decree without a democratic legislature. While Hamas
rules Gaza there is no credibility to the PA’s claim to being able to represent the Palestinian people in negotiations with
Israel. Arafat’s failure at Camp David and subsequent Intifada destroyed any credibility Israelis had in the Palestinian
willingness to reach a peaceful resolution to the conflict.

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Interview with Suha Arafat on Dubai TV
73
Wikipedia – The Battle of Gaza

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Hamas has made abundantly clear that under no circumstances would it accept the legitimacy of the Oslo Accords or any
other agreement between Israel and the PA. As neither the PA nor the Hamas regimes govern their citizens as
democracies, the legitimacy of either of these organizations as representing the popular will of the Palestinian “people”
living in the territories is in doubt. The explicit rejection by Hamas of the concept of coexistence with Israel, or the
recognition of Israel’s right to exist, not to mention its indiscriminate rocket attacks upon Israeli cities, renders the
possibility of reaching a comprehensive agreement towards Palestinian independence an impossibility for the foreseeable
future. Allegations that Israel is unilaterally maintaining the status quo is without merit, at least as long as Hamas rules
the Gaza Strip.

In Summary
There seem to be reasonably strong arguments disputing each of the four assertions characterizing the assertions behind
the vilification of Israel:
- It can be argued that there is no valid legal basis to the assertion that Palestine had ever attained sovereignty,
suspended, in abeyance, or otherwise. Palestine was defined as a region of liberated Ottoman territory, occupied by
OETA forces, followed by Mandatory administration. At the termination of the Mandate, when the concept of
sovereignty was “revived” the sovereign State of Israel came into existence, Palestine did not. Whether or not the
State of Israel holds title to the entire territory of Mandatory Palestine as per Uti Possidetis Juris is a matter for legal
debate that cannot be rejected out of hand.

- It can be argued that the Palestinians are a people only by what can be described as the “modern” definition of
peoplehood, invented primarily for purposes of decolonization, defined geographically rather than as a function of
ethnic, historical, and cultural distinction. Conversely, the Jews are a people in the classic sense. Undeniably the
Arab population of the territories liberated from Jordanian and Egyptian occupation in the 1967 Six Day War, are a
distinct people, in that they are distinct from the population of Israel and this fact cannot be ignored.

- It can be argued that self-determination was first defined as a “human right” in October 1970, not before. Unlike
other “human rights” it is not absolute. As per the UN’s own resolutions, the right to self-determination is limited and
can be achieved in a variety of ways other than independent sovereignty.

- It can be argued that at every stage Israel, and the League of Nations prior to the existence of Israel, addressed the
issue of Palestinian self-determination. In every case Palestinian refusal to acknowledge a corresponding right to self-
determination for the Jewish people resulted in their failure to achieve their own rights. It is thus disingenuous to
accuse Israel of denying Palestinian rights by refusing to renounce their own rights.

- It can be argued that the territories liberated from Jordanian and Egyptian occupation in the 1967 Six Day War can
only be defined as occupied by the broad definition of occupation that includes territory where sovereignty is vested
in no state, in order to ensure the rights of the occupants of the territory who are neither self-governing nor protected
as citizens of the occupying power. In the opinion of ICRC legal advisor Dr. Tristan Ferraro, “one cannot justify on
the basis of IHL the continued application of occupation law to foreign forces that have withdrawn completely from
a territory formerly under their effective control and that no longer exert key elements of authority therein.” Thus
Israel cannot be held responsible for violations of the Geneva Convention within areas that are under PA jurisdiction
and beyond its own. Additionally, Israel contends that, while it is committed to conforming to the Fourth Geneva
Convention in general, it is entitled to take necessary measures to protect Israeli citizens from violent acts carried out
by the residents of the territories. Article 49, which refers to the prohibition of facilitating the settlement of the
occupying country’s citizens in occupied territories, cannot, in the opinion of the Israeli government, be applied to
territory where sovereignty is vested in no state; territory that, until they were occupied by Jordan and Egypt, were no
different in legal status than any other area within Mandatory Palestine.

The apparent anti-Israel bias in the UN and its affiliated judicial arm, the ICJ, seem to stem from preconceptions based
upon the arguments presented by the Arabs from as far back as the beginning of the Mandate, in the early 1920’s, in
response to the Zionist arguments that resulted in the adoption of the Mandate for Palestine. While the League of Nations
concluded that the rights of the Jewish people outweighed those of the residents of the part of Ottoman Asia they had
defined as Palestine, the UN, which was formed over a quarter of a century after the League, appears to have adopted the
Arab position that rejected the premise that the Jewish people possess a right to self-determination, and that Palestine is
indeed the national homeland of the Jewish people, assuming, in their view, that the Jews can even be defined as a people
rather than simply a religious group. This bias was amplified in the mid-1970’s by the Soviet Union, which controlled
significant voting blocs in the UN, and used that advantage in their Cold War against the United States, by undermining

35
American allies and promoting political and armed conflict in many parts of the world, not just Israel. In the case of the
Palestinians their efforts bore fruit to such an extent that the upheaval they had caused remains effective fifty years later,
nearly thirty years after the collapse of the USSR.

Justification for Unilateral Actions

If Israel is to remain a member of the UN then there is little question that Israel must continue to address the issue of the
Palestinian right of self-determination. And Israel must continue to endeavor to comply by the Geneva Convention with
regards to the rights of the non-citizen population of the area that continues to be governed by Israel’s civil
administration. Few Israelis dispute this. The operative question is whether Israel has no alternative but to continue
indefinitely to accept a situation created by the Palestinians themselves, which prevents them from achieving peace,
prosperity, and self-determination.

Israel’s responsibility to protect its territorial integrity, and the lives of its citizens, is however, no less critical. In the
absence of Palestinian cooperation, I would argue that a case can be made for Israel taking unilateral measures, invoking
Uti Possidetis Juris as justification for asserting sovereignty over the entirety of what had been Mandatory Palestine,
while committing itself to make all possible efforts to enable the Palestinian community living in its midst “to prosper
and transmit its culture as well as to participate fully in the political, economic and social process, thus allowing the
distinct character of their community to have this character reflected in the institutions of government under which it
lives.”

Initially the existing political autonomy could conceivably remain intact, presuming the governing administration chooses
to remain in control, which appears to me to be highly likely. The Palestinian population, at least those residing in the
West Bank, should, in my view, be afforded Israeli “permanent resident” status, in addition to their status as citizens of
the Autonomy. They would then be in a position to accept this reality as the expression of their right to self-
determination, or to determine among themselves how they would prefer to express their right to self-determination, and
proceed to negotiate terms with the government of Israel to realize their objectives, perhaps in stages.

This proposed course of action would provide significant improvements for the Palestinian population as well as for
Israel. As permanent residents of Israel, Palestinians would no longer require authorization to move throughout the
country. Effectively, outside the boundaries of the autonomy, they would be equal to Israeli citizens in all ways, with the
exclusion that their political rights would allow them to vote in elections for the leadership of the autonomy rather than of
Israel. For Israel, the issue of “occupation” would no longer be in effect. Israel would finally have fixed borders, which
would eventually become internationally recognized. The Israeli government has claimed consistently that it is “a
government representing the whole people belonging to the territory without distinction as to race, creed or color.” To
justify the termination of occupation status, it would be necessary that Israel hold itself to this standard with regard to all
its population outside the autonomous regions. As the atmosphere of conflict is replaced by an atmosphere of cooperation,
it will be possible for the Israeli government to become more amenable to Palestinian desires, including such issues as
allowing the repatriation of some of those who live abroad but consider themselves to belong to the Palestinian people
and wish to reside here.

While Israel’s actions as proposed would be “unilateral”, the existing status quo, maintained due to the repeated rejection
by the Palestinians of proposed negotiated settlements, is equally “unilateral”. The Palestinians may view their ability to
maintain the status quo a form of leverage, however it should be clear by now that this leverage is ineffective, and merely
maintains a situation that is detrimental to the Palestinian population. The Palestinians may have not achieved
independence and sovereignty, but that was not happening in any case. In fact, the likelihood that the Palestinians could
secede and achieve sovereignty would be greater after a period of peaceful compromise and cooperation with Israel, once
the people of Israel are confident that such a Palestine would not pose a threat to Israel’s security and prosperity, but
would instead be an amicable neighbor. At a time that Arab countries have begun to recognize the advantages of
normalization with the State of Israel, supporting a course of events that would lead to peaceful resolution of conflict
between Palestinians and Israelis would be entirely compatible with the principles of the United Nations. In fact I would
submit that opposing it actually violates the principles of the UN Charter.

36
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