The False Premise Sustaining Israel’s West Bank Claim – Part II

[Victor Kattan is a Senior Research Fellow of the Middle East Institute at the National University of Singapore where he heads the Transsystemic Law Cluster. He is also an Associate Fellow of NUS Law. This is the second part of a two-part post.]

To understand how the Palestine Liberation Organization (PLO) could make a sovereignty claim before 1967, we need to rewind the clock to the last days of the British mandate, when on 29 November 1947, the United Nations expressed its view on the question of sovereignty, indicating its preference for the establishment of two independent states in Palestine, an Arab state and a Jewish state, with Jerusalem set aside as a corpus separatum. Although the Arab states rejected the resolution, it was adopted by the necessary majority in the UN General Assembly.

Of significance was that Moshe Shertok, the Foreign Minister of the Provisional Government of Israel, accepted the General Assembly resolution adopting the UN Partition Plan as binding because it “concerned the future of a territory subject to an international trust”. “Only the United Nations” he said, “was competent to determine the future of the territory and its decision, therefore, had a binding force”. Even more significantly, Shetok did not make Israel’s acceptance of the UN Partition Plan conditional on Arab acceptance of partition. This was made clear by Shertok in the same General Assembly debate, when he told the Assembly that the Partition Plan “conferred statehood upon Jews and Arabs and each group acquired rights which it could not be forced to renounce”. (UN doc. A/C.1/SR.127, 27 April 1948, p. 108).

Even after the Arab states rejected the UN Partition Plan, the Provisional Government of Israel continued to articulate its acceptance of Partition. The UN Partition Plan was mentioned in Israel’s Declaration of Independence, issued on 14 May 1948, which was appended to the communication that its Foreign Minister sent to the UN Secretary-General on 16 May. It was also mentioned in the letter sent from the Foreign Minister to the UN Mediator on 5 July 1948; and in the letter sent from the Foreign Minister to the UN Secretary-General when Israel submitted its application for membership of the United Nations on 29 November 1948.

In accepting the Partition Plan, upon which its own claim to statehood and membership of the UN was based, Israel was explicitly acknowledging that a Palestinian Arab state was to be established besides it. In fact, it could even be argued that Israel, in accepting the UN Partition Plan, implicitly accorded recognition to the establishment of a Palestinian Arab state.

Israel did not claim title to the West Bank before 1967

Equally as significant, was that prior to 29 December 1967, Israel did not claim title to the West Bank. In fact, after Israel had been admitted to the United Nations, representatives from the Government of Israel and the Arab States signed the Lausanne Protocol on 12 May 1949 where they appended their signatures to a map of Palestine that was identical to the frontiers established in the 1947 UN Partition Plan. In the negotiations that followed, Israel informed the Palestine Conciliation Commission established by General Assembly resolution 194 (III) that the future of the West Bank was to be decided by the Arab States, the Arab inhabitants of the territory, and the refugees (see UN doc. A/927, 21 June 1949, p. 8, para. 29).

In other words, in 1949, in the aftermath of the first Arab-Israeli conflict, Israel disclaimed any interest in the West Bank, acknowledging that the future of that territory was for the Arab inhabitants of the territory to determine with the Arab states and the refugees.

Even in the months following the June 1967 war, Israel did not make a sovereignty claim to the West Bank (as opposed to East Jerusalem where it extended its law by a 28 June Order). On 11 August 1967, the Military Commander of the Israel Defence Force issued an Order Concerning Security Provisions, which provided that the Military Courts and Administration for the West Bank would “observe the provisions of the Geneva Convention of August 12 1949 Relative to the Protection of Civilian Persons in Time of War in any matter connected with judicial proceedings.” In applying the Fourth Geneva Convention to the West Bank, Israel was admitting that this land was occupied territory, thereby disavowing a sovereignty claim.

Only on 29 December 1967, a month after the Security Council had adopted resolution 242, which emphasised “the inadmissibility of the acquisition of territory by war”, and that called for the withdrawal “of Israel armed forces from territories occupied in the recent conflict”, did the Military Commander repeal this provision. A decision had been made to stay in the territories on the basis that Israel had better title to the West Bank than any other claimant. But this argument was fallacious as another claimant had already made a sovereignty claim before then.

The All Palestine Government claimed sovereignty in 1948

When the United Kingdom withdrew its administration from the Palestine mandate at the stroke of midnight on 14/15 May 1948, a representative of the Arab Higher Committee explained to the UN Security Council, after referring to Article 22 of the Covenant of the League of Nations, that with the end of the mandate: “The people of Palestine consider themselves to be an independent nation” (UN Doc. S/PV.292, 15 May 1948, at p. 8.) This independence was immediately recognized by the League of Arab States, in a cablegram sent from the Arab League to the UN Secretary General on 15 May 1948. (UN doc. S/745, 16 May 1948, p. 5).

It will be recalled that Part I of the UN Partition Plan expressly envisaged that the Independent Arab and Jewish States and the Special International Regime for the City of Jerusalem would come into existence in Palestine “not later than 1 October 1948”. On 1 October 1948, within this time-limit, the All-Palestine Government issued a Declaration of Independence from Gaza City. The document declared “the full and complete independence of all Palestine”. In addition, a Provisional Charter of the Government of All Palestine was adopted, which explained that the All-Palestine Government was “the legitimate administration for the exercise of all legislative, judicial, and executive powers in pursuance of this Charter within all the boundaries of Palestine as established before the termination of the mandate on 15 May 1948”. The Provisional Charter added that “Jerusalem is the capital of the Government”.

When this declaration was made, the Old City of Jerusalem was under the control of the Transjordan’s Arab Legion, as was most of the West Bank of the Jordan. The Gaza Strip, and the villages of al-Faluja and Iraq al-Manshiyya, (the so-called “Faluja pocket”), located 30 kilometres northeast of Gaza city, were under the control of the Egyptian Army.

In addition to adopting a provisional constitution for Palestine, the All-Palestine Government adopted a Palestine flag and issued 14,000 passports. It was accorded diplomatic recognition by Egypt, Syria, Lebanon, Iraq, Saudi Arabia, Yemen, and Afghanistan.

Jordan did not annex the West Bank

What happened next has been subject to much confusion and misunderstanding. Jordan did not annex the West Bank. The Act of Union (24 April 1950) was based on the right of self-determination of the Arab inhabitants of the two banks of the River Jordan, and reaffirmed the Kingdom of Jordan’s determination “to preserve full Arab rights in Palestine”. According to the wording of that Act, the Union was implemented without prejudice to “a final settlement of Palestine’s just case within the sphere of national aspirations, inter-Arab cooperation, and international justice”. The West Bank of the River Jordan was united with the East Bank following elections that were held there on 11 April 1950. These elections resulted in 20 members being elected from the West Bank, and 20 members being elected from the East Bank.

The Act of Union resulted in a fusion of sovereignty between the peoples of both banks of the River Jordan. In holding elections on both banks of the Jordan, and in appointing an equal number of members from both banks to the Jordanian Parliament, and to the Chamber of Notables, King Abdullah I (1882-1951) realised that he needed the consent of the inhabitants of the West Bank to lawfully administer the Union. This is worth emphasising in light of King Hussein’s decision to dismantle the Union thirty-eight years later, when representation of West Bank Palestinians in the Jordanian parliament in Amman came to an end.

The West Bank and the Gaza Strip were held in trust for the Palestinians

Although the Arab League criticized the formation of the union of both banks of the Jordan, it subsequently reached an understanding with Jordan, which clarified that Egypt and Jordan were holding East Jerusalem, the West Bank, and the Gaza Strip “in trust” for the Palestinian people. The future status of these territories was to be decided by their inhabitants. After the fall of the All-Palestine Government in Palestine, Egypt established representative institutions in the Gaza Strip in 1962 headed by the same people who had been appointed to the All-Palestine Government and the Arab Higher Committee. Jordan allowed the Palestine National Council to hold its first gathering in East Jerusalem in 1964 where the PLO was established.

The PLO claimed self-determination before the 1967 June War

The PLO was recognised by the Arab League as the representative of the Palestinian people and was given a hearing in the UN Special Political Committee in 1964 and 1965 where the organization claimed that it was representing the Arab inhabitants of East Jerusalem, the West Bank, the Gaza Strip, and the refugees. The Palestinian National Charter, adopted in East Jerusalem in 1964, three years before the 1967 war, asserted the right of the people of Palestine to determine its destiny in accordance with “its own wishes and free will and choice”.

Speaking before the UN Special Political Committee as early as 1963, Ahmad Shukairy, the first chairman of the PLO, who had served as a minister in the All-Palestine Government, and who had represented Palestine in the Arab League, asserted that the Palestinian people and the refugees aspired to exercise in Palestine their “right to national self-determination”. Accordingly, when Israel occupied East Jerusalem, the West Bank, and the Gaza Strip, in June 1967, there was already a governmental organization that claimed title to these territories: the Palestinian National Council, which had established the PLO in East Jerusalem in May 1964.

Now, it may be legitimately queried whether the principle of self-determination had any status in international law in this period that gave this organization a right to make sovereign claims to Palestine. We now have an unequivocal answer from the principal judicial organ of the UN in an Opinion that was delivered by a 13-1 majority: According to the Advisory Opinion of International Court of Justice in the separation of the Chagos Archipelago from Mauritius, self-determination had emerged as a norm of customary international law between the years 1965 and 1968. These years coincided with the PLO’s self-determination claim to Palestine. And in the colonial context self-determination claims were also claims about sovereignty.

It could, of course, be argued that the Palestinian people did not need to base their self-determination claim on customary international law, since the UN had already issued an authoritative delimitation of the territory in the UN Partition Plan that has never been revoked.

The PLO limited this claim to the occupied territories in 1988

Between 1964 and 1988, the PLO claimed sovereignty over all the territories captured by Israel in 1948, and not just in 1967. However, since 1988, when Jordan renounced its claim in favour of the PLO, the PLO accepted the principle of two states outlined in the 1947 UN Partition Plan and limited its sovereignty claim to the territories captured in 1967. The PLO then issued a Declaration of Independence, which the General Assembly acknowledged in resolution 43/177 that explicitly referenced the UN Partition Plan and that affirmed “the need to enable the Palestinian people to exercise their sovereignty over their territory occupied since 1967”.

Resolution 43/177 was adopted by a majority of 103 states. Only, Israel and the US opposed it. But in 1993, Israel recognised the PLO as “the representative of the Palestinian people”. Israel signed the Declaration of Principles (1993) and the Interim Agreement (1995) with the PLO in negotiations that were supported by the United States Government by which Israel committed itself to negotiations with the PLO on the permanent status issues (that included Jerusalem), which were to lead to “the implementation of Security Council Resolutions 242 and 338”.

In 2011, the State of Palestine applied for membership of the UN. Its application made reference to the 1947 UN Partition Plan. The application also noted that the vast majority of UN member states (at the time of writing 137 states have accorded recognition to the State of Palestine) stood in support of its “inalienable rights as a people, including to statehood, by according bilateral recognition to the State of Palestine on the basis of the 4 June 1967 borders, with East Jerusalem as its capital”. Although the application remains pending in the Security Council where no agreement was reached among the Council’s permanent members, the application was yet another demonstration that the Palestinian leadership had made a sovereignty claim.

Conclusion

Blum’s thesis, and its various iterations over the years, overlook the recognition accorded by the international community to Jordanian sovereignty over the West Bank between 1950 and 1988. It also overlooks the agreement subsequently reached between Jordan and the Arab states that a final determination of the status of the West Bank (as well as the Gaza Strip) was to be made in consultation with the people of Palestine, whose sovereignty over the West Bank and Gaza had been explicitly recognised in the 1947 UN Partition Plan, and in other UN resolutions.

The thesis also ignores the existence of the PLO that had been established in East Jerusalem three years before the June 1967 war, and which made a self-determination claim, which its leaders had articulated before the UN Political Committee in 1964 and 1965. Since 1967, the UN has repeatedly insisted, in numerous resolutions, including 3236, that the inalienable rights of the Palestinian people in Palestine, include “the right to self-determination without external interference” as well as “the right to national independence and sovereignty”. The international community’s support for the establishment of a Palestinian state has not receded since then.

Consider the vote in the UN General Assembly on 29 November 2012 that accorded to “Palestine non-member observer state status in the United Nations, without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization in the United Nations as the representative of the Palestinian people”. In 2013, following the adoption of that resolution, Jordan concluded a treaty with the State of Palestine, in which King Abdullah II reiterated the Kingdom’s agreement that the Government of the State of Palestine had “the right to exercise sovereignty over all parts of its territory, including Jerusalem” (my emphasis).

Finally, Blum’s thesis ignores the paramount obligation imposed on Israel to withdraw from territories occupied in the June 1967 war by resolution 242. It is worth mentioning, in this connection, the ICJ’s recent Advisory Opinion on the separation of the Chagos Archipelago where the ICJ found that “the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State”. Could a similar argument now be made in respect of Israel’s presence in the occupied territories?

Given the UN’s position since 1947, the PLO’s position since 1964, and Jordan’s position since 1988, it is high time Blum’s “missing reversioner thesis” was laid to rest.