Muddying the Waters: A Reply to Kay and Kern on the Statehood of Palestine and the ICC – Part I

[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 first part of a two-part post.] 

The post in Opinio Juris submitted by Steven Kay QC and Joshua Kern of 9 Bedford Row based on their Article 15 Communication to the Prosecutor funded by the Lawfare project and UK Lawyers for Israel, is an attempt to muddy the waters concerning Palestine’s referral to the International Criminal Court (ICC). Contrary to what the authors assert, Palestine’s legal status as a non-member state at the UN, and its capacities to act as a state, in the context of a longstanding and legally dubious belligerent occupation, is not ambiguous. Nor is its territorial claim indeterminate. Only Palestine has sovereign legal title to the territories occupied by Israel in June 1967. This title has been recognised by the vast majority of states.

The authors correctly note that the law of occupation “produces title neither for an occupant nor for any other party”, but they also claim that “Israel maintains a legitimate but disputed claim” to the territories it occupied in June 1967. They go so far as to suggest that some of the settlement blocs established in the West Bank are in fact in Israel, and accordingly “the OTP [Office of the Prosecutor] should tread with caution so as to avoid interference in the internal affairs of a non-State Party [read Israel] absent a Security Council mandate”.

Therefore, far from accepting that the law of occupation cannot produce title for an occupier, the authors appear to accept that Israel may have a legitimate sovereign claim to parts of the West Bank. This claim makes a complete mockery of the law of occupation.

Israel Was Not the Only Sovereign Administrative Unit in Palestine in 1948

When Israel declared independence in May 1948, it was not, as the authors claim, the only sovereign administrative unit in Palestine. Nor did it assert sovereignty over all of the territory of mandate Palestine. As I previously explained in Opinio Juris, the Provisional Government of Israel accepted the territorial provisions of the UN Partition Plan in solemn statements made before the world community no less than five times between 1947 and 1949.

On 12 May 1949, Israel signed the Lausanne Protocol, where the Director General of Israel’s Foreign Ministry appended his signature to a map of Palestine that was identical to the frontiers in the 1947 UN Partition Plan. In explaining why he agreed to sign the Lausanne Protocol, Walter Eytan wrote the following telegram to Foreign Minister Moshe Sharett:

we could not reject the November 29th resolution outright as a ‘base de travail’, as this would have been the first time that Israel had rejected the resolution upon which its legal existence is based and which was invoked as recently as six weeks ago to justify our occupation of the Negev down to Elath. We were asked to give the Commission our reply before 10 o’clock this morning, as it was clear to us that if we refused the Commission’s proposal telegram would reach Washington and Lake Success within three hours announcing Israel’s refusal to consider November 29th as a working basis, with murderous effects on our prospects of admission.

(See W. Eytan to M. Sharett, Lausanne, 9 May 1949 in Yemima Rosenthal (ed.), Documents on the Foreign Policy of Israel, Volume 4, Israel State Archives (Jerusalem, the Government Printer, 1986), pp. 29-32 at p. 30.)

Even after Israel joined the UN it did not claim sovereignty over the West Bank. In the negotiations in Lausanne 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, Israel accepted that the future of the territory was a decision for the Arab states and its inhabitants.

Israel did not advance a claim to the West Bank until 29 December 1967, that is, almost one month after the UN Security Council had adopted Resolution 242 based on the argument that it had better title to the West Bank than any other claimant. Yet as argued below, it was clear to the international community that Jordan had sovereignty over the West Bank. Moreover, Resolution 242, and customary international law prohibited the acquisition of territory by force, which prevented Israel from acquiring valid title to any of these territories.

How a Palestinian State Came to be Established

To understand how a Palestinian state was established we need to appreciate the state of relations between the Palestinian people and the Kingdom of Jordan. This is because when Israel captured the West Bank in the June 1967 war there was already a state in the territories that Israel occupied. That state was the Kingdom of Jordan, which was in effective control of the territory. There is little doubt this state satisfied the Montevideo criteria for statehood.

We must remember that the Kingdom was a union comprised of two peoples that had come together as one. The Act of Union that was adopted following elections held in both banks of the river Jordan on 11 April 1950, in which all Palestinian residents of those territories, including the refugees, participated, was based “on the right of self-determination and on the existing de facto position between Jordan and Palestine, their national, natural and geographic unity and their common interests and living space”. It is worth recalling when reading this sentence that the Arab League’s position was that a Palestinian state had emerged in May 1948. The Act of Union was also adopted “without prejudicing final settlement of Palestine’s just case within the sphere of national aspirations, inter-Arab cooperation, and international justice”. The Act was adopted by a parliament that represented “both sides of Jordan”.

Significantly, before Israel occupied the West Bank in June 1967 it never challenged Jordanian sovereignty over that territory. As Allan Gerson observed, “Israel, between 1949, when it signed the Armistice Agreements with Jordan, and 1967, when it conquered the West Bank, never challenged the lawfulness of Jordan’s control of the West Bank”. (See Allan Gerson, Israel, the West Bank and International Law (Frank Cass, 1978), p. 80.) In the first year of Israel’s occupation in 1968, the Hebron and Bethlehem Magistrates continued to hold that sovereignty over the West Bank was still “vested in the Kingdom of Jordan”.

The Kingdom of Jordan held sovereignty over the West Bank from 1948 to 1988. During Israel’s occupation of the West Bank and Gaza from 1967-1988, Jordan established a Supreme Committee for West Bank Affairs and a Ministry of Occupied Territory Affairs to formulate administrative, financial, and social policy in the West Bank. Jordan continued to pay the salaries and pensions of civil servants in the West Bank. The Jordanian dinar (the national currency) was the legal tender in the West Bank. Palestinians from the West Bank were represented in the Jordanian parliament until 1988 when Jordan dissolved that parliament to redraw the electoral map to include only East Bank districts after it recognised a Palestine state. Many Palestinians also held senior positions in the Jordanian government.

Jordan and the PLO even signed an agreement in 1985 based on the “special relationship” between Jordan, the Palestinian people, and the PLO. Article 2 of the agreement provided for the establishment “of an Arab confederation”. This confederation was to be established between “the two states of Jordan and Palestine”. In other words, King Hussein was signalling that he was willing to modify the union by which the Palestinian people owed their allegiance to King Hussein by establishing a reciprocal relationship that recognised the Palestinian people’s right to establish a Palestinian state in a confederation with Jordan. In other words, King Hussein recognised that sovereign legal title to the West Bank remained vested in the Palestinian people that was to be exercised by their political representatives.

However, in 1988, in the midst of the first Palestinian Intifada (or uprising), King Hussein dissolved the union when title to the West Bank was vested exclusively in the Palestinian people. The PLO, their legitimate political representatives, promptly proclaimed an independent state over the territories occupied by Israel in June 1967. This was acknowledged by more than 100 countries—including Jordan. The Palestine National Council then confirmed its previous resolutions with regard to the privileged relationship “between the two fraternal peoples of Jordan and Palestine, together with the fact that the future relationship between the States of Jordan and Palestine will be established on the basis of a confederacy and of free and voluntary choice by the two fraternal peoples, in corroboration of the historical ties and vital common interests which link them”. After Jordan recognised the Palestinian state proclaimed in 1988, the PLO office in Amman became the Embassy of Palestine to Jordan. Palestine has since opened embassies with many states.

It must be emphasised that Palestine was not formed under belligerent occupation. A state already existed before that occupation began, i.e. before 4 June 1967. What happened is that during Israel’s occupation the union between the Palestinian people and the Kingdom of Jordan came to an end when King Hussein recognised the Palestinian people’s exclusive title to the territories occupied by Israel in June 1967 by recognizing a Palestinian state.