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For where no law is, there is no transgression.
Romans 4. 15
President Obama’s most immediate foreign policy challenge is to determine how to deal with the recent Israeli action in Gaza, and with the broader conflict between the Israelis and Palestinians. Israel’s partial-withdrawal from Gaza appears to have been timed to coincide with President Obama’s inauguration, rather than to answer any of Israel’s security concerns. Clear international standards for resolving intra-state group conflicts are required if the longest-standing problem in the Middle East is ever to be resolved.
While the application of international law is no panacea, nor an excuse for unlimited intrusion into a state’s sovereignty, what is beyond doubt is that the uncertain legal status of Palestinian residents makes continued violence in Gaza, the West Bank, and East Jerusalem likely. The Israeli attack on Gaza is an example of what happens in the absence of an international forum that can assist states to implement their human rights obligations.
The continued ethnic violence within Israeli jurisdiction begs the question: what exactly is the status of Palestinians who reside within so-called Occupied Palestinian Territories? Numerous international legal instruments have recognized the right of the Palestinians to self-determination. However, despite the publication of President Bush’s so-called Road Map for Peace, there remains ambiguity about the procedure by which Palestinians may obtain self-determination. The delay in implementing the Road Map has contributed to the cycle of Hamas-sponsored rocket attacks against Israel, and the retaliatory Israeli invasion of Gaza, which has produced yet another round of violence.
A brief review of history helps us to understand the confusing legal status of the Palestinians. Israel was established shortly after the end of the Second World War, with the support of the victorious Western Allies, as well as a majority the United Nations’ (UN) General Assembly, which in its Resolution 181 proposed a partition plan for the region. Currently, ‘the Quartet’ (Russia, the US, the European Union and the UN) plays an important mediating role for the area.
Early international efforts in the region proposed that Jews and Palestinians live together within a single state called Palestine. For example, the 1917 Declaration by the British Foreign Secretary and former Prime Minister Arthur Balfour, together with the Mandate for Palestine (24 July 1922), envisaged both groups being placed under the jurisdiction of a single state. It was not until 1937 that a British Royal Commission of Inquiry (the Peel Commission) concluded that it was necessary to sunder Jews and Palestinians into separate states. This was deemed necessary to prevent Palestinian opposition to the increasing Jewish migration from igniting inter-group violence. UN Resolution 181 (1947) authorized a partition of the region into separate Jewish (Israel) and Arab (Palestine) states.
Partition, or the so-called ‘two-state solution’, remains the goal of multiple UN Resolutions (181, 242, 338, & 3236), as well as the Camp David Accords (1978), the Oslo Accords (1993), and the current Roadmap for Peace.
Unfortunately, international law has failed to establish a procedure for qualified groups to pursue statehood. Although the UN Charter and two international human rights treaties provide for the right to self-determination, no international remedy exists to realize such claims. Peoples that exist under alien domination are trapped within what human rights jurists describe as the ‘iron cage’ of the domestic state laws which subjugate them. A central idea of human rights is that it permits individual(s) to appeal to a regional or international adjudication body for relief denied them by their host states. The lack of such a remedy, combined with the failure of current international initiatives, has stalled the realization of Palestinian statehood.
Enhancing the jurisdiction of treaty monitoring bodies such as the UN Human Rights Committee (HRC) will help states to understand their treaty obligations with regard to internal groups that jurists term ‘peoples’ and, therefore, qualified for self-determination. This is because adjudicative procedures offered by the HRC help ensure protection for ethnic, religious, national, and linguistic groups. At this time, the HRC does not take up claims for self-determination.
Thus far, nations have achieved statehood in only carefully prescribed situations. Some examples include European states created out of empires controlled by defeated Central and Axis powers after WWI and WWII; the grant of independence to the African, Asian and Caribbean colonies by the European powers ending the colonial era in the decades after WWII; the emergence of independent states from long-standing federations after 1990, 15 in the case of the Soviet Union in 1990-1991, and six in the case of Yugoslavia; and UN-supervised paths to independence for subjugated provinces, namely East Timor (formerly part of Indonesia) in 2002 and Kosovo (formerly part of Serbia) in 2008.
The Palestinians current legal existence is statu nascedi, meaning that they are at the beginning of a process that is leading to statehood. However, self-determination is not necessarily co-terminus with statehood, and may be achieved through a variety of means that protect group autonomy. The preferred type of self-determination, i.e. autonomy or statehood, is a question decided by the group itself. Palestinians can realize their right to self-determination in either of the single-state, or two-state forms.
The plan to disassociate Israelis and Palestinians into separate states raises another theoretical question, namely, should international bodies incorporate new states based upon the national, ethnic, religious or linguistic identity of a single group?
The classic formula of nationalism, to make ‘every nation a state and every state a nation’, results in what the Minorities Section Director of the League of Nations, P. de Arcarate, described as an international “crisis”. This is because the world contains 3,000-8,000 ethnic groups living in 192 UN member-states. How do international organizations go about determining which of these human communities are deserving of statehood?
The League of Nations’ Mandate for Palestine proposed that Israelis and Palestinians live together within a single, bi-national state. The Mandate established a Jewish national home located within Palestine with self-governing institutions while guaranteeing the civil, political, and cultural rights of Palestinians, as well as other minority groups. Moreover, even in present-day Israel, Arabic is an official language alongside Hebrew, bearing testimony to the state’s bi-national character. However, the Mandate’s single-state solution never received much support from Israelis or Palestinians, and now languishes in obscurity in most of the international discourse.
It is surprising that, given the historic failures of partition, most Israelis and most Palestinians prefer separation over integration. For example, the partition of India (Hindu) to create Pakistan (Islamic) produced inter-group violence, which continues to this day. Witness the recent terror attacks on Mumbai’s Taj Mahal Hotel and Oberoi-Trident Hotel.
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