Evolving International Law, Political Realism, and the Illusions of Diplomacy

RICHARD FALK

21AUG2017

International law is mainly supportive of Palestinian grievances with respect to Israel, as well as offering both Israelis and Palestinians a reliable marker as to how these two peoples could live normally together in the future if the appropriate political will existed on both sides to reach a sustainable peace. International law is also helpful in clarifying the evolution of the Palestinian struggle for self-determination over the course of the last hundred years. It is clarifying to realize how the law itself has evolved during this past century in ways that bear on our sense of right and wrong in the current phase of the struggle. Yet at the same time, as the Palestinians have painfully learned, to have international law clearly on your side is not the end of the story. The politics of effective control often cruelly override moral and legal norms that stand in its way, and this is what has happened over the course of the last hundred years with no end in sight.

The Relevance of History

2017 is the anniversary of three crucial milestones in this narrative: (1) the issuance of the Balfour Declaration by the British Foreign Secretary a hundred years ago pledging support to the World Zionist Movement in their campaign to establish a homeland for the Jewish people in Palestine; (2) the passage of UN General Assembly Resolution 181 seventy years ago proposing the partition of Palestine between the two peoples along with the internationalization of the city of Jerusalem as a proposed political compromise between Arabs and Jews; and (3) the Israel military occupation of the West Bank, East Jerusalem, and the Gaza Strip over fifty years ago after the 1967 War.

Each of these milestones represents a major development in the underlying struggle. Each combines an Israeli disregard of international law the result of which is to inflict major injustices on the Palestinian people. Without due regard for this past, it will not be possible to understand the present encounters between Israelis and Palestinians or to shape a future beneficial for both peoples that must take due account of the past without ignoring the realities of the present.

Israel is sophisticated about its use of international law, invoking it vigorously to support its claims to act in ways often motivated by territorial ambitions and national security goals, while readily evading or defying international law when the constraints of its rules interfere with the pursuit of high priority national goals, especially policies of continuous territorial encroachment at the expense of reasonable Palestinian expectations and related legally entrenched rights.

To gain perspective, history is crucial, but not without some unexpected features. An illuminating fact that demonstrates the assertion is that when the British foreign office issued the Balfour Declaration in 1917 the population of Palestine was approximately 93% Arab, 7% Jewish in a total population estimated to be about 600,000. Another historical element that should not be forgotten is that after World War I there were a series of tensions about what to do with the territories formerly governed by the Ottoman Empire. In the background was the British double cross of Arab nationalism, promising Arab leaders a single encompassing Arab state in the Ottoman territories if they joined in the fight against Germany and its allies in World War I, which they did. Palestine was one of these former Ottoman territories that should have received independence within a unified ‘Arabia,’ which almost certainly would have led to a different unfolding over the course of the last century in the region.

As European greedy colonial powers, Great Britain and France ignored commitments to contrary, and pursued ambitions to control the Middle East by dividing up these Ottoman imperial possessions, making them colonies of their own. These plans had to yield to friction that resulted from United States Government support of the ideas of Woodrow Wilson to grant independence to the Ottoman territories by applying the then innovative and limited idea of self-determination. It should be appreciated that Wilson was not opposed to colonialism per se, but only to the extension of European colonizing ambitions to fallen empires. In this same period, however, two other anti-colonial forces were simmering, the Leninist version of self-determination the core of which was anti-colonialism and the rise of movements of national resistance throughout Asia and Africa.

In the end, the diplomats at Versailles negotiated a slippery compromise in the form of the Mandate System. The European colonial powers were authorized to administer various Middle Eastern territories as they wished, not as colonial masters, but by assuming the role of trustee acting on behalf of the organized international community as represented by the League of Nations. Unlike such an arrangement in the contemporary world, the rejection of self-determination and the subjection of a foreign country to this form of mandatory tutelage was not then perceived to be a violation of international law, although it was widely criticized in progressive political circles as imprudent politically and questionable morally.

The British were particularly eager to govern Palestine, and eagerly accepted their role as mandatory authority. Their imperial interests revolved around the protection of the Suez Canal and overland trade routes to India. As was their colonial practice, Britain pursued a divide and rule strategy in Palestine despite its mandatory status. With this governing perspective in mind the British were eager at the outset of the mandate in the 1920s to increase the Jewish presence in Israel as quickly as possible so as to create a better balance with the native Arab majority population. This, of coincided with Zionist priorities, and led Britain to endorse strongly the Zionist project of encouraging Jewish immigration to Palestine. This dynamic greatly accelerated in the 1930s, especially after the Nazis took over the German government. In reaction to this influx of Jews, the Arab population in Palestine became increasingly restive, worried by and hostile to this rapid increase in the size of the Jewish and viewed with growing alarm increasingly manifest Zionist state-building aspirations, which gave rise to the so-called Arab Uprising of 1936-39. It should be understood that when it became clear that the Zionists wanted their homeland to be in the form of a Jewish state in Palestine it produced a qualitative escalation of friction between immigrant Jews and indigenous Arabs.

This circumstance led in two directions that illuminate the evolution of the conflict. First of all, the Palestinians felt threatened in their homeland in a period of their own rising nationalism, a process evident throughout the non-Western world, and sought political independence for themselves but lacked adequate leadership and a resistance movement with sufficient military skills to bring it about. Secondly, the Zionist movement in Israel by manifested its contrary ambitions to establish its own independent state in Palestine increasingly were in conflict with Britain, their earlier benefactor. To achieve their goals the Zionist movement, or more accurately, the more radical sections of the movement, launched a sustained and intensifying terrorist campaign that had the strategic goal of raising the costs of governance of Palestine past the tipping point. When this goal was achieved it led Britain to contemplate alternatives to a continuation of their role as administrator of the Mandate.

As is the British tendency whenever stymied by a large bump in the road, a royal commission is formed and given the job of devising a solution. The commission became known as the Peel Commission, in recognition of its Chair, Lord Earl Peel, which was appointed to assess the situation in 1937. As also was the British tendency after conducting a comprehensive inquiry, the principal and unsurprising recommendation of the commission was partition of Palestine. It is this idea of dividing up the people of Palestine on the basis of ethnic identity that continues to be the preferred solution of the international community, commonly known as ‘the two-state solution,’ and was eventually accepted by the Palestinian Liberation Organization in 1988, seemingly creating the essential common ground that could produce a territorial compromise acceptable to both peoples. It is helpful to realize that at some point in the 20^thcentury such a solution dictated by an external actor lacked legitimacy even if sincerely seeking the wellbeing of the affected peoples, a presumption of good will that was not itself strong in the case of Britain given its past broken promises to Arab leaders. For partition to be legitimate by the time of World War II it would have required some formal expression of approval from the Palestinian population or its recognized representatives. Such approval would not have been forthcoming. Even at the end of World War II the Jewish population of Palestine was definitely a minority, and there is every indication that the non-Jewish majority population would have overwhelmingly opposed both partition and the establishment of a Jewish state. There was also present significant Jewish opposition to the Zionist project that is rarely acknowledged; its extent although non-trivial, is difficult to estimate with any reliability.

Nevertheless, with the notable exception of the Arab world, was the near universal acceptance of the two-state solution has it never materialized? There have been numerous diplomatic initiatives up until the present, and yet this two-state outcome has never come close to becoming a reality. Why is this? It is one among several seemingly mystifying dimensions of the Israel/Palestine encounter.

I would venture a central line of explanation. The main leaders of the Zionist movement before and after the establishment of the state of Israel in 1948 never subjectively accepted the two-state approach, at least with the parameters understood in Washington, the West, and among Palestinian leaders. Although Israeli political leaders blandly indicated their acceptance of a two-state approach if it meant real peace, the territorial dimensions and curtailed sovereignty of any Palestine state that was to be agreed upon were never set forth in terms that Palestinians could be expected to accept.

In this respect, it is necessary to appreciate that both the right of a people to self-determination had become incorporated into international law, most authoritatively in common Article 1 of the two human rights covenants adopted in1966, and that colonialist patterns of foreign rule and settlement had become unlawful in the decades following World War II. A central historical paradox is that Israel successfully established itself as independent state, almost immediately admitted to the UN, in the very historical period during which European colonialism was collapsing throughout the world, and losing any claim to political legitimacy.

Israel defied these transforming international developments in several concrete and unmistakable ways. Although at the time of the UN General Resolution 181 recommending partition of Palestine, the resident population was not consulted as to their wishes for the future despite the fact that the Jewish population in 1947, even with the post-Holocaust immigration surge, still numbered no more than 30% of the total. The ‘solution’ imposed by the UN, and ‘accepted’ by Israel as a tactical step on the path to control over all or most of Palestine and rejected by the Arab world and Palestinian leaders, amounted to an existential denial of inalienable Palestinian rights at the time. Undoubtedly moral factors played a decisive role, ranging from sympathy for Holocaust survivors to compensating for the failures of the liberal democracies to do more to prevent the Nazi genocide, but these powerful humanitarian considerations do not provide a legal justification for disregarding the rights of the Palestinian people protected by international law, or even a moraljustification. After all, the harm inflicted upon Jews as a people was essentially a European phenomenon, so why should the Arabs of Palestine bear the burdens associated with creating a Jewish national sanctuary. Of course, the Zionist answer rests the claims to Palestine on its status as ‘the promised land’ of the Jewish people, an historical/religious claim that has no purchase in state-centric world order that allocates territorial claims on the basis of sovereign rights and effective control. From the perspective of political realism the strongest basis for Jewish territorial rights in Palestine has always rested on effective control established by successful military operations.

Nor did international law uphold the acceptance of the later outcome of the 1948 war in which Jewish forces increased their effective territorial sovereignty from the 55% proposed by the UN to 78% obtained by success in the war, which also resulted in the permanent dispossession of over 700,000 Palestinians and the deliberate destruction of as many as 531 Palestinian villages to ensure that coercive dynamic of ethnic cleansing was not later reversed. The armistice at the end of the 1948 War became internationally accepted, demarcating provisional borders between the two peoples, known as the ‘green line,’ and also separating the military forces at the end of the 1948 War. These provisional borders became the new negotiating baseline to be relied upon to establish agreed permanent boundaries. This enlargement of the territory assigned to Israel in 1948 directly violated one of the prime rules of contemporary international law, the non-acquisition of territory by conquest or use of force. In effect, the politics of effective control was to apply only intranationally, but not internationally.

The 1967 War resulted in Israel replacing Jordan as the administering authority in the West Bank and East Jerusalem, and Egypt in the Gaza Strip, as well as occupying the Syrian Golan Heights. At the UN Security Council unanimous Resolution 242 called upon Israel to withdraw from these territories, comprising 22% of the Palestine governed by Britain during the mandate period, and for a just resolution of the refugee problem. 242 carried forward the idea of ethnic separation contained in the UN partition solution, although without mentioning a Palestinian state. 242 also confirmed as authoritative the norm that territory could not be validly acquired under international law by forcible means. The resolution did envision a negotiated withdrawal and border adjustments to reflect Israeli security concerns, but it left the implementation up to the parties with no limits on reasonableness or duration. After 50 years, the various unlawful encroachments on what the UN calls Occupied Palestinian Territories, especially the annexation and enlargement of the entire city of Jerusalem and the establishment of an archipelago of Israel settlements and a related network of Israeli only roads, cast serious doubt on whether Israel ever had the intention to comply with the agreed core withdrawal provision of SC Resolution 242. With respect to Jerusalem Israel defiant unilateralism exhibited a rejection of the supposed compromise that was hoped by UN member would bring an end to the conflict. Israel has compounded its defiance by continuously undermining the stability of Palestinian residence in Jerusalem while engaging in a series of cleansing and settlement policies designed to give the city a higher Jewish demographic profile.

These three historical milestones call attention to two important aspects of the relevance of international law: first, what was acceptable under international law 100, 70, and 50 years ago is no longer acceptable in 2017; secondly, that Palestinian grievances with respect to international law need to be taken into account in any diplomatic solution of the conflict, above all the right of the Palestinian people to self-determination, which needs to realized in a context sensitive to the right of the Jewish people resident in historic Palestine. Although injustices and international law violations have shaped the unfolding of this contested country over the course of the last century, history can neither be ignored nor reversed. Giving proper effect to this double right of self-determination is the central challenge facing an authentic peace diplomacy. Thirdly, the entrenched presence of the Jewish population of Israel, and the state structures that have emerged, even if brought about by legally questionable means, are now part of the realistic status quo that needs to be addressed in a humane and politically sensitive manner.

The Politics of Effective Control

In this sense the historical wrongs endured by the Palestinian people, however tragic, do not predetermine the shape of a present outcome reflective of international law. A peaceful solution presupposes a diplomatic process that recognizes this right as inhering in the situation of both peoples. A mutually acceptable adjustment also does not imply either a two-state or one-state solution or something inbetween, or even an as yet unimagined alternative. Any legitimately agreed solution by the two peoples would be in accord with present day international law. How the historical experience is taken into account is up to the parties to determine, but unlike the Balfour Declaration or the UN partition proposal, in this post-colonial era it is unacceptable under international law for a solution to be imposed, whether by force or under the authority of the UN or by a third party intermediary such as the United States. Unfortunately, international law, and related considerations of justice, are not always determinative of political outcomes as effective control maintained over time generates a framework of control that becomes ‘legal’ if internationally recognized in an authoritative manner.