“Why should the Arabs make peace? If I were an Arab leader I would never make terms with Israel. That is natural: we have taken their country… Why should they accept that?”

David Ben-Gurion (1956)¹

Recent disturbing developments have demonstrated how powerless international law can be. This has recently reared its ugly head at the refusal of Israel to allow a United Nations team to investigate crimes against humanity in Jenin. This is nothing new as Israel has continuously disregarded United Nations resolutions since General Assembly Resolution 181 in 1948. But Israel’s failure to abide by United Nations resolutions is not the central problem. The problem has been the inability of the United Nations to enforce Security Council and General Assembly resolutions. Why has international law essentially been a paper tiger?

The United Nations and international law have again and again affirmed and reaffirmed the right of Palestinian self-determination (manifesting in an independent state) as well as the right of the Palestinians to engage in qualified armed resistance (which decidedly hinges upon the right of self-determination).

Self-determination is a fundamental principle of international law. Its analysis is a key element in the justification of the Palestinian people’s resistance to Israeli occupation. Without the right of self-determination, Palestinians would have nothing. Article 1 of the United Nations Charter establishes that one of the purposes of the United Nations is: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”(²) The principle of self-determination is also prevalent in the International Covenant on Civil and Political Rights. Article I states: “All people have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”(³)

In General Assembly Resolution 1514 (XV), the Declaration on Granting Independence to Colonial Countries and Peoples in paragraph 2 provides that all peoples subject to colonial rule have the right to “freely determine their political status and freely pursue their economic, social and cultural development.” Self-determination, as understood in this context, has clear meaning within a colonial paradigm. The NGO Forum, 2001 World Conference Against Racism, Racial Discrimination Xenophobia and Related Intolerance in Durban, South Africa, concluded that Palestinians are subjects to “colonialism” by Israel:

Recognizing further that the Palestinian people are one such people currently enduring a colonialist, discriminatory military occupation that violates their fundamental human right of self-determination including the illegal transfer of Israeli citizens into the occupied territories and establishment of a permanent illegal Israeli infrastructure; and other racist methods amounting to Israel's brand of apartheid and other racist crimes against humanity. Recognizing therefore that the Palestinian people have the clear right under international law to resist such occupation by any means provided under international law until they achieve their fundamental human right to self-determination and end the Israeli racist system including its own brand of apartheid.

Palestine was directly under British colonial rule pursuant to the British Mandate granted by the League of Nations. Palestinian self-determination was not realized after the British Mandate was lifted. The declaration of the Israeli state began a new era of colonialism, in which Palestinians are now subjugated to a greater extent than they were under the British Mandate and the Ottoman Empire.

1948 refugees

These definitions, although a positive attempt at the codification of the principle of self-determination, fail to delineate actual rights or obligations outside of the colonization context. The Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations has formulated a more specific definition of the right to self-determination:

By virtue of the principal of equal rights and self determination of peoples enshrined in the Charter of the United Nations, all people have the right to freely determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.(⁴)

Furthermore, the Declaration outlines the duties of a state: “[To] refrain from any forcible action which deprives the people… of their right to self determination and freedom and independence.” After establishing the ambit of self-determination as it relates to colonialism, paragraph 2 of the Declaration further states:

… 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.(⁵) 

It should be noted that the reference “contrary to the Charter” is tantamount to saying any “alien subjugation, domination, and exploitation” of peoples is a direct violation of cardinal principles of international law. In fact the Declaration arguably supports by implication active resistance of a people seeking to exercise their right of self-determination: “In their actions against, and resistance to, such forcible actions in pursuit of the exercise of their right to self determination, such peoples are entitled to seek and receive support in accordance with the purposes and principles of the Charter.”(⁶)

The United Nations General Assembly and Security Council has affirmed the Palestinian right to self-determination. It was first recognized by the United Nations Partition Plan, set forth in General Assembly resolution 181. General Assembly Resolution 181 called for the partition of the British-ruled Palestine Mandate into two states: an Arab-Palestinian state, and a Jewish state.(⁷) In doing so the United Nations recognized the parity of the two peoples. However, invoking resolution 181 has served as a major point of controversy. In May of 1999 members of the United States Senate sought a condemnation of the actions of the United Nations High Commission on Human Rights, which based the Palestinian argument for self-determination solely on 181.(⁸)

The fact that Arabs rejected the Partition Plan in 1947 is irrelevant. Resolution 181, by virtue of calling for an Arab state and a Jewish state side by side, has affirmed the right of Palestinian self-determination. Resolution 181 is a statement of international law that was intended to be followed, regardless of whether one party initially rejected it and chose later to embrace it. General Assembly resolution 194, passed on December 11, 1948, in paragraph 11:

[Resolves] that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible; Instructs the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations.

1967 refugees

United Nations Security Council resolution 242, passed on November 22, 1967, arguably called for the Israeli withdrawal of all territories occupied in 1967: “Withdrawal of Israeli armed forces from territories occupied in the recent conflict.”(⁹) Additionally, resolution 242 calls for a “just settlement of the refugee problem.”(¹⁰) Resolution 338, passed on October 22, 1973, called for the implementation of resolution 242.

The language behind resolution 242 sparked somewhat of a legitimate controversy. When the resolution calls for a withdrawal from the territories, did that mean a total and complete withdrawal from all territories occupied by Israel? Some of the drafters of the resolution argued that somewhat ambiguous language was placed deliberately in the resolution. British Foreign Minister George Brown explained in 1967:

As I have explained before, there is reference, in the vital United Nations Security Council Resolution, both to withdrawal from territories and to secure and recognized boundaries. As I have told the House previously, we believe that these two things should be read concurrently and that the omission of the word 'all' before the word 'territories' is deliberate.

The intent of the drafters however was clear: to maintain a semblance of a consensus on a very delicate controversy. It is safe to say that certain language had to be avoided in order to pass as a resolution. Professor Richard Falk, in his article “International Law and the Al-Aqsa Intifada,” argues that 242 and 338 mandates an Israeli withdrawal of the lands occupied after the 1967 and 1973 wars.(¹¹)

General Assembly resolution 34/70 was passed on December 6, 1979. According to Falk, this resolution should be read as asserting the need for any solution to the conflict to be in “accordance with the right of self determination, regardless of what the parties might negotiate.”(¹²)

International law, through the United Nations Charter, ICCPR, ICESR and a myriad of Security Council and General Assembly resolutions, has recognized a Palestinian right to self-determination, there can be no doubt of this. Assuming now that the Palestinians indeed have the right to self-determination, does it then follow that they have the right to engage in an armed resistance, subject to limitations against Israeli occupation? This question can be answered in the affirmative.

One reason international law has failed is the power that one nation wields: the United States. The United States is a permanent member of the United Nations Security Council. As a permanent member, the United States may veto any draft resolution that it finds objectionable. The United States has exercised this veto power on numerous occasions, specifically resolutions dealing with the Palestinian question.(¹³)

On March 16, 2001, the United States vetoed a Security Council resolution that proposed an international observer force in the Palestinian territories.(¹⁴) The resolution also called for a cessation of all violence, including what it named “terrorist” attacks on civilians. James Cunningham, the United States representative to the UN, considered the draft resolution flawed because the resolution was “unbalanced” and because there was not any agreement from either of the parties.

The United States vetoed another important Security Council resolution on December 15, 2001,(¹⁵) that called for a cessation of violence and demanded that Israel abide by its obligations under the Fourth Geneva Convention.

These resolutions were drafted in order to protect Palestinian civilians from Israeli violations of international humanitarian law. It should be noted that the United States was the only member of the Security Council to cast a veto despite the fact that other members of the Security Council considered the resolution to be reasonable and acceptable.(¹⁶)

Perhaps stating that international law is an utter failure would be an overstatement. Actually, international law has spoken loud and clear that Israel is an illegal, belligerent occupying power that has continually violated well-established principles of human rights and humanitarianism. Once again the real problem is that international law has much “bark” in this conflict than “bite.” In respect to the Palestinian problem, it is a paper tiger. In order to change the role of international law in this matter to that of an “activist,” the United States must acquiesce to the will of humanity.

1- Quoted in Goldmann, Nahum. The Jewish Paradox: A personal memoir of historic encounters that shaped the drama of modern Jewry (New York: Fred Jordan Books/Grosset and Dunlap, 1978), pp. 99-100.

2- United Nations Charter. Article I. Paragraph 2.

3- International Covenant on Civil and Political Rights. Adopted by General Assembly on 16 December 1966. 

4- General Assembly Resolution A/RES 2625 (XXV) (1970) G.A.O.R., 25th Session, Supp. 28, at 121

5- Ibid.

6- Ibid.

7- United Nations General Assembly Resolution 181 (1947) 29 November 1947.

8- Press Releases. http://www.house.gov/nadler/press/59un181.htm. Schumer and Nadler Lead Fight Against Turning Back the Clock on the Middle East Peace Process. 27 May 1999.

9- United Nations Security Council Resolution 242 22 November 1967.

10- Ibid.

11- Falk, Richard. “International Law and the al-Aqsa Intifada.” Middle East Report 217, Winter 2000 (http://www.merip.org/mer/mer217/217_falk.html).

12- Ibid.

13- “U.S. Vetoes in the UN Security Council Concerning Middle East Issues”. http://www.salam.org/policy/veto.html This website gives a comprehensive list of United Nations Security Council resolutions that have been vetoed by the United States for criticism of Israel.

14- Security Council. SC/4272 4438th Meeting “Security Council Fails to Adopt Resolution on Middle East Situation, To Condemn Use of Force, Encourage Monitoring Mechanism.” March 26, 2001. http://www.un.org/News/Press/docs/2001/sc7242.doc.htm

15- Security Council. SC/7242 4438th Meeting “Security Council Fails to Adopt Resolution on Middle East Situation, To Condemn Use of Force, Encourage Monitoring Mechanism.” December 14, 2001

16- Ibid.

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