by Dr Mahmoud El Hanafi
The League of Nations established the British Mandate for Palestine on 24 July 1922. It was intended to administer parts of the Ottoman Empire that had ruled the region since the sixteenth century, including Palestine, "until the latter [Palestine] acquire the ability to stand on its own". The people of Palestine have been waiting to build their country ever since.
Despite all of the attempts to implement this fixed principle of international law, using peaceful means, and instead of fulfilling the Palestinian dream, the United Nations — the successor to the League of Nations — accepted Israel as a member of the General Assembly, quashing in the process some fundamentals of international law. Even though Israel has never fulfilled the conditions for its accession to the UN (the implementation of Resolutions 181 and 194), it remains a member of the organisation, while the Palestinians are still awaiting the establishment of their state on their own land, and the refugees still wait to fulfil their right to return to their homes.
The right to self-determination can be considered as an international norm of a peremptory nature, given that this right is a necessary or prerequisite for the exercise and effective implementation of human rights, as well as its close link to the maintenance of international peace and security. Moreover, it is the basis for friendly relations among nations as stated in the UN Charter. Hence, any agreement between any of the signatories of international legal treaties or conventions that includes a denial of this right or contains any obligatory rules or provisions that contradict the principles contained therein is null and void.
There are various means to implement the right to self-determination. A distinction is made here between political means and force of arms. Prominent among the former are a popular referendum, decisions made by an elected body representing the people and political negotiations.
As Dr Omar Ismail Saadallah wrote in his 1986 book Political Self-Determination of Peoples in Contemporary International Law, a referendum allows the people to have the freedom to make decisions concerning their political future without being subjected to any pressure, coercion or influence from any party whatsoever. A referendum is considered to be the perfect means for giving the people the right to self-determination, as it is the most democratic way for the people to expresses their will. Referendum results should constrain the parties to any major or minor conflict, who are obligated to accept and abide by them.
In December 1952, the UN General Assembly affirmed in Resolution 637 on the rights of peoples and nations to self-determination that "the wishes of the peoples are confirmed by universal suffrage or any other democratic and recognised means, and preferably exercised under the supervision of the United Nations."
Given the great importance of the referendum process and its serious consequences, it is demanded that the basis and the necessary guarantees are provided to ensure a conducive atmosphere internally and externally for the holding of such a referendum. Here, the referendum must be under the supervision of a specialised international committee emanating from international institutions, the members of which are people of known integrity with no interest in the nature of the changes that will occur as a result of the referendum process. The referendum must also be based on sound foundations, so that an atmosphere is provided allowing the masses to have the freedom to participate in the referendum free of internal and external threats, or any pressure whatsoever.
Moreover, the referendum must include the participation of all of the indigenous inhabitants of the territory in question, and it should be attended by all the deportees and refugees from the region, so that they are allowed to return to their land to exercise their right to take part in the referendum. They can also exercise this right in their places of residence, which is what happened with the Algerian refugees who were in Tunisia and Morocco before the referendum for self-determination. Similar arrangements can be made for the Palestinian refugees today.
In this context, it is noteworthy to mention that in some cases a referendum is not a suitable way to achieve self-determination. This is the situation when the majority of the population in the territory in question is not from its indigenous inhabitants, and the administrative power prevents the return of refugees and political deportees. This was the case in Gibraltar in 1969 in the referendum which benefited Britain, given that the majority of those who participated were British. This is happening in occupied Palestine where Israel has ensured that the majority of the population is made up of Jewish immigrants who have no connection or affiliation with Arab Palestine. Jews have migrated from all over the world, especially after the introduction of the Law of Return in 1950, which granted every Jew the right to "return" to Israel, followed by the Nationality Law in 1952, according to which every Jew becomes an Israeli citizen as soon as he or she arrives in Israel.
As a result, at the end of 2020, the population of the occupation state of Israel was 9.327 million people, including 6.894 million Jews, representing almost 74 per cent of the total. The number of indigenous Arabs was 1.966m, representing about 21 per cent, a figure which includes the Palestinians in occupied Jerusalem and the Syrians in the Israeli-occupied Golan Heights. There are 467,000 — five per cent — so-called "others"; they are immigrants from the former Soviet Union who are not Jews, according to data released by the Israeli Central Bureau of Statistics.
The number of illegal Jewish settlers in the occupied West Bank at the end of 2020 was 465,906, an increase of 42 per cent compared with the beginning of the decade. The number of settlers in occupied Jerusalem is estimated at 246,909 people.
This is at a time when the total number of Palestinians around the world at the end of 2020 was, according to the Palestinian Central Bureau of Statistics, around 13.7 million. Around 37.7 per cent of them — 5.2m —were in the occupied Palestinian territories, with another 1.6m Palestinians living as citizens in the 1948 occupied territories, Israel, amounting to 12 per cent of the total. There are 6.2m Palestinians in Arab countries, just under half of all Palestinians, with 738,000 spread across the rest of the world.
Based on these statistics, the demographic changes imposed by Israel make the referendum a useless means for self-determination as far as the Palestinians are concerned, because it would not express the genuine will of the population to determine its own destiny. In order to be honestly expressive, it needs to have clear elements, foundations and guarantees in order to reach the main desired goal.
The second peaceful method to exercise the right to self-determination is through a decision by an elected body representing the people. This was the means followed in Sudan, Mauritania, India, and Nigeria. What is supposed in this method is to express in a genuinely realistic manner the people's will, as long as this body has been elected democratically by the people on clear and sound bases and in a manner that expresses the will of the indigenous people of the region.
However, the obstacles and caveats when resorting to such a method are unavoidable before achieving the intended objective. An example would be the refusal of the administrative state — namely Israel in the case of occupied Palestine — to follow such a decision if it contradicts its own interests, leading inevitably to strife. The administrative state could also interfere in the election process in a way that may lead to the representation of non-national elements in that body or those that do not express the true will of the people of the region, and are loyal to the forces that facilitated their election. Such a body would then be unable to make a fair and just decision for which it had been elected.
Furthermore, even if the framework of the elected body was built solely upon the 1967-occupied Palestinian land without the participation of the refugees outside Palestine, the Israeli occupation state would not accept the electoral result. It is noteworthy that the Palestinian Islamic Resistance Movement, Hamas, as represented in the Reform and Change list at the 2006 election, won the majority of the seats in the Palestinian Legislative Council. The movement won 74 seats, to which could be added four independent MPs who won with direct support from Hamas, raising the winning percentage to 60 per cent.
Israel and its allies rejected the election result. The Hamas victory was a great shock to the occupation state. "Israel is in shock," announced Israel Army Radio. "It fell in a great turmoil because it did not prepare properly, and did not crystallise its future steps… Olmert's urgency to summon the defence and foreign ministers, intelligence chiefs and army commanders to a consultation session, reflects the confusion caused by the heavy-calibre tremor triggered by Hamas's victory. This government does not have a clear policy, neither at the tactical nor at the strategic level."
Israel has since made every effort to overthrow the Hamas government and hinder the performance of the Palestinian parliament. The New York Times published a report on 14 February, 2006 about an Israeli-American plan to isolate the Hamas-led Palestinian Authority and thus cause the Palestinian people to suffer, and so force them to overthrow the Hamas government and restore Fatah to power. This was achieved, with the result that the Fatah-controlled PA in Ramallah is backed by Israel and its allies, while a Hamas-led administration runs the Gaza Strip, the movement's main power base, which is besieged by Israel and its allies.
With regard to negotiations, the Madrid Peace Conference in November 1991 assumed that political negotiations between the Arabs and the occupying power should be based on the principle of land for peace. Madrid prepared the ground for the Oslo Accords, which were signed in Washington on 13 September, 1993. This was the first public meeting between representatives of the Palestine Liberation Organisation and those of the occupying power.
"The Palestine Liberation Organisation recognises Israel's right to exist in peace and security," proclaimed Yasser Arafat. Israeli Prime Minister Yitzhak Rabin said that, "The Government of Israel decided to recognise the PLO as the representative of the Palestinian people." Arafat and Rabin duly shook hands.
The Oslo Accords stipulated a phased withdrawal of Israeli forces from the West Bank and Gaza Strip and the establishment of an "interim Palestinian self-governing authority" for a five-year transitional phase to end in 1998. It would culminate in a permanent settlement based on UN Resolutions 242 and 338, to be completed three years after the agreement, with the start of "permanent status negotiations" to determine the status of Jerusalem, borders and the refugee issue.
This agreement was followed by others, such as the 1994 Gaza-Jericho Agreement, and the Taba or Second Oslo Agreement in 1995. This divided the occupied West Bank into areas A, B and C to define the areas under the Palestinian Authority's rule and those under the control of the Israeli occupation authorities. The agreement stipulated the withdrawal of the occupation forces from six major Palestinian cities and 400 villages at the beginning of 1996; the election of 82 members of the Legislative Council; and the release of Palestinian detainees in Israeli prisons. The second Wye River Agreement followed in 1999.
When the Palestinians and Israelis signed the Oslo Accords in 1993, the number of illegal settlers in the Palestinian territories occupied in 1967 stood at 253,000. Almost thirty years later this figure has risen to 712,000 living in more than 196 illegal settlements and 232 so-called outposts dominating almost 42 per cent of the West Bank.
This dramatic increase in the number of settlers and settlements has turned the dreams of the Palestinian negotiators for the establishment of an independent state on what was left of the historic land of Palestine — the West Bank and Gaza Strip — into a nightmare. The settlements have been built on Palestinian land, as has the notorious "Separation Wall" and settler-only roads and other infrastructure settlers, meaning that the "facts on the ground" make it impossible for any "State of Palestine" to exist on contiguous territory and be viable. Instead, such a state will be a series of "Bantustans" devoid of physical connections between its cities, towns and villages.
Given that Israel has insisted on the Palestinians fulfilling all of their obligations under Oslo, while failing to implement any of its own in a meaningful way; and pushed every possible concession out of the Palestinians while never making any itself, it is clear that the Oslo Accords have failed the people of Palestine. Based on the above, it is hard to conclude anything other than that the Palestinian people cannot exercise their right to self-determination if they rely solely on the peaceful means set out in this article.
This content was published in Middle East Monitor on January 19, 2022. To restrict the overall size; some images may have been excluded.
Opinions expressed in this article are the author's own and do not necessarily reflect the views of UMMnews.
