Foreword

by

Francis A. Boyle (email: fboyle (at) law.uiuc.edu)
(Publisher's note: the reader may be interested in professor Boyle's 2003 book "Palestine, Palestinians, and International Law")

Professor of International Law
University of Illinois College of Law

The December 1987 beginning of the massive uprising or Intifada by Palestinian youths on what heretofore had been called the West Bank, Gaza Strip and East Jerusalem, as well as in Israel itself, was a natural reaction to what they perceived to be the tragic plight of hopelessness, oppression, desperation and injustice that bas been inflicted upon the Palestinian people since at least 1947. It is the generation of the sons who had been born and grown up during Israeli occupation that decided to discard the seemingly collaborationist policies of their fathers by rising up to cast off Israeli oppression. The entire world has now witnessed the awesome manifestation of their justifiable rage.

According to the Chicago based Human Rights Research and Education Foundation, from December 9, 1987 through December 8, 1989, the first two years of the Intifada, 824 Palestinians were killed by Israeli soldiers and/or Jewish settlers. Of these 176 were children under sixteen years of age, and 71 of them were women and girls. 598 of them were shot, including 121 children under sixteen years of age and 29 women and girls. 55 Palestinians were killed by beating, burning or stoning, 84 were killed by teargas, and 87 by other means. Several hundred women have suffered fetal deaths and miscarriages caused by Israeli teargas and beatings. In addition 13 men died while being tortured in prison. 80,000 Palestinians were seriously injured.

More than 50,000 Palestinians have been arrested, over 1,000 of them women, and at least 14,000 Palestinians are being held in Israeli prisons and concentration camps. 8,500 Palestinians have been administratively detained. 55 Palestinians were placed under town arrests. 58 Palestinian leaders, journalists and professionals were expelled. 6,237 curfew days have been imposed on Palestinian towns and villages in the West Bank and Gaza. 1,225 Palestinian homes have been demolished or sealed, leaving 11,000 people homeless. 77,698 mature olive and fruit trees have been uprooted.

The Intifada has been a time of terrible tragedy and great suffering for the Palestinian people. And yet, paradoxically, it has also proven to be the time of their greatest glory, an affirmation of their essential dignity as an independent people. As a result of these elemental processes, the United Leadership of the Intifada requested the Palestine Liberation Organization (PLO) to proclaim the existence of a new state of Palestine in recognition of the courage, suffering and bravery of the Palestinian people living under Israeli occupation. On July 31, 1988, the creation of a Palestinian state became an inevitability when King Hussein of Jordan announced that he was terminating all forms of administrative and legal ties with what he called the West Bank.If the PLO had not then acceded to the Intifada's request for statehood, the PLO would have forfeited the moral and legal right to lead the Palestinian people as their sole and legitimate representative.

On November 15, 1988, the independent state of Palestine was proclaimed by the Palestine National Council, meeting in Algiers, by avote of 253 to 46, as well as in front of Al-Aksa Mosque in Jerusalem, the capital of the new state, after the close of prayers. I will not bother here to discuss at great length the legal basis for the Palestinian people to proclaim their own state. However, there are four elements constituent of a state: territory, population, government, and the capacity to enter into relations with other states. All four characteristics have been satisfied by the newly proclaimed independent state of Palestine.

Indeed, as long ago as 1919 the Palestinian people were provisionally recognized as an independent nation by the League of Nations in League Covenant article 22(4) as well as by the 1922 Mandate for Palestine that was awarded to Great Britain. This provisional recognition continues into effect until today because of the conservatory clause found in article 80(1) of the United Nations Charter. Pursuant to the basic right of selfdetermination of peoples as recognized by U.N. Charter article 1(2) as well as by the International Court of Justice in the Namibia and Western Sahara Advisory Opinions, the Palestinian people have proceeded to proclaim their own independent state in the land they have continuously occupied for thousands of years.

1. Territory. The territory of a state does not have to be fixed and determinate. Thus, the state of Palestine does not have to have declared borders.

2. Population. In occupied Palestine, there lives the population of the Palestinian people; they have lived there forever, since time immemorial. They are the original inhabitants and occupants of this territory. They are fixed and determinate and so they definitely constitute a distinguishable population. They have always been in possession of their land and are therefore entitled to create a state therein.

3. Government. During the course of his various public pronouncements at Geneva in December of 1988, Yasir Arafat stated that currently the PLO is serving as the Provisional Government of the state of Palestine. Acting in conjunction with the United Leadership of the Intifada, this Provisional Government already controls substantial sections of occupied Palestine as well as the entire populace of occupied Palestine. It is thus already exercising effective control over large amounts of territory and people, and is providing basic administrative functions and social services to the Palestinian people living in occupied Palestine and abroad. This is all that is required for there to be a fulfillment of this criterion for statehood under international law.

4. The capacity to enter into international relations. Over 14 states have already recognized the newly-proclaimed state of Palestine. Recognizing states include Austria, Cyprus and Malta; the Soviet Union, China and most of the socialist world; almost all of the Arab countries; Turkey, India, Pakistan, Indonesia, Nigeria, Uganda and Zaire.

Furthermore, on December 15, 1988, the United Nations General Assembly adopted Resolution 43Jl77, essentially recognizing the new state of Palestine and according it observer-state status throughout the United Nations Organization – akin to that of Switzerland. That resolution was adopted by a vote of 104 in favor, the United States and Israel opposed, and 44 states abstaining. Such General Assembly recognition of the new state of Palestine is constitutive, definitive, and universally determinative.

On that very same day, the General Assembly also adopted another resolution calling for the convocation of an interna- tional peace conference on the Middle East under the auspices of the United Nations with the participation of all parties to the conflict including the Palestine Liberation Organization, on an equal footing, and the five permanent members of the Security Council, based on Security Council Resolutions 242 (1967) and 338 (1973) and the legitimate national rights of the Palestinian people, "primarily the right to self-determina-tion." The General Assembly identified the following prin- ciples for the achievement of a comprehensive Middle East peace:

3, Affirms the following principles for the achievement of comprehensive peace;

(a) The withdrawal of Israel from the Palestinian territory occupied since 1967, including Jerusalem, and from the other occupied Arab territories;

(b) Guaranteeing arrangements for security of all States in the region, including those named in resolution 18 1 (11) of 29 November 1947, within secure and internationally recog-nized boundaries; <

(c) Resolving the problem of the Palestine refugees in conformity with General Assembly resolution 194 (111) of 1 1 December 1948, and subsequent relevant resolutions;

(d) Dismantling the Israeli settlements in the territories occupied since 1967;

4. Notes the expressed desire and endeavours to place the Palestinian territory occupied since 1967, including Jerusalem, under the supervision of the United Nations for a limited period, as part of the peace process;

The Intifada will continue until the Israeli government is willing to sit down and negotiate an overall peace settlement with the PLO on the basis of these principles. In this regard the Palestine National Council (PNC) has taken several steps in the Palestinian Declaration of Independence and in the Political Communique attached thereto in order to establish the framework necessary for negotiating an overall peace settlement between Israel and the PLO. First and foremost, the Declaration of Independence explicitly accepted the General Assembly's Partition Resolution 181 (11) of 1947. The significance of this acceptance in the Palestinian Declaration of Independence cannot be overemphasized. Prior thereto, from the perspective of the Palestinian people, the Partition Resolution had been deemed a criminal act that was perpetrated upon them by the United Nations. The acceptance of the Partition Resolution in the actual Declaration of Independence signals a genuine desire by the Palestine National Council, the Palestine Liberation Organization and the Palestinian people to transcend the past 40 years of history and now reach an historic accommodation with Israel on the basis of a two-state solution.

The fundamental question thus arises: Why do the Palestinian people consider the Partition Resolution to have been a criminal act that was perpetrated upon them by the United Nations Organization? The comprehensive answer to that question can be found in the pages of this work by Issa Nakhleh. In 1947 the United Nations General Assembly debated the question of Palestine during the First Special Session in the Spring as well as during the Second Regular Session in the Fall. Mr. Nakhleh participated in these two sessions as a member of the Palestine delegation that was appointed by the Arab Higher Committee for Palestine to represent the Arabs of Palestine during the debates.

Quite obviously, no point would be served here by attempting to recapitulate the essence of those momentous debates. Suffice it to say that the Palestinian legal position so persuasively argued by Mr. Nakhleh and his colleagues was unassailable: The Partition Resolution was ultra vires the General Assembly because it contravened the fundamental right of the Palestinian people to self-determination as recognized by article 1 (2) of the United Nations Charter, and violated the League of Nations Mandate for Palestine as well as the Covenant of the League of Nations that had already provisionally recognized the independence of the state of Palestine. Nevertheless, all attempts by the Arab Higher Committee for Palestine to have any of these legal issues adjudicated by the International Court of Justice were prevented because of the influence of the United States and the Soviet Union by one vote in the Ad Hoc political committee.

During the course of the United Nations debates over the proposed partition of the Palestine Mandate, it was the matter of power, not principle, that proved to be the decisive factor. It was yet another historical example of the triumph of the sophistic philosophy that "might makes right." Indeed when I first read the United Nations debates on the partition of the Palestine Mandate as a law student many years ago, I was reminded of the gripping Dialogue at the Melian Conference as portrayed by Thucydides in his classic book, The Peloponnesian War.

During the course of that earlier conflagration, the city-state of Melos - an ally of Sparta - was completely surrounded by Athenian troops. The Athenian army then sent a delegation to Melos to demand their surrender. At his conference, the Athenian delegates proposed that the context of surrender negotiations be confined solely to rational calculations of interest based upon considerations of relative power:

For ourselves, we shall not trouble you with specious pretences - either of how we have a right to our empire because we overthrew the Mede, or are now attacking you because of wrong that you have done us - and make a long speech which would not be believed; and in return we hope that you, instead of thinking to influence us by saying that you did not join the Lacedaemonians, although their colonists, or that you have done us no wrong, will aim at what is feasible, holding in view the real sentiments of us both since you know as well as we do that right, as the world goes is only in question between equals in power, while the strong do what they can and the weak suffer what they must. (See The Complete Writings of Thucydides: The Peloponnesian War 331 (Modern Library College edition, 1951) (emphasis added).

The Athenians rejected a Melian offer of neutrality as incompatible with their imperial destiny, and argued that the Melians must accept the hopelessness of their military position and thus surrender to become Athens' tributary vassal. The Melians refused to accept their suggested terms of discussion and consequent demand for surrender. Instead, the Melians sought to elevate the level of negotiations above the base plane of power by invoking considerations of justice:

As we think, at any rate, it is expedient - we speak as we areobliged, since you enjoin us to let right alone and talk only of interest - that you should not destroy what is our common protection, the privilege of being allowed in danger to invoke what is fair and right, and even to profit by arguments not strictly valid if they can be got to pass current. And you are as much interested in this as any, for your fall would be a signal for the heaviest vengeance and an example for the world to meditate upon.

***

You may be sure that we are as well aware as you of the difficulty of contending against your power and fortune, unless the terms be equal. But we trust that the gods may grant us fortune as good as yours, since we are just men fighting against unjust, and that what we want in power will be made by the alliance of the Lacedaemonians who are bound, if only for very shame, to come to the aid of their kindred. Our confidence, therefore, after all is not so utterly irrational.

The Melians never accepted the supposed inexorability of the Athenian logic of power without justice. Melos was invested and taken by treachery. The Melians were extirpated by death or slavery and Athenian settlers took their place. But their prophecy concerning the ultimate defeat of Athens turned out to be true. The world still meditates upon its meaning and significance today.

Like the Melians before them, the Palestinians refused either to compromise their principles or to surrender before the United Nations General Assembly. So in 1947-1948 the strong did what they willed, and the weak suffered what they must. The Palestinian people have suffered grievously and gratuitously ever since. Nevertheless, like Athens before it, today Israel would be wise to contemplate the potential applicability of the Melian prophecy to its own predicament.

Mr. Nakhleh's work attempts to put these monumental events as well as the suffering of his own people within the framework of international law. It must be read in order to comprehend the enormous sense of historical injustice that has been felt and lived by the Palestinian people for over the past four decades. These grave injustices must be rectified before there can ever be some modicum of peace in the Middle East for anyone.

As St. Augustine wrote in Book IV, Chapter 4 of The City of God:

Kingdoms without justice are similar to robber barons. And so if justice is left out, what are kingdoms except great robber bands? For what are robber bands except little kingdoms? The hand also is a group of men governed by the orders of a leader, bound by a social compact, and its booty is divided according to a law agreed upon. If by repeatedly adding desperate men this plague grows to the point where it holds territory and establishes a fixed seat, seizes cities and subdues peoples, then it more conspicuously assumes the name of kingdom, and this name is now openly granted to it, not for any subtraction of cupidity, but by addition of im- punity. For it was an elegant and true reply that was made to Alexander the Great by a certain pirate whom he had captured. When the king asked him what he was thinking of, that he should molest the sea, he said with defiant independence: "The same as you when you molest the world! Since I do this with a little ship I am called a pirate. You do it with a great fleet and are called an emperor." (See St. Augustine 2,The City of GodAgainst the Pagans 17 (Harvard: 1963).

Until Israel concedes the fundaments of justice to the Palestinianpeople, both internally and externally, and accepts to live in peace with them and renounces its expansionist schemes, it shall remain not much more than a "great robber band."