The War Against The Palestinian People, On The Basis Of Racism
Mr Ralph Wilde Representing the League of Arab States Part 1
MORE THAN CENTURY-LONG DENIAL OF SELF-DETERMINATION OF, AND WAR AGAINST, THE PALESTINIAN PEOPLE, ON THE BASIS OF RACISM
Mr Ralph Wilde Representing the League of Arab States Part 1
Ralph Wilde: The Palestinian people have been denied the exercise of their legal right to self-determination through the more than century-long violent, colonial, racist effort to establish a nation State exclusively for the Jewish people in the land of Mandatory Palestine.
When this began after the First World War, the Jewish population of that land was 11 per cent[1]. Forcibly implementing Zionism in this demographic context has necessarily involved the extermination, or forced displacement of, some of the non-Jewish Palestinian population; the exercise of domination over, and subjugation, dispossession non-Jewish Palestinians; the emigration to that land of Jewish people, regardless of any direct personal link; and the denial of Palestinian refugees the right to return. All operating through a racist distinction privileging Jewish people over non-Jewish Palestinian people.
This has necessitated serious violations of all the fundamental, jus cogens and erga omnes norms of international law — the right of self-determination, the prohibitions on aggression, genocide, crimes against humanity, racial discrimination, apartheid and torture ⎯ and the core protections of international humanitarian law[2].
Today I will address, first, violations of international law arising out of the régime of racial domination — apartheid — perpetrated against the Palestinian people across the entire land of historic Palestine, and then, second, the existential illegality of Israel’s occupation of the Palestinian Gaza Strip and West Bank, including East Jerusalem, since 1967.
As a necessary prerequisite, I must begin with the special right granted to the Palestinian people in the League Covenant.
PALESTINIAN SELF-DETERMINATION UNDER ARTICLE 22 OF THE LEAGUE OF NATIONS COVENANT[3]
The legal right of self-determination of the Palestinian people originates in the “sacred trust” obligations of Article 22 of the League Covenant, part of the Versailles Treaty. Palestine ⎯ an “A” class Mandate under British colonial rule ⎯ was, after the First World War, supposed to have its existence as an independent State “provisionally recognized”: a sui generis right of self-determination[4]. The United Kingdom and other members of the League Council attempted to bypass this, incorporating the 1917 Balfour Declaration commitment to establishing a national home for the Jewish people in Palestine into the instrument stipulating how the Mandate would operate[5]. However, the Council had no legal power to bypass the Covenant in this way. It acted ultra vires, and the relevant provisions were, legally, void[6]. There was and is no legal basis in that Mandate instrument for either a specifically Jewish State in Palestine, or the United Kingdom’s failure to discharge the “sacred trust” obligation to implement Palestinian self-determination.
SELF-DETERMINATION IN INTERNATIONAL LAW AFTER THE SECONDWORLDWAR —ANADDITIONALRIGHT
After the Second World War, a self-determination right applicable to colonial peoples generally crystallized in international law.
For the Palestinian people, this essentially corresponded to, and supplemented, the pre-existing Covenant right, regarding the same, single territory. The 1947 proposal to partition Palestine was contrary to this; the Arab rejection an affirmation of the legal status quo.
In 1948, then, Palestine was, legally, a single territory with a single population enjoying a right of self-determination on a unitary basis.
NAKBA IN 1948 — VIOLATION OF SELF-DETERMINATION AND CREATION OF A RÉGIME INVOLVING AN ONGOING VIOLATION OF THIS RIGHT, AS WELL AS RACIAL DISCRIMINATION AND APARTHEID AND A DENIAL OF THE RIGHT TO RETURN
Despite this, a State of Israel, specifically for Jewish people, was proclaimed in 1948 by those controlling 78 per cent — more than three quarters — of Palestine, accompanied by the forced displacement of a significant number of the non-Jewish Palestinian population — the Nakba, catastrophe[7]. This illegal secession was an egregious violation of Palestinian self-determination. Israel’s statehood was recognized, and Israel admitted as a United Nations Member, despite this illegality. Israel is not the legal continuation or successor of the Mandate.
This violation of Palestinian self-determination is ongoing, and unresolved. Two key elements are:
First, Palestinian people not displaced from the land proclaimed to be of Israel in 1948, and their descendants, have been forced to live as citizens— presently they constitute 17.2 per cent — of a State conceived to be of and for another racial group, under the domination of that group, necessarily treated as second class, because of their race[8].
Second, Palestinian people displaced from that land, and their descendants, cannot return.
These are serious breaches of the right of self-determination, the prohibitions of racial discrimination and apartheid, and the right of return. They must end, immediately.
1967 ISRAELI CAPTURE OF THE PALESTINIAN GAZA STRIP AND WEST BANK (INCLUDING EAST JERUSALEM)
As if this ongoing Nakba was not catastrophic enough, in 1967 Israel captured the remaining 22 per cent of historic Palestine — the Gaza Strip and West Bank, including East Jerusalem — the Naksa[9]. It has maintained that use of force to remain in control for the 57-year period since.
ILLEGAL RACIAL DOMINATION — APARTHEID — FROM THE JORDAN RIVER TO THE MEDITERRANEAN SEA
For more than half a century, then, a State defined to be of and for Jewish people exclusively has governed the entire land of historic Palestine and the Palestinian people there. And the régime of racial domination — apartheid — and denying return, has been extended throughout. In the case of Palestinians living in the occupied territory, this has involved the same serious violations of international law, supplemented by serious violations of norms applicable in occupied territory[10].
Indeed, these people are subject to an even more extreme form of racist domination, as they are not even citizens of the State exercising authority over them. Even in East Jerusalem, which Israel has purported to annex, the majority non-Jewish Palestinian residents do not have citizenship, whereas Jewish residents, including illegal settlers, are citizens.
Just as in territorial Israel, in occupied territory, these serious violations concerning how Israel exercises authority over the Palestinian people must end immediately.
However, here, a more fundamental matter must also be addressed. The illegality of the exercise of authority itself.
THE GAZA STRIP AND WEST BANK AS PALESTINIAN TERRITORY, WITH THE CONSEQUENCE THAT ISRAEL’S PURPORTED ANNEXATION, AND ATTEMPTED COLONIZATION, ARE ILLEGAL
The enduring Palestinian right of self-determination means that the Palestinian people, and the State of Palestine, not Israel, are sovereign over the territory Israel captured in 1967[11]. For Israel, the land is extraterritorial, and, given what I said about the Mandate, territory over which it has no legal sovereign entitlement[12].
22. Despite this, Israel has purported to annex East Jerusalem and taken various actions there and in the rest of the West Bank constituting de jure and de facto purported annexation, including implanting settlements. It is Israeli policy that Israel should be not only the exclusive authority over the entire land between the river and the sea, but also the exclusive sovereign authority there.
This constitutes a complete repudiation of Palestinian self-determination as a legal right, since it empties the right entirely of any territorial content[13].
Actualizing this through de facto and de jure purported annexation is, first, a serious violation of Palestinian self-determination and, second, because it is enabled through the use of force, a violation of the prohibition on the purported acquisition of territory through the use of force in the law on the use of force, and so an aggression[14]. Serious violations of further areas of law regulating the conduct of the occupation are also being perpetrated, notably the prohibitions on implanting settlements and altering, unless absolutely prevented, the legal, political, social and religious status quo[15].
The occupation is, therefore, existentially illegal because of its use to actualize purported annexation. To end this serious illegality, it must be terminated: Israel must renounce all sovereignty claims and all settlements must be removed. Immediately.
However, this is not the only basis on which the occupation’s existential legality must be addressed.
We need to delve deeper into both the law of self-determination and the law on the use of force.
[1] 11.06 per cent to be exact. Government of the United Kingdom, Report of J. B. Barron, Superintendent of Census, Palestine: Report and General Abstracts of the Census of 1922, 10 Feb. 1923, p. 5, table I, available at https://content.ecf.org.il/files/M00785_1922PalestineCensusEnglish.pdf.
[2] See Written Statement of the League of Arab States, Sec. 8, pp. 16-19, Part 3 generally, pp. 19-38, especially Sec. 16 therein, pp. 37-38.
[3] See generally Written Statement of the League of Arab States, p. 8, para. 13 (1); Written Comments of the League of Arab States, Sec. 6c, pp. 27-32; and Ralph Wilde, “Tears of the Olive Trees: Mandatory Palestine, the UK, and accountability for colonialism in international law”, Journal of the History of International Law (2022), available at https://brill.com/view/journals/jhil/aop/article-10.1163-15718050-12340216/article-10.1163-15718050-12340216.xml? language=en (hereinafter “Wilde, Tears of Olive Trees”).
[4] Treaty of Peace Between the Allied and Associated Powers and Germany, signed in Versailles, 28 June 1919, entry into force 10 January 1920, (1919) UKTS 4 (Cmd. 153), Part I, League Covenant 1919: Covenant of the League of Nations, 28 Apr. 1919, available at: https://www.ungeneva.org/en/about/league-of-nations/covenant.
[5] Mandate for Palestine, text approved by the League of Nations Council 19th Session, 13th Meeting, 24 July 1922, UN Library reference C.529. M.314. 1922. VI., available at: https://www.un.org/unispal/document/auto-insert- 201057/, entry into force on 29 Sept. 1923, Minutes of the Meeting of the League of Nations Council held at Geneva on 29 September 1923, UN Library reference C.L.101.1923.VI., available at https://www.un.org/unispal/document/auto- insert-204395/.
[6] Wilde, Tears of Olive Trees, pp. 402-403.
[7] State of Palestine, Palestinian Liberation Organization Negotiation Affairs Department, Borders, https://www.nad.ps/en/our-position/borders#:~:text=During%20the%20June%201967%20war,Palestinian%20half% 20of%20the%20city, and United Nations, The Question of Palestine, History, https://www.un.org/unispal/history/.
[8] Nasreen Haddad Haj-Yahya, Muhammed Khalaily, Arik Rudnitzky and Ben Fargeon, Statistical Report on Arab Society in Israel 2021, The Israel Democracy Institute, 17 Mar. 2022, available at https://en.idi.org.il/articles/38540.
[9] State of Palestine, Palestinian Liberation Organization Negotiation Affairs Department, Borders, https://www.nad.ps/en/our-position/borders#:~:text=During%20the%20June%201967%20war,Palestinian%20half%20 of%20the%20city. See also Statement of HE Mr Mahmoud Abbas, President of the State of Palestine, Chairman of the Executive Committee of the Palestine Liberation Organization and President of the Palestinian National Authority before the United Nations General Assembly’s Sixty-Sixth Session, New York, 23 Sept. 2011, https://gadebate.un.org/sites/ default/files/gastatements/66/ps_en_25.pdf.
[10] Written Statement of the League of Arab States, Sec. 13, pp. 26-33.
[11] Ralph Wilde, “Using the master’s tools to dismantle the master’s house: international law and Palestinian liberation”, Palestine Yearbook of International Law, Vol. 22 3 (2021) (hereinafter “Wilde, Master’s Tools”), pp. 35-39.
[12] Written Comments of the League of Arab States, Sec. 6, pp. 23-32; Wilde, Master’s Tools, pp. 40-41.
[13] Written Comments of the League of Arab States, Sec. 6, pp. 23-32, esp. Secs. 6a and 6b, pp. 23-26.
[14] Ibid., Sec. 11 (p. 21-3); Wilde, Master’s Tools, p. 40.
[15] Written Statement of the League of Arab States, Sec. 13, pp. 26-33.