It should be pointed out that during the post-World War II era, one could see the two communities in Palestine going in opposite directions.
The Jewish community was organized through the World Zionist Organization and the Jewish Agency in Palestine. The American Jewish community became involved in the struggle to create a Jewish state in Palestine as early as the 1942 Biltmore Conference in New York City. That is, one resolution, passed by the conference, included a reference to the establishment of a Jewish commonwealth in Palestine after the war.28
Even before the period of the British mandate in Palestine, one could see major differences in cultural practices between the Arab and Jewish communities. For example, the Jewish farmers had greater access to capital and adopted the latest most modern farming techniques.29 Even today, at the beginning of the 21 century, Arab farmers still plant crops the way their ancestors did hundreds of years ago. In contrast, Israeli farmers use a drip irrigation method, applied below the surface, so that very little water is wasted by evaporation.
Other differences were also apparent. The Jewish community had a definite goal in mind and had instituted many state-building activities during the period of the mandate. This did not occur in the Arab community in Palestine.
Administrative agencies such as the Jewish Agency handled all matters of immigration, government positions, and the relations with the British officials. In this connection, the Histadrut (representing labor) became a major organizing force in Palestine in the 1920’s, since the World Zionist Organization allowed Histadrut to allocate funds and assign jobs.st The Mapai Party, the dominant party of the Histadrut, also provided Israel with its top leadership, including David Ben-Gurion, and was in power for the first three decades (1948-1977) of Israel’s existence.
Other entities that were created included the Hagana, the Jewish self-defense force.
The World Zionist Organization set up a banking system to coordinate donations and funding for land purchases and immigration to Palestine. The Jewish National Fund also played an integral role in buying land in Palestine that would remain permanently in Jewish hands.
In contrast, the Arab community in Palestine did not have an integrated command structure. Bitter rivalries and in-fighting among the leading families and clans frequently occurred. Although, the al-Husayni family was the leading family in Jerusalem, it had many rivals, with the al-Nashshashibi family being the most prominent one. This lack of central organization in the Arab community was telling. There was no concerted financial program to bring capital into the Arab community. Jewish land purchases could only happen with the cooperation of Arab landowners, large and small, willing to sell land. Some in the Arab community condemned land sales to the Jews, but, at the same time, many leading Arab families increased their wealth by selling their land to the Jews. Thus, while the Jews had an overall plan to develop agriculture and community life the Arabs had no central theme except opposition to Zionism. As noted, a coordinated effort amongst the Arab elite in Palestine did not occur because of family and clan rivalry. Few among the Palestinian elite were willing to subsume their ambitions, ego, and pride for the greater cause of creating a unified Palestinian state. In contrast, the Jewish camp
had rivalries such as between Weizmann, Ben-Gurion, and Jabotinsky but their differences were more over method then the ultimate goal of a Jewish state. As noted above the mandate for Palestine explicitly stated that a Jewish organization would be officially recognized as the public agency to work as a liaison with the mandatory power, thus aiding Jewish objectives.30
An example of Jewish such successful mobilization and use of capital was the creation of the city of Tel Aviv, as the first modern Jewish city in Palestine. It might be noted in this connection, that due to the rise of Hitler, middle and upper class of European Jews with money and education migrated to Palestine. No parallel to this had occurred with the Arab population during this time period. Arab peasants continued to live off the land and Arab society in Palestine was primarily rural in nature and based on agriculture.
With the end of World War II as the dimensions of the Holocaust became clearer, the impetus for the creation of a Jewish state gained additional momentum. The newsworthy transport ship (Exodus), bringing refugees to the Middle East, helped highlight the plight of the Jewish people and the refugees that had survived Hitler’s death camps. This helped bring the Jewish cause to the forefront of world attention.
Nonetheless, partition was not a certainty at that time. After debate on the issue, the United Nations voted to partition and thus create both a Jewish state and an Arab state in Palestine. The final vote on November 29, 1947, required a 2/3 super majority to pass as the issue was an “important” question. In this regard, abstentions did not count. The vote was 33 in favor, 13 against, with 10 abstentions.31 Thus, if four of the nation’s absenting had switched their votes to against, the partition plan would not have passed. It might be noted that original vote was scheduled for November 27, but the supporters of a Jewish state were able to delay the vote as it looked like they did not have the two-thirds vote necessary for approval.th At this point the Truman Administration applied pressure and used its influence to get a positive vote. Both American aid, and/or the threat of losing it, pressured several wavering states that might have voted against partition to vote for it.32 The significance of the U.S. involvement, and the rallying of influential American Jews to lobby their elected leaders to support Israel cannot be underestimated. A close historical parallel can be found between the Zionist movement and its close, personal contacts with leading British politicians inside and outside of the British cabinet and Jewish influence within the U.S. concerning policy towards the creation of a Jewish state.
The point here is not to create a “conspiracy theory” for Jewish policy successes but to point out that the Jews were much more organized and had greater access to key policy-makers of the Western powers than did their Arab counterparts. For
example, Chaim Weizmann spent more than a generation cultivating key political leaders in the United Kingdom. Thus, years before the Balfour Declaration, Weizman had developed key personal contacts with leading members of the British cabinet and senior civil servants. Access to individuals with power can be a crucial factor in determining successful outcomes of political/military struggles.
In this regard, the Jews were significantly ahead of the Arabs. Individual Arab leaders like Faysal were more interested in getting British support for their own areas of control than supporting the cause of a Palestinians state.
This pattern of Jewish access to power centers, such as the U.S., continues to the present day. This is not to say that, at times, the United States has acted in opposition to the expressed wishes of Israel. The Suez Crisis of 1956 and the pressuring of Israel to stop its advances in the 1967 and 1973-1974 wars are examples of situations where U.S. and Israeli interests diverged.
In the era of U.S. dependence on foreign oil, especially from the Gulf Arab states, there is significant pressure on the United States to at least take some steps to
play the part of “honest broker” between Israel and the Palestinian/Arab world.
In this connection, an independent legally recognized Palestinian state has never been established. Israel declared its independence on May 14, 1948, which was the day that the British administration ended. The armies from several Arab states (Lebanon, Transjordan, Egypt, Syria, and Iraq) attacked Israel the next day.
Under traditional customary international law, the conquest and occupation of enemy territory, during war, and then possibly incorporating that territory into your nation was considered “lawful.” Under the Kellogg-Briand Pact and the United Nations Charter, however, many legal scholars do not consider conquest and occupation of territory of another state and its subsequent incorporation into the conquering state as being “legal”. In this connection, during the war of 1948-1949, Israel took over significant portions of the territory that were originally to be allocated to the Palestinians. That is, under the U.N. partition plan, Israel was scheduled to receive 57 percent of the land, including the coastal plain, despite representing only 33 percent of the population of Palestine Mandate.33 At that time, the Jews also technically “owned,” by purchases, roughly seven percent of the land.34 Thus, the Arab governments and the Palestinians felt they had a good basis to claim that the partition was not equitable.
Further, the Arabs rejected the creation of the state of Israel. Though the proposed lines of partition were a source of dismay, the main complaint of the Arabs was the creation of the state of Israel. As the struggle continued the Jewish state expanded.
Israel gained Arab land just north of Gaza, an area comprising the western section of the West Bank, parts of the Negev, and the Arab section in the north in and around Galilee. After these early conquests, Israel exerted control over three-quarters of Palestine (77 percent).35
In any case such events disrupted any contemporary chance for the creation of a Palestinian state. Arab states had their own interests in the 1948-1949 war and these did not necessarily coincide with those of the Palestinian people. Transjordan, with King Abdullah, was one such example. It appears that Israel and Transjordan decided that they would divide Palestine between them.
Gerner (1994) argues:
“In the case of Jordan, recent scholarship has revealed that there was an explicit
decision not to fight aggressively against Israel, as part of a tacit deal between
the Zionist leadership and King Abdullah that their two countries would split
Palestine between them.”36
Transjordan changed its name to Jordan and annexed the West Bank. Gaza was administered, under military rule, by Egypt, until 1967 when the Egyptians lost control to the Israel. Thus, hopes of creating a Palestinian state in lands of the West Bank and Gaza were greatly diminished. These Arab nations expanded their territorial interests rather than showing great concern for the creation of an independent Palestinian state. These decisions by Jordan and Egypt explicitly denied the Palestinians rule over at least some part of the land theoretically given to them by the 1947 partition. Such actions in that period continue to impact the Middle East today- over fifty years later.
For two generations many Palestinians have lived in refugee camps, paid for by the United Nations, because most Arab countries, with the exception of Jordan, will not let the Palestinians migrate into their respective countries. For the Palestinians whom arrive in other Arab nations, finding a job is quite problematic as the host country wants to employ their own. Furthermore, except for Jordan, no other Arab state grants Palestinians citizenship in large numbers.
A number of Arab governments have had political reasons (both for domestic political concerns and regime security) to leave the Palestinians as refugees in camps. There were also other issues on integrating Palestinian refugees into other nations. Some Arab governments argued that integrating Palestinians into their countries could endanger their right of return areas that were controlled by Israel. The implications of the official recognition of Palestinian right of return, since if all the Palestinian refugees (and their children) returned to what was previously their homes before the 1948-49 war, due to the much higher Palestinian birth rate, Palestinians would be a majority in a land that was designed to have a Jewish majority and be a Jewish state. In addition, Arab government could argue that recognition of larger Israel implicitly could mean that all or most of the Palestinian refugees would have to give up their right of return to the occupied areas, now formally a part of Israel. Most Arab nations would not take this risk.
It should be noted that the character of the United Nations in 2005 is not the same United Nations that voted to partition Palestine in 1947. The United States and the United Kingdom were the main forces behind the United Nations. One can trace their work back to the Atlantic Charter signed by Prime Minister Churchill and President Roosevelt. In 1947 the United Nations had a decidedly Western emphasis. A vast majority of the African and Asian colonial possessions of the British and the French had not yet become independent states. Thus, the U.N. had an American/Western European orientation. A partition vote on Palestine under the 1947 terms would not likely pass today in 2005.
In this connection, the General Assembly has generated a number of anti-Israeli votes, especially since the 1970’s. One example is the General Assembly’s adoption of a resolution equating Zionism to racism (adopted November 10, 1975, GA Resolution 3379).37 Having noted that the political climate in 1947 was not very favorable to Arab states, one must still turn to the Arab leadership and ask why they did not perform well, militarily, during the 1948-49 war. It should be noted five Arab armies did not coordinate their actions and attack Israel at the same time. The reason for lack of coordination, as noted above, appears to result from the rivalries amongst and between Arab governments. That is, as noted earlier, the Arab governments were fighting Israel for their own reasons and not necessarily for the benefit of the Palestinians. The confused state of Palestinian Arab politics and the jockeying for status and power played into this.
Smith (2001) argues:
“On the Arab side, various plans had been prepared for mobilization if the United
Nations approved partition. The mufti, still in Egypt, was determined to control
the Palestinian Arab resistance and any aid offered by the Arab states. …
Both al-Husayni and al-Qawuqji were veterans of the Arab Revolt of 1936-39,
but they were rivals, backed by different groups deeply suspicious of one another.
The mufti demanded control over all funds to ensure that the fate of Palestine
remained in Palestinian, most specifically his, hands. The Arab League’s
refusal to provide loans to him to finance resistance or to agree to create a
Palestinian government-in-exile confirmed to him Arab leaders wished to decide
the fate of Palestine. Egypt alone came to the mufti’s aid, not so much out of
loyalty to Hajj Amin as out of suspicion of Abdullah of Jordan’s motives in
wishing to absorb Jerusalem and central Palestine.”38
It should also be noted that there was no civil Palestinian government in the West Bank and Gaza until Israel gave portions of Gaza and the West Bank back to the Palestinian Authority under Oslo I and Oslo II in the 1990’s. That is, no civilian Palestinian government was ever formed or ruled in the nearly twenty years, 1949-1967, that the West Bank and Gaza were in the hands of Arab governments.
In this connection, the Palestinian Liberation Organization, which was formed in 1964 by the Arab League, was not created to help liberate Palestine. Also, in the late 1950’s and early 1960’s, there were increasing challenges to Nasser’s standing as the head of the Arab world. Nasser was accused by some of hiding behind the U.N. troops that separated Egyptian and Israeli troops in the Sinai. Syria and Iraq attempted to show by strong language that they were the true leaders of the Arab world and would not compromise with Israel.
Nasser needed an organization he could control (he chose the P.L.O.) that would strengthen his credentials as a true enemy of Israel. Nasser’s influence led to the naming of the first head of the P.L.O., a diplomat that was basically under the control of Nasser. At the same time, Nasser knew, after the swift Israeli advance and across the Sinai in 1956, that his army was no match for Israel. This being the case, Nasser attempted to buy more time. By stopping or severely limiting the number of guerrilla raids into Israel from Egyptian controlled territory (such as Gaza) was one of the strategies Nasser adopted to limit Israeli reprisal attacks on Egypt.39 In this connection, Israeli reprisals against the guerrillas and their host countries were widely condemned by the United Nations Security Council on the grounds that such reprisals were illegal under the Charter of the United Nations.
Below is a partial list of Security Council Resolutions condemning Israel for reprisals that were out-of-proportion in the use of force and/or death or destruction as opposed to the original action which led up to the Israeli military reaction. Security Council Resolution 101 censures the Israeili military reprisal at Qibya in no uncertain terms.
101 (1953). Resolution of 24 November 1953
The Security Council,
Recalling its previous resolution on the Palestine question, particularly
Resolution 54 (1948) of 15 July 1948, 73 (1949) of 11 August 1949 and 93
(1951) of 18 May 1951 concerning methods for maintaining the armistice
and resolving disputes through the Mixed Armistice Commissions.
Noting the reports of 27 October 1953 [footnote 8] and 9 November 1953
[footnote 9] to the Security Council by the Chief of Staff of the United
Nations Truce Supervision Organization in Palestine and the statements
to the Council by the representatives of Jordan and Israel,
1. Finds that the retaliatory action at Qibya taken by armed forces of Israel
on 14-15 October 1953 and all such actions constitute a violation of the
cease-fire provisions of Security Council resolution 54 (1948) and are
inconsistent with the parties’ obligations under the General Armistice
Agreement between Israel and Jordan [footnote 10] and the Charter of
the United Nations;
2. Expresses the strongest censure of that action, which can only prejudice
the chances of that peaceful settlement which both parties, in accordance
with the Charter, are bound to seek, and calls upon Israel to take effective
measures to prevent all such actions in the future; …40
The incident mentioned below involved Syria and Israel with the former taking action against the latter in Lake Tiberias in December, 1955 and the Israeli army forces responding to the beginning of hostilities by Syria. Again, the question of reprisals is raised and how that relates to how a nation responds to an attack. Was the response appropriate and in proportion to the initial attack in terms of men lost and property destroyed? The Security Council of the United Nations did not think that the Israeli reprisal/response was proportionate in its January 19, 1956 resolution (111).
111 (1956). Resolution of 19 January 1956
The Security Council,
Recalling its previous resolution on the Palestine question, particularly
Resolution 54 (1948) of 15 July 1948, 73 (1949) of 11 August 1949 and 93
(1951) of 18 May 1951, 101 (1953) of 24 November 1953 and 106 (1955)
Of 29 March 1955,
Taking into consideration the statements of the representatives of Syria
and Israel and the reports of the Chief of Staff of the United Nations
Truce Supervision Organization in Palestine [footnote 3] on the Syrian
complaint that an attack was committed by Israel regular army forces
against Syrian regular army forces on Syrian territory on 11 December
Noting that, according to the report of the Chief of Staff, this Israel
action was a deliberate violation of the provisions of the General
Armistice Agreement between Israel and Syria, [footnote 4] including
those relating to the demilitarized zone, which was crossed by the Israel
forces which entered Syria,
Noting also, without prejudice to the ultimate rights, claims and positions
of the parties, that according to the reports of the Chief of Staff there has
been interference by the Syrian authorities with Israel activities on Lake
Tiberias, in contravention of the terms of the General Armistice Agreement
between Israel and Syria,
Holds that this interference in no way justifies the Israel action;
Reminds the government of Israel that the Council has already
condemned military action in breach of the General Armistice Agreements,
whether or not undertaken by way of retaliation, and has called upon
Israel to take effective measures to prevent such actions;
Condemns the attack of 11 December 1955 as a flagrant violation of the
Cease-fire provisions of its Resolution 54 (1948), of the terms of the General
Armistice Agreement between Israel and Syria, and of Israel’s obligations
under the Charter of the United Nations;
Expresses its grave concern at the failure of the Government of Israel to
Comply with its obligations; …41
Bowett (1972) argues:
“On occasion after occasion (Qibya, October, 1953; Gaza, February, 1955; Lake
Tiberias, December, 1955, and March, 1962; Jordan, November, 1966; Samu,
November, 1966), the Security Council formally condemned Israel for illegal
reprisals and rejected this form of plea of self-defense…. Certainly, occasional
references to the “punitive” character of the actions are to be found.  More
frequently emphasis is laid upon their disproportionate character, although
strictly this is scarcely relevant if reprisals are illegal in any event, whether
proportionate or disproportionate.”42
The tendency to condemn Israel would often depend upon the proportionality of the response and/or whether human life or property was the target.43 Questions about the type of weapons used versus the military purpose to be achieved have been addressed in international law. No combatant has a free reign to use any weapon it so desires. The likelihood of civilian casualties and trying to keep them to a minimum comes into play in determining what is appropriate or not.
Gardam (1993) indicates in this connection:
“As we have seen, with the adoption in 1977 of Protocol I to the Geneva
Conventions of 1949, proportionality became a conventional rule. Provisions
of the Protocol protect both the combatants and noncombatants from
disproportionate attacks, although most of the focus in the travaux
preparatoires and by commentators has centered on the rule in relation to
civilian losses. Article 35, paragraph 1 repeats the basic rule of the
fourth Hague Convention that the right of parties to choose means and
methods of warfare is not unlimited- an abstract principle that encompasses
the idea of limiting the infliction of casualties and damage to what is
proportionate to the achievement of the military goal. .”44
With the defeat of the Arab armies in the war of Independence, the Middle East significantly changed. Israel became engrossed with the task of absorbing nearly two-thirds of a million (666,500) Jewish immigrants in the 1949 to 1952 period.45 The population of Israel more than doubled in this time period.46 However, raids and reprisals continued between Israel and her Arab neighbors during the 1950’s.
The refugee problem was not solved and the United Nations fed, clothed, housed, and employed the Palestinian refugees. It is interesting to note that a prominent Middle East politician/statesman of the Independence era points the blame for the refugees, not on Israel, but on the Arab governments of the Middle East that did not accept the U.N. partition plan for Palestine.
Curtis (1991) points out:
“The memoirs of Khalid al-Azm, prime minister of Syria in 1948-49, are
unusually revealing. In them, he explained, “[w]e [the Arab governments]
doomed a million Arab refugees, by calling on them and insisting that they
abandon their land, their homes, their work and their occupations, and we
made them unemployed and homeless.” KHALID AL-AZM,
MUDHAKKIRAT KHALID AL-AZM 386-87 (1973), quoted in
BERNARD LEWIS, SEMITES AND ANTI-SEMITES 270 (1986)47
Losses to Israel (in 1948-1949) created a devastating blow to a number of Arab governments in the 1950’s. The military defeat resulted in a loss of legitimacy by those governments for losing holy Muslim territory to the “infidel” Israel, backed by the West. In 1952 Nasser led a coup of military officers in Egypt and the decade would bring other significant changes, such as Faysal being ousted as king of Iraq. Arab nationalism then grew under the leadership of Nasser. Despite a dramatic military defeat at the hands of Israel (and indirectly its partners, the United Kingdom and France) in the 1956 Suez Crisis, Nasser appeared to come out intact, as the United States and the Soviet Union both backed the withdrawal of British, French, and Israeli forces from Egypt and the Suez Canal. The Eisenhower Administration tried to create a comprehensive water plan for the entire Jordan Valley area but the more extreme of the Arab states, particularly Syria, would not sign on because such a regional agreement would imply at least an implicit recognition of the state of Israel. The American sponsored water plan failed and was not implemented.48
With the Arab rivalry of the late 1950’s and 1960’s heating up, tension and border
skirmishes occurred. During the decade leading up to the Six-Day War (during June, 1967), there were additional border confrontations, raids, and reprisals by Israel. The purpose of this paper is not to go into the many causes of the Six-Day War in 1967. Suffice it to say that Nasser took some very provocative steps when he demanded that the U.N. troops leave the Sinai Peninsula, sent Egyptian units into the Sinai and closed the Straits of Tiran to all shipping going to Israel.49 The concept of anticipatory self-defense, as Israel engaged in the Six-Day War, has a long tradition in international relations but many authors would argue it is illegal based on the language Article 51 of the U.N. Charter, limiting self-defense to a
response to an armed attack by another state.
Below is the actual language of Article 51. With modern weaponry and the close proximity of Israel to its “enemies”, does the nation-state of Israel (or any state for that matter) have to wait for a possibly devastating attack to come first before defending itself? Does such a pre-emptive doctrine, like the Bush Doctrine, open up a whole can of worms that would make any “attack” legal based upon some perceived threat seen by the attacker against his “adversary”?
Article 51 (Chapter VII)
Nothing in the present Charter shall impair the inherent right of individual
or collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary
to maintain international peace and security. Measures taken by Members
in the exercise of this right of self-defence shall be immediately reported to
the Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take
at any time such action as it deems necessary in order to maintain or restore
international peace and security.50
Others feel Israel’s attack was “legal”.
“Today, some scholars argue that the right of anticipatory self-defense articulated
by the Caroline incident has been overridden by the specific language of Article 51
of the UN Charter. In this view, Article 51 formulates a new, and far more
restrictive, statement of self-defense, one that relies on the literal qualification
contained in the article “if an armed attack occurs.” In my judgment, this
interpretation ignores the fact that international law cannot compel a state to wait
until it absorbs a devastating or even lethal first strike before acting to protect itself.
The argument against the restrictive view of self-defense is reinforced by the evident
weakness of the Security Council in offering collective security against an aggressor.
Moreover, both the Security Council and the General Assembly refused to censure
Israel for its preemptive attack against certain Arab states, signifying implicit approval
by the United Nations of this particular resort to anticipatory self-defense.”51
However, if Beres Interpretation is accepted, then every state has the legal right to attack every other state it feels “might” attack it. It is hard to think of any doctrine more out of step with the original intentions of the UN Charter then that. For example, under this doctrine, if Iraq, in fact, had the means to attack the US, as the US was preparing to attack Iraq, (in the latest Gulf War), and, if Iraq had done so, under this interpretation, Iraq would have been acting “legally”. It should be noted in this connection, that the Bush Doctrine seems to incorporate the Beres’ interpretation, while apparently denying other “enemy” states the same “legal” right of “anticipatory self-defense”.
The question as to what legal rights Israel has as an occupying power in the West Bank and Gaza will be taken up in a subsequent article. Critical issues such as detention, arrest without formal charges and torture need to be addressed. It is true that international law recognizes that an occupying power may have to take measures to maintain law and order but said occupying power must protect basic freedoms like the ability of the populace to worship how they please.52 The Hague Peace Conference of 1907 also discusses the duties and obligations of an occupying power while maintaining order and action deemed acceptable and unacceptable during hostilities.
SECTION II – HOSTILITIES
CHAPTER 1.- Means of Injuring the Enemy, Sieges, and Bombardments
The right of belligerents to adopt means of injuring the enemy is not unlimited.53
In addition to the prohibitions provided by special conventions, it is especially forbidden-
g. To destroy or seize the enemy’s property, unless such destruction or
seizure be imperatively demanded by the necessities of war;54
The question of the duties and responsibilities of an occupying power are contained in Section III. The occupying power does not have unlimited power but must respect the such things as the religion of the occupants, family honor, and their private property.55 Due note that the Hague Convention was written in 1907, many years before the United Nations Charter outlawed the taking of territory by force.
SECTION III- MILITARY AUTHORITY OVER THE TERRITORY OF
THE HOSTILE STATE
The authority of the legitimate power having in fact passed into the hands
of the occupant, the latter shall take all the measures in his power to
restore, and insure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country.56
It is interesting to note that the conference at Oxford on international law in 1880 was much more receptive to what an invader or occupier had to do.
46. In case of urgency, the invader may demand cooperation of the
inhabitants, to enable him to provide for the necessities of local
The emphasis on law and order and the ability (and right) of the occupier to enforce law and order was supported by the 1880 conference at Oxford.
48. The inhabitants of an occupied territory who do not submit to the orders
of the occupying authority may be compelled to do so. …58
In the case of an armistice, which Israel signed with various neighboring Arab nations after the War of Independence, it is not the same as ending hostilities. Technically, the parties in question, if they have not signed a peace treaty, are still in a state of war. According to the Hague Convention of 1907, a serious breach of the peace allows the occupying power to start up hostilities again.
SECTION II- HOSTILITIES
CHAPTER V. Armistices
Any serious violation of the armistice by one of the parties gives the other
party the right of denouncing it, and even, in cases of urgency, of
recommencing hostilities immediately.59
The crux of the problem is determining what is a serious breach and whom gets to determine that. In addition, what happens if the violation occurs by private actors not in the regular army of the opposition? Article 41 seems to say that only compensation is available and not a start-up of hostilities by the occupying power in response to the non-state action.
SECTION II- HOSTILITIES
CHAPTER V. Armistices
A violation of the terms of the armistice by private persons acting on their
own initiative only entitles the injured party to demand the punishment of
the offenders or, if necessary, compensation for the losses sustained.60
The situation gets even murkier with a non-governmental organization is involved. For example, the Palestine Liberation Organization is/was not a nation-state. A number of nations did provide money and sanctuary to the P.L.O. Does Israel have a right to break an armistice with a country which either funds the P.L.O. or allows it to operate, train, and launch raids into Israel from its territory? It is quite a delicate legal question.
Military actions, such as prolonged administrative detention, are ones you would not normally see during peacetime. In this connection, legal questions arise since certain scholars use as legal justification for Israeli military rule in the occupied territories is the fact that Israel is still technically in a “state of war” with most of its Arab neighbors (except Egypt and Jordan) since an “armistice” does not end a “state of war”. The armistice is just a temporary state of affairs until a permanent peace treaty can be negotiated. However, many authors feel the U.N. Charter made it illegal under international law to have a unilateral “states of war”(Article 1, Section 1; Article 2, Sections 3 and 4).61
The question regarding the legal status of the occupied territories is crucial to a discussion and resolution of the Palestinian-Israeli conflict. For example, is an act of violence carried out against an Israeli soldier or citizen in the occupied West Bank or Gaza a “legal action” because Israel attacked and occupied land originally allocated to the Palestinian state, under the 1947 U.N. partition plan? Or, is such an act of violence to be considered an “act of terror” and therefore “illegal” under either domestic and/or international law? It should be remembered that Tel Aviv was part of the original land given to Israel in the 1947 U.N. partition plan. Does it make a difference whether the Israeli government is in its pre-1967 borders or in the post-1967 borders (prior to Camp David) in an attempt to answer this question? Do the goals of the non-state agency in carrying out the act of violence make a difference? In this regard, for many years the Palestinian National Charter emphasized the destruction of Israel, though violent means, in order to create a Palestinian homeland.
Smith (2001) points out in respect to the National Charter:
“9. Armed struggle is the only way to liberate Palestine. Thus it is the overall
strategy, not merely a tactical phase. The Palestinian Arab people assert their
absolute determination and firm resolution to continue their armed struggle
and to work for an armed popular revolution for the liberation of their
country and their return to it.
10. Commando action constitutes the nucleus of the Palestinian popular
liberation war. This requires its escalation, comprehensiveness, and the
mobilization of all the Palestinian popular and educational efforts and
their organization and involvement in the armed Palestinian revolution. …”62
If the goal then becomes the complete destruction of Israel, does it matter where the act of violence occurs? Killing an Israeli diplomat in London or planting a bomb in Tel Aviv or shooting an Israeli citizen in the West Bank all have political and military implications. Acts of violence cross all national borders and are not limited to acts of nation-states. That is, as noted above, non-state organizations also play a major role in engaging in such acts of violence. There is no shortage of non-state organizations engaged in guerrilla actions against Israel. The Popular Front for the Liberation of Palestine (PFLP) and the Popular Front for the Liberation of Palestine-General Command are part of a political movement that opposes any peace negotiations with Israel, and rejects the Oslo Accords. These two groups, and others, also believe that a wider revolution must first happen in the Arab world before the Palestinian revolution can be successful. Conservative, pro-Western Arab monarchies, especially Jordan, must first be overthrown before Israel can be defeated.63 These organizations do not exist in a vacuum. In order to survive and succeed they need logistical and financial support from nation-states. For example, the headquarters of the Popular Front for the Liberation of Palestine-General Command is Damascus, Syria.64 The support for such organizations can come in the form of direct monetary payments, use of host country as a training base, sanctuaries, and as a launching site for raids into target countries such as Israel. Sometimes, the host country is too weak to even oppose an alleged terrorist organization. For example, Lebanon during and after its Civil War was not strong enough to put curbs upon the P.L.O./Fatah. King Hussein (Jordan) used the army to defeat the P.L.O./Fatah in September, 1970 when the latter tried to gain control from its bases in the refugee camps, especially near Amman. That is, Fatah wanted protected bases, an “Arab Hanoi” from which to launch attacks on Israel.65 That is, Jordan was used as a protected base in the late 1960’s and early 1970’s until King Hussein managed to defeat Fatah and the P.L.O. Both then fled to Lebanon and held on until the Israeli army drove them out in 1982.
It is interesting to note how the world environment and attitude towards such violent acts has changed dramatically since September 11. Nations that publicly pledged millions and/or billions of dollars to “terrorist organizations” after September 11thth, became more politically vulnerable to direct political and possible military intervention from the Europe, the United Kingdom, and, especially, the United States. The contrast is striking when comparing pre- and post September 11th attitudes. At their 1978 summit meeting, Arab states pledged billions of dollars to selected countries in the battle against Israel along with millions for non-state organizations in their guerrilla campaigns against Israel.
Farsoun and Zacharia (1997) argue:
“The Arab states, at their summit meeting in Baghdad in 1978, pledged $3.5 billion
annually to the confrontation states of Jordan, Syria, Lebanon, and the PLO. Out of
this sum, the PLO was allocated $250 million; $50 million was for reserves, $50
million for the general budget, and $10 million for the “families of martyrs.”
Of the remaining $140 million, 58 percent went to Fatah; As Saiqa received 10
percent; the Democratic Front for the Liberation of Palestine [DFLP], the Popular
Front for the Liberation of Palestine [PLFP], the Popular Front for the Liberation
Of Palestine-General Command [PFLP-GC], and the Arab Liberation Front [AFL]
Received 10 percent each, whereas 2 percent each was given to the Popular
Liberation Front [PFL] and the Popular Struggle Front [PSF].”66
Non-state violent acts are usually more than just illegal acts perpetrated by one individual or a group against people or property. That is, there is usually a political purpose behind the action. It is usually done to publicize a political purpose. The highjacking of airplanes by the PFLP in the late 1960’s and early 1970’s drew significant worldwide media attention to issues of the Palestinian cause. It is difficult to forget the images of airliners being blown up in Jordan. The whole world was also riveted to television when terrorists attacked and killed Israeli athletes at the 1972 Olympic Games. Statements of the “terrorists” were broadcast all over the world, giving them attention they usually would not receive. Thus, media attention and political motives are often behind such acts of violence. The immediate rationale for the action may be to win the release of fellow terrorists or the payment of a ransom to finance further operations but there are usually deeper motivations.
Farsoun and Zacharia (1997) indicate:
“An act is terrorism when
it is an intentional act of violence or terror-inspiring activity,
or the threat of such an act,
by a power- politically motivated actor,
directed against an instrumental target composed of persons
which is intended to create in a larger primary target audience
a psychological condition of fear, anxiety, terror, and
vulnerability greatly disproportionate to the physical result of
the act of terrorism,
for the purpose of modifying the primary target members’
behavior or attitude and coercing them into supporting and/
or effectuating the politically-related objective desired by the
terrorist actor, and
is beyond the ordinary legitimate coercive right of the terrorist
actor as recognized by the actor’s particular society.”67
The incident in question was connected with the Palestinian Liberation Front (PLF). This group broke away from the Popular Front for the Liberation of Palestine (PFLP) in 1977 over the PLF’s backing of Arafat’s Fatah and the PFLP’s support of Syria.68 Later, Abu Abbas/Mahmoud Zeidan/Muhammad Abbas (all the same person) directed and trained four PLF fighters who took part in the capture of the Italian cruise liner, Achille Lauro in October, 1985.69 What was most unique and tragic about the liner hijacking was that the one passenger/hostage killed by the terrorists was picked out solely because he was a U.S. citizen and of the Jewish faith. Mr. Leon Klinghoffer, age 69, disabled, in his wheelchair, was killed and then subsequently thrown overboard, along with his wheelchair, by the PLF terrorists. This event received widespread coverage in the American media, with numerous editorials deploring this act of “terror.” The PLF fighters had wanted to trade their hostages for fifty Palestinians in Israeli jails. Thus, does the Achille Lauro incident meet the definition of “terrorism” as defined by Farsoun and Zacharia ? It appears so, it was “an intentional act of violence” and it was “terror-inspiring”. The images of a defenseless, wheelchair bound, disabled, elderly man being brutally killed by the terrorists, with no thoughts of compassion, grief, or remorse were shocking to the American public. Even though this “terrorist action” only killed one person, the effect was much greater. The PLF was, most assuredly, a politically motivated actor. The PLF was no friend of Israel and was a backer of Fatah. The target, an American Jew, therefore, was no accident. The United States is/was seen as the major backer, supporter and supplier of weapons to the Palestinian arch-enemy, Israel. The “act of terror” produced in the American people and especially American Jews, “a psychological condition of fear, anxiety, terror, and vulnerability possibly disproportionate to the actual threat “terrorism”.
As for the political objectives, the PLF brought to center stage to the rest of the world, the unsolved Palestinian issue. In this connection, the terrorists’ demand for the release of fifty Palestinians from Israeli jails was not acceded to. One could question whether the negative images of PLF (Arab) terrorists across newspapers, magazines, and television screens around the world really helped the Palestinian cause.
As for “modifying the primary target members’ behavior or attitude,” this action did not meet the intended goals. The U.S. military forced the jet carrying the four PLF hijackers to land at a NATO base in Italy and the four were arrested.70 That is, U.S. foreign policy towards Israel as well as the unresolved Palestinian issues did not change because of the terrorist attack.
As for individual Americans, of the Jewish faith, the terrorist action was a very disturbing incident. Mr. Klinghoffer was an ordinary American in all respects. The only difference between him and most other Achille Lauro passengers was that he was Jewish. Clearly, the hijacking of the Achille Lauro involved special training. It was an act out of the “ordinary legitimate coercive right of the terrorist actor as recognized by the actor’s particular society.” (as cited in Farsoun and Zacharia point (6) above). PFL members would not necessarily object to such a mission but Palestinians in general do not engage in such actions. Thus, the Achille Lauro attack appears to meet the criteria of being a “terrorist attack.” The PLF did draw more attention to the Palestinian issue but, as noted above, the behavior and attitude of the United States did not change and Israel did not release any Palestinians from jail.
It must be mentioned that the question of Palestinians in Israeli jails should not be
looked at in isolation. The occupation of the West Bank and Gaza by the Israel clearly is an issue of paramount importance. The non-state organizations related to Palestine do have the right to ask questions about administrative detention of Palestinians both in the West Bank and Gaza. So, the occupation of the West Bank and Gaza is an important issue in defining what are “terrorist acts” by the PLF.
Israel still controls most of the West Bank, Gaza, Jerusalem, and the Golan Heights. Significant hatred towards Israel in the Arab world and amongst the non-state organizations appears to stem heavily from the Israeli occupations. In addition, many Arabs feel that Israel should not exist in any form (neither from the 1947 U.N. partition boundaries or the 1949 armistice lines). Thus, it is possible some Palestinian non-state organizations would have attacked Israel regardless of its boundaries. During the late 1980’s and early 1990’s, however, with Oslo I and Oslo II, the P.L.O. has modified its position and Charter and adopted a two-state solution implying the right of Israel to exist. Still, some of the non-state organizations do not support any negotiation with Israel to justify its existence. That is, they want all of the Palestine Mandate in Palestinian hands and, therefore, oppose the Oslo Accords.
Some might argue that an attack on Israel, especially the military forces, in the occupied territories is just an attack on a colonial oppressor by a national liberation movement. This was the essentially the position of third world countries in Africa and Asia during the period of decolonization from the late 1940’s to the 1970’s. However, the decolonization in the post- World War II era was primarily against declining former world powers such as the United Kingdom and France with their far-flung colonies. Viewing Israel as the colonizing power is somewhat problematic. The pre-1967 borders had a nine-mile distance from Arab land in the West Bank to the sea. The West Bank and Gaza both border Israel. Thus, national security issues, instead of colonial control, appear more relevant in the case of Israel. A case in point is the skirmishes on the Israeli-Jordanian border in the period from after
the Six Day War until 1970 when the P.L.O./Fatah was militarily removed from Jordan. That is, during this three-year period, the P.L.O./Fatah used Jordan as a staging base for attacks on Israel. After, the P.L.O./Fatah was expelled from Jordan, the number of border skirmishes dropped dramatically.
Farsoun and Zacharua report:
“ ‘Incidents’ on the border between Jordan and Israel rose from 97 in 1967
(after June) to 916 in 1968, 2,432 in 1969, 1,887 (up to August) in 1970
[because of Black September and the civil war in Jordan]. They then fell
to 45 in 1971.”71
To understand the Achille Lauro incident, one must look at who sponsored the terrorist attack and what nation-states were directly or indirectly behind the action. It is clear that the PLF terrorists had been trained, in person, by Abbas in PLF camps in Algeria.72 After the September 11 attack, it became clearer that selected nation-states have supported terrorists, providing them with training bases within their own sovereign territory. Thus states engaged in such support such “terrorist” activities are clearly acting in a way that violates traditional international law. That is, traditional international law requires states to control and suppress internal groups that intend to attack or harm other states.th To not do so constituted a international delict, and reprisals against the offending state were the traditional norm. Under the UN system, states harmed by such action or inaction, can appeal to the Security Council to authorize forceful sanctions against the offending state or states.73 Under these rules, Algeria would have to “own” up to it’s past support of terrorist groups. The Arab League and its members would have to answer for their financial contributions to organizations such as the Palestine Liberation Organization (PLO), Fatah, the Democratic Front for the Liberation of Palestine (DFLP), the Popular Front for the Liberation of Palestine (PFLP), the Popular Front for the Liberation of Palestine- General Command (PFLP- GC) and others. The Security Council also has a non-military action option such as imposing economic sanctions.74
In the past, the United States has looked the other way when Arab states, especially
“friendly” oil-producing Gulf states such as Saudi Arabia were funding terrorist organizations. The reason for this ambivalence on the part of the United States appears to be related to the American dependence on foreign oil. This is not a new phenomenon. Fatah had been conducting raids into Israel since January 1, 1965- over two years before the Six-Day War. In 1965, Israel did not control the West Bank and Gaza. Arab states, namely Jordan and Egypt, had controlled these two areas for nearly twenty years (17) before Arafat and Fatah launched its first raid into Israel. A preponderance of the attacks carried out by the above-mentioned alleged terrorist groups in the late 1960’s , 1970’s, and 1980’s were primarily against the territorial integrity of Israel, against Israeli citizens, Jews, and Western European countries but not the United States. Following September 11 and the identification of “radical”Islamic fundamentalism related to the attacks has generated new strategies particularly by the United States. Within the United Nations Security Council, the United States, Russia, the People’s Republic of China, the United Kingdom and France have each expressed their concerns about internal and/or external threats related to “terrorist activity”.
In the post-Cold War era, small arms appear much more available to non-state organizations. A Karine-A shipment of arms to the Palestinian Authority, from Iran, illustrates that since the fall of the Soviet Union the number of arms sellers has increased dramatically. During the Cold War period the two superpowers had significantly more control over the shipment of arms than sine the Cold War ended.
This creates the potential for a more destabilized world situation.
As for the legality of the pre-1967 borders (the 1949 armistice lines), one need only look to the United Nations Security Council 242 and the land-for-peace formula. The resolution talks about “(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict.” Thus, the 1949 borders of Israel might appear to be recognized as the “legitimate” ones from the perspective on the United Nations.th However, it should be noted that Security Council Resolution 242 only refers to the withdrawal of Israel from territories that it occupied in the 1967 war. One other interpretation, then, could be that Israel has to withdraw from territories that it occupied in 1967, not all of the “other” territories that it has also occupied. In addition, U.N.S.C. Resolution 242 also recognizes that each state in the area must have “secure and recognized boundaries.” Some scholars might argue that this phrase allows Israel to make adjustments in the boundaries in the West Bank and Gaza to enhance its security.
Smith (2001) points out:
“(ii) Termination of all claims or states of belligerency and respect for and
acknowledgement of the sovereignty, territorial integrity and political
independence of every State in the area and their right to live in peace within
secure and recognized boundaries free from threats or acts of force.”75
In this connection, the United Nations Charter speaks of the territorial integrity of states and their sovereignty within their own borders. Article 2 of the charter speaks of member nations of the United Nations solving their problems in a peaceful manner. Thus, each member state of the United Nations is not supposed to interfere with the territorial integrity of another state. This is assuming that Article 51 for self-defense is not being applied or the collective security section of the U.N. Charter. That is, under current international law under the United Nations Charter a nation-state can not legally support non-state organizations that attack other nation-states’ territorial integrity, infrastructure, or members of their population, since these actions are a violation of the territorial integrity and political independence of the state so attacked. Historically, the support for non-state organizations can take many forms including: financial support, training bases, launching spots for raids, the supply of military weapons, diplomatic immunity and safe havens for the “terrorists”.
A historical point issue in this regard needs to be discussed. Resistance to the Nazi occupiers, by the underground in France, and other countries, has often been used as an example and justification for violent actions in the name of “national liberation” throughout the post-World War II era.
In this regard, McClure argues:
“Political terrorism since 1945 often has been used in the service of national
patriotism and liberation. In fact, much of the aura of social respectability of
postwar terrorist movements derives from the acceptance of the resistance
movements against the Germans in Europe during World War II. Terrorist
methods since World War II have been substantially similar to those used
by the Resistance, but only the noble cause of the Resistance then justified
the normally unseemly means. Indeed, there are fundamental differences.
The Resistance concentrated on military targets in a time of war, whereas
postwar political and ideological terrorists have exploited totally innocent
victims to apply pressure on the state of society as a whole.”76
The problem is sorting out the distinction between state supported aggression, inconsistent with the United Nations Charter, and the Third World’s claims regarding the right to use “terror” and “guerrilla warfare” in “wars of national liberation”. Although General Assembly resolutions are not binding and do not have the force of law, the GA grappled with this issue in 1974. Resolution 3314, Article 7, related to a “Definition of Aggression” and showed the concerns of Third World nations, which dominated the General Assembly at the time.
In this connection with GA 3314, Arend (1990) argues:
“Nothing in this Definition, and in particular article 3 [which lists acts that
generally qualify as aggression], could in any way prejudice the right of
self-determination, freedom and independence, as derived from the Charter,
of peoples forcibly deprived of the right to [self-determination] referred to
in the Declaration of Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter of
the United Nations, particularly peoples under colonial and racist regimes or
other forms of alien domination; nor the right of these people to struggle to
that end and to seek and receive support, in accordance with the principles
of the Charter and in conformity with the above mentioned Declaration.”77
As noted, however, GA 3314 does not have the force of law. It is simply a recommendation on how to interpret “wars of liberation”. The phrase “under colonial and racist regimes or other forms of alien domination; nor the right of these people to struggle to that end and to seek and receive support” is obviously open to possible various subjective interpretations. For example, in the 1960’s many argued, including a number of US scholars, that the U.S. was a “racist regime”. Does that mean that that groups organizing in the South to create an independent black nation have the right to receive support from the U.S.S.R. to achieve that objective? Clearly, GA 3314 seems to clash with traditional law, with its emphasis on non-injury by one state against another, as well as the U.N. provision in Article 2, 7: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter…”
Clearly, then, the legality of non-state violent actions to create an independent state within the jurisdiction of a recognized existing state hinges on whether one emphasizes GA 3314 or Article 2, 7 and whether Israeli ”occupation” constitutes “legal jurisdiction”. The Kellogg-Briand Pact presumably made title transfer by force “illegal”. “War criminals” of both Japan and Germany were tried, in part, for violating these provisions. The GA’s insistence that the occupied territories, controlled by Israel, are not actually part of the nation state of Israel therefore further confuses the legal foundations of Israeli pre-emptive violent strikes against presumed “terrorist” organizations. An International Court of Justice advisory opinion on these matters should help clarify the actual possible legal basis of the non-state organization’s violent actions against Israel, as well as Israel’s violent actions (or re-actions) against such organizations.