The Palestine-Israel Journal is a quarterly of MIDDLE EAST PUBLICATIONS, a registered non-profit organization (No. 58-023862-4).
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Editorial Board

Hisham Awartani

Danny Rubinstein

Sam'an Khoury

Boaz Evron

Walid Salem

Ari Rath

Zahra Khalidi

Daniel Bar-Tal

Ammar AbuZayyad

Galit Hasan-Rokem

Khaled Abu Aker

Galia Golan

Nazmi Ju'beh

Gershon Baskin

Edy Kaufman

Ata Qaymari

Benjamin Pogrund

Nafez Nazzal

Simcha Bahiri

Nadia Naser-Najjab

Dan Jacobson

Jumana Jaouni

Dan Leon

Anat Cygielman

Khuloud Khayyat Dajani

Izhak Schnell



Vol.4 No.2 1997 / The Struggle For Land

Focus

Settlements and the Palestinian Right to Self-Determination

How Israeli settlement policy infringes on the right of the Palestinian people to self-determination.

     by Musa Dweik

Israel's settlement policy in Arab land it occupied in 1967 constitutes a clear violation of the rules and laws of military occupation pertaining to the Hague Agreement of 1907 and the Geneva Convention of 1949, including their two appendices. This article will show that Israel's settlement policy also violates human-rights principles and infringes on the right of the Palestinian people to achieve self-determination a right which has been guaranteed them by international law, the UN Charter and various other international agreements.

The Right to Self-Determination

When the concept of self-determination was first evoked during the First World War, it was taken to mean the right of a people to determine its sovereignty over the region where it is living. It was a principle that President Wilson endorsed before his country joined the war.1 Although the right to self-determination was not incorporated into the text of the Charter of the League of Nations, it was implicit in the discourse relating to the protection of minorities and that of the regulation of the Mandatory system.2 It was only when the UN Charter was formulated in the wake of the Second World War that self-determination was openly and clearly mentioned in articles 1 and 55 of the UN Charter.3
In spite of disagreements over the definition and the determination of its nature, it is possible to say that self-determination refers to "the right of every nation to establish an independent state and to freely choose its own political system."4 Self-determination is a two-sided concept: one is internal and pertains to the choice of a suitable governmental system; the second is international and is embodied in the right of a people to independence and not to be subject to transference or surrender against its will. It also comprises the right of a nation to secede from the state to which it belongs, to merge or unite with another one or to establish its own independent state.5
Given the fact that self-determination is a collective and not an individual right, it was not mentioned in the Universal Declaration of Human Rights (which deals with individual rights), but was nevertheless confirmed by this declaration in the first article which deals with the principle of equality, from which that of self-determination is derived.
The right to self-determination is denied in the presence of the following:
When population groups sharing a common existence in their own region
are subjected to the domination of an alien power, be it military or one
pertaining to another state, or a foreign colonialist power living in the
same region;
When these population groups, to whom the region belongs, are denied the
right to exercise sovereignty over it.6
Before the advent of the UN Charter, the general tendency of jurisprudence, at the time, was to consider self-determination as merely a political principle used to put an end to certain instances of colonialism and to regulate regional changes resulting from international circumstances, especially after the First World War. Following the UN Charter and its inclusion of the right to self-determination in articles 1 and 55, for a large part of jurisprudence it became indeed a legal right and not just a political principle.7
This fact was subsequently underscored in several UN resolutions, among them Resolution 637 of December 16, 1970, where the right of people to self-determination was considered a basic condition for the enjoyment of other rights and freedoms. This position was further reinforced in the two international agreements The International Agreement for Civil and Political Rights and the International Agreement for Economic, Social and Cultural Rights, as well as several UN resolutions.8 Subsequently, there was a succession of resolutions by the international body affirming the right of people to self-determination, and it was in Resolution 1181 of December 11, 1957, that the term "right" was used instead of "principle" for the first time. The General Assembly later compiled all previous resolutions dealing with the subject into a single one Resolution 2625 which was approved unanimously on November 24, 1971.9
With the above resolution, the right to self-determination was turned into a binding legal precept. It was applied in several instances and was codified among the principles that govern the relations of friendship and cooperation among the nations. International jurisprudence goes further and acknowledges the admissibility of the use of force to acquire this right.10 International recognition of this right carries great importance, especially to persecuted nations and those struggling against colonialism and foreign occupation, because its ratification in the UN Charter gives them the legal and international base for the achievement of self-determination.11
It should be noted that the right to self-determination is not confined only to political and cultural aspects; it incorporates economic ones as well, such as the right of nations to control their own natural and human resources, as enunciated in the UN Declaration of Permanent Sovereignty over Natural Resources.12

The Right of the Palestinian People to Self-Determination

The right of the Palestinian people to self-determination came in the wake of the dismantlement of the Ottoman Empire and the relinquishment by Turkey of its sovereignty over Palestine in 1923, in accordance with the Treaty of Lausanne. Palestine then passed under British Mandatory rule following a League of Nations resolution. This the Palestinians rejected and resisted, especially since in the Balfour Declaration [1917], Britain granted the Jews the right to establish a national homeland in Palestine, denying the Palestinians their own right to self-determination.
When the UN passed a resolution calling for the partition of Palestine, it recognized the right of the Palestinian people to self-determination, as the partition plan allows for the establishment of an Arab Palestinian state a right which stands to this day. And lest the Palestinians be considered merely refugees and war victims, the international body passed several resolutions securing them their right to return to their homeland and to determine themselves.13
This notwithstanding, Israel has consistently denied the Palestinians the right to self-determination using various pretexts which defy legal logic, and its continued occupation of Palestinian land since 1967 is the gravest violation of this right. In UN Resolution 3089 of December 7, 1973, which asserts equality of rights, the international body expressed its concern over the preventing by Israel of the Palestinian people from exercising its inalienable rights on its own land.14 Furthermore, General Assembly Resolution 3070 of November 1973 incorporates into its text the admissibility of the use of armed struggle as one of the means for the achievement of self-determination. It should be noted that this method was legally used in the 18th century during the American Revolution. Consequently, legists recognize the legitimacy of such a method, which can be considered an application of the right of legitimate defense as stipulated in Article 51 of the UN Charter.15
Since Resolution 2533 (XXIV) of December 10, 1969, the General Assembly ceased to treat the Palestinian problem as one of refugees needing care and shelter. In Resolution 3236 (XXIX) of November 22, 1974,16 it recognized the "inalienable rights" of the Palestinian people, including that of return and self-determination and the right to independence. The Palestinians came to be considered a basic party in securing a just and lasting peace in the Middle East, and the UN recommended that the General Secretary meet with the PLO for the discussion of all matters relating to the Palestinian people. Additionally, the General Assembly in Resolution 3376 went as far as to set up a special committee (The Committee for the Exercise of the Inalienable Rights of the Palestinian People) stating that, in the eventuality those rights were not met by July 1976, the Security Council was to debate the issue in accordance with the UN Charter.17 In 1976, the committee presented its first report in which it stressed the fact that it would not be possible for the Palestinian people to exercise its right to self-determination unless Israel withdrew from the Palestinian territories it occupied by force and in violation of the UN Charter, and it allowed those expelled in 1948 or displaced in 1967 to return to their homes and properties.18

Israeli Settlements: A Violation of Rights

In light of the above, Israeli settlement policy in Palestinian land is a grave violation of human rights. Article 2/17 of the Universal Declaration of Human Rights affirms that "no one can be forcibly stripped of one's property." This, however, has not been respected in the case of Palestinians, who are still subject to expulsion, house demolition and expropriation of their property for the establishment of Jewish settlements there, especially within the context of Israel's policy of creeping annexation of the occupied territories.19
The settlement policy also violates the principle of equality called for in more than one article of the Universal Declaration of Human Rights. This is especially so since the settlements are built exclusively for Jews, are separated from the rest of the inhabitants of the occupied territories, and are closed to Palestinians--- Muslim and Christian alike. Additionally, the Israeli authorities have set up legal and judicial systems specific to the settlements, whereby settlers are subject to one set of laws and
courts of law and the Palestinian inhabitants to completely different ones. Such a policy can only be viewed as discriminatory, not unlike apartheid that has been consistently condemned by the UN and various international
bodies.20 As a result, Israel?s settlement policy has elicited a great deal of condemnation, both worldwide and among a large section of the Israeli public itself.
Furthermore, the building of settlements on occupied Palestinian lands is tantamount to their de facto annexation to Israel because it hinders the achievement of self-determination by the Palestinian people.21 This is due to the fact that settlements change the demographic character of the occupied territories, especially when the original inhabitants of the land are expelled to be supplanted by foreigners. The Palestinians will be turned into a minority strangers in their own land, as was the case in 1948 and as is happening in East Jerusalem today.22
Through its settlement policy (especially after the signing of the Declaration of Principles in September 1993), Israel aims at giving Jewish settlers demographic superiority which will enable them to participate, alongside the Palestinians, in negotiations regarding the future of the occupied territories. These settlements will, therefore, constitute an encroachment on the Palestinians? right to exercise self-determination.23 A report by the International Convention dealing with the question of Palestine states that the several declarations made by Israeli leaders leave no doubt
as to the real intent of their settlement policy which is to "create irreversible facts, making unlikely the achievement of self-determination by the Palestinians... Israel does not think anymore in terms of peace for land but rather wants both the land and the peace...."24
In summary, Israel's settlement policy in occupied Palestinian land constitutes a transgression of the powers and authorities mandated to it by public international law pertaining to military occupation. It is a blatant violation of the rules of conventional international law and the Fourth Geneva Convention (especially Article 6/49) pertaining to the protection of civilians in times of war. It also constitutes an aggression on the right of the Palestinian people to self-determination, and stands in contradiction to Israel's commitment to the necessity of respecting and promoting this right among the people in the occupied territories.

Endnotes

1.Ja'afar Abdel Salam, The Egyptian-Israeli Peace Agreement: An Analytical Study According to Rulings of International Law (Cairo: Dar Nahdat Misr lil Taba' wa Nashr, 1980) pp.219--220 (Arabic).
2."The Right to Self-Determination of the Palestinian People," prepared for, and under the guidance of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People (New York: United Nations, 1979, Document ST/SG/SER.F/3).
3.Yousef al-Qara'een, The Right of the Arab Palestinian People to Self-Determination (Amman: Dar al-Jalil lil Nashr, 1981) pp. 18-19.
4.Muhsin Ali Jad, Peace Agreements in Public International Law, Ph.D. diss. (Cairo: Ein Shams University, 1978), p.688 (Arabic).
5.Salah Eddin Amer, "Settlements in the Occupied Territories in Contemporary
Public International Law" (Arabic), al-Majallah al-Masriyyah lil-Qanun
al-Duwali, 35 (1979): 33.
6.Tayseer Nabulsi, Israeli Occupation of Arab Territories, Ph.D diss. (Cairo: Ein Shams University, 1975) p.254 (Arabic).
7.Ibid., pp.256-257. For a detailed discussion of the controversy over the nature of the right to self-determination, see Hassan Kamel al-Muhami, "The Right to National Self-Determination" (Arabic), al-Majallah al-Masriyyah lil-Qanun al-Duwali, 35 (1979): 29--39.
8.Abdel-Aziz Muhammad Sirhan, An Introduction to the Study of the Palestinian State (Cairo: Dar an-Nahda al-Arabiyyah, 1989), p.91 (Arabic).
9.Yousef al-Qara'een, op. cit., p.20.
10.Ja?afar Abdel Salam, op. cit., pp.219-220.
11.Ezzedin Ali al-Khairo, Palestinian Resistance and the Right to Self-Determination (Baghdad: University of Baghdad, 1971), p.23 (Arabic).
12.Abdel-Aziz Muhammad Sirhan, op. cit., p.94.
13.Abdallah al-Ash'al, The PLO's Legal Center (Cairo: Dar an-Nahda al-Arabiyyah, 1988), p.102 (Arabic). See also, Sharif Bassiouni, "The Palestinian Rights of Self-Determination and National Independence, Association of Arab-American University Graduates, information paper No. 22, December 1978.
14.Abdel-Qader Yassin, Israeli Violations of Palestinian National
Rights, 1st ed. (Beirut: Manshurat Filastin al-Muhtallah, 1981), p.61 (Arabic).
15.Abdallah al-Ash'al, op. cit., p.104.

16.The resolution was passed with a majority of 87 votes, 8 against and 37 abstentions. For a complete text of the resolution, see "The Right to Self-Determination of the Palestinian People," op. cit., pp.33--34.
17.Yousef al-Qara'een, op. cit., p.162.
18."The Right to Self-Determination of the Palestinian People," op. cit., p.36.
19.Michael Adams, "The Universal Declaration of Human Rights and the Israeli Occupation of the West Bank and Gaza," Palestinian Rights: Affirmation and Denial, ed. Ibrahim Abu Lughod (USA: Medina Press, 1982), pp. 75-76.
20.Atallah Kuttab, "Human Rights in the West Bank," Human Rights
Crisis in the Arab World, Center of Arab Lawyers for Research and
Legal Studies, n.d., p.163.
21.Richard Falk, "Some Legal Reflections on Prolonged Israeli Occupation of Gaza and the West Bank," Journal of Refugees Studies, 2.1 (1989): 44.
22.Salah Eddin Amer, op. cit., pp.34-35.
23.Abdel-Aziz Muhammad Sirhan, op. cit., p.206.
24.See the declaration of Mustafa Niyassi, Senegal's foreign minister and president of the International Conference on the Question of Palestine, Geneva, August 29, 1983.








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