International Law

Legal implications of United Nations involvement in the future of Palestine were raised at the outset when the General Assembly convened in April 1947 to consider the issue of Palestine.(1) Key Arab states, several of which had already gained independence after a period of Mandatory administration (2), objected to the draft agenda (UN Doc. A/293) under which the General Assembly was requested to approve to the creation of a special committee to further investigate issues surrounding the future status of Palestine.

In heated exchanges, and repeated challenges to the chair of the Assembly, these states argued that under the terms of the Mandate system and subsequent provisions in Article XII of the Charter of the United Nations, there were only two options before the Assembly.
The General Assembly was either required to recognize Palestine as an independent state following the withdrawal of British forces, or, pending an agreement with Britain, the UN should establish a Temporary Trusteeship in Palestine pending independence.

 

The Iraqi delegate, Mr. Jalami, summarized this position as follows:
 "I believe the world today is suffering from a lack of regard for certain fundamental principles of international relations and
human life. We either lack these principles, or, if we do not lack them, we disregard them, or we are inconsistent in their  pplication. This is the essence of the trouble with the world
today.

The question of Palestine, for which a committee is being proposed, is no exception to this state of affairs. It is only a question resulting from a disregard of certain fundamental principles of human life; namely, the principle of self- etermination, the principle of the right to live peacefully in one's own home, and the principle of selfgovernment in a democratic way.

I submit that if these principles were to be recommended by the Assembly the issue would be settled. If the consideration of theseprinciples were put forward, there would be no problem in Palestine. The problem of Palestine consists merely in a disregard of the fundamental principles of the Covenant of the League of Nations, a disregard of the very principles for which the mandate was made; it is the imposition of the will of one people over another without their consent. The Balfour Declaration violated these fundamental principles.

It sold one peoples' land to another without their consent, without their knowledge. That is why we in Iraq believe that the question is very simple. […] I am afraid that if this problem is not solved in the spirit of the United Nations it will create a world problem."(3)

During the course of the debate, several members raised the issue of Jewish refugees and displaced persons in Europe and questioned whether it should be connected to the issue of
Palestine. The decision of the General Assembly on this issue would determine the course of UN intervention in Palestine.

Three reasons emerged for not connecting the fate of European Jewish refugees to the issue of Palestine. First, international protection had already been accorded to these refugees through the Preparatory Commission of the International Refugee Organization. Second, the UN had previously decided that resettlement of displaced persons should not be undertaken in any Non- Self-Governing Territory without the consent of the local population of that territory. Third, the issue of Jewish refugees could be resolved either on a temporary or permanent basis if member states, such as the United States, would rescind restrictive immigration policies that denied entry to Jewish refugees.

At the end of the Assembly's deliberations, however, the Arab states were unable to muster enough support for placing the issue of the independence of Palestine on the agenda of the General Assembly. The majority of the Assembly members voted in favor of the draft agenda recommended by the General Committee to establish a Special Committee to investigate what was subsequently referred to as the "question of Palestine" and make recommendations to the Assembly no later than 1 September 1947.(4)

Moreover, the terms of reference for the Special Committee were so broad, as to effectively give license to include the issue of Jewish refugees at its own discretion. Thus, exactly one year before the scheduled withdrawal of British forces from Palestine, the General Assembly, in the absence of solid legal counsel about the implications of its decision, acceded to the request of Great Britain to assume responsibility for Palestine.

When the General Assembly reconvened in September 1947 as a special Ad-Hoc Committee(5) to discuss the recommendations of the Special Committee, legal issues once again became a focal point of discussion and disagreement. After some two months of hearings in Palestine in the summer of 1947 followed by a visit to Jewish refugee camps in Germany and Austria, the Special Committee submitted two proposals for discussion in the Assembly.(6) The first proposal, supported by the majority of the Committee members, recommended the partition of Palestine into Jewish and Arab states with an economic union.

The second - minority - proposal recommended a single independent state with guarantees for equal rights and freedoms of all of its inhabitants. Given the serious ramifications of the
Special Committee's recommendations, including concerns already expressed in April and May, Iraq, Syria, and Egypt once again submitted requests that the General Assembly obtain an advisory  pinion from the International Court of Justice (ICJ) about the legal implications concerning the termination of the Mandate and UN intervention in Palestine.(7)

Syria further proposed an initial step of assembling a subcommittee of jurists to consider the Assembly's competence to take and enforce a decision (as distinct from making a recommendation) and to deal with the legal aspects of the Palestine Mandate, before referring the issue to the ICJ.

Again, however, these requests were rebuffed, this time by the Chair of the Ad-Hoc Committee who opposed addressing matters of principle because it would hamper attempts to facilitate a consensus among parties to the conflict. The Assembly thus approved the creation of additional sub-committees to further examine the two proposals submitted by the Special Committee.

Before the sub-committees emerged themselves in further deliberations, however, thesecond sub-committee concerning the minority proposal requested the Chair of the Ad-Hoc Committee to reconstitute membership of the sub-committee. There was a consensus in the sub-committee that it lacked sufficient representation of neutral countries. In order to facilitate the request, two of the Arab members offered to withdraw from the sub-committee. The Chair, however, rejected this request.

The General Assembly reconvened in November 1947 to consider the detailed reports of the sub-committees. Both sub-committees had invested considerable efforts to ensure that the domestic law of the future state/s to be established under the relevant proposals would be fully consistent with fundamental human rights standards. This included guarantees for freedom of religion, minority rights, non-discrimination, and  equal political representation.

When the second sub-committee presented its conclusions to the General Assembly it attempted to address those issues previously deferred or ignored by the Assembly through a comprehensive set of three resolutions. The resolutions recommended that the issue of Palestine and the role of the UN be submitted to the International Court of Justice for an advisory opinion; that the issue of Jewish refugees be considered separately within the framework of existing refugee law and under the auspices of the agency already established for refugees in Europe; and that a provisional government be established in Palestine, guaranteeing equal rights for all of its citizens, upon termination of the Mandate. Rejecting repeated interventions about the necessity of obtaining sound legal advice from the ICJ, the Assembly then turned to the report of the first sub-committee on partition.

Resolutions of Sub-Committee Two
 The full text of the resolutions are archived on the BADIL website. These include:

Resolution No. I - Draft Resolution Referring Certain Legal Questions to the International Court of Justice;
Resolution No. II - Draft Resolution on Jewish Refugees and Displaced Persons'

Resolution No. III - Draft Resolution on the Constitution and Future Government of Palestine.

Implementation
Upon their arrival in Palestine in mid-June 1947, the 11-member Special Committee immediately faced the issue of implementation of any future arrangements or agreements recommended by the United Nations. The situation on the ground was already chaotic. According to the Committee report subsequently filed with the General Assembly, "The atmosphere in Palestine today is one of profound tension. In many respects the country is living under a semi-military regime.

In the streets of the Jerusalem and other key areas barbed wire defense, road blocks, machine-gun posts and constant armored car patrols are routine measures. […] Freedom of personal movement is liable to severe restriction and the curfew and martial law have become a not uncommon experience."(8)

The report went on to describe the use of arbitrary detention, mass arrests, and lack of judicial redress under the Defense Emergency Regulations. The issue of implementation resurfaced during deliberations in the General Assembly in September following the return of the Special Committee. Early on, Great Britain had indicated that it would not participate in any transition arrangements that did not have the full support of both Arabs and Jews.

While the United States subsequently lent its support to the majority recommendation to partition Palestine, it had been reluctant to place its full weight of support behind the plan based on concerns that it might be required to send troops to Palestine as part of an implementing force.(9)

Concerns regarding implementation of any General Assembly recommendations would be repeatedly raised during subsequent discussions throughout the fall of 1947 and spring of 1948.
These misgivings grew as the Assembly neared the end of its deliberations on the proposals of the Special Committee. The situation in Palestine remained at best unstable.

The representative of New Zealand, for example, announced his abstention from the vote and "urged, as a duty which the UN owed to itself as well as to Arabs and Jews, that all Members, particularly the big Powers, pledge at the current Assembly that, if bloodshed and upheaval broke out in Palestine, a united effort to suppress it would be made by means of an international force to which all would contribute in propotionate strength."(10)

During last minute discussions in the General Assembly before a vote on the two proposals members attempted to sway each other in favor of one of the two proposals. The words of the delegate of Pakistan summed up the heavy decision faced by members of the Assembly:"In effect, the proposal before the United Nations G eneral Assembly says that we shall decide - not the people of Palestine, with no provision for the self-determination, no provision for the consent of the governed -

what type of independence Palestine shall have. We shall call Palestine independent and sovereign, but Palestine shall belong to us and shall […] become the apple of discord between East and West, lest, perchance, the unit which our name so wistfully proclaims may have a chance to establish itself.

"We shall first cut the body of Palestine into three  parts of a Jewish State and three parts of an Arab State. We shall then have the Jaffa enclave; and Palestine's heart, Jerusalem, shall forever be an international city. That is the beginning of the shape Palestine shall have. "Having cut Palestine up in that manner, we shall then put its bleeding body upon a cross forever. This is not going to be temporary; this is permanent. Palestine shall never belong to its people; it shall always be stretched upon the cross.

"What authority has the United Nations to do this? What legal authority, what juridical authority has it to do this, to make an independent State forever subject to United Nations administration?…

"Our vote today, if it does not endorse partition, does not rule out other solutions. Our vote, if it endorses partition, bars all peaceful solution. Let him who will shoulder that responsibility. My appeal to you is: do not shut out that possibility. The United Nations should seek and strive to unite and bring together rather than to divide and put asunder…"(11)

When the vote was tallied, 33 states voted in favor of the resolution, 13 against, and 10 abstained. The entire matter was then sent to the UN Security Council for further deliberations regarding provisions for implementation under Articles 39 and 41 of the UN Charter.(12) During deliberations in early December, however, the Security Council was unable to take any effective decision, even though members understood the potential problems that would be faced in implementing the resolution given the fact that the majority of the inhabitants of Palestine were opposed to partition. Further discussion was postponed.

At the beginning of 1948, as the situation on the ground in Palestine continued to deteriorate, the General Assembly recommendation to partition Palestine began to show signs that it was unraveling. Reviewing the situation in Palestine in early mid-January, the British representative at the UN stated that violent conflict between the two communities had been intensified; courts and essential government services had been either unable to operate or were seriously crippled;

there was but one month's supply of certain types of fuel oil in the country; there was general insecurity; communications were obstructed; the collection of public revenue was expected to drop sharply; and "generally speaking, there has been a very severe diminution in the functions and authority of Civil Government…"(13)

While the UN Security Council remained seized of the questions regarding implementation that had been brought to its attention in December 1947, no action had been taken despite working papers prepared by the UN Secretariat that provided background information on the creation of international forces and affirmed the authority of the Sec rity Council to intervene in Palestine under Chapter VII of the UN Charter.(14)

Perhaps fearing that there might be increased pressure to send US troops to Palestine as part of an international force, the United States had begun to question to the authority of the United Nations to enforce the partition plan.

Reports to the UN in early 1948 increasingly raised the alarm bells about impending disaster due to absence of any kind of implementing force. The Palestine Commission, for example,
strongly recommended in mid-February in a Special Report on the Problem of Security in Palestine that a special force should be immediately deployed following the withdrawal of British troops.

Without such a stabilizing force, the Commission warned, a period of "uncontrolled, widespread strife and bloodshed" would follow. "This would be a catastrophic conclusion to an era of international concern for that territory." (15) Again the Commission warned the General Assembly that the "calamitous results for the people of Palestine will be intensified" without adequate forces "to restore and maintain law and order." (16)

The warnings continued through February 1948. In the midst of the chaos, Egypt appealed to the Security Council to scrutinize the legal basis of the resolution and whether it served the interests of peace. By the first week of March 1948 the Palestine Commission itself had come to the conclusion that Resolution 181(II) could only be implemented with assistance of a non- Palestinian military force.

The Chairman of the Commission stressed that unless either a peaceful arrangement could be effected, or effective control could be imposed by sufficient outside forces, far-reaching consequences might arise from the situation, which existed at themoment.(17)

In early March, the US delegation submitted a proposal to the Security Council to enable it to act on the partition resolution. The proposal failed and with the situation increasingly falling part on the ground, including the first largescale displacements of Palestinian Arabs, US officials finally concluded that the partition plan could not be implemented by peaceful means.

Two weeks later, the US requested the UN Security Council to suspend action on the partition plan and to call a special session of the General Assembly to work out a new solution even though the US had previously taken a leading role in applying pressure in the General Assembly to get the partition plan adopted.(18)

Several Arab states as well as Great Britain continued to call upon countries, including the US, to open their doors to relieve the pressure that Jewish refugees were placing on Palestine, but with no results. Meanwhile the US drafted a working paper for a Temporary Trusteeship in Palestine as provided for under Chapter XII of the UN Charter, a proposal that had been raised a year earlier by Syria. Without prejudice to the future status of Palestine, the US stated that a Trusteeship was the only way "to safeguard human lives and to create an atmosphere in which negotiations for a permanent solution could proceed."

Voices from the General Assembly Debates

"The Arabs are unmistakably convinced that the partition plan and any activity in the direction of its implementation are the only causes of the acts of violence occurring in Palestine. When those causes are removed, law and order will be automatically restored.

In regards to the cessation of violence in the last paragraph, "…we should be reminded that we are not dealing with two regular armies facing each other in battle. We are dealing with two sections of thepopulation, living in adjacent dwellings, intermingled, usin  the same streets, quarters, town and villages, and charged with hostile feelings and deep animosity. It is difficult to expect that such an appeal to them, namely to obey a "cease-fire" order or to cease violence, would be effective in any respect if we do not search for the cause of the disease and remove it.

As long as this hostility and this animosity exists between these two sections of the population of Palestine, it is very difficult to hope in any way that they will live peacefully together in friendliness and good-neighborliness. We should not deal with the  symptoms of the disease. The Security Council would do very well if it made a good diagnosis and found the reason for these disturbances in Palestine."
Mr. El-Khouri (Syria)


 "In the proposed Jewish State, outside of the Tel Aviv area, the Arabs constitute the majority of the population and are by far the greater owners of the land. What is the answer to their unequivocal intent that neither their persons nor their land should belong to a Jewish State? What would then be left of that proposed State, except a harbour without a country? Can that harbour without a country constitute the territorial element of a State? If, as we believe, it cannot, may one earnestly and safely suppose that the Arabs should then supply the necessary territorial element and, on top of it, literally submit to a rule which they have every reason to consider foreign?"

Mahmoud Fawzi Bey (Egypt)

The US Trusteeship Proposal

 Entitled, Draft Trusteeship Agreement for Palestine: Working Paper Circulated by the United States Delegation, the paper outlined a transition phase in Palestine that respected the territorial integrity of the country. The agreement provided for a transition Administering Authority, with full emergency implementation powers in case of serious obstructions, non-cooperation, or interference in the functioning of the administration. The proposal provided for fundamental human rights and freedoms of the inhabitants of Palestine along with provisions for non-discrimination. It further outlined the executive, legislative and judicial branches of the transition authority. Outstanding disputes were to be submitted to the International Court of Justice. The proposal included provisions for termination of the temporary trusteeship upon formation of a government as agreed upon by the majority of the Arab and Jewish communities in Palestine.
UN Doc. A/C.1/277
20 April 1948

 

The proposal gained support in the General Assembly and was submitted to the First Committee (Disarmament and International Security) for further study and recommendations. During a meeting of the First Committee on 21 April the US representative introduced a draft resolution (A/C.1/278) calling for referral of the US working paper on a draft Trusteeship Agreement to the Fourth (Trusteeship) Committee for study and report with recommendations to the General Assembly. The resolution was adopted at a later meeting of the First Committee, which subsequently established a sub-committee to further examine the proposal. At its final meeting on the 13 May, the subcommittee adopted the US proposal for a temporary trusteeship.

The United Nations appeared to be stepping back from the brink of a humanitarian disaster brought on by its own decision to partition Palestine against the wishes of the majority of its inhabitants and in apparent contravention of international law and the UN Charter, but the events on the ground had developed a momentum of their own.

The massacre of more than 100 men, women, and children in Deir Yassin in early April had exacerbated the already swelling number of Palestinian Arab refugees that had been uprooted as a result of such atrocities and other massive violations of human rights and humanitarian law. By the time the First Committee submitted its recommendations to the General Assembly, some 400,000 Palestinian Arabs had been displaced, the day of British withdrawal had already arrived, and the Zionist movement unilaterally declared the establishment of the state of Israel. In the light of this new state of affairs, the United States dropped its Trusteeship proposal and within hours recognized the new Jewish state.

Endnotes:
(1) Article 10, The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present
Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters. Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, entered into force Oct. 24 1945.
(2) Legal issues were raised by Egypt, Iraq, Lebanon, Saudi Arabia, and Syria. Iraq was placed under a British Mandate until 1932. The French Mandates in Lebanon and Syria ended respectively in 1943 and 1944.
(3) UN Do. A/2/PV.70, 70th Plenary Meeting of the General Assembly, 1 May 1947, Discussion of the report of the General Committee on the provisional agenda and the supplementary list.
(4) UNGA 106(S-1), 15 May 1947.
(5) During the discussion of the Special Committee's report in September 1947 the General Assembly had reconstituted itself as an Ad-Hoc Committee to deal separately with the Palestine question.
(6)When the Special Committee had wrapped up its work on the 31 August 1947, it had received some 27,000 communications, letters and postcards. The workplan had included a 15 day tour of Palestine, a five day trip to Lebanon and Syria, one day in the
Transjordan and a 7 day tour of displaced persons camps in Austria and Germany. The Committee held 13 public hearings during which 37 persons representing 6 Arab states and 17 Jewish
organizations gave evidence as well as 4 private hearings.
(7) The texts of the questions to be submitted to the ICJ were as follows: Iraq (A/AC.14.21) "Did not the pledges given by Great Britain to the Shereef Hussein of Mecca and her subsequent declarations, promises and assurances to the Arabs that in the event of Allied victory the Arab countries would obtain their independence include Palestine and its inhabitants?"; Syria (A/AC.14/25) "Are the terms of the Act of the Mandate [i.e. United Kingdom Mandate for Palestine] … consistent or not consistent with the Covenant of the League of Nations … and with the fundamental rights of peoples and their right to selfdetermination and International Law? "Is a forcible plan of partition … consistent with the objectives of the mandate and with the principles of the Charter and with the ultimate fate of mandated territories referred to in Chapter XII of the Charter? "Does the plan of partition in its adoption and forcible execution fall within the jurisdiction of the General Assembly?";
Egypt (A/AC.14/14) Does it lie "within the competence of the General Assembly to recommend any of the two solutions proposed by the majority or by the minority of the United Nations Special Committee on Palestine? Does it lie "within the rights of any Member State or group of Member States to implement any of the proposed solutions without the consent of the people of Palestine?" Support for sending the question to the ICJ was later given by Colombia and France concerning the question of whether the UN is competent to enforce or recommend enforcement concerning constitution and future government, especially partition, which is against the wishes or without the consent of the inhabitants.
(8) Report of the UNPC to the 2nd Special Session of the GA A/532, 10 April 1948. The Special Committee also faced another problem.
While the Arab League and representatives of the Zionist movement had agreed to meet with the Committee, the Palestinian Arab leadership refused on principle to meet with the Committee. The Palestinian leadership had found itself in a catch-22 position. Meeting with the Committee would imply recognition of the terms of reference which the leadership regarded as both improper and illegal; if Palestinian Arabs refused to meet with the Committee it might impact negatively upon their claims and the UN response to these claims. In the end the Palestinian Arab leadership informed the Committee that they would present their claims to the United Nations in New York rather than to the Committee.
(9) The US was also concerned that any international force would involve Soviet participation to which it was also opposed. The US was also concerned that the decision to partition Palestine would negatively affect its access to oil supplies in the Arab world. UNGA,
2nd Session, 17 September 1947, Opening of the General Debate, Plenary Meetings 1,21 cited in Feintuch, p. 10. Memorandum, January 27, 1948, Foreign Relations of the United States, 1948, V, 564, cited in Yossi Feintuch, US Policy on Jerusalem, New York: Greenwood Press, 1987, p. 22.

(10) Yearbook of the United Nations, 1947-48, Department of Public Information, United Nations, New York.
(11) Ibid.
(12) These provisions were included under Part A of Resolution 181(II), sub-section (c). Article 39 of the UN Charter authorizes the Security Council to adopt measures under Articles 41 and 42 in order to maintain or restore international peace and security.
(13) Yearbook of the United Nations, 1947-48.
(14) UN Doc. A/AC.21/W.18, 22 January 1948, Precedents Concerning the Creation of an International Force. UN Doc. A/AC.21/W.45, 3 February 1948, Relations Between the United
Nations Commission and the Security Council.

(15) S/676, 16 February 1948.
(16) A/532, 10 April 1948.
(17) Yearbook of the United Nations, 1947-48.
(18) This despite the opposition of some key figures in the US administration, including James Forrestal, Secretary of Defence, Warren Austin, US representative at the UN and Loy Henderson, Director of the Office of Near Eastern and African Affairs. Report of the Policy Planning Staff, 19 January 1948, Foreign Relations of the United States, Department of State, 1947), vol. V, p. 1150, cited in Henry Cattan, The Palestine Question, London: Croom Helm, 1988, p. 36.