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The legal status of the Liberation Organization under international law

Al-Jubeir, Nail Ahmed, M.A.

The American University, 1987

Copyright ©1987 by Al-Jubeir, Nail Ahmed. All rights reserved.

UMI 300 N. Zeeb Rd. Ann Arbor, MI 48106

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Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Reproduced with with permission permission of the of copyright the copyright owner. owner.Further reproduction Further reproduction prohibited without prohibited permission. without permission. THE LEGAL STATUS OF

THE PALESTINE LIBERATION ORGANIZATION

UNDER INTERNATIONAL LAW

by

Nail A. Al-Jubeir

submitted to the

Faculty of the College of Public and International Affairs

of The American University

in Partial Fulfillment of

The Requirements for the Degree

of

Master of Arts

in

International Affairs

Signatures of Committee:

Chairman: X w - P . b k L ' X U .

1/wftwLoi ^wnvt— — * Deanlean of t|ie ttie CollegeC<

"-I*/*? Date 1

1937 The American University i ^ , Washington, D.C. 20016 (p&U’

THE AMERICAN UEI7EH5ITY LIBRARY

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. © COPYRIGHT

BY

NAIL A. AL-JUBEIR

1987

ALL RIGHTS RESERVED

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. This work is dedicated to

a woman who has given so much

yet has asked for so little...

_ to my mother

Nourah bint Abdulrahman Al-Abduljabbar

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. THE LEGAL STATUS OF

THE PALESTINE LIBERATION ORGANIZATION

UNDER INTERNATIONAL LAW

by

Nail A. Al-Jubeir

ABSTRACT

This thesis is a study of the special status of the

Prlestine Liberation Organization in international law. To

facilitate the analysis of the status of the Palestine

Liberation Organization, the hypothesis examines four

aspects of the PLO's role in the international system. The

first aspect concerns the PLO as a major non-state actor in

the global system. The second aspect illustrates the

international personality of the PLO, both as a government-

in-exile and as a "public body." The third aspect considers

the organization's rights and duties under the law of war.

The PLO’s status under the international law of war

encompasses the "just war" concept and the contemporary

meaning of "war of liberation/resistance" under

international conventions. The fourth aspect examines the

concept of Jihad under the Islamic law of nations and its

application to the PLO, although the PLO does not regard

itself as an Islamic movement.

i i

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ACKNOWLEDGEMENTS

I am grateful to many people who helped me finish

this thesis, especially the members of my committee, Dr.

Larman C. Wilson, chairman, and Dr. Robert W. Gregg, for

their encouragement, comments, and criticism which enabled

me to crystallize many of the ideas found in this research.

A special word of thanks goes to my brothers and

sisters— Nawal, Nahlah, Maher, Mazen and Halah— for their

support and patience during the initial research stage and

throughout the tedious writing and editing process. I also

would like to acknowledge my indebtedness to my brother

Adel, who took time from his doctoral studies to review the

numerous copies and revisions of this work. Finally, I

would like to express my thanks to the government of Saudi

Arabia for providing me with the opportunity to study in the

United States.

While so many people have affected the final outcome

of this research, the ultimate responsibility of the paper's

content, however, is mine.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. TABLE OF CONTENTS

ABSTRACT ...... ii

ACKNOWLEDGEMENTS ...... i ii

Chapter

I. INTRODUCTION ...... 1

II. THE ROLE OF NON-STATE ACTORS IN INTERNATIONAL LAW ...... 8

State-Centric Model ...... 9 Theoretical Approach .... 10 Practical Approach • •.••••...•.• 15 Sovereignty vs. Autonomy ...... 21 Non-State Actors ...... 25 The Palestinian Resistance ...... 27

III. THE PALESTINE LIBERATION ORGANIZATION AND INTERNATIONAL L A W ...... 30

The Palestinian Resistance: Case of Succession...... 31 The Palestine Liberation Organization ...... 36 S tructure ...... 40 G o a l s ...... 45 International Personality of the P L O ...... 48 Recognition ...... 53 The PLO and Governmental Organizations . . . 58 Legal A u t h o r i t y ...... 61 The PLO as a Government-in-Exile...... 63 The Zionist Organization/Jewish Agency ...... 68

IV. THE PALESTINE LIBERATION ORGANIZATION AND THE LAW OF W A R ...... 82

Just W a r ...... 83 Necessity Principle ...... 84 The Hague Conventions ...... 88 The Geneva Conventions ...... 92 Protocols I and II of 1977 ...... 97 and Protocol I I ...... 103 War of Liberation and the P L O ...... 108

iv

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The PLO and the Status of Prisoner-of-War . . 109

V. THE PALESTINE LIBERATION ORGANIZATION AND THE ISLAMIC LAW OF N A T I O N S ...... 123

Historical Development ...... 123 J i h a d ...... , ...... 124 Theory of Jihad ...... 127 Types of J i h a d ...... 131 The PLO and the Doctrine of J i h a d ...... 134

VI. CONCLUSION ...... 142

BIBLIOGRAPHY ...... 146

v

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. LIST OF TABLES

1. DISTRIBUTION OF IGOs IN THE GLOBAL POLITICAL SYSTEM, 1865-1980 ...... 11

2. CHARACTER OF INTERNATIONAL ORGANIZATIONS ...... 12

3. NUMBER OF IGOs AND INGOs, 1850-1980 ...... 13

4. THE PALESTINE LIBERATION ORGANIZATION GUERRILLA MEMBERS ...... 41

5. STRUCTURE OF THE PALESTINE LIBERATION ORGANIZATION ...... 44

6. PLO INFORMATION OFFICES ...... 51

7. PLO EMBASSIES/DIPLOMATIC MISSIONS ...... 52

8. DISTRIBUTION OF PLO OFFICES BY R E G I O N S ...... 53

9. PLO MEMBERSHIP IN I G O s ...... 59

vi

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER I

INTRODUCTION

The struggle over Palestine has attracted an unusual

amount of international attention. Such attention has

included substantial outside interference, especially in the

last four decades. Ever since the creation of the state of

Israel, several Palestinian guerrilla groups have conducted

an armed struggle to "liberate Palestine from the Zionist-

Imperialist" occupation.1 While all parties to the Arab-

Israeli dispute call for a negotiated settlement to the

conflict, the question of who is to negotiate on behalf of

the three million Palestinians2 continues to be from a legal

stand point the major stumbling block in the Middle East

peace process. The status of the Palestine Liberation

Organization (PLO) in international law is complicated and

unique. While the PLO persistently asserts that its

organization is the sole legitimate representative of the

Palestinian people and claims to be widely recognized in

2The quotation marks are those of the author and reflect the phrasing of the Palestine National Covenant which does not refer to Israel by name, instead it uses th terms "zionist" and "imperialist".

2Cheryl Rubenberg, The Palestine Liberation Organization: Its Institutional Infrastructure (Belmont, Massachusetts: Institute of Arab Studies, Inc., 1983), p. 9.

1

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that capacity, the PLO does not have such de jure

recognition from Israel or the United States, the two main

parties with which it must interact if the issue of

Palestine is to be solved through peaceful means, although

de facto recognition is granted.3

The hypothesis being examined in this study is that

the Palestine Liberation Organization, through its existence

and actions, has acquired international personality under

international law. In order to cover all the major legal

issues, this study will not deal with the biblical

dimensions of Palestine, but will concentrate on the poct-

World War I developments and conclude with the evacuation of

the PLO fighters from in the summer of 1982.

This hypothesis will examine four aspects of the

PLO's role in the global system. The first aspect is that

the PLO is a major non-state actor in the international

system. Ever since the Peace of Westphalia, the primary

world actors in international politics have been nation­

states. Students and practitioners in the field of

international politics have customarily concentrated their

study on the interaction between nation-states. Hence,

nation-states have regularly been viewed as the sole actors

in international politics. This traditional view, however,

ovsrsimpl i f i e s the c o fi u cmpola l y iulGl ust iundii bysueut oy

ignoring the role of international non-state actors and

3 See chapter IV.

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their contribution to global order, or chaos. Non-state

actors such as the , the European Common Market,

and to a lesser degree the Palestine Liberation

Organization, play large roles in global transactions that

have largely been held to lie within the state actor's

domain. To analyze the role in and the impact of non-state

actors on the global system, the state-centric model will be

studied and to some degree challenged as it applies to the

Palestine Liberation Organization (PLO). The role of the

PLO will be examined in terms of the major roles usually

reserved to nation-state actors. Mansbach's four general

types of tasks that can be performed by actors — "physical

protection," "economic development and regulation,"

"residual public interest tasks," and "group status"-’will

be applied to the PLO.4

The second aspect considers the international

personality of the PLO: first as a government-in-exile, and

second as part of what McDougal and Lasswell have referred

to as "public bodies."5 The historical dimension of the

problem will begin with an overview of the development of

the Mandate of Palestine and the role of the League of

4Richard W. Mansbacn, et al., The Web of World Politics: Non-Stats Actors in the Global System (Englewood Cliffs, New Jersey: Prentice-Hall, Inc., 1976), p. 37.

5Myres S. McDougal, Harold D. Lasswell and W. Michael Reisman, "The World Constitutive Process of Authoritative Decision," Journal of Leqal Education 19 (1967), p. 261.

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Nations in awarding Palestine to Great Britain, will be used

to set the stage for the the right of succession clause

under traditional international law. It will be argued that

the Palestine Liberation Organization is a state in exile

through the right of succession clause, for the PLO has its

roots in the Palestine Arab Congress of 1920.

In addition, there will be a survey of the goals and

structure of the organization, both the military and non­

military components. The non-military component will

include the political wing of the PLO and its political and

legal rights, as well as the role of the PLO in

international law as a recognized member of the community of

nations. The political role and influence of the

organization at a multinational level will be analyzed in

depth. The PLO's ability to control the population and

ability to exercise legal authority* over the civilian and

military population, although scattered over numerous

countries in the Middle East, does throw new light on its

claim as sole representative of the Palestinian people and

its role as a government-in-exile, although it has not

professed such a role. The role assumed by the PLO over the

population will be a major area of concentration, and will

be analyzed in terms of governments-in-exile. The

‘This power was granted to the PLO by the Arab League (see p. 60) and through bilateral agreements such as the 1969 agreement between the PLO and the Lebanese army, and the 1970 Agreement with (see p. 63).

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. experiences of such governments during World War II and the

experiences of Algeria during the French occupation will be

a guide for the PLO's undeclared government-in-exile status.

The PLO, however, has resisted declaring itself a

government-in-exile, mainly for political reasons. The

refusal and the reasons behind it will be discussed briefly.

The status of the Palestine Liberation Organization

under the international law of war will be the third aspect

of this thesis. The historical context of the law of war

encompasses the development of the "just war" concept and

the emergence of humanitarian law in the shadow of the

brutal wars that have engulfed the European continent for

centuries. The Covenant of the League of Nations and the

Charter of the United Nations provide the foundation for the

armed struggle aspects of the organization and the

legitimization of the Palestinian resistance movement. The

contemporary meaning of "war of liberation/resistance" will

be evaluated in historical perspective. International

conventions, such as The Hague and Geneva Conventions, will

be analyzed for their application to non-international armed

conflict and how the conventions have been interpreted to

meet the political objectives of the parties to the

conflict. The development of Protocols I and II to the

Geneva Conventions will be analyzed in depth, especially

since the additional protocols, the first major conventions

addressing the issue of armed conflict since 1949, have been

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influenced greatly by the representafion of most of the

Third World countries. The Third World saw an opportunity

in the Protocols to further develop international law in a

way that would take their concerns into considerations.

Article 1 of Protocol I is an example of this.

The conflict in the Middle East has brought Islam

into the spotlight and there is concern about the threat of

Islam to the "civilized" and "peace-loving" countries, which

the western and Christian states consider themselves to be.

One of the most misunderstood and stressed aspects of Islam

has been the duty of Jihad or holy war. Calls for Jihad by

obscure fundamentalist groups and their backers have been

emphasized while the true message of Islam is being diluted

in the midst of the "anti-West" rhetoric of the few. While

the Palestine Liberation Organization does not claim to be

an Islamic group, its major support— political, financial,

and moral— has come from predominantly Islamic countries.

Therefore, the Islamic Law of Nations and its application to

the Palestinian resistance movements will be the fourth

aspect of the hypothesis. In order to try to cover all

major issues, this study will concentrate on the concept of

Jihad and its application to the Palestine Liberation

Organization. Various views about the role of the PLO of

Islamic scholars will be used to formulate the most

appropriate view of the organization.

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The Zionists' claim to Palestine and the consequent

creation of the State of Israel will also be analyzed

inasmuch as the arguments brought by the Zionist

Organization half a century ago, ironically enough, are

similar to those argued by the PLO today. Similarly, the

Zionist movement's quest for legitimacy and its increasing

role in the world arena is today being challenged by the

PLO. Arguments made by the Zionist movements for an

independent Jewish homeland will be drawn upon and applied

to the and the PLO.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER II

THE ROLE OF NON-STATE ACTORS IN INTERNATIONAL

LAW

Ever since the Peace of Westphalia, the primary

world actors in international politics have been nation­

states, thus, students and practitioners in the field of

international politics have customarily concentrated their

study on the interaction between nation-states. As a

result, nation-states have become— through the neglect of

the study of non-state actors— the sole visible actors in

international politics. This traditional view, however,

oversimplifies the contemporary world order by ignoring the

role of international non-state actors and their

contribution to global order or chaos. Non-state actors

such as the Arab League, the European Common Market, and the

Palestine Liberation Organization, play important roles in

global transactions that have usually been held to lie

within the state actor's domain.

The main objective of this chapter is to illustrate

these roles and their effect on the global system. The

state-centric model will be studied and to some degree

challenged as it applies to the Palestine Liberation

Organization (PLO). An analogy will be drawn between the

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functions of the PLO and the major roles usually reserved to

nation-state actors. Mansbach's four general types of tasks

that can be performed by actors— physical protection,

economic development and regulation, residual public

interest tasks, and group status— will be applied to the

PLO.7

State-Centric Model

The state-centric model is based on seven

assumptions.® First, it assumes that global politics is

based on the interaction between sovereign states, with

states as the sole subject of international relations.

Second, the doctrine of sovereign equality in the global

system is embedded in the model. Third, the model treats

states as "homogeneous political" systems with central

governments in full control of their territory, and ignores

the relationship between domestic and foreign policies.

Fourth, the model recognizes that the global system is not

homogeneous, but is composed of entities with different and

sometimes conflicting interests; hence, nation-states are

prone to act in self-interest. Fifth, the model assumes

that the international system is divided into states with

governments that exercise exclusive control over an

7Ibid.

®Phillip Taylor, Nonstate Actors in International Politics: From Transreqional to Substate Organizations (Boulder: Westview Press, 1984), p. 4, and Mansbach, p. 3.

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established territory and population. Sixth, the model

assumes that only governments are the sole participants in

international politics. Finally, the state-centric model

assumes that only states are the secular recipients of the

"highest human loyalties."*

Theoretical Approach

Mansbach identifies six types of actors in the post-

Peace of Westphalia global system.10 The first type are

international governmental organizations (IGOs)— sometimes

referred to as "supranational organizations" if the

authority delegated to them equals or exceeds that of its

members— are those created by two or more nation-states.

The earliest recorded IGO was the Delian League, a security

arrangement between Greek cities established in 478 B.C.

Like contemporary IGOs, the alliance was dominated by the

powerful, in this case Athens. An IGO's functions and scope

of operations depend on the "degree of autonomy" member

states are willing to grant it. The number of IGOs has

mushroomed since World War II. On the eve of World War I

there were under 50 IGOs. Twenty-five years later, that

number has risen to some 80 IGOs, and by 1980 there were

over 620 registered international governmental

organizations. IGOs can either be limited in membership as

’Taylor, p. 4.

x#Mansbach, pp. 39-41.

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in the case of the Arab League and the Organization of

African Unity (OAU), or universal, as in the case of the

League of Nations and the United Nations. The functions of

IGOs can either be general in nature, such as the United

Nations General Assembly, or they can be limited to serve a

specific function as in the case of the World Health

Organization (WHO) or the European Coal and Steel Community

(ECSC).

TABLE 1

DISTRIBUTION OF IGOs IN THE GLOBAL FOLITICAL SYSTEM, 1865-1980

CATEGORY 1865 1910- 1914 1935'-1939 1980 # % # % # % # %

LIMITED MEMBERSHIP- Special Purpose 4 80 44 90 46 55 504 81

UNIVERSAL MEMBERSHIP- Special Purpose 1 20 3 6 36 43 97 16

LIMITED MEMBERSHIP- General Purpose 0 0 2 4 1 1 17 3

UNIVERSAL MEMBERSHIP- General Purpose 0 0 0 0 1 1 1 0

TOTAL 5 100 49 100 84 100 621 100

SOURCE: Harold K. Jacobson, Networks of Interdependence: International Organizations and the Global System 2nd ed. (New York: Alfred A. Knopf, 1984), p. 48.

IGOs can also be formed for security purposes as in the case

of the North Atlantic Treaty Organization (NATO) and the

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Warsaw Treaty Organization (WTO). The rules by which IGOs

are to operate are laid down by the creators of the

organizations and included in the IGO's charter. Many

nations, however, relinquish to the IGO minimal sovereignty

under the IGO's charter, "while reserving the right to

renege on their obligations under the charter, should any

action or decision prove a detriment to their national

security, prestige, or national honor (or words to that

effect)."11 The case of United States withdrawal from UNESCO

in 1984 comes to mind.

TABLE 2

CHARACTER OF INTERNATIONAL ORGANIZATIONS

PURPOSE MEMBERSHIP

Universal Limited

United Nations Arab League General Organization of League of Nations African Unity

ILO WTO Specific WHO NATO UNESCOECSC

“ Taylor, pp. 3-4.

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The second type of actors are the international

nongovernmental organizations (INGOs). INGOs, also known as

'transnational' or 'crossnational' organizations, unlike

IGOs, do not represent any government or state. The first

recorded INGO was not political or state-sponsored, but was

an educational fraternity established in the seventeenth

century, the Rosicrucian Order.12 INGOs attempt to avoid

political issues, and represent a spectrum of religious,

ideological, corporate, trade union, and social welfare

organizations.

TABLE 3

NUMBER OF IGOs AND INGOs, 1850 - 1980

1850 1914 1939 1980

I GO ** 50 80 621

INGO 5 330 730 6,000

TOTAL 5 380 810 6,621

SOURCE: Yearbook of International Organizations. Vol. 19, 1981.

In an interdependent world, avoidance of political issues is

a much harder task to achieve. The Catholic Church's stand

on apartheid, Amnesty International's campaign for human

rights, and International Telephone and Telegraph's

‘Jacobson, p. 9.

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involvement in Chile during the Allende government in the

early 1970s are evidence of the politicization of

traditionally non-political organizations. However,

Professor Jacobson argues that of over 6,000 international

nongovernmental organizations, "less than one-sixth of these

were sufficiently active politically" to obtain consulting

status with the United Nations.13 The third type, the

nation-state, is the most well-known. The fourth set of

actors is individuals who in their private capacity, and

autonomously, can and in some instances do affect global

politics. Such persons were common in the pre-nation-state

system. Individual actors have survived in the nation-state

system in a variety of areas, from terrorists to

humanitarians. Argentine revolutionary Che Guevara,

Venezuelan terrorist "Carlos," American businessman H. Ross

Perot, Swedish soldier Count Gustof von Rosen, and Mother

Theresa are just a few of the recent and present individual

actors. Most of the actors in this category, however, serve

as soldiers of fortune and arms merchants.

The last two types of actors are more influential in

domestic politics than foreign affairs. They are the

"governmental noncentral actor" and the "intrastate

nongovernmental actor."14 The former is

13Jacobson, p. 10.

14Mansbach, p. 41.

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composed of personnel from regional, parochial, or municipal governments within a single state or colonial officials representing the state. Such parochial bureaucracies and officials generally are only somewhat concerned with world politics or, at most, have an indirect impact on the global political system.1*

The latter type embodies nongovernmental groups or

individuals within a single state, with influence on global

politics limited and controlled by the central government.

Practical Approach

To better understand the functions of nonstate

actors in international politics, their activities will be

used to identify and determine the status of actors in the

global system. Richard Mansbach lays out four general types

of tasks that can be performed by actors. The first is the

ability of the actors to provide "physical protection or

security" of person and to protect "their values from

coercive deprivation either by other members within the

group or by individuals or groups outside it." The second

is to provide for economic well being of the individual or

the group by promoting economic development. The third is

to provide social services that lead to "self-development

and growth". Finally, an actor should be able to provide

for

group status which refers to the provision of referent identification through collective symbols that bind the individual to others, provide him with psychological and emotional security, and distinguish him in some manner from others who are not members of the group.

15Ibid.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Such symbols are often grounded in ethnicity, nationality, class, religion, and kinship."1*

In many cases, small and new states would not be

able to meet all— or for that matter even some— of their

obligations as a member of the community of states, either

because of lack of resources, or because of the artificial

composition of the state, which does not provide for

psychological and emotional security. Whereas some states

cannot perform any or all of Mansbach's four tasks, non­

state actors would have no problem in meeting some or all of

those tasks. The emergence of such actors illustrates the

need for such non-state actors, as the case of the PLO will

illustrate. The PLO has been most successful in

accomplishing the fourth task related to group status. The

PLO was effective in restoring a Palestinian dimension to

the Middle East conflict by focusing world attention on

Palestinian misery and thus on Palestinian identity. The

PLO was successful in mobilizing the Palestinian masses in

support of a cause that some Arab regimes used for their own

political gains, which resulted in these regimes being

challenged for leadership of the Palestinians. As will be

discussed later in detail, the PLO provided comprehensive

health services and educational opportunities to many

Palestinian refugees in camps in several states, especially

in , where the majority of refugee camps are located.

16Ibid., p„ 37.

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The PLO also provided vocational training and ran technical

institutes. Through the Palestine Martyrs Works (SAMED),

the PLO provided employment and established the basis for

the development of a flourishing national enterprise. In

the area of security, the PLO provided the only protection

for the camps. The protection of the camps in Lebanon

during the ten-year civil war was the responsibility of the

PLO. The massacres at Sabra and Chatesla at the hands of

Israel's ally, the Lebanese Phalange, while under Israeli

"protection", and the Lebanese Shi'a Amal militia's bloody

assault on Palestinian refugee camps in the areas under

Syrian control during the so-called "War of the Camps" in

the summer of 1985,17 proves that the PLO was the only force

to provide effective "physical protection" to the

Palestinian community.

Joseph Nye and Robert Keohane argue that in order

for actors to be part of the international system, they have

to fulfill four major types of "global interaction".18 They

are the following: 1) communication, be it "beliefs,

ideas", or "doctrines", is a major function expected of any

actor; 2) "transportation", the ability to move "physical

objects" from one area to another, including personnel,

17 Washington Post, June 19 - 20, 1987.

18Joseph S. Nye and Robert 0. Keohane, "Transnational Relations and World Politics: An Introduction," International Organization 25 (Summer 1971):332.

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"military material", and "merchandise"; 3) "finance",

including the ability to raise money or create money through

enterprises; and 4) "travel, the movement of persons".19

Through its mere struggle for existence and, later, on the

road towards recognition, the PLO has met the Nye and

Keohane "global interaction" test. The ability to fight

Israel in and from Lebanon, as well as its part in the 1970

Jordanian war, illustrates the PLO's ability to move large

quantities of military hardware freely within both

countries. The prestige of the PLO has been enhanced as a

result of its confrontation with Israel.20 The prestige of

Fatah, for example, was enhanced by the in

the Spring of 1968, following an unsuccessful attempt by an

Israeli column to destroy the guerrilla bases in Jordan.

The PLO has grown from an obscure guerrilla movement

to a powerful and influential actor in the global system.

Financially, the organization was operating like a

multinational corporation with total financial revenues of

approximately $500 million annually and investments around

X V 4U |

20David Hirst, The Gun and the Olive Branch; The Roots of Violence in the Middle East (London: Faber and Faber, 1977), ppT 283-6; Aaron David Miller, The PLO and the Politics of Survival (Washington: Center for Strategic and International Studies, 1983), p. 25.

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the globe.21 Like a "state" it has the privilege to receive

income tax collected on it behalf by the host countries,22

although execution of this privilege is sometimes strained,

especially when the population that is to be taxed is

scattered around the globe. The PLO, however, has managed

to exercise the power to tax Palestinian workers, either

directly or indirectly, in various countries on a regular

basis, regardless of current citizenship. The PLO was given

the power by several Arab states with a sizable Palestinian

presence to collect taxes from Palestinian citizens by

deducting a set percent— usually ranging from three to six

percent— from the monthly salaries of Palestinian workers23

and crediting it to the account of the Palestine National

Fund.24 Such arrangements exist in states where the PLO does

21Mohamed E. Selim, "The Survival of a Nonstate Actor: The Foreign Policy of the Palestine Liberation Organization," in The Foreign Policies of Arab States, eds. Bahgat Korany and Ali E. Hillal Dessouki (Boulder: Westview Press, 1984), p. 205.

“ This privilege was granted to the PLO by the Arab League and reinforced through municipal laws in numerous Arab states, especially the rich oil producing states. See infra notes 23 and 24.

“ Iraqi Law No. 130 of 1965 levied a tax on people of Palestinian origin, regardless of current citizenship or passport held.

“ Iraqi Law No. 130 of 1965 and Law no. 220 of 1969. Decree No. 880 of the Syrian Cabinet of 24 Dec., 1964. Kuwait Circulars No. 10 (1964), No. 1 (1965), No. 19 (1972). Libyan Cabinet decision of 25 Jan. 1970, Law of 13 June 1970. Amir Decree No. 48 of the Ruler of Abu Dhabi, 10 Dec., 1968. Federal Law No. 13 (1973) of the United Arab Emirates. Qatar Decree No. 102 (1964). Saudi Arabia.

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not have an infrastructure in place. Militarily, it has

built a regular army of 20,000 in four Arab states and an

irregular force of 40,000 in Lebanon alone.25

Considerable intersocietal transactions with

significant political importance already take place free of

government control. Such interactions range from tourism to

terrorism to international conventions. These transactions

substantiate the long held view that governments do not have

a monopoly on political issues, but are being increasingly

challenged by nonstate actors in the once exclusive domain

of nation-states. While this view is widely accepted, some

scholars, known as the "traditionalists", still maintain

that to understand and explain world political behavior,

knowledge of the interstate system is sufficient, and that

international organizations and nonstate actors are just

minor side actors that have little affect on the global

system. The traditionalists contend that the nation-state

is the center of the global system and that everything

evolved around it. The traditionalist assumptions are

generalized in the "state-centric model."24

25Taylor, p. 221.

24For the "traditionalist" view see Raymond Aron, Peace and War: A Theory of International Relations, trans. Annette Baker Fox v«ew York; Fraeger, 1366/; K.J. Holsti, The Dividing Discipline: Hegemony and Diversity in International Theory (Boston: Allen and Unwin, 1985); Hans J. Morgenthau, Politics Among Nations 4th ed. (New York: Alfred A. Knopf, 1966); and Kenneth Waltz, Man, the State and War; A Theoretical Analysis (New York: Columbia University Press, 1959).

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Under the Nye-Keohane model, the Zionist

Organization also satisfies all four points. The Zionist

Organization did have a doctrine for the creation of a

"Jewish homeland." The definition of homeland, however, was

not clarified at the beginning, but was left intentionally

ambiguous. The Zionist Organization's ability to smuggle

Jews illegally into Palestine, which did not provide for

legal immigration, has been the organization's strongest

weapon. Payment for such operations all came from the

Zionist Organization's ability to raise the necessary funds

for their operations. The maintenance of offices in various

countries and the meetings of the Zionist Congress in

various countries is testimony to its ability to move

persons freely, although substantial restrictions were

applied to the movement to Palestine by the British

government.2 7

Sovereignty vs. Autonomy

Under contemporary international law, only states

are sovereign. Emmerich de Vattel (1714-1767) viewed

international law as an agreement between nation-states to

regulate the relations among them. This model holds to the

principle of "sovereign equality" and the ability of

national governments to be autonomous in their dealings.

The principle of "sovereign equality" assumes that nation-

27World War II further limited the movement of some members of the Organization under German occupation.

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states do meet the basic categories of sovereignty,

territory, population, and a functioning governing

institution with the ability to provide domestic peace. The

state-centric model, established and enshrined in the Peace

of Westphalia, endorses the principles of "state

sovereignty" and "sovereign equality". By definition, those

principles delineate the state-centric model. Sovereignty

implies full control of territory, population, and resources

as well as free of action within its boundaries.

The major shortcomings of the state-centric model

are that it oversimplifies global politics and ignores many

aspects of the contemporary global system. Among the major

shortcomings of the model is that it does not appropriately

account for the increasing role of international

organizations in the system, nor does it explain or

appreciate the ever-increasing role of regional

organizations such as the Arab League, Organization of

American States (OAS), or Andean Common Market (ANCOM). By

joining the European Economic Community (EEC), member states

have relinquished some sovereignty to the new body. The

same holds true for security arrangements. In both cases,

the state-centric model is not elastic enough to accommodate

such arrangements. Third, the model ignores the role of

non-state actors. The enormous economic importance of

multinational corporations (MNC) and their political power

are a force to be reckoned with. The inability of

underdeveloped countries to effectively control MNCs is well

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documented.2* The fact that most international conflicts

since the end of World War II have involved to some degree

or another stateless groups and terrorist/revolutionary

organizations, is being disregarded in the state-centric

model. Finally, the process of increased economic

integration among nation-states in the case of EEC, ANCOM

and other free trade associations, is not being considered

in the outmoded model. Under the model, the EEC and ANCOM

are perceived as means by which states carry out their

goals. Trade associations do not formulate policy, they

just execute it.

The issue of sovereignty as a centerpiece to the

state-centric model has less relevance. All nation-states

are subject to diverse domestic and foreign factors that

affect their behavior. While in the past nation-states

could have functioned perfectly well within their boundaries

by sustaining their domestic structure, now, however, the

degree of foreign influence has drastically increased, and

the roots of domestic problems can be traced to remote

corners of the earth. Some of the roots of the economic

turmoil in the United States in the early seventies can be

traced to the Organization of Petroleum Exporting Countries

(OPEC), whereas political chaos in Lebanon has its roots in

2*The action of International Telephone and Telegraph (ITT) in Chile, the British oil companies and the return of the Shaw to power in Iran in 1953 are just two of many cases.

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several countries.

While some nation-states are able to formulate their

own policies, others have neither the will nor the ability

to do so.

With few exceptions poor nation-states remain economically and/or politically dependent upon other actors, often the former metropolis. For instance, several of the countries of what was formerly French Equatorial Africa continues to relay on France to provide minimal economic and social services, and one of them, the Republic of Chad, was involved in a civil war in which the government depended upon French troops and arms to retain power. Similarly, Israel relies on the United States, and Cuba on the Soviet Union for a semblance of economic stability. Certain states, notably the former Belgian Congo (Zaire) after 1960, the Dominican Republic in 1965, and Bangladesh (formally East Pakistan) since 1971, have required the assistance of international organizations, not only for economic and social services, but for administrative guidance as well.2 *

The issue, thus, is not sovereignty as much as it is

autonomy. International actors should not be defined by

ascriptive qualities of sovereignty, but by the behavioral

attributes of their autonomy. "Autonomy refers to the

ability of leaders of an organized unit to undertake

behavior that could not be predicted by reference to other

acts or authorities."20 Equating actors to "sovereign

states" as the state-centric model does is to limit the

possible actors in the global arena, even though some non­

state actors do function more efficiently than many of the

"sovereign states", while some states are recognized as

2’Mansbach, p. 23.

20Ibid., p. 4.

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"sovereign" by other "sovereign" nation-states, they do not

or cannot behave independently. For example, the Ukraine

and Belorussia, two Soviet Socialist Republics, are

"sovereign" members of the United Nations General Assembly,

with equal voice, yet it would be an overstatement to refer

to the two states as autonomous actors in any respect,

either in domestic or foreign affairs. "'Microsovereignties'

such as the Republic of Maldive and the Comoro Islands, are

scarcely relevant to global politics."31

Non-State Actors

As it has been illustrated, the doctrine of

sovereignty does not play a dominant role in determining the

role of non-state actors in international politics as does

the principle of autonomy. The present global political

system consists of numerous actors, both state and non­

state, who maneuver to influence others in the system. The

non-state actors' salience shows the shortcomings of the

state-centric model; the increasing degree of

interdependence in the contemporary environment reflects the

shortcomings of the principle of sovereignty and illustrates

that no actors are fully autonomous.

The role of guerrilla movements in the present

system illustrates the non-viability of international

boundaries and the demise of the line between domestic and

31Ibid., p. 23.

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foreign politics. The Zionist movement "that demanded

loyalty of 'citizens' of many states to establish, or

reestablish, a nation-state in Palestine,"32 illustrated the

crossnational effect of ethnic groups. The success the

Palestinian guerrillas had in bringing the issue of

Palestine back to the front of the Israeli-Arab struggle

cannot be ignored. It was the challenge of the fedayeen

(freedom fighters) that were cited by Israel to justify its

invasion of the Sinai in 1956. In Africa, "many of the

revolutionary organizations that maintain an existence as

counterstates claim de jure existence and negotiate

agreements, pacts, and even, in some cases, alliances

without any visible indigenous base of operations."33 While

the movements might be illegal in a national context, the

role such revolutionary movements assume is similar to that

of the nation-state. Like the government of the nation­

state, the revolutionary organization seeks allies outside

its territory to achieve its national goals.34 Such an

alliance can be used by the foreign allies to manipulate the

domestic political scene for its own national interest, thus

placing the interests of the movement subordinate to its

own. Attempts by the supporting nation-state to take

9*Bowyet J- Bell, "Contemporary Revolutionary Organizations," International Organization 25 (Summer 1971):505.

3 3 Ibid., p. 507.

34Ibid., p. 504.

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control of revolutions are well documented.

Attempts to manipulate foreign revolution for national purposes— Germany transporting Lenin to Russia in his sealed railway car or French alliance with the American revolutionaries— have long been recognized.35

Non-state actors tend to perform at least one but

usually more of six specific functions noted by Richard

Taylor.

1) to provide security, to promote or maintain peace; 2) to increase the economic standard of its members; 3) to preserve or promote ethnic or ideological identity; 4) to promote political and social goals among nations (e.g., human rights and social welfare); 5) to coordinate common positions and 'speak with one voice' on issues before the United Nations and other international organizations; 6) to respond collectively to other nonstate actors (e.g., common markets or international labor to multinational corporations, international interest groups to economic IGOs)..3 ‘

As will be discussed later, the PLO has performed all of the

six functions enumerated by Taylor.

The Palestinian Resistance

Of all non-state actors, none has gained more

notoriety in recent years than transnational ethnic groups.

As the term implies, these groups are nations of people (ethnically defined) who live in two or more nation­ state (none of which they control). In addition, they exhibit at least one political organization and typically employ violent means in their efforts to attain goals ranging from local autonomy to the creation of a new nation-state. Finally, these groups as organizations are important world actors both as primary

3SIbid., p. 508.

3‘Taylor, p. 24.

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causes of political violence and international tension and as conduits of the policies of nation-state.37

Since force, violence and threats thereof are at the core of

this relationship, the struggle for power becomes the

hallmark of nations. In Morgenthau's view, the global

system is in a constant struggle between nation-states over

power. This struggle does not exclude non-state actors.

Morgenthau's realist school of thought represents a "swing

of the pendulum from an extreme 'state' emphasis to an

equally extreme emphasis on the* men who act for states."3*

The political functions of multipurpose

organizations are what give these organizations their

identity. The most visible IGO is the United Nations while

the most widely studied political INGO is the Palestine

Liberation Organization. The lack of territorial attributes

of sovereignty does not disqualify a non-state actor from

playing a role in the global arena. Among the IGOs, the

United Nations in general and the specialized agencies in

particular, and among the INGOs, the International Red

Cross, inter alia, do not possess the territorial attributes

of sovereignty, yet they have managed to develop large and

sometimes efficient bureaucracies, have developed routine

behavior and developed a professional civil service class,

and dispense large budgets— all without having a territorial

37Ibid., p. 219.

3“Arnold Wolfers, Discord and Collection (Baltimore: The Johns Hopkins Press, 1962), p. 4.

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base.

The roles of non-state actors in the contemporary

world order have significantly changed since the Peace of

Westphalia. The mushrooming of international organizations

to deal with the complexity of the global system, the

increased economic interaction among nation-states and the

fact that most international conflicts since World War II

have involved non-state actors, have challenged the state-

centric model. The model's emphasis on the principles of

sovereignty and sovereign equality have narrowed the

definition of international actors. As previously

indicated, the fact that the Ukraine and Belorussia are

"sovereign" members of the United Nations does not mean that

they are autonomous in their actions. The same holds true

for small and new states. The fact that they are

theoretically in control of some territory does not

necessarily imply that they are full active members of the

international system. Equating actors and "sovereign

states" misrepresents the global system and ignores the role

of non-state actors in the system, which this study argues

the PLO illustrates.

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THE PALESTINE LIBERATION ORGANIZATION AND

INTERNATIONAL LAW

Palestine was formally relinquished by Turkey to the

League of Nations by the Treaty of Lausanne of 1923, six

years after Palestine was militarily occupied by Great

Britain as a consequence of World War I, and after the

Palestine Mandate had been established. The Mandate urged,

in Article 2, that the Mandate power place "the country

under such political, administrative and economic

conditions" as would ensure "the development of self-

governing institutions, and also for safeguarding the civil

and religious rights of all the inhabitants of Palestine,

irrespective of race and religion." Article 3, furthermore,

provided that the Mandate power "shall...encourage local

autonomy." While the Mandatory power assumed full and legal

sovereignty over the territory under its authority, which

could be construed as implying the power to annex, this

view, however, is rejected by a consensus of international

judicial opinions based on the Treaty of Versailles and the

principle of non-annexation of territory, as well as Article

22 of the League of Nations. Article 22 declares that in

the case of 'A' Mandates, "their existence as independent

30

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Nations can be provisionally recognized." Article 5 of the

Palestine Mandate goes a step further by explicitly

prohibiting alienation of territories under the Mandate.

While the Mandate made it illegal for Great Britain to issue

the and thus promise the establishment

of a Jewish homeland in Palestine, under the rules of both

the Mandate and the Convent of the League of Nations an

argument can be made that Article 22 of the Convent also

limited the authority of the League to assume or transfer

sovereignty of territory.

The Arab inhabitants of Palestine did not accept the

Mandate and thus did not participate in the attempts by the

Mandate Authority to establish representative bodies. The

Palestinian people continued to develop representative

bodies of their own despite the British mandate's call for

the Arab Executive Committee to form an "Arab Agency" which

would occupy "a position exactly analogous to that accorded

to the Jewish Agency" under Article 4 of the Mandate.39

The Palestinian Resistance: Case of Succession

The Arab Executive Committee emerged from the 1920

Palestine Arab Congress held in Haifa. At that time, the

Congress reported to the Higher Commissioner of Palestine

that it was "the legal representative of all classes and

39Anis F. Kassim, "The Palestine Liberation Organization's Claim to Status: A Juridical Analysis Under International Law," Denver Journal of International Law and Policy 9 (1980):15.

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sectors of the Palestine Arab People..."40 While at first

the Commissioner resisted recognizing the Arab Executive

Committee as the representative of the entire Palestinian

people under the right of succession, the Mandatory

government ultimately gave in and recognized it as such. It

was also recognized as such when it appeared before the

Commission of Enquiry into the causes of the disturbances of

1929.41

At the height of the Palestine revolt of 1936, the

'.rab Higher Committee (AHC) emerged and lasted until the

emergence of the Palestine Liberation Organization in the

early 1960s. The Arab Higher Committee, like its

predecessor, the Arab Executive Committee, was a united

national front composed of all parties existing in Palestine

at the time. The AHC was different from the one it replaced

in that it had better leadership and had a wider grassroots

network that kept it in touch with a majority of the towns

and villages, and was thus able to carve out an effective

apparatus to carry out decisions made at the center.

The AHC was recognized by various international

authorities as the legitimate entity to represent the

Palestinian community. The British Royal Commission in 1937

accepted the briefings of the AHC members in their capacity

as indisputable representative of the Palestinian people.

40Ibid.

41See infra note 43.

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This role was solidified by the British government's

invitation to the AHC to participate in the London

Conference of 1939 as a representative of the Palestinian

Arabs. The Palestinian delegation was received in that

capacity. A similar invitation was extended to the AHC to

attend the Second London Conference in 1946. From a

strictly legal stand point those invitations marked the high

point of the career of the AHC in its capacity as the

representative of the Palestinian people, and should have

put to rest the question of the "legitimate representative

of the Palestinian people," a role the Arab Higher Committee

inherited from the Arab Executive Committee, and a role

handed down to the Palestine Liberation Organization.

In addition to the British government's recognition,

the United Nations Special Committee on Palestine requested

in 1947 that the Arab Higher Committee present the views of

the Palestinian people. Furthermore, the AHC participated

as a recognized body in the deliberations of the General

Assembly's First Committee in 1947. On May 7, 1947. the

General Assembly adopted a resolution by which it affirmed

"that the decision of the First Committee to grant a hearing

to the Arab Higher Committee gives a correct interpretation

of the Assembly's intention."42 Security Council recognition

went even further then that of the General Assembly. It

called upon:

42G.A. Res., 105 UN Doc. A/310, at 6 (1947).

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The Jewish Agency for Palestine and the Arab Higher Committee to make representatives available to the Security Council for the purpose of arranging a truce between the Arab and Jewish communities of Palestine; and emphasize(d) the heavy responsibility which would fall upon any party failing to observe such truce.43

The Arab Higher Committee was the name given to the

Palestinian Arab parties in 1936. The Arab League in 1946

declared that the Arab Higher Committee was to be "the one

representing all of the Arabs of Palestine and speaking in

their name and uniting all their efforts and endeavours for

the sake of Palestine."44 The move by the Arab League

extending de jure recognition to the AHC marked the first

time that such recognition was granted to the AHC, although

the Committee was later recognized de facto by the

international community, including the United States through

its role in the Security Council.45

Following the United Nations General Assembly's

recommendation in 1947 for the partition of the territory of

Palestine, the Arab Higher Committee was declared by the

Arab League as the "Government of All Palestine" with its

headquarters in Gaza. This declaration was followed up by

the formation of the first Palestinian Cabinet in September

22, 1948, with the Palestine National Assembly approving the

i o \ • W W44 V t< f / Uit lUbVj I / V /

44Muhammad Khalil, ed., The Arab States and the Arab Leaque: A Documentary Record, vol. 2 (Beirut: Khayats, 19627",“ p. 162: ------

4SSee supra note 43.

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new government a week later. The new government was

recognized and granted full diplomatic recognition by six

states4* and joined the Arab League with full voting rights

on all issues concerning Palestine, a role it played until

its was succeeded by the Palestine Liberation Organization

in 1964. Unlike the Zionist movement, the PLO did not have

to struggle for minimal initial recognition or legitimacy,

for two main reasons to be discussed later.

Although little was heard from the AHC from 1948

until the emergence of the PLO, Palestinian resistance

movements still continued. Among the oldest movements were

the Arab Nationalist Movement, which emerged in the late

1940s and now is a part of the PLO. The Palestinian

National Liberation Movement, better known as Al-,

gained notoriety in 1959. The PLO claims to be the

successor to the Arab Higher Committee, a claim not

challenged by any other Palestinian group.47 Challenges to

the role of the PLO have, nevertheless, been raised; Jordan

raised them in the early years of the PLO but they were

eventually dropped.4*

4‘The states were Afghanistan, , Lebanon, Saudi Arabia, Syria and Yemen.

4 7No Palestinian group challenged the legitimacy of the Palestine Liberation Organization as the successor to the AHC or in its role as the sole representative of the Palestinian people, although there are challenges or confrontations within the PLO structure on policy formulation and implementation.

4‘Jordan's Prime Minister, Bahjat Talhouni,

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The PLO, it has been argued by its critics, was

created by the Arab League to curtail commando raids against

Israel which were carried out by small clandestine groups in

the hope of setting off a conflict between Israel and the

Arab states."4’ O'Brien rejects this reason, but concedes

that the Arab League played a major role in affecting the

PLO's decisions. Because of the failure of the "Arab states

to take the Palestinians seriously, a number of Palestinian

nationalist organizations appeared, ultimately to form the

PLO. This process was dramatically affected by the defeat

of Egypt, Jordan and Syria in the 1967 June War."50

The Palestine Liberation Organization

After the first Arab-Israeli war, Egypt became the

guardian of the Palestinians in the , while Jordan

formally annexed the of the and

Jerusalem in 1950. Activist Palestinians turned to

surrounding Arab states to promote their cause. At the same

time young Palestinian intellectuals were searching for an

expressed Jordan's official rejection of the PLO claim to represent the Palestinian people at the Arab Summit held in Algiers in November 1973. Jordan's stand on the PLO was revised a year later at the Arab Summit in Rabat in 1974.

’’William V. O'Brien, "The PLO in International Law," Boston university International Law Journal 3 (Spring 19S4):352-3; Aaron D. Miller, supra note 20, at 21-3; and William B. Quandt, Fuad Jabber, and Ann Mosely Lesch, The Politics of (Berkeley: University of California Press, 1973), pp. 67-8.

500'Brien., p. 352.

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Arab solution to their problem. These Palestinians were

geographically scattered all over the . Pew, if

any, worked together in the 1950's and 1960's to find a

solution for the Palestinian problem.51 Instead, some found

themselves associated with the Muslim Brotherhood of Egypt,

others with the Syrian Socialist National Party, and still

others with the Arab Ba'ath Social Party of the Arab

National Movement. Each of those movements had its own

opinion regarding the solution of the Palestinian problem,

and how that solution was to be reached. Followers of

Egypt's President Gamal Abdul Nasser, for example, favored

integral Arab unity under Egyptian leadership. Others,

associated with the Syrian Nationalist Party, were promoting

Syrian nationalism rather than Palestinian nationalism.

Many Palestinian militant factions developed under different

Arab regimes. Each of these militant factions was strongly

opposed to the other. This opposition did little to

encourage a sense of unity and purpose among the emerging

Palestinian elite. And there was not one single Palestinian

group that could legitimately claim to speak on behalf of

all Palestinians.

5 United Nations resolutions up to December 1969 refer to the problem as "the refugee problem", and thus ignoring the national rights of the Palestinian people. U.N.G.A. Resolution 2535 B (XXIV) of December 10, 1969, for the first time recognized the "inalienable right of the people of Palestine."

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It was not until the defeat of the established Arab

regimes of Egypt, Syria, and Jordan in the Six-Day War of

June, 1967, that the Palestinian resistance movement emerged

as a major factor in the Middle East. Large-scale material

and political support was mobilized to claim political

leadership over the scattered community. This sort of unity

brought up other issues over which the movement was divided,

such as the nature of the future Palestinian state, and

whether armed struggle should be directed towards

Palestinian national objectives or be part of a broader

revolutionary process in the Arab world as a whole.

Radical commandos, such as the Popular Front for the

Liberation of Palestine (PFLP), and the Popular Democratic

Front for the Liberation of Palestine (PDFLP), called for

revolution in the Arab world as a precondition for the

liberation of Palestine. Fatah, the largest and most

powerful Palestinian group, called for the settling of

ideological quarrels as a precondition for the liberation of

Palestine. Another group, Saiqa, represented the Syrian

approach to the Palestinian movement. Together, these

groups, in addition to others, formed the Palestine

Liberation Organization.

The PLO had its birth at the 1964 Arab League Summit

Conference m Cairo, in which Ahmad Shuqayri, a Palestinian

politician living in Jordan, was charged with establishing a

Palestinian political organization. Four months later, the

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first Palestinian congress convened in Jerusalem with 422

delegates from ten Arab countries with various socio­

political and economic backgrounds. The congress "drafted

the Palestinian National Covenant and the General Principles

of a Fundamental Law. The first may be considered a

'declaration of independence,' and the latter, a

'constitution' outlining the basic political structure of

the PLO."52 Under the authority of the Fundamental Law, the

Palestinian National Council institutionalized the first

congress as the PLO "parliament". Other principal organs

approved at the first congress included an Executive

Council, or "cabinet", a Palestinian National Fund to raise

money for the new organization, and the Palestine Liberation

Army (PLA), which was authorized as a conventional force of

Palestinian recruits that was to be stationed in Egypt, Iraq

and Syria.53 PLA units took an active part in the October

War in the Sinai. The units were helicoptered behind

Israeli lines on the first day of fighting, while resistance

members crossed over into Israel to keep the Israeli Defense

Force (IDF) busy in Upper . During the 1973 war,

Israel reported that over one hundred operations had been

conducted by the resistance movement.54

2Rubenbery, p. 6.

53The Iraqi contingent was moved to Jordan in 1967,

54Abu Iyad, My Home, My Land: A Narrative of the Palestinian Struggle (New York; Time Books, 1981), pp. 126-129.

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While in its infant stage, the PLO came under

criticism from several independent guerrilla groups for

being insufficiently militant and revolutionary in

orientation. Within five years of its creation, the

guerrilla wing of the Palestinian movements managed to gain

control of the PLO by electing Yassir Arafat, head of the

Al-Fatah— the Palestine National Liberation Movement— as

chairman of the Executive Council at the February 1969

session of the Palestinian National Council. With the

election of Arafat, Al-Fatah became the dominant group in

the PLO, and a new era of development within the Palestinian

community was begun. The PLO not only included military

concerns, but also

encompassed the entire range of Palestinian affairs— health, education, culture, social welfare, and economic matters. By the end of 1969 the basic civilian institutional structure of the FLO was in place.*5

Structure

The PLO is more then just a national liberation

movement; it is the institutional expression of Palestinian

nationalism, and has become a major actor in the

international political system. Besides its military wing,

the PLO also engages in social, political, economic,

cultural and educational activites.

*5Rubenberg, p. 7.

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TABLE 4

THE PALESTINE LIBERATION ORGANIZATION GUERRILLA MEMBERS

Group Leader Orientation Strenqth

Fatah Yassir Arafat Indep. Nationalist 10- 15,000

PFLP George Habbash Indep. Neo-Marxist 4,000

DFLP Nayif Hawatmeh Indep. Marxist-Leninist 3,000

PFLP-GC Ahmad Jabir Pro-Syrian Ba'ath— but 500 nonideological military programs

Saiqa Isam al-Qadi Syrian Controlled 3,000

ALF Abd-al-Rahman Iraqi Controlled 800 Ahmad

PSF* Bahjat Abu Rejectionist; some Syrian 200 Gharibiyah influence

FLP* Talat Ya'qub Rejectionist; pro-Iraqi 100

NOTE: * Not represented on the PLO Executive Committee.

Organizationally, the PLO resembles the political structure

of many states.5* The Palestinian National Council (PNC)— an

elected body composed of 394 members presumed to represent

5‘An official of Shin Bet, Israel's internal security service, testified in closed court on June 17, 1987, at the trial of four Israeli leftists who met with PLO officials in Rumania, said that while the PLO is a terrorist organization, it, nevertheless, "also operates on a political level representing the Palestinian nationalist movement." (Jewish Teleqraphic Aqency Daily Bulletin, June 18, 1987, p . ^ T

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the Palestinian people, geographically and culturally— is

the supreme authority in the PLO. Its members are drawn

from three separate categories: the guerrilla organizations

in proportion to their strength; popular associations, such

as unions of doctors, teachers, students and so on; and

independent. While membership is not solely based on

geography alone, geography plays a major role in nominating

people to the PNC.

As the highest policy-making organization, PNC

members elect the Executive Council, the Central Council,

and the Executive Committee. The PNC meets once every two

years to consider reports of the Executive Committee on the

state of affairs of the PLO and its institutions, as well to

as make budgetary decisions referred to it by the

Palestinian National Fund. Since the PNC meets only once

every two years, it appoints from among its members a

Central Council which is to meet at least once every three

months to act as the legislative body of the PLO while the

PNC is not in session. The Executive Committee is the

executive branch and functions as the "cabinet" of the PLO.

According to the PLO "constitution", the Executive Committee

is the second most important institution within the PLO.

Article 15 states:

The Executive Committee is the highest executive authority of the Organization. It shall remain in permanent session, its members devoting themselves exclusively to their work. It shall be responsible for executing the policy, programmes and planning approved

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by the National Assembly, to which it shall be responsible, collectively and individually.57

The Executive Committee deals with day-to-day operations of

the PLO and its branches. There are fifteen members in the

Committee and each member heads a major administrative

department, which correspond to ministries. These include,

among others, health, education foreign affairs,

information, and culture. The Executive Committee is to

perform four major functions:

to act as the official representative of the Palestinian people; to supervise the various institutions of the PLO; to issue directives, to draw up programs, and to make decisions regarding the policy and organization of the PLO, (provided these do not contradict the National Charter, the Fundamental Law, or the resolutions of the National Council); and to execute the financial policy of the PLO and prepare its budget.5"

In all the elected bodies of the PLO, a quorum is achieved

by the presence of two-thirds of its members, and decisions

are made by a simple majority. Since the Executive

Committee is elected by the PNC, it tends to reflect the

power structure in the PNC.

57Article 15 of the Constitution of the Palestine Liberation Organization.

5,Rubenberg, p. 10.

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STRUCTURE OF THE PALESTINE LIBERATION ORGANIZATION

PALESTINIAN NATIONAL COUNCIL- - (Parliament) - 301 Members Central Council (Intermediary Advisory Organ) 60 Members Palestinian Independent* Communities “Not AtlWaled Oulslrf) Formally 1------Palestine with Resistance Executive Committee Chakmon Organisations" (Cabinet) ol the Executive IS Members Committee 1 — r~~ Palestinian Pali)Stlnla;i Political Health Palatllna National M ilitary Mass Unions Resistance Fund Department Department Department + Syndicates Organizations l ("Flnaneo Department") _J ______P.L.O. Palestine Palestine RaprtMnWlon Red Crescent r Liberation Army Samed-* The Institute Th* General Union Palestine National Society ol Palestinian Writer* u o m c M The Economic for Social Forces of Llboratlcn Movement I Institution of and Journalist* ■=* Worldwide Hospitals Affairs and Resistance “Fatah" 'S' And The P.L.O. Welfare Organizations Clinics i Tha General Union ol Popular Front to? Palestinian Palasllnlan Wortiar* Education Production Section Society Militia Th* Lllieratlon ol Medical Forces Q.U.P.W. Palestine—P.F.L.P. Department Centers Agricultural Section For the Cinema Section Blind Th* Oanaral Union ol I Democratic Higher Council Social Care Palestinian Women For Education G.U.P.W. Front lor th* t For Wounded Planning Liberation ol Center Schools and Social Care The General Union ol Palestine—O.F.L.P. Information And Kindergartens For Martyrs* Palestinian Student* National Guidance Families G.U.P.S. Salqa Department Department of Nurseries Popular The General Union ol Arab Liberation Research Palestinian Teacher* Front—A.L.F. Organizations Unified Center Department Information Of The General Union ol Popular The Palestine National Department of Palestinian Engineers Fronl—General Higher Council “Falestin Relation* Al-Thaura“ Affairs ol the Command for Youth Occupied The General Union ol and Sports (Central Organ) Palestinian Lawyers Homeland Palestine Liberation Foreign Information Fronl—P.L.F. Organization Department The General Union ol for Palestinian Committee for Palestinian Doctors Cubs and Flowers, Palestine News Agency the Defense Palestine Popular of Palestinian “Pioneers" WAFA Strug (|l* Fronl Prisoners The General Union ol Palestinian Painters Palestinian Cinema & Association and Artists Photography Oepartment Palestinian for Theatre National Front and Mtpted trom for theOccupied Th* General Union ol . Jhm Link. XV. 3 Popular Art) Radio Station Homeland Palestinian Peasants I9Q2

Rubenberg, frontispiece. Reproduced Reproduced with permission the of copyright owner. Further reproduction prohibited without permission. 45

Goals

The goals of the PLO are aimed at a larger over-all

objective: the creation of an independent Palestinian

homeland, which is to be created on territories occupied by

Israel. The Palestinian Covenant of 1968 "provided the

platform for the establishment of a federation of

heterogeneous, competing Palestinian organizations."3’ The

Covenant calls for the withdrawal of Israel from the West

Bank and Gaza, and the establishment of an independent

Palestinian state on the territory "liberated" or evacuated

by Israel. The Covenant also calls for the dismantling of

Israel as a "Zionist-Israeli model of a discriminatory

society" and replace it with a non-sectarian democratic

state where Muslims, , and Jews co-exist as equal

citizens, sharing rights and obligations.40 This statement,

however, specified that it recognize the Israelis who are

entitled to stay in Palestine. Article 8 of the Palestinian

National Charter states: "The Jews who had normally resided

in Palestine until the beginning of the Zionist invasion

will be considered Palestinians."

Under Arafat's leadership, the PLO has signaled its

readiness to accept a negotiated settlement with Israel that

would eventually lead to a Palestinian state in part of

5’0'Brien, p. 356.

S0Yassir Arafat, speech given before the United Nations General Assembly in November 1974.

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Palestine. The PLO has remained— for reasons understandable

on political grounds— ambiguous and inconsistent.

Over the past decade, there emerged within the Palestinian community...support for a historical compromise between Israelis and Palestinians. To be sure, there was something frustrating about the way this was put forth. The will to state it openly was not there. What was said on a given day was denied the next; what was said before a foreign audience was denied at home. But there was no denying that somewhere on the horizon loomed the possibility of a different future.‘1

While it might be considered a retreat for the PLO

to settle for a state on the West Bank and Gaza, and to

accept the permanence of Israel, major international

resolutions have given great encouragement to the idea of a

West Bank-Gaza state. The first such major international

resolution is the 1967 UN Security Council Resolution 242

that is generally accepted— excluding Israel and the PLO— as

the basis for a settlement of the Arab-Israeli dispute.**

Past and present governments of Israel have adamantly

opposed any Palestinian state in what they consider to be

61Fouad Ajami, "The Oasis Goes Dry," New York Times, June 21, 1982, p. A19.

“ Security Council Resolution 242 calls for, inter

l.(i) Withdrawal of Israeli armed forces from territories occupied in recent conflicts (ii) Termination of all claims of state belligerency and respect for the acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace with secure and recognized boundaries free from threats or acts of force. 2(b) For achieving a just settlement of the refugee problem.

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Judea and Samaria, the biblical term for the West Bank.43

While it is argued that a Labor government might be more

willing to negotiate the notion of "land for peace", and a

possible West Bank/Gaza Palestinian state in some form, a

sovereign Palestinian state will not be acceptable to any

Israeli government. The issue of Jerusalem is the most

delicate issue in the Arab-Israeli dispute. If UN Security

Council Resolution 242 is to be applied, Israel will have to

give up , a move no Israeli government so far

has been willing to consider. The PLO rejects resolution

242, for it does not address the question of Palestine or

the rights of the Palestinian people to self-determination.

Resolution 242 simply refers to Palestinians as a "refugee

problem", and in the eyes of the Palestinians and the PLO,

it does not acknowledge the core issue of the Middle East:

that Palestinians are not just refugees, but a people

without a home who have a historical right to return home.

Based on the provisions of the Covenant, the PLO's

objectives are to be achieved through various methods. The

Charter states that "armed struggle is the only way to

liberate Palestine... . "S4 In addition to the use of

military means, the PLO has employed political and economic

43By using the biblical terms Judea and Samaria, the Likud government tries to emphasize the religious and historic link to the West Bank, thus making requests to relinquish the region difficult.

44Article 9 of the Palestinian National Charter.

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instruments in attempting to realize its goals. Although

the PLO does not have significant economic leverage, it has

effectively made use of the economic power of the Arab

states, in particular the oil-producing states. Among the

economic instruments used by the PLO, or by Arab states on

behalf of the Palestinian cause, have been the economic

boycott against Israel, the economic boom in the Arab Gulf

states that lured non-Arabs into the area and exposed them

to Arab views, and the threat of the usage of the "oil

weapon". The economic instrument, however, has not been of

much direct or significant benefit to the PLO in the pursuit

of its goals as did the political means, which so far has

been the most effective of all instruments applied by the

PLO. The nucleus of the political strategy of the PLO is

embodied in a campaign to obtain international recognition

for the Palestinian people and their rights and maximum

diplomatic recognition of the PLO.

International Personality of the PLO

The question of what constitutes international

personality has been widely debated among international

lawyers and political scientists. The accepted definition

of international personality is that "an entity has

international personality if it has rights and duties under

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international law."*5 This definition, however, was

historically limited to states. Until World War I, the idea

that states are the sole subjects of international law was

not questioned and was taken for granted. This argument was

rooted in two previously-discussed factors— sovereignty and

autonomy. The ability of a state to exercise full

jurisdiction "within its own territory and over ships

carrying its flag on the high seas,"** as well as over its

citizens, regardless of where they reside, is the basis of

international personality. This narrow and traditional

interpretation of international personality unjustly limits

the subjects of international law by excluding entities that

have a prescribed role under international law but which are

clearly not states. The lack of a set of criteria or

perfect "person" that can be used to test entities as to

their qualifications, makes it difficult and sometimes

subjective.

The traditionalists limit the definition of "person"

to states. International law, they argue, is developed by

states to regulate the conduct of states and the interaction

between states, like municipal law was developed by men to

regulate their conduct. For an entity to be considered as

an international person a variety of factors have to be met.

*sGeorg Schwarzenberger, ed., A Manual of International Law, 3rd ed. (London: Stevens and Sons Limited, 1952), p. 27,

**Ibid., p. 29.

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They include sovereignty, the existence of a functioning

political organization, a population, a territory, and

recognition. This narrow interpretation tends to shut-out

numerous potential subjects and does not leave room for

international organizations created by states such as the

United Nations or the Organization of African Unity, nor

international corporations such as Exxon or the East India

Company. Furthermore, the limited definition ignores

national liberation and/or revolutionary movements, all of

which have an impact on international law. International

law can protect these movements or protect against them.

Moves in various United Nations agencies to place a limit on

the activities of multinational corporations (MNCs) have

been more difficult to achieve than trying to censor a full

member.‘7

The realists on the other hand, have a more

pragmatic interpretation of international persons. For them

all international actors, whether good or bad, are subjects

of international law. For an entity to be a subject of

international law, it must meet one or more of the following

factors. If it is a corporation, it must do business in two

or more states. If it is an international organization, it

must be created by or operate in two or more states. If it

6 7Attempts to regulate the conduct of MNCs have been more difficult than the rejection of South Africa's credentials in the United Nations.

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is an international political movement, it must be created

by two or more states. As will be discussed later, a safe

assumption can be made that the PLO is a subject under

international law under both the realist and traditionalist

views.

TABLE 6

PLO INFORMATION OFFICES

Belgium Italy Burundi Japan Canada Luxembourg Chad Netherland Congo Portugal Denmark Sweden Equador Switzerland Finland United Kingdom Frnace United States Germany (West)

SOURCES: Kamel Kirisei, The PLO and World Politics (London: Frances Printer, 1986), pp. 181-2, and list provided by the Palestine Information Office, Washington, D.C., in July 1987.••

“ On the issue of the Palestine Information Office in Washington, D.C., see infra note 69.

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TABLE 7

PLO EMBASSIES/DIPLOMATIC MISSIONS

Afghanistan Mali Algeria Malta Angola Mauritius Austria Mexico Bahrain Morocco Bangladesh Netherland Bolivia Mozambique Brazil Nicaragua Bulgaria Nigeria China Pakistan Cuba Peru Cyprus Poland Czechoslovakia Qatar Dj ibouti Romania Egypt Saudi Arabia Ethiopia Senegal Gambia Sir Lanka Germany (East) Somalis Greece Guinea Sudan Guinea-Bissau Syria Hungary Tanzania India Tunisia I ran Turkey Iraq Uganda Jordan United Arab Emirates Kenya United Nations- Korea (North) New York Kuwait UNESCO- Laos Soviet Union Lebanon Vietnam L i foya Yemen (North) Malaysia Yemen (South) Maldives Yugoslavia Zimbabwe

SOURCES: Kirisei, pp. 191-2, and list provided by the Palestine Information Office, Washington, D.C., in July 1987.

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Recognition

The PLO has been recognized by over one hundred

states as the legitimate representative of the Palestinian

TABLE 8

DISTRIBUTION OF PLO OFFICES BY REGIONS

East West Latin Asia Africa TOTAL Europe Europe America

Diplomatic 8 6 6 26 23 69 Non-Diplomatic 0 14 1 1 4 20 Unclear 0 0 1 2 3 6

TOTAL 8 20* 8 29 30 95

SOURCES: Kirisei, p. 183, and a list provided by the Palestine Information Office in Washington, D.C., July 1987.

NOTE: *Including U.S.A. and Canada, and PLO's U.N. mission in New York and UNESCO in Paris.4’ This list includes countries where the PLO has offices and does not include all countries that have recognized the PLO. Due to financial constraints and personnel shortages, the PLO cannot maintain offices in all countries that have granted it recognition.

‘’The Palestine Information Office (PIO) in Washington was not given diplomatic status or recognition, and on September 15, 1987, the State Department ordered the closure of the information office. In the letter to the head of the PIO, Hassan Abdul Rahman, ordering the closure of the office, the director of the State Department's Office of Foreign Missions identified the Washington office as a "foreign mission representing the PLO." Ironically, to close the office under the authority of the President of the U.S. to conduct foreign policy, the Department of State had to elevate the Palestine Information Office to the status of a foreign mission, and in effect made Abdul Rahman the first Palestinian head of mission to the United States. For fear that such a move on the part of the Department of State might send the wrong message, Secretary of State George P. Shultz warned in a letter to Representative Jack Kemp on July 31, 1987, that closing the PIO as a "foreign entity would 'represent a symbolic shift in the U.S. Government's relationship to the office.'" ( New York Times, September 16, 1987, p. Al).

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Recognition

The PLO has been recognized by over one hundred

states as the legitimate representative of the Palestinian

TABLE 8

DISTRIBUTION OF PLO OFFICES BY REGIONS

East West Latin Asia Africa TOTAL Europe Europe America

Diplomatic 8 6 6 26 23 69 Non-Diplomatic \jr« 14 Xn X 4 20 Unclear 0 0 1 2 3 6

TOTAL 8 20* 8 29 30 95

SOURCES: Kirisei, p, 183, and a list provided by the Palestine Information Office in Washington, D.C., July 1987.

NOTE: *Including U.S.A. and Canada, and PLO's U.N. mission in New York and UNESCO in Paris.*’ This list includes countries where the PLO has offices and does not include all countries that have recognized the PLO. Due to financial constraints and personnel shortages, the PLO cannot maintain offices in all countries that have granted it recognition.

‘’The Palestine Information Office (PIO) in Washington was not given diplomatic status or recognition, and on September 15, 1987, the State Department ordered the closure of the information office. In the letter to the head of the PIO, Hassan Abdul Rahman, ordering the closure of the office, the director of the State Department's Office of Foreign Missions identified the Washington office as a "foreign mission representing the PLO." Ironically, to close the office under the authority of the President of the U.S. to conduct foreign policy, the Department of State had to elevate the Palestine Information Office to the status of a foreign mission, and in effect made Abdul Rahman the first Palestinian head of mission to the United States. For fear that such a move on the part of the Department of State might send the wrong message, Secretary of State George P. Shultz warned in a letter to Representative Jack Kemp on July 31, 1987, that closing the PIO as a "foreign entity would 'represent a symbolic shift in the U.S. Government's relationship to the office.'" ( New York Times, September 16, 1987, p. Al).

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people and maintains offices similar or equivalent to

diplomatic missions in over sixty-five states. Critics of

the PLO dismiss those recognitions on the ground that no

official interaction exists between PLO representatives and

these recognizing states. "Presumably, for most of the

recognizing states this relationship with the PLO is more

symbolic than practical."70

The PLO, under the traditional approaches, is a

subject of international law. Legal scholars in socialist

countries are generally reserved when it comes to the issue

of the subjects of international law regarding non-state

actors. "They do, however, hold that functioning national

communities are entitled to rights under public law."71 This

is also a view widely held by the McDougal-Lasswell school

of jurisprudence. This school maintains that non-nation

states are subjects of international law.72 McDougal asserts

70O'Brien, p. 381.

71Kassim, p. 4.

72The main theme of the New Haven school is contextual policy-oriented jurisprudence with its overriding goal the achievement of respect for values and the dignity of man. To achieve this goal, the approach stresses the study of various fields in the social and behavioral sciences. The domestic social and power structure and their interaction must be analyzed as and independent variable and within the broader context of the international system. Finally, the common interest of mankind must be maincain with in an international legal system to "secure the greatest production and widest sharing of the values of human dignity." (Myres S. McDougal, et al. Studies in World Public Order (New Haven: Press, 1960), p. xii). International law is to be used as a tool for these goals. Critics of the McDougal-Lasswell policy-oriented

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that "all participants in the world social process act in

the constructive process of authoritative decision."73 Among

these "participants", McDougal and his associates enumerate

territorial units, international governmental organizations,

political parties, pressure groups and private

associations.74 The New Haven school holds that

groups without territorial bases have struggled to form nation-states by invoking the broad policy of self- determination. The 'quasi-state* quality of each of these 'groupless' groups and the fact that they have concluded international agreements has been a steady challenge to the traditional doctrine of 'sovereignty'.7 5

What is more, the McDougal-Lasswell school lists these

"groupless groups" under the participant category of

"private associations", which they define as

"nongovernmental organization(s) reformed for the purpose of

pursuing scope values other than power."74

Kassim has taken the McDougal-Lasswell argument

relating to "public bodies" and develops from it "territory

public bodies" and "non-territory public bodies." A

approach have questioned the "values" that are to be perpetuated through this approach. In the views of Richard Falk, such values tend be those closely associated with the American political experiences. Furthermore, the use of international law to advance such values on foreign nations are violations of the principles of international law.

7 3 _ 1 r ------77 J TS . ^ iJdsswcii, a n u ret*l siiltfil, p . IDX.

7 4Ibid., pp. 262-267.

7 5Ibid., pp. 270-71.

7 4Ibid., p 267.

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"territory public body", Kassim contents, "includes what

McDougal and Lasswell describe as elites which are in the

process of consolidating their statehood entities."77 A

"non-territorial public body," on the other hand, "comprises

any group or organization which does not have a territorial

base value."7’ Non-territorial public bodies can only be

brought into existence, as well as extinguished, through

bilateral or multilateral agreements. Two prerequisites

must be present for a non-territorial public body to be

created; the first constituting the non-territorial body

must be a nation-state; second, there must "be two or more

states using their bilateral for multilateral authority, for

'there is no authority for (any single) state to constitute

a public body unilaterally.'"7’ A non-territorial public

body becomes a subject of international law by its mere

existence and role in the international system. A long time

ago Professor Percy Corbett explained how states created

subjects when he declared that;

It must be recognized that the State whose consent is the immediate cause of (international) law can create what legal institutions they will...The States in creating an entity other than a State, with distinct rights and duties, thereby create a person.*0

77Kassim, p. 6.

7’Ibid.

7,Ibid., p. 7.

*"Percy E. Corbett, "What is the League of Nations?" British Year Book of International Law 5 (1924):142-3.

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An agreement to create an entity may explicitly

determine its international personality. Article 39 of the

Constitution of the International Labour Organization grants

the ILO juridical status and legal capacity to carry out its

mandate.*1 The International Court of Justice concluded in a

case concerning Reparation for Injuries Suffered in the

Service of the United Nations, that "the progressive

increase in the collective activites of the States has

already given rise to instances of action upon the

international plane by certain entities which are not

State.~i2 In its conclusion, the ICJ rejected traditional

international law by broadening the definition of

international personality to include entities that are not

nation-states; furthermore, the ICJ held that an agreement

does not have to grant explicitly international personality

“ Article 16 (1) of the Food and Agricultural Organization states: "The Organization shall have the capacity of a legal person to perform any legal act appropriate to its purpose which is not beyond the power granted to it by this Constitution." Article 47 of the International Civil Aviation Convention goes a step further by providing that the International Civil Aviation Organization "shall enjoy in the territory of each contracting State such legal personality as may be necessary for the performance of its functions. Full juridical personality shall be granted wherever compatible with the constitution and laws of the States concerned." Article 211 of the Treaty of Rome asserts that the European Economic Community "shall possess the fullest legax capacicy accoroeci to a legal person by the national laws; in particular it may acquire or dispose of movable and immovable property and be a party to legal proceedings. For this purpose, it shall be represented by the Commission."

“ I.C.J. 178 (1949).

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to an entity? an entity is a subject of international law

through the implied substantive powers which were granted to

it.

The powers granted to the Arab League differ greatly

from those granted to the European Community. The powers

granted to the International Monetary Fund differ from those

granted to the Organization of American States. To deny

international personality to any of the entities because

they do not meet the capacities of a state contradicts the

essence of the term personality. In the Bernadotte Case,

the court warned against setting uniform qualities for

personality.

The subjects of law in any legal system are not necessary identical in their nature or in the extent of their rights, and their nature depends upon the need of the community. Throughout its history, the development of international law has been influenced by the requirements of international life....*3

The PLO and Governmental Organizations

The PLO has maintained its international status

under public law by joining various international and

regional governmental organizations. Today the PLO has full

membership in numerous IGOs and observer status in others.

The Arab League accepted Palestine, as represented by the

PLO, as the twentieth member. The PLO was granted full

membership in the League equal to all other members.

* 3Ibid.

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TABLE 9

PLO MEMBERSHIP IN IGOs

Action Programme on Economic Cooperation among Non-Aligned and Other Developing Countries. Arab Academy for Maritime Transport Arab Bank for the Economic Development of Africa Arab Chemical and Pharmaceutical Corporation Arab Civil Aviation Council Arab Company for Drug Industries and Medical Appliances of Fish Producers Arab Fund for Economic and Social Development Arab Fund for Technical Assistance Arab Industrial Development Organization Arab Labour Organization Arab League Education, Cultural and Scientific Organization Arab Literacy and Adult Education Organization Arab Center for the Study of Arid Zones and Dry Lands Arab Mineral Resources Exploration Corporation Arab Monetary Fund Arab Peoples Congress Arab Planning Institute Arab Organization for Agricultural Development Arab Organization for Mineral Research Arab Organization for Social Defence Against Crime Arab Organization for Standardization and Metrology Arab Organization of Administrative Sciences Arab Satellite Communications Organization Arab Tourism Organization Broadcasting Organization of the Non-Aligned Countries Committee for Cooperation Conference of Islamic States Coordination Bureau of the Non-Aligned Countries Council for Arab Economic Unity Federation of Arab Scientific, Research Councils Inter-Arab Investment Guarantee Corporation Islamic Commission for Economic, Cultural and Social Affairs Islamic Development Bank Islamic Foundation for Science, Technology and Development Islamic States Broadcasting Organization League of Arab States Non-Aligned Countries Working Group on Southern Africa Pan-Arab Bureau for Narcotics Affairs Statistical, Economic and Social Research and Training Center for Islamic Countries United Nations*

NOTE: *Includes all official bodies and organs of the United Nations.

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The admission of the PLO into the regional political

organization with a collective security arrangement "aimed

at political independence and territorial integrity,"84

represents a highly significant legal development for the

PLO under international law. The PLO is also a full member

of several organizations whose objective is to finance

development projects in Africa: the Arab Bank for Economic

Development in Africa; the Arab Monetary Fund (AMF); and the

Arab Fund for Economic and Social Development (AFESD). In

all those regional and international organizations, the PLO,

as representative of Palestine, was accorded full

membership. The AFESD accepts the guarantee of the

Palestine Liberation Organization for loans granted to

finance projects in Palestinian territory."85 As a member of

the Islamic Bank for Development, the PLO enjoys full

membership and contributes to the capital shares of the

Bank. In 1977, the PLO's equity in the capital stock of the

IED was equal to the equities of fourteen member states.

The PLO's membership is not just limited to international

financial institutions.86 It has full membership status in

the Non-Aligned Movement and Islamic Conference, and is

84Ibid., p. 22.

''Statement by the Board of Governors of the Arab Fund for Economic and Social Development, held at Rabat, April 28-29, 1976.

8 4This would imply that PLO membership was obtained along with petro-dollars, and not because of its role in the international system.

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represented in all activities of United Nations organs and

subordinate bodies as an observer.

Legal Authority

The PLO has been exercising legal authority that has

traditionally been reserved to governments. Such authority

is exercised at various levels and in various ways. The

extradition power exercised by the PLO punishes violators it

has jurisdiction over in accordance with the Palestine Penal

Cede. The PLO exercised its extradition power in 1973 when

five men, claiming to be Palestinians, after attacking a Pan

American World Airways jet in Rome and killing 32 people,

hijacked a Lufthansa airliner there, and commandeered it to

Kuwait where they surrendered to local authority. The PLO's

extradition request for the hijackers would be accepted,

provided that the hijackers were Palestinians. The Kuwaitis

maintained that "if current interrogation of the gunmen

proves they are all Palestinians, turning them over to the

P.L.O. would be in line with the (Arab League) summit

resolution."*7 Gunmen who commandeered a British Airways jet

in Dubai, and later surrendered in Tunis in November 1974,

were turned over to the PLO for punishment. Two months

later, the PLO announced that it had inflicted severe

punishment on the gunmen.**

*7Abdul Aziz Hussein, Kuwaiti Minister of State, quoted in New York Times, December 21, 1973, p. 14.

“* New York. Times, January 26, 1974, p. 1.

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The collecting of taxes is sometimes very difficult,

especially when the population that is to be taxed is

scattered around the globe. The PLO, however, has managed

to exercise the power to tax Palestinian workers in various

countries on a regular basis, either directly or indirectly,

regardless of current citizenship. The PLO was given the

power to collect taxes from Palestinian citizens by

deducting a set percent— usually ranging from three to six

percent— from the monthly salaries of Palestinian workers

and crediting it to the account of the Palestine National

Fund. Such arrangements exist in states where the PLO does

not have an infrastructure in place.

The main objective of the PLO in the social field is

to meet the functional needs of the Palestinian people. In

the last fifteen years, the PLO has managed to strengthen

health services, child care, education, employment, and

social welfare. In the area of health care, the PLO,

through the Palestine Red Crescent Society (PRCS), is

running thirteen major hospitals— eleven are in Lebanon— and

one hundred clinics, sixty in Lebanon and the rest in

countries where Palestinians reside. In both the hospitals

and the clinics, services are provided at minimal cost.

"Clinic visits cost approximately one U.S. dollar; hospital

inpatient service costs approximately five U.S. dollars.

All medicines are free."®’ Medical services are not just

“’Rubenberg, p. 21.

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limited to Palestinians, but are open to all those who need

them at the same cost as for Palestinians.

In addition to medical services, the PLO runs

schools from the kindergarten level through high school.

The PLO is in the process of developing the Palestinian Open

University. Like most developed societies, the PLO provides

comprehensive social welfare for the Palestinians. The

Institute for Social Affairs and Welfare for the Martyrs'

and Prisoners' Families is the social welfare department of

the PLO with branches in Egypt, Iraq, Jordan, Kuwait, Saudi

Arabia, and Syria. The institution has expanded from

providing for the families of individuals who died in the

armed resistance, to providing services to any individual

working for the PLO in any capacity. In 1980, the Institute

for Social Affairs and Welfare was providing for more than

forty thousand people.’0

The PLO as a Government-in-Exile

The PLO is an undeclared government-in-exile. For

an entity to qualify as a government-in-exile, it must meet

six conditions, all of which the PLO fulfills. It has

already been established that the PLO, through the process

of succession and recognition, is the legitimate

representative of the Palestinian people and the

institutional expression of Palestinian nationalism. The

"Ibid., p. 51.

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second condition for the PLO, or for that matter for any

other functioning public body, is to establish itself

temporarily in an ally's country with that country's

consent. The 1969 agreement between the PLO and the

Lebanese army and the Cairo Agreement of 1970 between the

guerilla movement and the king of Jordan gave the PLO the

right to operate from both Lebanon and Jordan, as well as to

establish a governmental infrastructure in Beirut.

Following the PLO's evacuation from Lebanon in August of

1982, it has shifted its headquarter to Tunis, with Algiers

and Sana'a as major centers of operations. In each case,

the PLO operated, and still operates, with the consent of

the host government.

The second condition is that a state of belligerency

must exist between the government-in-exile and the occupying

state. The PLO-Israeli conflict and to a larger extent the

Arab-Israeli conflict are proof of the state of war between

the two parties. Furthermore, the lack of a formal peace

treaty between the Arab states— except for Egypt— and Israel

is further proof of the state of belligerency existing

between the PLO and its Arab allies and Israel since 1948.

The third condition is that the occupying power has

not achieved "effective" control of the territory. What

constitutes "effective" control, however, is vague. The

overwhelming support for the PLO in the West Bank and Gaza,

coupled with Israeli hesitation to annex outright the

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territory can be interpreted to imply that Israel still

cannot decide what to do with the territories, which it must

control with brute force. In addition, as long as Israel

and the PLO are in a state of war, the territories Israel

holds cannot be deemed to be be under the former's

"effective" control.

The fourth condition needed to qualify as a

government-in-exile, is that a governing body cannot be

established if it has "effective" control over part of its

territory. Israel's cancellation of the 1977 highly

publicized municipal elections in the West Bank— which it

called the freest and fairest in the Arab world— was on the

ground that the PLO had infiltrated the governing councils.

This and other actions conducted by the military authority

to prevent the PLO from influencing the West Bank and Gaza,

has removed the PLO from exercising "effective" control in

the territory, let alone physical control in the

territories.

The fifth qualification for a government-in-exile to

maintain its status, is that it must make "effective"

efforts to regain lost territory. Such efforts usually mean

waging a war of national liberation. A government-in-exile

must be an active participant in the efforts to regain

control of the territory. Active participation clearly

means that its armed forces must take part in the liberation

efforts. The participation of de Gaulle's Free French

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forces under the command of the Allied high command during

World War II is a perfect example.

The PLO's participation in the October 1973 war and

its own military actions in Lebanon in 1978, 1981, and 1982,

as well as the numerous guerilla operations against Israel

as part of its efforts to liberate occupied territory meets

the last condition. The expulsion of Arafat from Syria can

be interpreted as a literal interpretation of the meaning of

"effective efforts" by the regime in Damascus, and that

Arafat's willingness to settle for a political solution to

the Palestinian problem was perceived by Damascus as a

violation of the need to use armed struggle to liberate

occupied territories.

In any case, while a government is in exile, the

suspension of its constitution or any other form used to

gain legitimacy prior to the loss of territory, cannot be

used to deny it the status of a government-in-exile.

Furthermore, the means by which it gains the status of

government-in-exile are irrelevant during a state of

belligerence.

During World War II, London became the seat for

numerous governments-in-exile, including Greece, the

Netherlands, Belgium, Yugoslavia, France, Norway, Denmark,

and Poland. To facilitate greater freedom for those

governments to conduct their affairs, the Parliament enacted

the Diplomatic Privilege (Extension) Act of 1941, which

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conferred diplomatic privileges upon the members of the exiled governments established in the United Kingdom and their official staff, as well as on the envoys accredited to them.’1

The powers exercised by the PLO are those usually

reserved to governments. The power of taxation and

extradition, as well as full membership ir: international

organization and collective security arrangements, are just

some of the evidence of the PLO's authority. While the PLO

meets all the conditions for governments-in-exile, it

refuses, nevertheless, to declare itself as a government.

Such refusal rests on political grounds and has no juridical

bases. The main reason given by the PLO for refusing to

declare itself a government-in-exile is the fear that a

Palestinian government could and probably would lead to

problems of dual loyalties for Palestinians, especially in

countries where Palestinians have been granted citizenship.

The second problem is that such a status invites hostilities

with host governments. The presence of the PLO and its

institutions in Lebanon led to problems with local

authorities over the issue of sovereignty. As a liberation

movement, the PLO exercised full governmental authority

without having to worry about the formalities of being a

government. Third, the name national liberation movement

has greater psychological effect on the population. It

J1Hans Kelsen, Principles of International Law, 2nd ed. Revised and edited by Robert W. Tucker (New York: Holt, Rinehart and Winston, Inc., 1966), p. 411.

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connotes the struggle of people for freedom and against

oppression, whereas the term government refers to a static

process with little hope for success. In the case of the

PLO, a government-in-exile refers to a system that has

surrendered to permanent exile and the permanence of refugee

camps. The governments-in-exile of the Baltic states of

Latvia, Lithuania, and Estonia are all stagnated. The

possibilities of a return to their territories is virtually

nil. The refusal of the Palestine Liberation Organization

to declare itself a government-in-exile does not mean that

it is not one. Its activities and authorities are to

determine its status, and not what it decides to call

itself.

The Zionist Organization/Jewish Agency

The Zionist Organization,” unlike the PLO, was not

constituted by an act of state; instead, the organization

was declared unilaterally as the representative of the whole

"Jewish people" at the first Zionist Congress. The Zionist

movement, thus, did not fall into the public body category

subject to international law as has been discussed earlier.

The Congress unilaterally proclaimed itself as the body

representing all the Jews and acted in that capacity as it

,2The Zionist Organization and Jewish Agency are basically two names for the same organization. The Mandate of Palestine writes agency with a small 'a', whereas the Zionists and consequently the state of Israel capitalizes both first letters.

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negotiated with the German Kaiser and the Ottoman Sultan.

It was, however, the British-Zionist negotiation of 1903 and

subsequently the British proposal that offered the highlands

of Uganda (present day Kenya) to the Zionists as a possible

homeland. This proposal was rejected at the sixth Zionist

Congress, although Theodor Herzl, the father of ,

favored it. The power of the Zionist organization reached

its maturity at the Paris Peace Conference. At that

conference, the World Zionist Organization submitted its

official plans and map for the creation of a Jewish State in

Palestine. *3

’3"The boundaries of Palestine shall follow the general lines set below: Starting on the north at the point on the Mediterranean Sea in the vicinity south of Sidon and following the watersheds of the foothills of Lebanon as far as Jisr El Karaon, thence to El Bire, following the dividing line between the two basins of the Wadi El Korn and the Wadi El Teim, thence in a southerly direction following the dividing line between the eastern and western slopes of the Hermon, to the vicinity west of Beit Jeun, thence eastwards following the northern watersheds of the Nahr Mughaniye close to and west of the Hedjaz railway. In the east a line close and west of the Hedjaz railway terminating in the Gulf of Akaba. In the south a frontier to be agreed upon with the Egyptian Government. In the west the Mediterranean Sea. The details of the delimitations or any necessary adjustments of details, shall be settled by a special commission on which there shall be Jewish representation. (D.H. Miller, My Diary at the Conference of Paris with Documents, vol. 5, (New York: Appeal Printing Co., 1924), p. 17, cited by Ismail Zayid, Zionism: The Myth and Reality. (Indianapolis: American Trust Publications, 1980), p. 6).

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At the Peace Conference in Paris, the Zionist

movement suggested that the Supreme Council of the Allied

Powers adopt a resolution that would "recognize the historic

title of the Jewish people to Palestine and the rights of

the Jews to reconstitute in Palestine their National

Home."94 However, the Council rejected the resolution.

Through its presence at the Peace Conference—

through British sponsorship— the Zionist Organization

gained, inter alia, status as a legal public body. In its

memorandum to the Supreme Council on February 3, 1919, the

Zionist Organization proposed the creation of a "Jewish

Council” to be the "legal entity" for implementing a

national home for the Jews in Palestine. Article 4 of the

Mandate of Palestine was what both the British and the

Zionists wanted. Through the action of the League of

Nations, Great Britain was now able to cooperate politically

with an internationally recognized public body.

An appropriate Jewish agency shall be recognized as a public body for the purpose of advising and co­ operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration, to assist and take part in the development of the country. The Zionist organization, so long as its organization and constitution are in the opinion of the Mandatory appropriate, shall be recognized as such agency. It shall take steps in consultation with His Brittanic Majesty’s Government to secure the cooperation

,4Henry Cattan, Palestine and International Law (London: Longman, 1973), p. 47.

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of all Jews who are willing to assist in the establishment of the Jewish national home.’5

The status of the Jewish Agency was further advanced

in the Mavommatis Palestine Concessions, in which the

Permanent Court of International Justice held that Article 4

shows that the Jewish agency is in reality a public body, closely connected with the Palestine Administration and that its task is to co-operate, with that administration of the country.’‘

In the period following World War I, "the Zionist

movement was imperilled by bitter internal strifes."97

Vladimir Jabotinsky, a militant Zionist, officially

challenged the Jewish Agency’s claim as the representative

of Zionist Jewry in his testimony before the Palestine Royal

Commission in February 1937.’* The Zionist movement soon

split into two camps, the Socialist Zionists and Revisionist

Zionists. The Socialist Zionists preferred to settle for

part of Palestine as an initial step toward their goal of

statehood. The size of the initial territory was not

important to them. The Revisionists, on the other hand,

rejected any compromise, for them the Jewish state was to be

!5W.T. Mallison, Jr., "The Legal Problems Concerning the Juridical Status and Political Activities of the Zionist Organization/ Jewish Agency: A Study in International and United States Law," William and Mary Law Review 9 (Spring 1968):570.

’•P.C.I.J. Ser. A., No. 2 (1924).

97Walter Laqueur, History of Zionism (New York: Schocken Books, 1972), p. 338.

’"Ibid., p. 370.

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established over all of the British Mandate of Palestine,

including Transjordan.” If that goal was to be achieved,

force was to be used.

Revisionism believed in strength— in a sinful world only the strong were likely to get what was due to them. This manifested itself in the ideology of Betar, particularly the cult of militarism with all its antics- the parades, the stress on uniforms, banners, insignia.10 0

The leader of Revisionist Zionism was Vladimir Ze'ev

Jabotinsky, a Russian Zionist, who called for the creation

of a Jewish majority in all of the Mandate of Palestine,

including the left bank of the Jordan River.101 Unlike the

other members of the movement, he "emphatically rejected the

thesis that the Zionist aim should be openly proclaimed."102

Transjordan, Jabotinsky claimed, had always been part of

historic Jewish Palestine. In 1935, Jabotinsky introduced a

change in his movement's charter. This change had been made

in an attempt to attract the support of the eastern European

” Amos Perlmutter, Israel: The Partitioned State (New York: Charles Scribner's Sons, 1985), p. 12.

100Laqueur, p. 381.

101The Revisionist/militant Zionists felt "that money being used to feed Jews in Russia should rather be spent in transporting them to Palestine, and some extremists believed that it was actually harmful to aid the European victims, since the more intense their sufferings were, the more powerful would be the moral pressure exerted to make Palestine a Jewish homeland." (Robert Silverberg, If I Forget Thee, C Jerusalem (New York: William Morrow and Company, Inc., 1970), p. 87).

102Laqueur, p. 347.

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orthodox Jewish community.103

Today, Israeli leaders shield themselves against

criticism by citing the Bible. Professor Frances Boyle

rejects former Israeli Prime Minister Begin's usage of the

Bible to hold to the West Bank by referring to the Bible

itself.

On the other hand, one of those passages from the Bible that the Begin government apparently relies upon to support its farfetched claim to sovereignty over the West Bank because 'Judea and Samaria' are part of the 'Promised Land' granted by God to the Hebrew people contains the following injunction for dealing with the native inhabitants: 'But of the cities of these people, which the Lord thy God doth give thee for an inheritance, thou shalt save alive nothing that breatheth. But thou shalt utterly destroy them; namely, the Hittites, and the Amorites, the Canaanites, and the Perizzites, the Hivites, and the Jebusites; as the Lord thy God hath commanded thee.'104

The Zionists' claim to Palestine rests upon four

main arguments. First and probably the strongest of their

arguments, is the claim to the historical link between the

Jews and Palestine. This argument, however, had been

rejected at the Paris Peace Conference. "The Zionist claim

of historic title to Palestine has no basis in law or fact,"

wrote Professor Henry Cattan. "The modes of acquiring

territory are well defined under international law and the

10 3Ibid., p. 365.

10‘Francis A. Boyle, "Upholding International Law in the Middle East," in Terrorism, Political Violence and World Order, ed. Henry Hyunwook Han (Lanham, Maryland: University of America Press, 1984), p. 519. References to these phrases are to be found in Deuteronomy 20:16-17; Exodus 23:23-33 and 34:10-24; Numbers 33:50-56; and Joshua 10:28-43 and 24:8-13.

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claim for historical title in not one of them."105 The King-

Crane Commission appointed by President Wilson in 1919

further rejected the historical link claim in its report.

The Commission declared that "the initial claim, often

submitted by Zionist representatives, that they have a

'right' to Palestine based on an occupation of two thousand

years ago, can hardly be seriously considered."104 The

second claim is linked to religious right. Palestine, the

Zionists claim, was given to the Jews by God. The Zionists

argued chat in Genesis 15:18, God promised Abraham, "Unto

thy seed have I given this land from the river of Egypt unto

the great river, the river Euphrates."107 This argument does

not hold up under close scrutiny on various points. First,

if the land was given to the Jews and the Zionists speak for

the "Jewish people," how did it happen that early Zionists

were seriously considering establishing a homeland in the

highlands of Uganda, or that the Zionists were seriously

discussing the possibility of establishing a homeland in

Argentina or Madagascar or even part of southern California

or Alaska? The fact that early Zionists were more

interested in establishing a Jewish homeland than in

worrying about its location, destroys the religious right

15:Cattan, p. 48.

104The Recommendations of the King-Crane Commission, cited by Harry N. Howard, Inquiry in the Middle East: The King-Crane Commission (Beirut: Khayats, 1963), p. 345.

10’Genesis 15:18.

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argument. Furthermore, orthodox Jews rejected the Zionists

plan to return the Jews to Palestine also on religious

grounds. The Jews will return to Palestine, they argue, by

the will of God and through the Messiahs; therefore, the

efforts of the Zionists to resettle Jews in Palestine is a

religious contradiction. It is evident from the lack of

support from western European and American Jews that the

religious claim was not seriously considered until the

mid-1930s. It is clear from this and the attempt of early

Zionists to establish a homeland on any territory where

possible, that Zionists have "exploited Judaism as a pretext

in order to create a state which is more concerned with

racism and nationalism than with religion."10*

The third argument, that the condition of the Jews

in the world is deplorable, however, was the most

convincing, especially to the Jews of eastern Europe.

Theodor Herzl, in The Jewish State, laid down the need for a

Jewish homeland. He rejected the theory of assimilation on

the ground that Jews, regardless of nationality, and

devotion to their nation, are strangers in their land. The

Jews in Europe are aliens in their own countries, treated

with suspicion and contempt by their hosts. To escape from

this camp of injustice the Jews must establish their own

home. Unlike the more radical Zionists of the inter war

period, Herzl was not specific.

10*Cattan, p. 221.

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We naturally move to those places where we are not persecuted, and there our presence produces persecution. This is the case in every country, and will remain so, even in those highly civilized— for instance, France— till the Jewish question finds a solution on a political basis. The unfortunate Jews are now carrying Anti- Semitism into England; they already introduced it into America.10 *

Palestine, the Zionists argued, would not he large

enough for the "Jewish people", but it would be a good

start. It was assumed that the Jews would, given the

change, leave and settle in a Jewish state. This, however,

was another miscalculation on the part of the Zionists,

especially those from eastern Europe. The need for a Jewish

homeland was rejected by prominent Jews in Europe and the

United States. Henry Morgenthau, a former Ambassador to

Turkey, rejected Zionist claims as "the most stupendous

fallacy in Jewish history. I assert that it is wrong in

principle and impossible of realization; that it is unsound

in its economics, fanatic in its politics, and sterile in

its spiritual ideas."110 In an anti-Zionist petition,

signed by 39 prominent Jews, which was called "perhaps the

most forceful statement of the anti-Zionist Jewish position

ever made,"111 the petitioners asserted that the demand for

a Jewish homeland "not only misinterprets the trend of the

history of the Jews, who ceased to be a nation 2,000 year

10’Theodor Herzl, The Jewish State (New York: American Zionist Emergency Council, 1946), p. 75.

11°Silverberg, p. 89.

1 “ Ibid.

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ago, but involves the limitation and possible annulment of

the larger claims of Jews for full citizenship and human

rights in all lands in which those rights are not yet

secure."112

The fourth basis of the Zionist claim can be found

in moral grounds. Anti-semitic feelings in Europe and the

suffering of the Jews under the Nazi occupation show that

the Jews, no matter how far they have moved up in the social

setting, will always be the victims of zealots or fanatics.

Only in a Jewish state can the Jews be free of

discrimination and suffering. Jabotinsky saw the need for

creating a Jewish state in Palestine as being morally

superior to Arab opposition.

He regarded Arab opposition to Zionism and Jewish settlement as naturally inevitable. But since the Jews in Europe were facing a catastrophe, whereas the situation of the Arabs was secure in the Middle East, he believed the moral case of the Jews to be infinitely stronger.113

Jabotinsky further argued that "either the Jews had a right

to a state, in which case Arab resistance was immoral, or

they had no such right, in which case the whole argument for

Zionism collapsed."114

112Ibid.

113Laqueur, p. 348.

114Ibid.

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To gain support for their dream, the Zionists

adopted the slogan "people without a land to a land without

people." This misleading statement neglected to mention

anything about the Arab inhabitants of Palestine.

References to the Arab population that did emerge, however,

were contradictory and misleading. Such references ranged

from clear cut rejection of the existence of an indigenous

population to an acknowledgment of an Arab population that,

if educated, would support the Socialist Zionists. These

various views gave mixed messages. Some called for a

unified Arab-Jewish state, based on an equal share of power,

while others supported the creation of an independent state

in any part of Palestine. Another proposal called for the

creation of a sovereign state on both sides of the Jordan.

And then there was the plan to create a Jewish state that

would become a member of the British Commonwealth.x15 All in

all, such views were later limited to two: the

Revisionists, who advocated the use of force to attain an

independent Jewish state, if not in all of the Mandate, then

in all of the West side of the Jordan; and the Socialists,

who were willing to compromise in order to create a state in

any part of Palestine granted to them.

115At the third Zionist Congress in Vienna in 1928, the Revisionists gave their blessing to the plan by the Pro- Zionist British politician Sir Josiah Wedgwood that would have admitted Palestine as the seventh member of the British Commonwealth. This idea, like many other plans that did not call for the establishment of an independent Jewish state, quickly faded.

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The position of the Revisionist Zionists gained

momentum with the Zionist awakening in the United States.

The Biltmore Declaration of May 1942, pushed by the American

Zionists, called for the establishment of a Jewish state in

all of Palestine and rejected the plans for a partitioned

state.114 The declaration led to a widening gap between the

pragmatists, Socialist Zionists David Ben Gurion and Chaim

Weizmann, and the militant Revisionist Zionists lead by the

American Rabbis Abba Hillel Silver and Emanuel Newmann,

vice-president of the Zionist Organization of America.

At the September 1945 World Zionist Congress meeting

in London, the American delegate, Rabbi Silver, rejected

Weizmann's request for a partitioned state and the need to

find a political solution to the Zionist demands. Rabbi

Silver, echoing the voices of the more radical Zionists,

especially the late-coming Americans, saw a time for

military action. "If our rights are denied to us, we shall

11‘At the conclusion of its meeting in the Biltmore Hotel in New York in May 1942, the World Zionist Congress issued its eight-point Biltmore Program. The last point being the most important: The conference declares that the new world order that will follow victory cannot be established on foundations of peace, justice and equality, unless the problem of Jewish homelessness is fully solved. The conference urges that the gates of Palestine be opened; that the Jewish Agency be vested with control of immigration into Palestine and with the necessary authority for upbuilding the country, including the development of its unoccupied and uncultivated lands; and that Palestine be established as a Jewish Commonwealth integrated into the structure of the new democratic world. (For full text see ESCO, vol. 2, pp. 1084-1085).

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fight for them with whatever weapons are at our

disposal."117 Emanuel Newmann called for a more active

struggle against the Mandate power. "Diplomacy, he said,

could succeed only if backed by force, by a resistance

movement."11* When the United Nations Special Committee on

Palestine (UNSCOP) presented its plans for the boundaries of

the Arab and Jewish states in Palestine, Rabbi Silver

outright denounced them as delivering a "great blow and we

must fight against this."11’

The claim of the Zionist Organization— and later of

the state of Israel— to represent the "Jewish people" had

been its basis for legitimacy. This claim, however, was

never fully accepted. In a letter to Rabbi Berg, a leading

anti-Zionist Jew, the United States Department of State

rejected the concept of a "Jewish people".

The Department of State recognizes the State of Israel as a sovereign State and citizenship of the State of Israel. It recognizes no other sovereignty or citizenship in connection therewith. It does not recognize a legal-political relationship based upon the religious-identification of American citizens. It does not in any way discriminate among American citizens upon the basis of their religion. Accordingly, it should be clear that the Department of State does not regard the "Jewish people" concept as a concept of international law."120

11’Quoted in Laqueur, pp. 566-567.

llsLaaueur, p. 575.

11’Silverberg, p. 343.

120 Whiteman Digest of International Law 8 (September 1967):35.

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The contemporary implication of the concept of "Jewish

people" by Israel is a deliberate usage to place Israel as

of the Jews not living in Israel.121 The

attempt to transfer "Jewish people" to constitute an

additional nationality, with membership to be applied to all

Jews, was flatly rejected. The United States government,

for example, rejected claims of religious identity as

grounds for recognition. Such a recognition, the State

Department contended, would convey Israeli citizenship to

all American Jews, whether they like it or not. Rejection

of the "Jewish people" concept was based on the fear that

such citizenship would affect the condition of Jews in

Eastern Europe and feed the flames of anti-semitic

sentiments all over the world, including the United States.

The fact that anti-Zionist Jewish members of the British

cabinet and Parliament were opposed to the creation of a

Jewish state is clear evidence of the danger they perceived

world Jewry would face in their home countries. The events

during World War II, however, changed many minds, and

brought new life to the fragmented Zionist movement.

121The terms "exile" or "diaspora" are used by Israel to classify Jews not living in Israel.

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THE PALESTINE LIBERATION ORGANIZATION AND THE

LAW OF WAR

Although there is a lack of agreement on the status

of the PLO in international law— mainly for political rather

than for legal reasons— there is much more agreement on the

rights and duties of belligerency. In situations of war,

the PLO has been able to exercise what amounts to sovereign

powers over Palestinians and has participated in many cease­

fires. The first such status was given to the PLO in 1969,

after an agreement was concluded between it and the Lebanese

army in an attempt to prevent war. In September 1970, an

agreement was reached between the PLO and Jordan that put an

end to the bloody war between the Palestinian forces and the

Jordanian Army. The Cairo Agreement, signed by ten Arab

states, in essence gave the PLO the right to exercise nearly

all governmental authority. This chapter will discuss the

development of the law of war and its application to the

resistance movement.

The emergence of humanitarian laws of war were the

result of the state of war chat dominated Europe for

centuries and resulted in the killing and looting of

combatants and noncombatants alike. Such acts, both on and

82

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off the battle fields, perpetuated the conflicts and made a

quick end to the conflict virtually impossible without a

total victory in which the vanquished was at the mercy of

the victor. In most cases, mercy was not shown.122 The

notion of holding prisoners was not accepted for various

reasons. Those that were spared from the killings, were

enslaved.

Just War

St. Augustine and Francisco Suarez pronounced the

characteristics of the "just war" principle theologically

and scholastically. Both men included in their

pronouncements an emphasis on the inviolability of non-

combatants. The Principle of Proportionality, advanced by

St. Thomas Aquinas, proclaimed that "the damage done by the

forces offered should not exceed the military advantage thus

to be gained."123 Immanual Kant carried St. Aquinas’

statement further by stating that a state should not

perpetuate during war any hostilities which would make

mutual confidence in a future peace impossible:

Such as employing assassins (percussores), poisoners (venefici}, breeds of capitulations, secret instigations to treachery and rebellion (perduello) in the hostile state...(for) some kind of confidence in the disposition

122The principle of humanitarian law under the Islamic law of war was developed at the time of the Prophet Mohammad during the early year of Islam. The Islamic Law of War will be discussed in depth in chapter V.

123Peter Karsten, Law, Soldiers, and Combat (Westport, : Greenwood Press, 1978), p.12.

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of the enemy must exist even in the midst of war, or otherwise...the hostilities will pass into a war of extermination (bellum internecium)....Such a war..., and also the use of all means which lead to it, must be absolutely forbidden.124

Emmerich de Vattel also developed the theory of

proportionality advanced by Kant.

All damage done to the enemy unnecessarily... is a licentiousness condemned by the law of nature...(for) if you once open a door for continual accusation of outrageous excess in hostilities, you will only augment the number of complaints, and influence the minds of the contending parties with increasing animosity; fresh injuries will be perpetually springing up, and the sword will never be sheathed till one of the parties be utterly destroyed.125

Necessity Principle

While Kant saw the lack of rules for war as a

hindrance to future peace, Vattel advanced the theory of

reciprocity, or "do onto others as others have done onto

you." The fear of endless bloodshed, nevertheless, was on

the minds of all. This view, however, did not prevent

Vattel from promoting the "necessity principle". While

Vattel condemned devastation as "savage and horrible

excesses", if resorted to without necessity, he justified

necessity if it were to meet two criteria.

First, when there was a 'necessity of punishing an unjust and barbarous Nation, of putting a stop to its cruelty, and preventing acts of depredation'— so long as the punishment fell on the right people, and not just on the helpless, uninfiuential, and 'innocent'; second,

124Ibid., p. 14.

125Vattel, cited by Karsten, pp. 13-14.

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when a sovereign determines to create a barrier of wasted territory to protect his frontiers against an enemy whom it is otherwise impossible to check.124

Gerald de Rayneval, in Institutions du droit de la nature et

des gens, "concluded that devastation of enemy territory

could sometimes be justified when retreating before superior

forces,"127 but he warned that such action could be

dangerous in that it would make the enemy "thirst for

revenge;" therefore, such action should only be undertaken

in the most extreme necessity, as a gamble for survival.128

Emmerich de Vattel seemed to develop a justification

for intervention on what is now recognized as "humanitarian

intervention". His "necessary clause" was adopted by

Napoleon, although that is questionable by looking at his

Russian campaign. "My great Maxim", said Napoleon, "has

always been, in politics and war alike, that every injury

done to the enemy, even though permitted by the rule (i.e.,

customary international law), is excusable only so far as it

is absolutely necessary; everything beyond that is

criminal."12 *

124Geoffrey Best, Humanity In Warfare (New York: tt— . ; j . . . . i nn a \ - r- r- uuivcLait^ rLeddf i?ou;, d o .

12 7Ibid., p. 66.

12 8 Ibid.

12’Buchhardt, cited by Best, p. 49.

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The problem at this stage of the development of

humanitarian law was that it was more concerned with

preventing excesses than protecting the non-combatants.

While the "necessity clause" could be hailed as a major step

in the development of the law of war, the scholars kept

quiet as to what constituted a "necessity".

Necessity alone justifies Nations in going to war; and they should all refrain from, and as a matter of duty oppose, whatever tends to render war more disastrous....The natural law...forbids us to multiply the evils of war indefinitaly.130

Montesquieu put it this way: "The law of nations is

naturally founded on this principle, that different nations

ought...in time of war (inflict) as few injuries as

possible, without prejudicing their real interests."131 The

views of the early writers, as well as those of the

contemporary ones, held to the opinion that everything that

was necessary to the attainment of a purpose and that was

not expressly prohibited, was legitimate.

The introduction of the limited humanitarian law had

as its purpose the prevention of long wars while not

hampering the success of campaigns. This can be clearly

13"Emmerich de Vattel, The Law of Nations or The Principles of National Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns, vol. 3, trans. Charles G. Fenwick vWashington: Carnegie Institution of Washington, 1916), p. 289.

131Charles Louis de Secondat Montesquieu, De I'esprit des Lois (The Spirit of the Law) (Berkeley: University of California Press, 1977), Book I, Chap., 3(4), p. 94.

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seen in the vagueness of the law and the contradictory

statements made by the various publicists of the seventeenth

and eighteenth centuries. Hugo Grotius, the prime publicist

of his time, regarded the whole population of the

antagonistic states as enemies. Vattel, who regretted

excesses, had a different view of the population. "Since

women and children are subjects of the States and members of

the Nation," he wrote in 1758, "they should be counted as

enemies...." Vattel goes further by arguing that property

belonging to the "subjects of every age and both sexes,

constitute enemy property."1'2 With this statement Vattel

gives in to the pragmatic view that going to battle includes

a right to the spoils of victory.

When the ruler of the State, the sovereign declares war upon another sovereign, it is understood that the whole Nation is declaring war upon the other Nation....These two Nations are therefore enemies, and all the subjects of one Nation are enemies of all the subjects of the other.13 3

This, however, can only happen once war was declared.

During the American Civil War, the Secretary of War

requested Dr. Francis Lieber, a law professor at Columbia

University, to prepare a code of conduct for the Union Army

in the field. This code conformed to the already existing

rules of war and contained "such modifications as were

necessary to adopt those usages to the particular

13 2Vattel, p. 259.

133Ibid.

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circumstances of the contest then prevailing."13* These

rules, known as the Lieber Code, were made obligatory upon

the armies of the United States. The Lieber Code was among

the earliest published rules of warfare in the West, which

also set the stage for the various law of war

conferences.13 5

The Hague Conventions

Much of the codification of law of war emerged from

the concern man had with the advent of more sophisticated

military technology and the new weapons of destruction. A

clause in The Hague Convention of 1899 outlawed the dropping

of bombs from balloons, a ban which was renewed in 1907, but

this time a number of states indicated reservations. "In

1908 the British jurist T.E. Holland declared it

'defective.'ni3‘ Nevertheless, in 1916 Zeppelin crews were

treated as criminals by the British.137

The Hague Regulation 23 (g) of 1907 codified the

"necessity" clause first stated a century earlier. Property

belonging to citizens of an enemy state was not to be

13*Percy Bordwell, The Law of War Between Belligerents: A History and Commentary (Chicago: Callaghan and Co., 1908), p. 73.

13 5As will be illustrated in chapter V, rules of war under the Islamic law of nations had been in existence a millennium before the Lieber Code came into existence.

136Karsten, p. 23.

13 7 Ibid.

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destroyed unless it was "imperatively demanded by the

necessities of war." This regulation left it up to the

field commander to make the decision whether it was

necessary or not. This language, nevertheless, was stronger

than any language used previously.

Article 1 of The Hague Convention IV of 1907

attempted to regulate armed conflicts by setting the

requirements to be met by a belligerent force, and thus

entitled to the prisoner of war status. Article 1 states:

The laws, rights, and duties of war apply not only to the army, but also to militia and volunteer corps fulfilling all the following conditions: 1. They must be commanded by a person responsible for his subordinates; 2. They must have a fixed distinctive sign recognizable at a distance; 3. They must carry arms openly; and 4. They must conduct their operations in accordance with the laws and customs of war.

At Brussels, the delegate from Sweden and Norway, Colonel

Staaf, rejected the exclusion of militias from protection

under the Regulations if they wore no "distinctive sign".

Staaf successfully argued that militias form part of the

army of the countries he represented without a distinctive

mark. He brought forth the case of the war in South Africa

in which the Boer forces were similarly situated.

When men act in large bodies, after the manner of armies, it would seem that the lack of a uniform, or of something approaching it, would not subject them to penal measures, and it did not do so in South Africa. Where such forces are derailed on detached service, however, all the reasons for some fixed sign to distinguish combatants from noncombatants came into

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play, and the fact that such forces are considered past if the "army" would appear to be immaterial.13'

Colonel Hammer of Switzerland, whose country also depended

on the militia system, introduced the last paragraph which

required that combatants "conduct their operations in

accordance with the laws and customs of war." Thus, the

whole of the article granted protection to militias and

volunteer corps whether they constitute part of an army or

not. The effectiveness of irregular fighters can be traced

throughout history. The struggle carried on by the burgher

and peasants in Holland and Switzerland, as well as the

impromptu fights at Lexington and Concord as part of the

American war of independence, illustrates the general

effectiveness of guerrilla warfare. It would be misleading

to call them "amateurish" while referring to the regular

armies as "professional", for such a distinction would

provide a false impression of the ability of guerrilla

fighters. In many instances, they tend to be more skilled

at what they are doing than the army recruits. The

guerrilla forces, however, tend to be "less professional in

one important sense; whereas the 'regulars' fought to some

extent 'by the book'...the guerrillas fought as nature,

nurture, and nationality taught them."13'

13'Bordwell, pp. 228-229.

13'Best, pp. 117-118.

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How one perceives the guerrilla forces depends on

whose side one is on. In the American Civil War, the Union

saw guerrilla fighters as criminals. To discourage support

for the Confederate Army, General Ulysses S. Grant issued

General Order No. 60 on July 3, 1862, in which he declared:

The system of guerrilla warfare now being prosecuted by some troops organized under the authority of the so- called Southern Confederacy, and others without such authority, being so pernicious to the welfare of the community where it is carried on, and it being within the power of the community to suppress this system, it is ordered that whenever loss is sustained by the Government collections shall be made by seizure of a sufficient amount of personal property from persons in the immediate neighborhood sympathizing with the rebellion to remunerate the Government for all loss and expense of collection.140

The order went further by stating that "persons acting as

guerrillas without organization and without uniform to

distinguish them from private citizens are not entitled to

treatment as prisoners of war when caught, and will not

receive such treatment."141 It was difficult to deny the

fact that such hostilities could be and were carried out by

"regulars" in full uniform. Colonel Mosby of the

Confederate army operated in such fashion behind General

Grant's lines. The same was exercised by French groups

against German occupation.

148 Official Records of the War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Series I, vol. XVII, Part II, prepared by Lieut. Col. Robert N. Scott (Washington: G.P.O., 1887), p. 69.

141Ibid.

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If these men had not been in uniform, they could, when caught, have been shot as spies and/or as civilian saboteurs; but they were neither; besides possessing proper credentials they wore uniforms and carried arms openly; they were guerrillas by a modern loose use of the word but their adventurous operations were very like those which the ancien regime has known as the 'small war', the lawfulness of which had never been doubted.142

The Union did, however, grant POW status to captured rebel

soldiers in the hope that such treatment would be

reciprocated when Union soldiers were captured by the South.

The Geneva Conventions

The third Geneva Convention of 1949 set new rules

which grant irregular armed forces prisoner of war status.

Paragraph 2 of Article 4A of the Convention confers such

status on:

Members of other militias and members of other volunteer corps, including those organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied,....

This article established Article 1 of The Hague Regulation

as a condition to be met in order for an individual to be

entitled to protection under the article. The problem with

this requirement is that it applies to full-time solders,

and it is unlikely that guerrilla fighters will be able to

wear distinctive signs, especially if they are to operate in

occupied territories. For the Palestine Liberation

Organization fighters to wear such signs to distinguish

themselves at all times would make them a target. It would

l42Best, p. 191.

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not be rational to expect a guerrilla fighter to respect

this condition and hope to survive. "The carrying of arms

openly should be an adequate distinction for the armed

combatant, and it is more compatible with the frequent need

of the guerrilla to shift quickly from combatant to

noncombatant status."141 Not all guerrilla members carry

firearms. Some may belong to Lhe organization but not serve

as combatants. For such members to be required to

distinguish themselves in order to be entitled to prisoner

of war status would surely lead to their arrest. Those

civilians whose only relation to the guerrilla organization

is to move supplies for them would be prevented from

carrying out their assignments freely without hampering

their mission if they did have a "fixed distinctive sign

recognizable at a distance." Furthermore, people arrested

on suspicion of belonging to a guerrilla movement would be

protected as POWs. What is more detrimental to the rule is

that even if the guerrilla fighters met all the requirements

of Article 4A(2) of the 1949 rule, the occupying power can

still deny captured guerrilla POW treatment. This is

achieved in two ways. First, the occupying power can refuse

to "recognize the party to the conflict to which the

guerrilla belongs" and second, paragraph 2 of Article 4 of

the Convention, requires that organized resistance movements

141George Aldrich, "New Life For The Law of War," American Journal of International Law 75 (October 1981):769.

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must respect the laws of war, otherwise they can lose their

POW status, while regular units would not loose such

status.144

A declaration approved at the Teheran 1968 United

Nations International Conference on Human Rights provided

that persons struggling against minority racist or colonial

regimes "should be protected against inhuman or brutal

treatment", and if detained "should be treated as prisoners

of war or political prisoners under international law."145

The Teheran declaration favored granting the right of

prisoner of war treatment to guerrilla fighters. While the

declaration does not mention the right to a status,

treatment of PLO fighters as POWs, nevertheless, would be a

de jure recognition of the PLO. The consequences of an

Israeli recognition of the PLO, or vice-versa, are beyond

the scope of this study.

While Israel does not recognize the PLO as a "Party

to the conflict," it does recognize the state of war that

exists between it and members of the Arab League144 of which

the PLO is a full member representing Palestine. Thus a de

facto recognition of the PLO by Israel does exist. Israel

144Ibid.

145G.A. Res. 2444, 23 U.K. GAOR, Supp. (No. 18) 50, U.N. DOC. A/7433 (1968).

144For an analysis of Israel's relationship as a belligerent, see Julius Stone, Israel and Palestine: Assault on the Law of Nations (Baltimore: The Johns Hopkins University Press, 1981).

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also recognizes the PLO by blaming it for virtually all acts

directed against Israel. The July 1982 invasion of Lebanon

had been justified on the ground that the PLO was

responsible for the assassination attempt on Israel's

ambassador to London, an action claimed by Abu Nidal's June

Movement. Abu Nidal, a renegade member of the PLO, was

sentenced to death by the PLO for various crimes. This will

be discussed later. Other justifications for the Lebanese

invasion were the allegations that the PLO did not adhere to

the 1981 cease-fire.147

The problem here is the interpretation of the

agreement. Under the U.S. negotiated cease-fire, both

parties agreed not to attack each other. Israel interpreted

the agreement to include and cover its backed and trained

"." The PLO, on the other hand, did not

consider Major Haddad's South Lebanon Army as being covered

by the cease-fire, and shelling between the South Lebanon

Army and the PLO took place at various times.144 The issue

here lies in the definition of what constitutes cease-fire

violations. While U.N. observers acknowledge that the PLO

has adhered to the agreement and had stopped attacks against

Israeli forces and shelling of northern Israel, attacks

147U.N. observers and Western diplomats have refuted this point.

144It is worth mentioning that the armed conflict between the South Lebanon Army and the PLO and non-PLO Palestinian and Lebanese militias has taken place on Lebanese soil in Israel's self-proclaimed "security zone."

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against the Haddad militia have not been curtailed. The

main reason for the invasion was not the "violations" or the

assassination attempt on the Ambassador in London, but an

opportunity for Israel to destroy the PLO, not just as a

military threat, which it wa-s not to Israel, but as an

infrastructure and as a main political actor in the Middle

East dispute. Professor Amos Perlmutter argues that the PLO

was no match for Israeli military might. What threatens

Israel most was not PLO guns or rockets, but its political

successes, especially in Europe.

The PLO had finally all but ended its terrorism and for a while toned down its military activities, embarking upon a world-wide diplomatic campaign advocating the legitimization of a Palestinian state with the PLO as the Palestinian's only political representative. The public relations and diplomatic campaign was effective, drawing support from European countries as well as the Carter administration.14’

The 1981 U.S. negotiated cease-fire agreement proved

to the world and the critics of the PLO that the

organization has the political structure and support to

enter into an agreement and observe its obligations under

that agreement. This was more dangerous to the Israeli

government than having to face the PLO in battle. It was

clearly these political advantages that threaten Israel, not

the PLO's military capacity. The Israeli argument that the

assassination attempt and the unsubstantiated cease-fire

violations by the PLO were the causes for her invasion of

14’Perlmutter, pp. 320—21.

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Lebanon are groundless since Israel had been preparing to

invade for a long time. Israel just needed an excuse. The

fact that the assassination attempt was not carried out by

the PLO proved that Israel applies two sets of rules vis-a-

vis the PLO. The PLO is recognized as the culprit in

terrorist acts against Israel regardless of which

Palestinian group has carried out the act, but is not

granted recognition as a party to the conflict. Under

Article 4A of the third Geneva Convention of 1949, Israel

denies recognition to the PLO as a belligerent. Article 4A

can be interpreted to imply that the guerrilla force as a

whole is required to observe the law of war to maintain its

POW status. As far as the Israelis are concerned, all acts

of violence directed against it are authorized and carried

out by the PLO.

Protocols I and II of 1977

The Diplomatic Conference of 1974150 was an attempt

to remedy the deficiencies of the Four Geneva Conventions.

The conference, called on behalf of the International Red

Cross by the Swiss government, represents the first major

conference on the Geneva Conventions since 1949. The Third

World saw in the conference an opportunity to develop new

international law, while the West saw it as a forum to

15“Diplomatic Conference for the Reaffirmation and Development of Humanitarian Law Applicable in Armed Conflict.

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reaffirm existing international law. The major stumbling

block between the two camps, not surprisingly, was the

question concerning national liberation movements and wars

of national liberation. Article 1 of Protocol I was the

major area of disagreement, for, as the West saw it, this

article gave a broad definition of what constitutes an

international conflict.151 Article 1 restated the 1973

United Nations General Assembly resolution 3103 (XXVIII) on

"Basic Principles of the Legal Status of the Combatants

Struggling Against Colonial and Alien Domination and Racist

Regimes. This resolution gave a clear definition of wars of

national liberation by declaring that

The armed conflicts involving the struggle of people against colonial and alien dominations and racist regimes are to be regarded as international armed conflicts in the sense of the 1949 Geneva Conventions, and the legal status envisaged to apply to the combatants in the 1949 Geneva Conventions and other international instruments is to apply to the persons engaged in armed struggle against colonial and alien domination and racist regimes."152

The ICRCs' proposed changes to the Geneva Conventions were

to grant additional protection to national liberation

movements already granted under common Article 3 of the 1949

conventions.153 While the draft article was welcomed by the

151Article 1 was passed overwhelmingly by a vote of 70 to 20 (mainly Western) with 13 abstaining (mainly ncsucLu/•

152United Nations General Assembly Resolution 3103 (XXVIII) December 1973.

153Article 42 of Protocol I provided: 1. In addition to the persons mentioned in Article 4 of

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Third World in principle, it, nevertheless, fell short of

Third World demands to include wars of national liberation

as international conflicts. Article 42 covers captured

members of national liberation movements and grants them

prisoner of war status. Article 42 (3) does not recognize

wars of national libration as international conflicts.

Article 1, on the other hand, gives a broad definition of

international conflicts.

The reasons for the Third World's insistence that

wars of national liberation be recognized as international

conflicts has to do more with the era of colonialism and its

struggle for independence. It is worth mentioning that the

Swiss Federal Council, the host of the Diplomatic

Conventions of 1974 and 1976 on behalf of the International

the Third Geneva Convention, members of organized resistance movements who have fallen into the hands of the enemy are prisoners of war provided such movements belong to a party to the conflict, even if that party is represented by a government or an authority not recognized by the detaining power, and provided that such movements fulfil the following conditions: (a) that they are under a command responsible to the conflict for its subordinates; (b) that they distinguish themselves from the civilian population in military operations; (c) that they conduct their military operations in accordance with the conventions and the present protocol.

2. Non-fulfillment of the aforementioned conditions by individual members of the resistance movement shall not deprive other members of the movement of the status of prisoners of war. Members of a resistance movement who violate the conventions and the present protocol shall, if prosecuted, enjoy the judicial guarantees provided by the Third Convention and, even if sentenced, retain the status of prisoners of war.

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Committee of the Red Cross, invited the PLO along with

thirteen national liberation movements recognized by the

Organization of African Unity as full members with full

rights except that of voting. Attempts by North Vietnam to

invite the Provisional Government of Vietnam (PGV) to the

Conference failed, and North Vietnam boycotted the first

session in protest.154

Protocol I, therefore, was seen as an anti­

colonialist measure. The lack of interest expressed by the

Third World at the second Diplomatic Conference in 1976

reflects the inability of the Third World to act as a bloc

in areas that are not perceived to be anti-colonial. The

fact that Protocol II deals with internal armed conflict,

put the Third World on the defensive; thus, they tried to

establish a high threshold when Protocol II is to be

evoked.155 The West, led by Canada, wanted to set a low

154It appears that the move not to grant PGV observer status by the same counties that voted to have fourteen national liberation movements attend was a move not to antagonize the United States. The national liberation movements that attended were all from Africa, except the PLO, and were fighting for independence against colonialism, with their targets being mainly Portugal and South Africa. By not inviting the PGV, the Third World majority could count on the United States, if not to actively oppose them, at least to moderate its stand on issues of decolonization and independence movements.

15’Article 1 of Protocol II provides; 1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 with out modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to

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threshold on the application of Protocol II. The fear of a

low threshold was that Protocol II could be used against the

Third World by their own minorities. With a low threshold,

a large number of Third World countries would be covered by

it.15‘ The race riots and anti-war demonstrations of the

sixties and seventies could have evoked Protocol II against

the United States under a low threshold. It was unlikely

that any of the Third World counties, or for that matter

countries in the West or the East, were willing to ratify a

document that would give away its right to punish those who

took-up arms against it in rebellion. States wanted to

retain the right to punish rebels as they saw fit. The

treatment of rebels as prisoners of war, however, was to be

used in reciprocity, and was not a right given to rebels.

The teeth of Protocol II were removed by placing high level

conditions for the application of Protocol II. First, it

the Protection of Victims of International Armed Conflicts (Protocol I) and which takes place in the territory of a High Contracting Party between its armed forces and dissident armed forces of other organized armed groups, which, under responsible command, exer­ cise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this protocol.

2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

15‘The Anyanya in southern Sudan, Ibos in Nigeria, the Tigereans and Eritreans in Ethiopia, the Moros in the Philippines, Kantangans in Zaire, Tamils in Sri Lanka, Baluchis and Kurds in Iraq, the Kurds and Arabs in Iran, and the Dhofaris in Oman, just to mention a few.

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limits the application to groups "under reasonable command."

Second, the groups must have "control over part of its

territory as to enable them carrying out sustained and

concerted military operations;" finally, Article 1

stipulates that the rebels must first show their worthiness

of protection by implementing the article. The burden of

proof, therefore, was placed on the rebels and not the

states, a deviation from earlier support for national

liberation movements expressed in Protocol I.

The fact that in both Protocols I and II reference

is made to the common Article 3 is no guide for application

to the situation in their countries. The reluctance of

France to apply Article 3 to the and Great

Britain's refusal to accept its application in the conflicts

in Kenya and Cyprus in the 1950s and in Northern Ireland in

the 1960s and 1970s reflects fear of de facto recognition of

the movement or the conflict for that matter, despite the

expressed assurances to the contrary in the same article

that lays down the protection of victims of an "armed

conflict, not of international character." "The application

of the preceding provision," the assurances in Article 3 (2)

provide, "shall not affect the legal status of the Parties

to the Conflict." The question that should be asked is if

such established democracies and major contributors to the

development of international law as France and Great

Britain, rejected the application of Article 3, how can one

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expect newly independent and fragile governments— and in

many cases Africa is composed of unnatural nation-states— to

adhere to Article 3 after their independence when the

colonial power refused to grant them protection when they

were struggling for independence?

Israel and Protocol II

Professor Henry Cattan argues that Israel has not

acquired title to the territory it currently occupies for

various reasons.157 In his view, the claims by Israel that

it has title to the land— based on 1) the Balfour

Declaration of 1917; 2) the United Nations Partition

resolution of November 29, 1947; and 3) conquest and-

occupation in the 1948 war— are false and

unsubstantiated.155 First, the British government had no

right under the Mandate agreement and the Covenant of the

League of Nations to grant the Balfour Declaration.

Furthermore, the British Crown did not refer to a state, but

simply viewed with favor the establishment of a Jewish

homeland. The distinction between a homeland and a state is

that a national home

is a country where a people are acknowledged as having recognized legal position and the opportunity of

157For a Zionist view see Julius Stone, infra note 146, at 51-62.

155Cattan, p. 122.

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developing their cultural, social and intellectual ideas without receiving political sovereignty.15’

Secondly, the United Nations Partition resolution

has two main flaws. First, the resolution violated the

mandate agreement and the United Nations Charter under

Article 80 which expressly states that the conditions of a

Mandate cannot be altered without the consent of the

people.150 Second, the United Nations Partition resolution

called for the establishment of two states; whereas only

one state emerged. Thus, the existence of Israel at the

expense of the Palestinian state is a violation of the

spirit and the letter of the resolution. Therefore, the

state cannot legally exist. The third ground claimed by

Israel for title to the land is that of conquest and

occupation.151 This principle is rejected by the world

15*Erman Bentwick, Palestine (London: E. Benn, 1934), p. 101, cited in Cattan, p. 55.

150Article 80 (1) of the U.N. Charter states: Except as may be granted upon in individual trusteeship agreements, made under Articles 77 , 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any state or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.

151An implied right repeatedly claimed by Zionists is the principle of abandonment. (See Jacob C. Hurewitz, The Struggle for Palestine (New York: W.W. Norton and Company, Inc, 1950), pp. 319-32.) This argument rests on the notion that by leaving the land during the 1948 war, the Palestinian Arabs in essence relinquished title to the land. The question as to whether such migration was of "voluntary" nature as claimed by the Zionists, or the consequence of

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community along with the principle of the non-annexation of

territory. Furthermore, the principle of terra nullius1*2

has been rejected for a long time.163

If we were to accept Professor Cattan's thesis of

Israeli non-existence, a Palestinian state still exists,

therefore, and the PLO-Israeli conflict is a "conflict not

of international chara-jter" and the common Article 3 of the

Geneva Conventions is applicable. If we were to take the

Israeli-Zionist claim that a Palestinian state exists today

in what is now called Jordan,164 it can clearly be argued

that the PLO is fighting for the liberation of part of its

territory under belligerent occupation (i.e., the West Bank

and the pre-1967 territories). If we were to listen to the

Revisionist/Zionists and present Israeli government

officials,165 the whole of the Mandate of Palestine should

terror tactics carried on by the Zionist militias has yet to be answered. For a pro-Palestinian view, see J. Bowyer Bell, The Terror out of Zion: Irqun Zvai Leumi, LEHI, and the Palestine Underground, 1929-1949 (New York: St. Martin's Press, 1977) and Simha Flapan, Zionism and the Palestinians (New York: Barnes and Noble Books, 1979), and David Hirst, supra note 20. For a pro-Zionist view see , The Revolt (Jerusalem: Steimatazy's Agency Limited, 1951) and Larry Collins and , 0 Jerusalem! (New York: Simon and Schuster, 1972).

162Territory that prior to occupation had not been claimed by any other state is considered terra nullius.

16 3Georg Schwarzenberger, eu., A Manua1 of International L aw, 5th ed. (London: Stevens and Sons Limited, 1967), pp. 120-21.

164Stone, supra note 146 at 22-25.

16“Mainly Areal Sharon.

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be part of Israel. Upon the basis of this argument, the PLO

and its allies have succeeded in maintaining part of the

territory claimed by Israel. The PLO then has managed to

hold on to such territory and thus can claim to be a

provisional government of Palestine. In any case, King

Hussain's rule is thus challenged since Jordan does not

exist, but is part of Palestine, a claim rejected by the

Palestine revolution as a whole, not to mention the King

himself.

The Diplomatic Conferences of 1974 and 1977 gave the

Third World an opportunity to control and develop

international law. Since wars of national liberation have

been major means by which Third World countries gained their

independence, it was that area that they concentrated on.

The vagueness and double standard of Article 4A of the 1949

Geneva Conventions pertaining to guerrilla forces was to be

remedied through paragraphs 3 and 4 of Article 44 of the

1977 Geneva Protocol I, which takes into consideration the

problems of guerrilla fighters carrying on their struggle

while adhering to the Geneva Convention.1‘4 Article 1(4) of

14‘Article 44, sections 3 and 4 provides: 3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obligated to distinguish themselves from he civil­ ian population while they are engaged in an attack or a military operation preparatory to an attack. Recogni­ zing, however, that there are situations in armed con- filicts where, owning to the nature of the hostilities an armed combatant cannot so distinguished himself, he shall retain his status as a combatant, provided that, in such situation, he carries his arms openly:

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the 1977 Geneva Protocol II pertaining to the Protection of

Victims of Non-International Armed Conflicts applies:

to all armed conflicts not covered by ...(Article 1 of Protocol I) and which takes place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol

While this provision is designed to regulate the

conduct of non-state actors (i.e. national liberation

groups), it also adds the requirement of controlling

territory in addition to the traditional four requirements

for belligerency. While the PLO does not "exercise such

control over a part of its territory," this does not mean

that it has lost its belligerency status. Article 1 of

Protocol I guards against this by defining armed conflicts

(a) during each military engagement, and (b) during such time as he visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1(c).

4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, neverthe­ less, be given protections equivalent in ail respect to those accorded to prisoners of war by the Third Geneva Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Geneva Convention in the case where such a person is tried and punished for any offences he has committed.

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as those

...in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self- determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co­ operation among States in accordance with the Charter of the United Nations.

War of Liberation and the PLO

Since the United Nations classified Israel as a

"racist regime in occupied Palestine," defined Zionism as "a

form of racism and racial discrimination", called for "all

countries to oppose this racist and imperialist

ideology...",1*7 and declared the occupation of the West

Bank and Gaza as a violation of the principle of the

inadmissibility of acquisition of territory by force, the

PLO gained added legitimacy in fighting against such a

state. The provisions of this resolution have the effect of

raising the status of the PLO from one of a non-state

belligerent under the heading of "organized resistance

1<7United Nations General Assembly Resolution 3379 (XXX) (November 10, 1975). The resolution was adapted by roll-call vote of 72 to 35, with 32 abstentions and 3 absences. Those voting affirmative were predominantly Third World countries and East bloc states. Those casting a negative vote were: Australia, Austria, Bahamas, Barbados, Belgium, Canada, Central African Republic, Costa Rica. Denmark, Dominican Republic, El Salvador, Fiji, Finland, France, Germany (West), Haiti, Honduras, Iceland, Ireland, Israel, Italy, Ivory Coast, Liberia, Luxembourg, Malawi, Netherlands, New Zealand, Nicaragua, Norway, Panama, Swaziland, Sweden, United Kingdom, United States, and Uruguay.

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movements" to that of equal status with a belligerent state.

The PLO and the Status of Prisoner-of-War

The withholding of prisoner of war status from the

combatants of the PLO is not a matter of law, but one of

politics.

The Israelis find themselves in essentially the same position that U.S. Federal troops found themselves in during the American Civil War, when we absolv.'ely refused to consider the Confederate states as some form of government of a state in the international legal order. We, in fact, denied them the privileges of belligerency until the British in a way forced us to do so. During the Civil War and for 13 years thereafter, we refused to concede them belligerent status, but merely conceded to them that treatment in the name of humanity and to avoid the evils of reciprocity, reprisal and retaliation.1‘*

The PLO is more than just a national liberation

movement. It is the institutional expression of Palestinian

nationalism that has become a major actor in the

international political process. In Professor Richard

Falk's views, assessment of the MacBride Commission16’

on the view that the principal belligerent objective of Israel, which I think gave rise to these tactics are policies of conducting the war and of the belligerent occupation after the fighting stopped, car. only be probably characterized as one of 'ethnocide', a

16‘Alfred Rubin, "The Control of Violence in a Lebanese Context," Proceedings of the American Society of Anucmouivnoj.jLig w / / \ny>L ix ±yoo ) • X / 6 •

1‘* Israel in Lebanon: The Report of the International Commission to Enquire into Reported Violations of International Law by Israel During its Invasion of the Lebanon, Sean MacBride, Chairman (London: Ithaca Press, 1983).

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systematic effort to destroy the Palestinian will to maintain a separate national identity, to destroy their resolve and capacity to engage in a struggle for national self-determination and to establish a homeland for themselves.170

Based on the provisions of its Covenant, the PLO's

objectives are to be achieved through various methods. The

PLO Covenant states that "armed struggle is the only way to

liberate Palestine... .1,171 The U.N. General Assembly

resolutions on self-determination state that the PLO has the

right to take up arms to achieve self-determination. The

third paragraph of the preamble states:

it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.172

As stated earlier, the PLO is a party to the Middle East

dispute, either in its own right, or through its membership

in the Arab League. Article 2 of the Treaty of Joint

Defense and Economic Cooperation Among The States of the

Arab League provides:

The contracting States shall consider that an armed aggression committed against one or more of them, or against their forces, to be an aggression against them all. For this reason, and in accordance with the right of legitimate self-defense, both individual and

17“Richard A. Falk, "Humanitarian Law: Problems of the Law of Armed Conflict in Lebanon,” Proceedings of the American Society of International Law 77 (April 1983):217.

171Article 9 of the Palestinian National Charter.

172Universal Declaration of Human Rights. G.A. Res. 2/7 U.N. Doc. A/810, at 71 (1948).

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collective, they undertake to hasten to the aid of the State or States against whom an aggression is committed, and to take immediately, individually and collectively, all measures and to utilize all measures available, including the use of armed force, to repulse the aggression and to restore security and peace.173

Since a state of belligerency exists,174 either technically

or in reality, Palestine, as represented by the PLO, is thus

a party to the dispute. The PLO's actions in the October

War and in Lebanon were designed to meet its obligation

under Article 2 of the Arab League Charter.

The PLO has been exercising legal authority that has

been reserved for governments. Such authority meets the

requirements of Article 1 of The Hague Regulation IV of 1907

and Article 4 of the 1949 Geneva Convention requiring

belligerent forces to be under a responsible command. Such

powers are exercised at various levels and forms. The

extradition power exercised by the PLO was to punish

violators it has jurisdiction over in accordance with, the

Palestine Penal Code. This penal code meets the

requirements set in Article 43 of the 1977 Geneva Protocol

I, which states:

173Alan R. Taylor, The Arab Balance of Power (Syracuse: Syracuse University Press, 1982), p. 125.

174Since the Arab states did not recognize the state of Israel, the 1948 war was characterized by Egypt as a humanitarian intervention to protect the Palestinian Arab inhabitants and establish law and order following Great Britain's withdrawal from the area. Thus, it could be argued that the Arab-Israeli war is a domestic issue and therefore covered by Article 52 of the United Nations Charter pertaining to regional security and Article 5 of the Arab League charter on resolving inter-Arab disputes.

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1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates, even if that Party is represented by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.17 5

Under the Palestine Penal Code, the PLO tried PLO Executive

Council member Saber al-Banna (better known as Abu Nidal) in

absentia and sentenced him to death for crimes in violation

of PLO principles, including murder.17* The sentence was

never carried out because Iraq refused numerous requests of

the PLO for Abu Nidal's extradition. While the requests for

Abu Nidal's extradition were ignored, the PLO successfully

exercised its extradition power in the 1973 Rome airport

killings and Lufthansa airliner hijacking, and the 1974

British Airways hijacking.

Such actions are in accordance with international

norms. The PLO as an organization has condemned every act

of hijacking carried out by the various Palestinian groups

since 1968, except two. "The two cases which seemed to us

justified (one in 1969, the other in 1972) directly

concerned the Israelis and therefore could be considered to

fall within the category of legitimate acts of war."177

175Article 43 (1) of the 1977 Geneva Protocol I.

17‘Alan Hart, Arafat: Terrorist or Peacemaker? (London: Sidgwick and Jackson, 1984), pp. 394-5.

177Abu Iyad, p. 104.

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Article 162 of the Palestine Penal Code makes it unlawful to

seize a person, train or vessel belonging to a foreign

state. The Arab Civil Aviation Council unanimously approved

a resolution in 1975 which regards El-Al Israeli Airline as

a military institution. The resolution, submitted by the

PLO delegation, in essence exempts the El-Al Israeli

Airlines from protection under the Palestine Penal Code, and

thus makes it a potential military target. Radical

Palestinian groups, such as Abu Nidal's group, carry out

their actions against Israel along the line of the total war

concept. For such groups, civilians travelling on El-Al

planes are aware of the nature and the risks they are taking

travelling on military targets in war zones. In a war zone,

military actions on these planes would be justifiable for

several reasons. First, civilians were warned to stay away

from a declared war zone. Their presence in a dangerous

area is their own choice. Second, foreign citizens flying

El-Al can no longer claim to be neutral, since flying El-Al

adds revenues to the state, and thus helps finance the war

efforts. Third, Israel’s justification for bombing

Palestinian refugee camps and other heavy civilian

concentrations in violation of established international

law,11" on the grounds that such areas are breeding grounds

17‘Articles 22 and 24 of The Hague Rules of Air Warfare pertaining to indiscriminate bombardment of non­ military targets. Article 22 states: Aerial bombardment for the purpose of terrorizing the civilian population population, or destroying or damaging

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for "terrorists", and therefore legitimate targets, is a

double edged sword. The radical Palestinian movements argue

that the same Israeli arguments also hold true for them and

their views that Israeli civilians are the recruiting base

of the Israeli army, and thus are also legitimate

targets.17* In addition, El-Al or for that matter any

carrier that flies into Israel is a potential supplier of

belligerent personnel. This point would not apply to

civilians of a country whose government is supporting the

war efforts of Israel, for the civilians do not have much to

say in such matters. Furthermore, actions against civilian

populations would injure those civilians who objected to

such support. In the case of flying El-Al, those civilians

become active supporters of the Israeli war efforts.

private property not of a military character, or of injuring non-combatants, is prohibited. Article 24 provides: The bombardment of cities, towns, villages, dwellings, or buildings not in the immediate neighborhood of the operations of land forces is prohibited and Article 54 (1) of Protocol I pertaining to the "starvation of civilians as a method of warfare...," and deliberate destruction or to "remove or render useless of objects indispensable to the survival of the civilian population..." under Article 54 (2) of Protocol I.

17’This is justified in view of the indiscriminate bombardment of civilian targets and the use of dubious weapons as well as the deportation of civilians from their homes and transporting prisoners across boundaries which constitute gross violations of the Geneva Conventions. Such acts constitute crimes against humanity and war crimes. In this case, granting the status of belligerents to Israelis can be refused and such persons can be referred to as war criminals.

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The views of the radical elements within the

Palestinian movement have been repeatedly denounced by the

PLO, and the concept of total war rejected by the PLO in

numerous international conventions, including Protocols I

and II of the Geneva Conventions. The most recent

denunciation of military acts outside Israel came in

November 1985. In the Cairo Declaration, Arafat "condemned

'all forms of terrorism1" and

pledged to punish terrorists and drew a distinction between military operations inside Israel-occupied territories and those committed outside, which he denounced.1'0

A statement prepared by Arafat's Fatah group, one that

condemns violence against civilians, which was to be

included in the the final communique of the 1987 Palestine

National Council session in Algiers was "forgotten" during

the final hours of the session.1*1 It appears, however, that

the statement was probably left out intentionally to appease

the more radical elements within the PLO as well as to try

to keep the increasing number of young radicals from

defecting from the mainstream PLO to the more militant

factions. It was hoped that this omission would avoid a

repeat of the situation that occurred in the 1960s and

1970s, when various Palestinian groups attempted to out do

180 Washington Post, November 9, 1985, at A14, col. 2 .

181 Near East Report, "Leaders Termed Out of Touch," July 13, 1987, p. 112.

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each other in recruitment of new members.

The PLO cannot be held legally responsible for every

act carried out against Israel that occurs anywhere in the

world. Citing the Coruf Channel Case, Boyle argues that:

In such matters involving allegations based on circumstantial evidence, the burden of proof is upon Israel to provided sufficient facts from which inferences that the PLO has sanctioned specific military operations can permissibly be drawn, 'provided that they leave no room for reasonable doubt.’1*2

Through its wars with Israel, the PLO acquired

rights and duties under the law of belligerency. Article 2

of the Hague Convention states:

The inhabitants of a territory not under occupation, who, on approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly, and if they respect the laws and customs of war.1 *3

Thus, Palestinians captured in Lebanon ought to be entitled

to the belligerent status under Article 2 and within the

meaning of the third Geneva Convention under Article 4(a)(2)

which extends POW treatments to members of organized

resistance, Article 4(a)(3), protecting regular armed units

professing an allegiance to an authority not recognized by a

detaining power, or to "Article 4(a)(6) protecting

inhabitants of a non-occupied territory who form themselves

182Francis A. Boyle, "Humanitarian Law: Problems of the Law of Armed Conflict in Lebanon," Proceedings of the American Society of International Law 77 lApril 1983):223.

lS3Sec. I, Chapt. I, Article 2 of the 1907 Hague Convention.

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into a levee en mass upon the approach of an invading

army."1*4 In case doubt exists as to whether a person,

having committed a belligerent act and having been captured,

belongs to any of the enumerated categories of Article 4(a),

Article 5 grants protection to such persons until their

status has been determined "by a competent tribunal."

The view of Israel is that Article 4 hinges on

whether people captured belong to a "Party to the conflict."

Their view is that "Party to a conflict" refers to a state

and since the PLO does not belong to a state party to the

conflict, it is not covered by this article. As has been

stated earlier, through its membership in the Arab League,

the PLO has become a party to the dispute; furthermore, its

active role in the international system and recognition of

such by many states has resulted in the PLO acquiring

international personality.1*5

Professor O'Brien supports Article 4 as a legal

requirement, as follows:

Persons participating in forces that are fighting for political purposes on a scale that warrants characterization as war...be treated as POW for all practical purpose. They should be given treatment equivalent to POW treatment.1**

1,4Boyle, "Humanitarian Law," p. 225.

145See I.C.J. 178 (1949), inter alia 81; McDougal, Lasswell and Reisman, p. 235.

1 *‘O'Brien, p. 405.

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The Israeli invasion of southern Lebanon in 1978 and the

subsequent call for a cease-fire by the United Nations

Security Council, although not mentioning the PLO by name,

implied it. In fact, Israel's acceptance was conditioned on

PLO acceptance of the cease-fire. The negotiated cease-fire

by U.S. special envoy Philip Habib in 1981 supported the PLO

claim that it was a party to the conflict since it, and not

the Arab governments with which Habib negotiated directly,

had to agree to the cease-fire agreement, an agreement

respected by the PLO.

Indeed, the evidentiary record clearly establishes that during the year preceding the invasion /July 19827, the PLO had in good faith adhered to the terms of the Lebanese-Israeli cease-fire successfully negotiated in the summer of 1981 by President Reagan's special envoy for the crisis, Philip Habib.1*7

Adherence to the cease-fire agreement is proof that

the PLO's command structure is able to control its members

and reemphasizes its role as "a Party to the conflict."

The view of Israeli opposition leader Peres of the cease­

fire was different from that of the ruling party. "The

cease-fire was made with the PLO," he said, and "there's no

point in concealing the truth, which must be spoken, even

when you're in government."1** It is fair to conclude that

the PLO acquired rights and duties under international law

187Boyle, "Humanitarian Law," p. 224.

18*Jonathen Randal, Going All the Way: Christian War Lords, Israeli Adventure, and the War ~in Lebanon (New York: Vintage Books, 1983), p. 239.

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by "virtue of the July 24, 1982 cease-fire agreement1 * *

The July agreement marked the first time in Israel's history

that a government in Israel agreed not to conduct military

operations, permanently or temporarily, against the

Palestinians anywhere. Such an agreement supports the PLO's

claim of representing all the Palestinians and that, under

the third Geneva Convention, the PLO is an "organized

resistance movement".

The 1982 Israeli move against the PLO clearly places

the PLO directly under the law of war.

In the fighting in Lebanon, particularly in and around Beirut, the PLO fought its most serious conventional battles with Israeli forces. The PLO forces were obliged to fight in comparatively large units. This was war in the material sense and the law of war ought to apply to hostilities of the character and magnitude. The PLO in these circumstances was a belligerent under international law, notwithstanding a lack of formal recognition as a belligerent by Israel, the United States or ocher interested parties.1’0

The agreement of August 1982 that followed the

Israeli invasion contained detailed provisions for the

evacuation of the PLO fighters from Beirut as well as the

return of two Israeli prisoners and the bodies of nine

Israeli soldiers. Since the beginning of the invasion on

June 6, 1982, the Israeli military authority has imprisoned

a total of some 9,000 Palestinian and Lebanese people at the

Ansar Prison in southern Lebanon. Statements made by the

‘•’O ’Brien, p. 396.

1’0Ibid., pp. 397-78.

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Israeli government to the effect that captured PLO soldiers

and officers will be treated as "terrorists" and thus

presumably deprived of their protected status under the

Geneva Conventions, would constitute a "grave violation of

the humanitarian laws of armed conflict that have been

universally accepted by all civilized states."1’1

Israeli practice towards captured PLO members varies

according to circumstances. Those members who were

"arrested" by Israel before 1967 were tried under Israeli

Criminal Law.1*2 Those arrested in the Occupied territories,

excluding Lebanon, are tried under Israeli Military

Occupational Law. PLO members taken in Lebanon are referred

to as "detainees" and not "arrested". These distinctions

are made by Israel to "comply" with the 1949 Geneva

Convention IV Relating to the Protection of Civilians in

Time of War.1’3 Israel's position is that the PLO forces

operate primarily as terrorists and therefore forfeit their

belligerent status rights under the law of war. Reports on

the PLO fighting force, however, contradict Israeli claims

of undisciplined terrorists. In Lebanon in 1982, Israel was

battling a Soviet-equipped and highly professional Syrian army... and a Palestine Liberation Army force that still called itself a guerrilla army but was about as far removed from a guerrilla army as Napoleon's were

191Boyle, "Humanitarian Law," p. 226.

1,2Provided they are Israeli Citizens, otherwise they are turned over to a military tribunal.

1’30'Brien, p. 404.

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removed from a group of battling cavemen.1’4

The Israeli claim of compliance with the Geneva Conventions,

however, is rejected by a wide spectrum of groups.

A large part of the

The views in the Report illustrate a different picture

between what is stated and what is actually practiced. Any

attempt to "enforce artificial legal rules based upon the

conception of permanency or other fixed limits," Professor

Alfred Rubin argues, "simply has no basis in the actual

practice of states interpreting their legal obligation

during belligerent occupation,"1’4 whether on the West Bank

or in Lebanon.

Israel's refusal to make distinctions between

"detainees" and "prisoners of war", is a political refusal

and not a legal one. It is up to individual states to make

classifications as long as they accept POW status. Although

the United States and Israel refuse to grant the PLO

belligerent status, a prisoner exchange took place between

the PLO and Israel in which 4,500 Palestinian and Lebanese

prisoners were exchanged for six Israeli prisoners. Although

this was a PLO/Israeli agreement negotiated directly between

1’4Perlmutter, p. 3.

1 ’ 5Falk, p. 217.

1,4Rubin, p. 173

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the two parties without either having to recognize the

other, it did convey de facto recognition of belligerent

status for the PLO. Even without according PLO soldiers and

officials belligerent status, they are entitled to the full

privileges and protections set forth in the Geneva

Conventions and the customary international law of

belligerent occupation.

The PLO, as the undisputed representative of the

Palestinian people, has gained the status of a belligerent

actor under the international law of war. The over one

hundred states granting recognition to it are proof of the

PLO's increasing role in the international system. Its

rights and duties under the laws of war have never been more

clear than after the Israeli incursion into Lebanon and the

subsequent results of the adventure. The lack of a defined

territory does not exclude the PLO from becoming a party

under the law of belligerency, for the law of war is, as

Professor Rubin had stated, "dumb and blind to the question

of who is right and who is wrong. It applies symmetrically

to both sides, and this is fundamental to the humanitarian

organization of the law of wars. Its object is to protect

the innocent, including surrendered soldiers."1’7

1,7Rubin, p. 172.

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THE PALESTINE LIBERATION ORGANIZATION AND THE

ISLAMIC LAW OF NATIONS

This chapter examines the Islamic Law of Nations,

particularly the concept of Jihad or Holy War, and its

application to the Palestine Liberation Organization. The

struggle of the PLO will be justified under the Islamic law

of war. While the PLO has maintained since its inception

that it is a secular national liberation movement, its major

support has been forthcoming from Islamic groups.

Historical Development

Since the revelation of the Qur'an to Muhammad

fourteen centuries ago, Islam has been one of the most

misunderstood faiths. There are numerous reasons for this

misconception. Professor Farooq Hassan claims that this is

due to the past political ascendancy of Islam’s adherents

and the rapid spread of its military and political success

coupled with intellectual glory. It was, however, the

political might of Muslims that contributed vastly to the

West's prejudice against Islam. The second major reason

Hassan gives for this misunderstanding is the nature of

Islam, which seeks to govern all aspects of the individual

123

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and the collective existence of the community.1’* Islam

regulates the whole of society. It is a system that not

only focuses on the relationship between man and God, but

regulates society and all aspects of man. Unlike

Christianity at its dawn, when its aim was not to set up a

state,1’’ the system brought about by Islam involves a

concept of universality or a supranational system during an

age of schism within Christendom and later feudal and tribal

conflicts. Life on earth was to be lived in accordance with

the law of God. In contemporary times, the ignorance and

misrepresentation of Islam has taken on a new dimension.

The conflict in the Middle East and the emergence of such

radical groups as the Islamic Jihad and (Party of

God), has brought Islam into the spotlight and there is a

focus on the threat of Islam to the "civilized" and "peace-

loving" countries, which the western and Christian states

consider themselves to be.

Jihad

The most complex and yet most stressed aspects of

Islam has been the duty of Jihad. Calls for Jihad by

obscure fundamentalist groups and their backers have been

emphasized while the true message of Islam is being diluted

1,4Farooq Hassan, The Concept of State and Law in Islam (Washington: University Press of America, 1981), pp. 1-2 .

19’"My Kingdom is not of this World." (John XVIII:36).

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in the midst of the "anti-West" rhetoric of the few.

Jihad has been interpreted by non-Muslims as being

"synonymous with war."200 One scholar contends that "the

propagation of Islam by the sword was a religious duty, and

any war which had for its aims the bringing of men to the

true religion was just."201 Thomas Hughes defines Jihad, in

the Dictionary of Islam, as

a religious war with those who are unbelievers in the mission of Muhammad. It is an incumbent religious duty, established in the Qur'an and the Traditions as a divinely ordained institution, and enjoined especially for the purpose of advancing Islam and of repelling evil from Muslims.2 0 2

From these interpretations it becomes clear that the

concept of Jihad has been limited in definition by

orientalists to mean war in which Muslims spread their faith

among the territories of the unbelievers. "It is the duty

of the head of the Islamic state," the eminent Hungarian

scholar Ignasc Goldziher once wrote, "to levy war on such

territories."203 Misinterpretation of the concept of Jihad

has been caused by the misunderstanding of the two concepts

of dar al-Islam and dar al-Harb. The orientalist

200Hassan, p. 202.

201Henry Masse, Islam, trans. Halide Edib (Beirut: Khayats, 1966), p. 80.

202Thomas Partic Hughes, Dictionary of Islam (London: W.H. Allen and Co., 1935), p. 243.

203Ignasc Goldziher, Introduction to Islamic Theology and Law, trans. Andras and Ruth Hamori. (Princeton, N.J: Princeton University Press, 1981), p. 102.

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interpretation of those complex conditions is that Islam has

divided the world into two parts, Dar al-Islam, or Abode of

Islam, and Dar al-Harb, or Abode of War. The first part

represents the Muslim World, and the latter consists of all

non-Muslim territories. A constant state of war exists

between the two parts until the Abode of War is transformed

into the Abode of Islam.

Arafat, in an interview with the Islamic monthly

magazine Arabia, denied accusations that the PLO had

replaced Islam as "an ideology of liberation" and replaced

it with nationalist and left wing ideologies.204

First I never claimed that the PLO was an Islamic organization. The PLO represents the whole of Palestinian people, its Muslims, Christians and even its Jews. But at the same time, it was us who gave jihad a meaning in the present time, after it had been absent for so long. In the we lost 72,000 dead and wounded. We advance for martyrdom, and ask whoever wants to follow. And I can ask you, did I prevent anyone from using whatever method he chose to liberate Palestine? I have not prevented an Arab army from using its military ideology to liberate Palestine, nor did I stop a party raising a Marxist, a nationalist, or a religious ideology from liberating Palestine.205

In order to understand the Islamic perception of the

Palestinian resistance movement, an explanation of the

concept of Jihad is necessary.

204 Arabia. "Whither The PLO?", July 1986, p. 21.

2 0 sIbid.

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Theory of Jihad

In principle, Jihad is the only form of war

permissible in Islam, thus, technically speaking, wars in

Islam are "holy wars" since jihad is called in the name of

Allah to fight against unbelievers and renegades from the

faith. "The Jihad in this sense," argues the leading

Islamic scholar, Majid Khadduri, "represents in Muslim law

what is known among Western jurists as just war."204 Ever

since the second oath of 'Aqaba was taken in 621 A.D., the

Jihad was unanimously accepted by the Muslims as a religious

obligation to fight for the cause of Islam, and the

objective of the Jihad is to turn Dar al-Harb into Dar al-

Islam. The Jihad has the effect of extending the sway of

the faith and Muslims' dedication to it is similar to that

of a monk to the service of God in Christianity. Abdalah

Ibn Mas'ud, a companion of the Prophet Muhammad, is reported

to have said:

'I asked Allah's Messenger, '0 Allah's Messenger! What is the best of deeds?' He replied, 'To offer the prayers at their early stated fixed times.' I asked, 'what is next in goodness?' He replied, 'To be good and dutiful to your parents.' I further asked, what is next in goodness?' He replied, 'To participate in Jihad in Allah's cause.'2 0 7

204Majid Khadduri, The Law of War and Peace in Islam (London: Luzac and Co., 1940), p. 20.

207A1-Bukhaari, The Translation of the Meaning of the Sahih Al-Bukhari. vol. 4, trans. Muhammad M u h s m Khan (New Delhi, India: Kitab Bhavan, 1984), p. 35.

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Service to Jihad does not come to an end until the whole

world constitutes one Muslim community and the greatest

glory bestowed on any person is death in the path of Allah.

Allah, referring to those who died in the battle of the

Trench,20* says in the Qur'an: "Think not of those, who are

slain in the way of Allah, as dead. Nay, they are living.

With their Lord they have provision."20’

Jihad is a required duty of the whole Muslim

community (fardh-ul-kifayah) and not an individual duty

(fardh-ul-'ayn). Collective obligation is the duty which is

imposed upon the community and binding the Muslims en masse

rather that individually. As soon as there exists a group

of muslims whose number is sufficient to fulfil the need of

a particular conflict, the obligation of Jihad no longer

rests on the others; "but if no Muslim would consecrate

himself to it, then the whole Muslim community was in delict

and liable for punishment."210 The duties of the Jihad exist

2 0 *A battle in which the Jews and pagans of Makkah organized a force of 10,000 strong and marched on to Medinah to face a Muslim force of 3,000 strong. The Prophet Muhammad ordered the digging of a trench around the city as an effective barrier against the invading horsemen. The battle also exposed the Jewish tribe of Banu Quraish's violation of its treaty with the Muslims to stay neutral in any conflict and in return the tribe would enjoy rights equivalent to Muslims, including the right to practice their religion in Medinah.

2 0’Qur'an 111:169.

210Majid Khadduri and Herbert J. Liebesny, eds., Law in the Middle East: Origins and Development of Islamic Law vol. 1 (Washington: The Middle East Institute, 1955), p. 354.

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as long as the universality of Islam has not been attained.

Ibn-Rushd, in al-Muqaddamah, maintains that the believers

may fulfil the call for Jihad in four ways: by his heart,

his tongue, his hands, and by the sword. "The first is

concerned with combatting the devil and in the attempt to

escape his persuasion for evil. The second and third are

mainly fulfilled in supporting the "right" and correcting

the "wrong". The fourth is concerned with fighting the

unbelievers and the enemies of the faith."211 It is under

these categories that the Islamic states support the PLO.

There are two types of Muslim forces, those for whom

Jihad is obligatory and those for whom it is not. To fall

into the first category, one must meet the following

qualifications: 1) be a believer; 2) be mature and of sound

mind; 3) be independent economically and be able to support

oneself and one's family (those who have debt obligations

must first get permission from the debtor); 4) be male,

although women have taken part in the Iraqi and Syrian

campaigns; 5) be an able-bodied person; and 6) participate

in the Jihad with good intention. The fact that the PLO

does not limit its membership, but is open to any person

willing to fight for their cause, does qualify the

organization under the these categories.

2 “ Khadduri (1940), p. 29.

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The universality of Islam dictates that the state of

war between the Abode of War and Abode of Islam continue

until Allah's final victory is achieved. Thus, in theory,

an end to the state of war can only be brought about when

there is no longer an Abode of War. Similarly, the slogan

of the PLO, "revolution until victory", is equivalent to the

need to continue the Jihad until final victory. Under Jihad

the final victory is the abolition of the Abode of War; for

the PLO it is the creation of an independent Palestinian

state. While such a situation cannot be achieved in the

near future, and a continuing war can be very draining on

the Muslim community, treaties may be entered into with the

unbelievers that will lead to a cease-fire. The same holds

true for the PLO charter. At first, the charter called for

the creation of a Palestinian state and the dismantling of

the Israeli state. However, this was replaced with calls

for the establishment of a Palestinian state on any

territory liberated or evacuated by Israel. Such changes

were the result of pragmatic views that did not see the

possibility of dismantling the state of Israel. Permanent

peace, however, is rejected. The treaties entered into must

be for a specified term. The length of such a treaty is the

subject of disagreement among jurist-theologians, and ranges

from three to ten years.

Over the years, the doctrine of Jihad has undergone

a gradual modification in its theoretical setting to suit

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the changing circumstances of life.212 "Publicists admit

that permanent war, in the sense of continuous fighting, was

obsolete; it was no longer compatible with the interest of

the Muslims."213 Internal strife, military defeats in

southern France and India have led to the re-interpretation

of the continuous state of war. Similarly, it could be

argued that the PLO's military defeat in Lebanon led it to

choose a political solution to the conflict.

Types of Jihad

The types of Jihad have increased. Whereas only one

type existed at the dawn of Islam (against polytheists),

today five types of Jihad are recognized. Jihad can be

entered into against 1) polytheism; 2) secession; 3)

dissension; 4) deserters, gangsters, and robbers, and 5)

ribat (safeguarding of frontiers);21*

According to the general doctrine of the Shi'a, due

account is taken of the dogma concerning "the absence of the

Imam," who alone has the necessary competence to order war.

The practice of the Jihad is necessarily suspended until the

re-appearance of the Imam or the ad hoc appointment of a

212Ibid., p. 35.

213Ibid., p. 37.

21*Hassan, pp. 204-10.

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vicar designated by him for the task.215 Arafat, it could be

argued— although it is somewhat of a weak argument since he

himself has rejected this theory— acting as an ad hoc

appointment of a vicar, is leading the organization until

the emergence of the Imam. Peace with non-Muslim nations,

therefore, is only a provisional state of affairs not to

exceed ten years. The jurist-theologians seem to have

agreed about the necessity of peace with non-Muslims;

however, the nature and the length of its duration has

become an area of difference among the jurisprudential

schools.

The Hanafite school, Khadduri contends, "argues that

suspension of the Jihad is only possible when there is an

urgent necessity, either due to internal conflict or in case

the enemy is very powerful.216 Al-Awza'i went further by

arguing that if the Muslims are in danger, the Imam should

have the right to pay any amount of money and conclude a

treaty of peace. The PLO's acceptance of a cease-fire with

Israel in 1978 and 1981, as well as its acceptance of the

August 1982 accord to evacuate from Lebanon, conform to this

principle of Jihad. The Shafi'i school, while acknowledging

the need to conclude a peace treaty, limits the intervals of

peace to the peace concluded by the Prophet Muhammad at

215Lewis, Bernard, CH. Peilat, and Joseph Schacht, eds., The Encyclopaedia of Islam New edition, vol. 2 (Leiden, The Netherland: E.J. Brill, 1965), p. 539.

216Khadduri (1940), p. 36.

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Hudaibiyah. Thus, a maximum of ten years is stipulated

under the Shafi'i school. Termination of fighting, thus,

can only be achieved in one of three ways; first,

unconditional surrender of the enemy. Second, by a treaty

of peace which is to guarantee life, property, and religion.

The Covenant of Medina is to be used as a model. And third,

fighting can be terminated by arbitration. The best the PLO

can hope for in its struggle with Israel is to terminate the

fighting through a treaty, since the likelihood that the PLO

will force Israel into an unconditional surrender is slim.

Equally so, acceptance of the mediation efforts of U.S.

special envoy Habib in the Israeli-PLO wars was within the

scope of Jihad, although some of the zealots rejected it.217

Under Jihad, fighting cannot take place until three

prerequisites are fulfilled. First, the Imam or sovereign

has to call for Jihad and invite all Muslims to join him.

Calls by Arab and Islamic leaders for the liberation of

Palestine and the return of Jerusalem under Islamic rule are

tantamount to calls for Jihad. The invitation to join can

be directed towards all Muslims, or it can be narrow, to

include only limited regions. After the first stage has

been met, the Muslims must extend to the unbelievers an

invitation to embrace Islam or pay Dhimmis tax. If they

217The call by 's Moammar Gadhafi that the Palestinians in besieged Beirut commit suicide rather than surrender to a U.S.-Israeli evacuation from Lebanon does contradict the principles of the theory of Jihad, not to mention Islam's outright condemnation of suicide.

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refuse to either accept Islam or pay the tax then an

offensive Jihad can be initiated. The third precondition is

to give the unbelievers a chance to come to their senses and

accept Islam or pay the Dhimmis before the actual fighting

begins. The cases of negotiations that preceded fighting

and led to treaties of peace include Egypt and Persia.

The PLO and the Doctrine of Jihad

By looking at the Palestinian resistance and the

doctrine of Jihad, it is apparent that the Palestine

Liberation Organization has met the preconditions to carry

on its struggle against Israel. For a just war to take

place, one of five conditions must exist. First, Muslims

have a right and a duty to defend themselves against

aggression by non-believers. The Qur'an clearly places a

right of defence upon the Muslim community. It also sets

well-defined limits on the conduct of war: "Fight in the

cause of God those who fight you, but do not transgress

limits; for God loveth not transgressors."11® Islamic law

places strict limits on the use of war, and clearly defines

the conduct towards non-combatants. Women, children, and

old and infirm men are not to be bothered. The unnecessary

destruction of property, the uprooting of trees and the

wasting of crops are strictly prohibited. The objective of

the war is to restore peace and God's rule on earth. The

21®Qur'an 11:190.

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Qur'an further stipulates that if the aggressor ceases, so

shall the Muslims.21’ The second cause of war shall be the

restoration of the expelled Muslims to their homes.

(They are) those who have been expelled from their homes is defiance of right,— (for no cause) except that they say, "our Lord is God." Did not God check one set of people by means of another, they would surely have been pulled down monasteries, churches, synagogues, and mosques, in which the name of God is commemorated in abundant measure. God is full of strength, exalted in might, (able enforce His Will).220

A parallel can thus be drawn between the expulsion of the

early Muslims from Makkah by the tribe of Quraish221 and

that of the Palestinians from Palestine by the Jews. The

third just war condition is in response to persecution.

To those against whom war is made, permission is given (to fight), because they are wronged; and verily God is most powerful for their aid.222

This verse reflects the first time that Muslims were granted

the right to self-defence, and was the result of persecution

of the small Muslim community by the tribes of Makkah.

Again, there is a parallel between the persecution of the

early Muslims at the hands of the pagan and Jewish tribes of

21’Ibid., 11:192.

2 2 °Ibid., XXII:40.

221Quraish is the tribe from which the Prophet Muhammad descended. For a discussion on this issue, see Mohammad A. Rauf, The Life and Teachings of the rtoijiibc Muhammad (Washington! The Islamic Center, 1964), pp. 44-70, and Martin Lings, Muhammad: His Life Based on the Early Sources (New York: Inner Traditions International, Ltd, 1983).

2 2 2 Ibid., XXII:39.

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Makkah and the treatment of Palestinians under Israeli

occupation and in refugee camps. The expulsion of the

Palestinians in 1948 and 1967, shows that they have been

"wronged", and have been driven from their homes unjustly.

Thus, the Qur'an gives them the rights to "fight"— just as

the Prophet had been wronged by the people of Makkah and

turned to fight them. It is also the duty of every Muslim

to support his Muslim brethren in time of need: "But if

they seek your aid in religion, it is your duty to help

them."223 The same verse further stresses the importance of

observing treaties in effect by including all states "Except

against a people with whom ye have a treaty of mutual

alliances."224 The treaty that binds the Muslim community

and prevents them from joining in a Jihad, it could be

argued, is the United Nations Charter.225 The fourth cause

of war is to restore a breached treaty. Islam preaches

strict adherence to treaties, even if such an adherence

would not be in the interest of the Muslim community as a

whole.224 However, if a treaty entered into with infidels

2 2 3 1 bid., VIII:72.

2 2 4 Ibid.

22’Charter of the United Nations, Article 4 states: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations.

2 2 4 Ibid., VI11:72.

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is violated by the other party, then the Muslims have a duty

and not just a right to fight.

They are those with whom thou didst make a covenant, but they break their covenant every time, and they have not the fear (of God). If ye gain the mastery over them in war, dispose with them, those who follow them that they may remember.227

This was the result of the treaty violation of Banu Buraiza

at the battle of the Trench. The PLO-Israeli cease-fire of

1981 is an agreement which the Israeli June 1982 invasion

clearly violated.228 Thus it is the duty of the PLO to fight

them. The final just cause is that of God. Islam grants

the rights of oppressed people to fight for their religious

rights. The use of guerrilla warfare is sanctioned in

Islam. The first use of guerrilla warfare by the Muslims

was the Nakhah expedition, around A.D. 632. The purpose of

the expedition was to exert pressure on the tribes of Makkah

to grant Muslims the right to leave Makkah and to secure the

return of two missing Muslims. Since Makkah was a trading

city, an interruption of trade would be the most effective

means to exert pressure. Passing as pilgrims, the members

of the expedition managed to take control of the caravan at

the cost of one dead and two captured escorts. The captive

Makkahns and the goods were eventually returned for a

ransom, including the return of the two missing Muslims.

2 2 7 Ibid., VIII:56-57.

2 2 8W. Thomas Mallison and Sally V. Mallison, The Palestine Problem: In International Law and World Order (Essex, England: Longman Group Limited, 1986), pp. 287-316.

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Once land has become the Abode of Islam, it cannot

convert to an Abode of War except on three conditions.

First, when the legal decisions of unbelievers become

binding and those of Islam do not. The imposition of Jewish

law and secular western legal systems on the Palestinian

population in Israel and the occupied West Bank and Gaza

have clearly removed Palestine from an Abode of Islam to an

Abode of War. Under these conditions, it is just for the

PLO to fight for the restoration of Palestine into the ranks

of Islamic states. Second, when the country immediately

adjoins an Abode of War, with no Muslim country lying in

between. Third, when there is no longer protection for

Muslims and their dhimmis.22’ In the case of Palestine, the

Muslims were forced to leave the land and abandoned an

Islamic state, including the holy city of Jerusalem. The

continuing violations of Muslim rights in the occupied

territories and Israel are a deliberate consequence of

military occupation laws or civilian statutes, such as the

Nationality Law of 1952,230 the Law of Return of 1950,231

2 2 ’ H „ A. R. Gibb and J.H. Kramers, eds., Short Encyclopaedia of Islam (Ithica, New York: Cornell University Press, 1953/, p. 68.

23“For native Arabs to receive Israeli citizenship, they must fulfil certain conditions, including three years of residence in Israel prior to the date of application for naturalization as well as knowledge of Hebrew.

231The law grants automatic Israeli citizenship to all Jews. Jews not wishing to receive Israeli citizenship have to file a petition not to be issued citizenship.

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the Land Acquisition Law of 1953 and the Law of Limitations

of 1958.232 All such laws are clear cut violations of the

rights of Muslims and thus it is not only a right, but a

duty to support those who are fighting such violations of

the rights of Muslims.

The support of the PLO in struggling against the

unbelievers is valid in order to keep the lost territory

from completely falling into enemy hands, and making a

return to the Islamic community harder. If a Muslim country

is invaded by unbelievers, the Imam may issue a general

summons calling on the inhabitants to resist the invasion,

or the summons can be broad enough to call on the whole

Muslim community to join in the struggle. Participation can

be of various degrees and may range from sympathy, or of the

heart, or they can be of tongue, such as supporting

Palestinian rights at various forum. Support of hand would

include financial and material support, as well as providing

any support short of actual fighting. The most advanced

degree of support would be to support the PLO in actual

fighting. Very few countries have gone the distance on this

one, although some have come close. The participation of

Lebanese Muslims in the fighting in 1978, 1981 and 1982, is

the only major support the PLO has received, although the

1348 intervention of the Arab League to protect the life and

232Both laws were used to expropriate "abandoned" Arab land and transfer title to the Jewish National Fund to be used for the settlement of Jewish immigrants.

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property of Arabs in Palestine following the withdrawal of

the Mandate Power, would fall into this category of support.

As the case may be, those against whom the Jihad is directed

must first be invited to embrace Islam or pay dhimmis. The

issue of Palestinian Refugees can be related to that of

people displaced by the replacement of Par al-Islam into Par

al-Harb and their duty as Muslims to withdraw from it.

The call for a negotiated settlement and the

establishment of a democratic state in Palestine has been

ignored. The most publicized call came from Yaser Arafat in

November 1974 as he addressed the United Nations General

Assembly. As to whether a call has to be extended to the

unbelievers is an issue of debate. Some have argued that it

is no longer required since Is]am is no longer an unknown

religion. The struggle over Palestine, therefore, falls

upon every free Muslim male, for the degree of participation

is still debatable. The participation of non-Muslim

Palestinians in the struggle does not affect the standing of

the Palestine Liberation Organization in relation to the

doctrine of Jihad. Cases of non-Muslims fighting alongside

Muslims in Jihad is well documented in Islamic history. The

composition of the PLO's leadership of Muslims does not hurt

but help the movement. The duty to take-up the Jihad

depends on the country closest to the enemy. It is for this

reason that the Islamic countries did not exert pressure on

the PLO to evacuate from Lebanon to prevent the country from

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becoming a target of Israeli retaliations/aggressions. The

suffering of the Lebanese Muslims at the hands of the

Israelis and their Christian militia allies as a consequence

of the PLO presence, it could safely be argued, is a cost

Muslims must bear for Jihad. The removal of the PLO

fighters from Lebanon to a number of Arab countries in the

Middle East and North Africa has greatly affected its

conduct of Jihad, although the treaty the PLO agreed to is

within the principles of Jihad to suspend hostilities for a

set period of time. The Jihad is principally of an

offensive character; but it is equally a Jihad when it is a

case of defending Islam against aggression. This indeed, is

the essential purpose of the ribat undertaken by isolated

groups of individuals settled on the frontiers of Islam.

Palestinian raids and attacks against Israel from

neighboring states are thus justified under the ribat

concept. The ribat is a particularly meritorious act. This

kind of act can include operations carried out by the PLO.

It is recognized that such acts will result in casualties on

both sides, but it is also recognized that Jihad "is not an

end in itself but a means which, in itself, is an evil

(fasad), but which becomes legitimate and necessary by

reason of the objective towards which it is directed; to

rid the world of a greater evil; it is 'good: due to the

fact that its purpose is 'good'.233

2 3 3 Ibid., p. 539.

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CONCLUSION

The Palestine Liberation Organization, through its

existence and actions, has acquired international

personality under international law. First, the PLO is a

major non-state actor in the international system. It plays

important roles in global transactions that have generally

been held to lie within the state actor's domain.

Mansbach's four general types of tasks that can be performed

by actors— "physical protection," "economic development and

regulation," "residual public interest tasks," and "group

status"— have all been met by the PLO.

As an actor in the global system, the PLO has

acquired international personality, both as a government-in-

exile, and as a "public body." The Palestine Liberation

Organization is a state in exile through the right of

succession clause, for the PLO has its roots in the

Palestine Arab Congress of 1920. The PLO's ability to

control the population and to exercise legal authority over

the civilian and military population, although scattered

among numerous countries in the Middle East, does support

its claim as sole representative of the Palestinian people

and its status as a government-in-exile. Even though this

142

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is legally valid, the PLO has not professed such a role for

political reasons.

While disagreements over the PLO's legal rights

under international law exist, such disagreements tend to

dissolve when its rights under the law of war are

considered. One of the PLO's most convincing arguments has

been its status under the international law of war. The

Covenant of the League of Nations, the Charter of the United

Nations and international conventions, such as The Hague and

Geneva Conventions and their definition of "war of

liberation/resistance", have provided the foundation for the

armed struggle aspects of the organization and the

legitimization of the Palestinian resistance movement. The

negotiation and signing of Protocols I and II to the Geneva

Conventions has strengthened further the PLO’s claim as a

belligerent and the application of prisoner of war status to

its combatants.

Through its wars with Israel the PLO acquired rights

and duties under international law. The Israeli invasion of

southern Lebanon in 1978 and the subsequent call for a

cease-fire by the United Nations Security Council, although

not mentioning the PLO by name, implied recognition of it.

In fact, Israel's acceptance was conditioned on PLO

acceptance of the cease-fire. The negotiated cease-fire by

U.S. special envoy Philip Habib in 1981 supported the PLO's

claim that it was a party to the conflict since it, and not

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the Arab governments with which Habib negotiated directly,

had to agree to the cease-fire agreement. It was, however,

the 1982 Israeli move against the PLO that clearly placed

the PLO directly under the law of war.

The agreement of August 1982 that followed the

Israeli invasion of Lebanon had detailed provisions for the

evacuation of the PLO fighters from Beirut as well as the

return of two Israeli prisoners and the bodies of nine

Israeli soldiers. Although the United States and Israel

refuse to grant the PLO belligerent status, a prisoner

exchange took place between the PLO and Israel in which

4,500 Palestinian and Lebanese prisoners were exchanged for

six Israeli prisoners. This was a PLO/Israeli agreement

negotiated directly between the two parties without either

having to recognize the other. However, the agreement was

tantamount to de facto recognition of belligerent status for

the PLO.

Under the Islamic Law of Nations, the struggle of

the PLO is justified. While denying that it is an Islamic

movement, the PLO's major support has been coming from

Islamic countries. Its role under the Islamic concept of

Jihad is well-defined. Furthermore, its goal is supported

by the Islamic Conference and its conduct has been according

to rhe Islamic law of war. Its struggle l o t naLionax

identity has been interpreted by the Islamic states to imply

Jihad on behalf of Islam in the context of the Abode of War

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versus the Abode of Islam, a continuous struggle between the

Muslim world and non-Muslim world. Furthermore, the PLO's

struggle falls within the two areas of limitations on the

use of war under the Islamic law of nations, "the protection

and preservation of the fundamentals of Islam and for the

establishment of Allah's sovereignty on earth."234 The PLO's

stand conforms to the guidelines for permissible wars in the

concept of Jihad. The PLO's struggle meets all five

conditions for Jihad: to defend against aggression, to

restore refugees to their homes, to respond against

persecution, to restore a breached treaty, and to fight for

the cause of God. Thus, the PLO's struggle falls completely

within the definition of Jihad. It is, therefore, not

surprising that the PLO enjoys high regard among the masses

in Islamic countries, even if the official policy of some of

the Islamic governments might be one of indifference.

Finally, the Zionists' claim to Palestine and the

arguments presented by the Zionist Organization in its

struggle for recognition as an international person half a

century ago, ironically enough, are somewhat similar to

those argued by the PLO today.

234Ali Raza Naqvi, "Laws of War in Islam," Islamic Studies 13 (March 1974):26.

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