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The legal status of the Palestine 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 Israel and Protocol I I ...... 103 War of Liberation and the P L O ...... 108
iv
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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
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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 Beirut 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 Arab League, 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 Cairo Agreement with Jordan (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 Palestinians 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 Lebanon, 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 battle of Karameh 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. Syria 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 Balfour Declaration 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
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-Fatah,
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, Egypt, 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 Gaza Strip, while Jordan
formally annexed the West Bank of the Jordan River 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 Palestinian Nationalism (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 Arab World. 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 Galilee. 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, Christians, 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 East Jerusalem, 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 Spain 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-Paris 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: Yale University 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 Arab Federation 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 Zionism,
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
the guardian 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, Connecticut: 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
"South Lebanon Army." 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 Algerian war 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 Menachem Begin, The Revolt (Jerusalem: Steimatazy's Agency Limited, 1951) and Larry Collins and Dominique Lapierre, 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 Hezbollah (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 siege of Beirut 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 Libya'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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