Abstract
The significance of States’ rights and obligations has been emphasised a lot in light of the recent growth and development of international law and the rising rate of participation among nations in the UN. States are obligated to comply with certain tasks; failure to do so without a good explanation can have a negative effect on the reputation of the state. The right of self-determination is an essential right for a State and its people and has been enshrined in the UN Charter along with other internationally accepted documents. Additionally, it is an important aspect of customary international law as well and has been considered as one of the most basic of fundamental rights that a State and its people should have. Despite such recognition, there is a pattern of non-compliance with rights of self-determination as observed in the Israel-Palestine conflict. This paper focuses on this issue while highlighting how the entire conflict questions the basics of customary international law.
It further takes note of the recent UNSC Resolution in this regard and other important documents and resolutions to answer the question of whether Palestine has such self-determination rights or not.
Keywords:
Self-Determination, Israel-Palestine Conflict, International Law, UNSC Resolutions, Palestinian Rights, Hamas
Introduction
With the development of International Law and an increasing participation rate among the countries globally through joining the United Nations, formulating treaties, etc., there has been great emphasis on the importance of rights and duties of such States. Compliance with duties falling on the States is considered essential and any deviation from such duties without valid reason has adverse impacts on States and their reputation. Such non-compliance by the States is dealt with by higher levels of authority such as the United Nations General Assembly (UNGA), the United Nations Security Council (UNSC) or the International Court of Justice (ICJ). The right of self-determination is an essential right for a State and its people and has been enshrined in the UN Charter along with other internationally accepted documents. Additionally, it is an important aspect of customary international law as well and has been considered as one of the most basic of fundamental rights that a State and its people should have.
Despite such recognition, this is not always observed. Looking at the Israel-Palestine conflict, it is clear that the right of self-determination, although essential, is not always given to a State and its people. This paper focuses on the most recent development in the Israel-Palestine conflict, the UNSC Resolution dated March 25, 2024 and greatly emphasizes on the right of self-determination in the context of Palestinian people. Since self-determination is such an important and globally relevant context, this paper is going to look at articles, journals, publications and other relevant media in addition to previous resolutions and discussions by the UNSC to support its arguments. These arguments seek to present a cumulative understanding of the situation as it currently stands, critique the UNSC and other decision-making authorities and answer the question of whether Palestine truly deserves the right to self-determine.
Israel and Palestine: A Brief History
Israel and Palestine have always shared a difficult relationship. Since the foundation of Israel as an independent nation in the region, the people of Palestine have moved the international community seeking their right to assert independence. Despite the UN intervening several times, the Israeli annexation of Palestinian territory has gone largely unchallenged internationally. This includes counts of ethnic cleansing and other atrocities allegedly committed by the Israeli militia against the people of Palestine. The territory of Gaza which is currently home to a majority of the Palestinian population is the last territory left to the Palestinians in the region. While the annexation of territory has gone unnoticed internationally, the cries of Gaza for self-determination too seem to have fallen on deaf ears.
In their many years of struggle, their demands for equal representation as Israel and to honour the UN intervention of 1947 through the adoption of Resolution 181 have not been responded to in the slightest. With the break of the conflict between Israel and Hamas, these demands have been pushed to the forefront of the international watchdog (UNSC) and are now a matter of consideration and deliberation before some of the world’s leading military powers. The right to self-determination is recognized in multiple forms by the UN, most notably, as the general assembly itself released a statement affirming the right of the Palestinian people to self-determine. Despite these claims, their efforts for an independent government and representation did not lead to any fruitful results in the UN. Beginning in 2007, the takeover of the political and governmental power of Gaza but the organization Hamas began the multi-year struggle between Israel and Palestine which has now devolved into a state of war between the two governments.
Hamas: A Fight for Rights?
The origins of Hamas start at the Muslim Brotherhood which soon branched off in the 1980s to become the extremist organization it is today. The organization took over the Gaza Strip in 2007 and made moves to take the seat of government in Gaza soon after. Hamas’s many attacks in Israel including the use of violence against civilians has classified it as a ‘terrorist organization’ by many developed nations around the world, including the United States and much of Europe. Being branded as a terrorist organization made it possible for other nations to support Israel in their endeavour to stop the organization and their military action in the territory of Gaza. Since their surprise attack on the southern side of Israel in 2023, the organization has been locked in a battle against Israel leading to widespread damage and loss of life.
The attack that took place in October of 2023 began with the firing of rockets into the territory of Israel and the taking of hostages by Hamas and other affiliated agencies. This led to the quick mounting of a formal military action by Israel against Hamas in the Gaza Strip, a territory controlled primarily by Hamas. This miliary action was so large that it quickly spiralled into a war between Israel and Hamas who claimed for the independence of Gaza and Palestine. The military action is currently still underway with no ceasefire reported by any body of the UN. The attack by Israel has also tightened the blockade around the Gaza Strip and has cut off necessities. Despite this, the military action continues and is unlikely to stop until there is a total eradication of Hamas according to the Israeli military.
Despite the warfare, the plan behind the military action remains clouded in mystery as the current prime minister of Israel, Benjamin Netanyahu has remained tight-lipped about the plans Israel has once the organization Hamas is eradicated. Since the war is against a terrorist organization, the UNSC cannot directly intervene since the right to self-defence is a customary law right that every country can exercise against an external aggressor. The primary question that remains to be answered is if the occupancy of Gaza by Hamas or similar militant terrorist organizations still entitle them to the right of self-determination under international law.
International Law and Self-Determination.
This paper has previously established that a country/ region/ nation has the right to proclaim independence on the basis of Self-Determination alone. This is not an uncommon occurrence with disputed regions like Taiwan and Palestine regularly approaching international bodies with their request for representation. The main question is if the party requesting the right of self-determination is acting in the interests of the people. Since Hamas has been branded as a terrorist organization and not a provincial government, their claim to independence and separate governance significantly weakens. The existence of a terrorist organization at the helm of a represented region significantly weakens the claim for an independent government since the motivation behind government action and representation itself is open to questioning. Had the government in Palestine been a legitimate one (elected or appointed), the situation would be far more favourable for Palestine.
The Oslo framework was adopted in 1993 where leaders of the then Palestine Liberal Organisation (PLO) and Israel reached a settlement where independence would be granted to the territories conquered by Israel and the remainder of the land of ‘Palestine’ would be conceded to Israel. This to date remains the only exception for the understanding of the right of self-determination. Despite this, Israel refused to recognize the State of Palestine as a legal entity separate from itself. Since self-determination relies on an external acceptance of the status of independence of a nation, the absence of any affirmative acceptance of Palestine as an independently governed region raises serious concerns regarding its ability and status. In addition to a near absence of recognition, the categorization of Hamas as a terrorist front makes the case for Gaza’s independence much harder to pursue internationally.
Why should Palestine be allowed to Self-Determine?
The argument for this stance is very simple. It rests on a humanitarian standpoint where the people of a region should have the right to decide if they want to be governed and represented independently. This simple understanding of an inherent human right makes it possible for the international recognition of Palestine separate from Israel and ensure for the people rights that are on par with the rest of the independent nations of the world. It will also enable trade, commerce and independent governance for the people of Palestine making development possible. Further, the capacity to enter into relations with another nation-state will not only serve as a tool for the development of the region but also serve as protection for Palestine in case there is a breach of an international duty by any of the neighbouring nations.
A separate but more moralistic understanding of the position would be to enable the people of Palestine to be free of their current status of a ‘second class citizen’ in their own land. The constant policing by Israel and the military actions taken to eradicate Hamas will cease. International recognition of a region is a significant step and once taken will require the cooperation of other nation-states as well. This will serve as an effective mechanism to not only keep the local government in check but also make the people and the region accountable for their own development and policies. While this understanding relies on the recognition of Palestine as a nation, it is important to consider that other nations, specifically in the UNSC have been making decisions on the governance, maintenance and overall development of the region. Nations like the US have previously backed Israel’s claim on the land citing terrorist violence and have already made plans on how to move forward if (when) the Hamas threat is removed from Gaza.
Another important consideration placed before the UN is the unique ethnic and cultural identity of the people of Palestine. Since there are significant historical and cultural differences between the people of Israel, Palestine and the rest of the Middle East, denying them the right to self-determination could lead to the collapse or the destruction of their heritage and culture. Since it is the goal of the UN to preserve not only the heritage and culture of all peoples but also to encourage and foster friendly relations between nations, it would be consistent with the charter of the UN to allow the self-determination of the territory of Palestine. To add legitimacy to this argument, since the Oslo framework already envisages the independence of limited controlled territory, the framework can be amended to include total independence of the two nations allowing for a two-nation policy to take effect. This would not only grant legitimacy and independence to Palestine and include it in international representations but also serve the purpose of keeping security and peace intact in the region. The current situation in Palestine with the ground invasion of Israel and the lack of basic supplies for the Palestinian people add significant weight to this argument given that without the right of self-determination, the people face the risk of famine, starvation and massive loss of life and risk of injury. The global forum recognizing their right to self-determination would make it possible for a formal intervention by the UNSC on grounds other than strictly humanitarian grounds.
Why not allow Self-Determination?
Unfortunately, arguments against the self-determination of Palestine are plentiful and present a stronger case than arguments for their independence. While it is true that there will be development and economic gain for the people of Palestine if they were granted the right to be independent and recognized as a separate nation, the issue is with the current governance. Since Hamas took the seat of power in Gaza, its designation as a terrorist organization has been a major hurdle in the request for self-determination for the people of Palestine. Much like the Taliban takeover of Afghanistan, the takeover by a terrorist organization of a provincial seat of government places the neighbouring nations and the world at large on high alert. Given their access to resources and their advanced reach once a government has been established, their operation gains legitimacy and a declaration of independence could be catastrophic.
Had the case been that Gaza was attacked by Israel when the elected government was in power, the case for independence would have been much stronger and easier to establish and defend. Now, with the designation of Hamas as a terror outfit, the discussion of independence of Palestine is strongly rebutted by members of the UNSC as well. While there are talks of a ceasefire to allow some respite to the civilians who have thus far been collateral damage, these talks keep failing and every passing day, there are more casualties.
Similarly, this also raises questions about the Palestinian people’s own choices since multiple factions within the region are in a tight power struggle among themselves. While Hamas is currently in power, opposing factions such as the Fath do not support their claim for complete independence and this divide between factions significantly reduces the legitimacy of a claim for independence. Since the right to self-determination is based on the right of the people to choose, if major factions are in disagreement, it becomes difficult to table and defend the claim of independence. The requirement of self-determination is that the people unanimously (or through a significant majority) choose their independence and exert their right to self-determination. In the absence of this, any claim for independence and self-determination will not be formally recognized under international law.
The situation as it stands today.
Despite the many differences in opinion about the situation in Palestine since the beginning of the conflict, the damage to the region is astronomical. What is difficult to justify is the killing and harming of innocent civilians who are in no way connected with Hamas or any affiliated organization. The continuous military assault and the many stories that make their way to international media only cause increasing dissatisfaction. World leaders that are cognizant of the matter and are acting seem to be ignoring Palestine’s request for self-determination, which, if granted, would hold Israel responsible for aggressing in a nation’s land. It will also enable the self-defence of Palestine. While Israel contends that once Hamas has been removed entirely from Gaza and Palestine, it plans on reinstating some form of autonomy to the region, these claims are unfounded and unreliable at best. Since military intention is evident in how Israel is dealing with the situation right now, it would not be unfair to assume that Israel intends to keep military control over the region for an indefinite time following the conflict.
In addition to this, there is an absolute disregard for any form of human rights. The Universal Declaration on Human Rights (UDHR) is a document that Israel is a party to and is required to act in consonance with. This would include offering aid to civilians in Gaza and reducing violence to the lowest degree possible. Despite being a party to this declaration, Israel’s ceaseless attacks indicate no intention to reduce the damage caused to the region and effectively rendering it uninhabitable. This all further supports the need for an urgent and strong intervention by international bodies to limit the damage to Hamas and to spare the civilians.
Considering these facts, it becomes increasingly clear that the situation in Palestine cannot be solved without some form of formal recognition of transgression by the Israeli military into the territory of Palestine. In order to hold Israel and Hamas responsible for the damage caused to Gaza and the surrounding regions, it is imperative that some formal recognition of self-determination be given to Palestine. If the requirements for self-determination such as a government are not met, a temporary body may be established by Israel itself which shall operate in interim till democratic elections can take place in the region. The reduction of overall damage to the region and the speedy return to peace and normalcy can only be achieved on the back foot of a formal recognition of Palestine’s right to self-determination.
Conclusion.
The right to self-determination is a basic right of a population. Although it does not find mention in the UDHR or ancillary documents that have been widely adopted by the members of the UN, it is explicitly mentioned in the charter of the United Nations itself. The right to self-determination allows the people of a region to act on their right to equal and fair representation and declare themselves independent from any external obligation and capable of self-governance. This effectively allows nations to form their own governments, decide their own policies and act on their own interests free from external considerations. Regions around the world such as Taiwan and Palestine have been exerting this claim for a considerable amount of time. Given the recent rise of violence in Palestine following the Hamas attack of southern Israel in 2023, the claim to self-determination is stronger than ever before for the territory of Palestine.
Although Hamas is designated a ‘terrorist organization’ by many members of the UN, the people of Palestine can still exercise their right to self-determination and request that they be considered an independent territory. This would hold Israel responsible for the damage and loss of life caused and also open up Palestine to participate globally. Other than this, there are several arguments that are raised for their self-determination including moralistic arguments and differences in heritage/ culture and tradition. The common counter-argument to these claims is the security threat that will be created by placing power in the hands of a terror organization like Hamas. The UNSC has undertaken multiple deliberations on this matter and have failed to provide any kind of definitive answer to the question.
The increasing violence and the bloodshed that have affected civilians in Palestine are of global concern. The self-determination of Palestine is one of the best ways to make sure peace, order and prosperity return to the region. In order to do this, there has to be a formal recognition of the Palestinian people’s right to self-determination. Suggestions include installing an interim government that operates till elections can be held and an amendment of the Oslo framework which allows and encourages the two nations policy between Palestine and Israel. The recognition of Palestine as a nation independent from Israel in light of this framework would make it possible to achieve the goals of self-determination and security of all parties involved in the framework.
Name: Jhanvi Jain
College Name: O.P. Jindal Global University