Palestine Never Had a Chance for Statehood, Legally Speaking, an Expert Argues

By Darsen Hover / PassBlue

Did Palestine ever have a chance to gain its full rights as a state? In his new book, “The United Nations and the Question of Palestine: Rule by Law and the Structure of International Legal Subalternity,” Ardi Imseis delves into the history and legal questions on how the United Nations has tried to manage the status of Palestine. Imseis’s argument describes the history of the UN’s interaction with the territory, suggesting that their actions often reinforced Palestine’s subjugation and its people through the international system.

“Palestine and its people have been barred from the full realization of rights that the UN itself asserts are their natural and inalienable rights,” said Imseis in an interview with PassBlue. “This work is an attempt to account for why and how this has happened, and what implications Palestine’s example has for the rest of the global underclass.”

Imseis is a Canadian professor of law at Queen’s University in Ontario. He has also served in the UN system in various roles, including as a member of the UN Group of Eminent Experts on Yemen (2019-2021); head of the UN Relief and Works agency for Palestinian refugees’ (UNRWA) legal office, in East Jerusalem (2007-2014); and as a senior policy adviser at its Gaza City base (2002-2006).

PassBlue corresponded with Imseis by email about the core arguments he makes in his book. The interview was done in February. It has been edited and condensed. — DARSEN HOVER

PassBlue: In your book, you argue that the UN has helped legitimize Palestinian subjugation in the international system. Can you describe how this happened and how it has affected Palestine’s current position in the UN?

Imseis: It’s a touch more nuanced than that. For all the scholarship written on the United Nations, on the one hand, and on Palestine and international law, on the other, it is surprising to find that there has yet to be a sustained and critical book written on the United Nation’s management of the question of Palestine. I have tried to present such a book here. Its starting point is the widely held representation and belief that the UN is the standard bearer of the rules-based international legal order. This is something that has regularly been proclaimed by a succession of Secretaries-General of the Organization, to say nothing of being propagated throughout the UN Charter system. But based upon a close examination of the UN record, as well as my own first-hand career as a UN official in occupied Palestine, my book interrogates this received wisdom by demonstrating that there exists a vacillating gulf between what international law requires and what the UN has actually done on the question of Palestine when it has mattered most. The forms this gulf has taken have been varied. They include both actions and omissions, they cover a variety of subsets of international law and practice, and they span an unusually long period of time, from 1947 to the present. Despite the breadth and expanse of this sordid story, it is marked by a singular experience of Palestine and its people: to have been consigned to a seemingly permanent state of deprivation and disenfranchisement in the international legal order.

This state has manifested itself in a series of anomalous and iniquitous legal “moments.” This includes the 1947 UN plan of partition, the distinctive institutional and normative regime established by the UN in 1949 to protect and assist Palestinian refugees, the failure by the UN to definitively affirm the illegality of Israel’s continued presence in the occupied Palestinian territory since 1967, and the failure of the organization to grant the State of Palestine full membership in 2011. What these moments show is that despite the paradigmatic shifts in international affairs and the UN since 1947 — from the age of late empire, through decolonization, etc. — Palestine and its people have been barred from the full realization of rights that the UN itself asserts are their natural and inalienable rights. This work is an attempt to account for why and how this has happened, and what implications Palestine’s example has for the rest of the global underclass.

PassBlue: Do you think that the UN’s failure to uphold international law in the case of Palestine is an anomaly, or do you argue that it indicates more structural flaws within the institution?

Imseis: Initially, I had thought that Palestine’s contingent plight within the United Nations and, more generally, the international legal order was exceptional. To be sure, there are many exceptional things about it, not least the issue of time. The prolonged nature of the violation of Palestinian self-determination, forced exile of the Palestinian refugees, and occupation of the Palestinian Territory (OPT) since 1967, are unparalleled in the modern age. But the more I examined the UN record, the more I could see patterns and lessons that Palestine has for the broader international community. Through a critical international legal account of the UN’s engagement with the issue, I argue that Palestine and its people embody a condition that I call “international legal subalternity” [ILS], the essence of which implicates the United Nations as having systematically held itself and the rules based international legal order out to the global underclass as the only path to justice, but paradoxically withholds the realization of such justice through its own actions.

To my mind, the ILS condition appears to be a fixed feature of the international legal order, one that cannot be eradicated. This derives from the fact that although some change in international law can be brought about through the creative use of elements of that law to challenge it on its own terms, new subalterns invariably emerge whose situation is not addressed by the new law. What we are left with is a cycle of law-making and law-challenging that transfers the burden of legal contingency from one group to another, but never really eradicates it. This is why I have concluded — on the basis of the example provided by the UN’s management of the question of Palestine over various time periods and political paradigms — that international legal subalternity is a long-range condition and a fixed feature of the international legal order.

PassBlue: You say in your book that advocating for a two-state solution is not aligned with the core principles of international law. Why do you say that and where does it leave Palestinians’ quest for statehood, given the current realities?

Imseis: I argue that the two-state solution as originally envisioned by the General Assembly through its resolution 181 of 29 November 1947 did not accord with the then-prevailing principles of international law. This is different than asserting that the two-state solution is today not aligned with international law. And that is the problem. The partition plan led to the imposition of the two-state paradigm on the indigenous people of Palestine without their consent, and which would thereafter underpin the UN’s position on the question of Palestine. Based on the UN record, I determined that partition violated the prevailing law and practice on self-determination of peoples in class A mandated territories, and it displayed a clear contempt for principles of democracy and consent of the governed. The result was for the UN to have reinforced Palestine’s contingent status on the international legal plane, with consequences that helped pave the way for the 1948 Nakba.

To appreciate this, one must examine the terms of the partition plan. It is widely known that Resolution 181(II) provided for the partition of Palestine into an Arab State and a Jewish State in economic union, with the city of Jerusalem established as a separate entity to be administered by the UN. Under the plan, both states were required to adopt democratic constitutions, establish government on the basis of universal suffrage, and guarantee to all persons equality before the law. But the devil was in the details. Territorially, the plan allotted the Jewish State approximately 57 percent of the total area of Palestine, including its most fertile land, despite the Jewish settler population comprising only 1/3 of total of the country. The Jewish settler population also possessed registered ownership of only 5.6 percent of Palestine and was eclipsed by the Arabs in land ownership in each of Palestine’s 16 sub-districts.

Demographically, although the proposed Arab State would include a clear majority of approximately 725,000 Arabs to 10,000 Jews, the proposed Jewish State would contain a total population of 1,080,800, consisting of 509,780 Arabs and 499,020 Jews. This meant that minority rule would prevail in the purported Jewish State from the outset. This says nothing of the fact that, in its own words, the UN granted the Jewish State “the more economically developed part of the country,” while openly admitting that the economic viability of the proposed Arab State would be “in doubt” from the start. Putting it kindly, resolution 181(II) was a glaring anomaly under prevailing international law.

Put simply, partition could never be legal without the freely expressed consent of the governed, and in Palestine the vast majority of the population outright refused partition as an abomination of international law and their right to self-determination vis a vis the European settlers in their midst. Examination of the UN record, in the form of the public and private meetings and report of the UN Special Committee on Palestine (UNSCOP) as well as the General Assembly debates that followed, demonstrates that partition was not based on these international legal considerations. Rather, it was driven by powerful European states and their settler-colonial affiliates. The UN record reveals that the declared goal of these states was to rectify Europe’s centuries-old Jewish question in the wake of the Holocaust and to do so at the expense of the innocent third-party Palestinians.

This has meant that the Palestinian quest for independent statehood has been hampered by action of the UN from the start. This was underscored by the Palestine Liberation Organization’s (PLO) recognition of Israel in 1988 and, with it, Palestinian acceptance of the political legitimacy of the partition plan of 1947. This historical compromise by the PLO was notable for the fact that its adherents had no part in fashioning resolution 181(II)’s terms, but were compelled to accept them as a quid pro quo for the achievement of a modicum of their national rights; and this in only half of the territory allotted to it under resolution 181(II), being the OPT. Nevertheless, as is widely known, in view of the fact that the Israeli occupation of the OPT remains in place almost 57 years after it began, it appears that the Palestinian recognition of the partition plan may have turned out to be a Faustian bargain of sorts.

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By Zehra Imam / Mondoweiss

As Palestinians are slaughtered by the thousands in Gaza and violently attacked during night prayers in the al-Aqsa Mosque by Israel, the West Bank endures massacres that at times go unnoticed during this holy month. I have spent my Ramadan in conversation with a friend from Jenin. 

Much has changed since I visited Aseel (not her real name) in August 2023. There are things I saw in Jenin that no longer exist. One of them is my friend’s smile and her spark.

Usually, they say Jenin is a small Gaza. During Ramadan, because the attacks generally happen at night, people are an easy target because they are on the streets late at night. In the past, it was rare for the IOF to enter during the day. Now, they attack during the day; their special forces enter, and after people discover them, their soldiers come within minutes. 

Every 2-3 days, there is a new attack in Jenin. In our minds, there is a constant ringing that the IOF may come. We don’t know at what time we will be targeted or when they will enter. There is no stability in our lives.

Even when we plan for something, we hedge it with our inshallahs and laugh. There are a lot of ifs. If they don’t enter the camp. If there are no martyrs. If there is no strike.

On the second day of Ramadan, they attacked my neighborhood again. We thought it was a bombing because it started with an explosion, but the house was shaking. We were praying fajr, and everyone was screaming outside. The sound of the drone was in our ears. “No, these are missiles,” we realized.

There was panic in the streets. Women fainted. People had been walking back from praying at the mosque, and some were still in the street. Alhamdulillah, no one was hurt, we say.

The balcony to the room at my uncle’s house where we slept had fallen. It no longer had any glass, and a bullet entered my uncle’s bedroom and reached the kitchen. The drone hit the trees in front of our house. The missiles destroyed the ceiling, and the rockets reached my neighbor’s house on the first floor, exactly in front of our house.

Since October 7, Jenin has become a target. There is a clear escalation in the camp and the city. The IOF has used many different weapons to kill us here. They have even been aggressive toward the infrastructure, as though every inch of our city was resisting them.

They destroyed much of the camp, and there is no entrance now. The arch is gone, and there is no sign reminding us that Jenin refugee camp is a temporary place. There is no horse. Only the street is left. You have the photographs. You were lucky. They changed the shape of the camp, and everything has been destroyed.”Aseel

The first time Aseel and I met in person was in Nablus at the Martyrs Roundabout. As we caught up, we ate a delicious concoction of ice cream, milk, nuts, and fresh fruit that was a perfect balm to the heat. She took me to some of her favorite places nestled within the old city of Nablus. A 150-year-old barber’s shop that felt like you had entered an antique store where plants reached the ceiling and where the barber was a massive fan of Angelina Jolie. A centuries-old house now called Tree House Cafe looked like a hobbit home from Lord of the Rings, where we hid away as she sipped her coffee and I drank a mint lemonade. We visited one of the oldest soap factories in the world with ingredients such as goat’s milk and olive oil, jasmine and pomegranates, even dates and Dead Sea mud.

We happened to chance upon a Sufi zawiya as we walked through a beautiful archway decorated with lanterns, light bulbs, and an assortment of potted plants, after which we saw a cobalt blue door on our left and an azul blue door with symmetrical red designs, and Quranic ayat like incantations on our right as doors upon doors greeted us.

The air was welcoming yet mingled with the memory of martyrs whose memorials took over the landscape, sometimes in the form of larger-than-life portraits surrounded by complex four-leafed magenta-white flowers; posters above a water spout next to a heart-shaped leaf; a melted motorcycle that, too, was targeted in the neighborhood that hosted the Lions’ Den. We stopped to pray at a masjid, quiet and carpeted.

After a bus ride from Nablus to Jenin, on our walk before entering Jenin camp, Aseel showed me the hospital right outside the camp. She pointed out the barricades created to keep the occupation forces from entering specific streets. This is the same hospital that the occupation forces blocked during the July 2023 attack, which now seems like a lifetime ago. 

What caught my eyes again and again were the two Keys of Return on top of the entrance of Jenin Camp that symbolized so much for Palestinians.

“This is a temporary station,” Aseel read out loud to me. “That’s what it says. We are supposed to return to our homes.”

“Netanyahu said he is planning another big attack, so the resistance fighters are preparing because it can happen any day,” she had told me that evening as we shared Jenin-style knafeh, baked to perfection. Then she stopped, looked at the sky, and said humorously, “Ya Allah, hopefully not today!” And we both laughed because of its potential reality. 

Dinner on the terrace at her uncle’s home was a delicious spread of hummus, laban, fries, cucumbers pickled by her aunt, and arayes — fried bread stuffed with meat. Then we moved the furniture to sleep on mattresses in a room that extended to the rooftop terrace with a breeze, overlooking Jenin Camp and the rest of Jenin City. We could hear gunshots in the distance. The drones were commonplace, and the heat did not relent. Temperatures soared, and the electricity was out when we woke up at 5 a.m. I heard her pray, and later, as we sipped on coffee and had wafters in the early morning at her home, my eyes went to a piece of tatreez, or embroidery, of a bird in flight framed on the wall. Her eyes followed mine and when I said I loved it.

“It used to be my grandfather’s,” she told me. “Of course it’s beautiful — the bird is free.” 

Unexpectedly, Aseel’s mother gifted me a Sprite bottle full of olive oil beholding the sweet hues of its intact health, which I would later ship secretly from Bethlehem all the way to Boston. And then Aseel came to me with a gift, too: a necklace that spoke succinctly about the right to return and live on this earth. Mahmoud Darwish’s poetry was held together with intricate calligraphy carved in the shape of Palestine’s landscape, and I was completely overwhelmed. 

“You are in Palestine, my dear,” she had smiled. “And you are now my family. This is your country, this is your second home, really.”

When I ask her about what brings her hope these days, Aseel tells me about her eight-year-old nephew.

He wanted to eat two meals. I told him that in Gaza they don’t have food. He was complaining about the food, and I told him, they don’t have water. And he heard me because he said, “today, we will only have one meal.” 

I’m amazed at how mature he is. He even said, “We won’t make a special cake on Eid because of the Gazans.” For me, this is a lesson to be learned. He is only eight years old, but he knows. 

We have lost a lot of people in Gaza, but here in the West Bank, we are succeeding because our new generation knows a lot. Ben Gurion would not be happy. He said of Palestinians, “the old will die and the young will forget.” No, the young ask even more questions. The new generation brings us hope. Hope is the new generation.

/sp

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