How not to make the case for Palestinian statehood

The Palestinian Arabs have long engaged in efforts to cast what is inherently a political conflict between themselves and Israel as a legal dispute, with the Palestinians cast as victims of Israeli injustice. But conflating political claims with legal claims is a losing strategy. 

That’s because the legal case is weak at best. Close examination of the legal history of the conflict demonstrates that on multiple occasions, Palestinian leaders rejected both the one-state and two-state solutions. Under international law, those rejections amounted to renunciations and waivers of sovereignty over the West Bank and Gaza. The Palestinians expressly reaffirmed those renunciations and waivers in Article 24 of the original May 1964 PLO Charter. 

The legal saga begins in February 1939, when the British Government invited representatives of the Jews, the Palestinian Arabs, and the surrounding Arab States to parallel conferences in London to negotiate the future of Palestine. The conferences collapsed without agreement in March 1939. 

On May 17, 1939, the British Government unilaterally issued the infamous White Paper, which endorsed the one-state solution for Palestine and severely restricted Jewish immigration, ultimately terminating immigration after five years. The policy largely banned Jewish land acquisition and set a ten-year target for the Palestinian Arabs (then comprising a two-to-one majority in the country) to achieve statehood.

But the Mufti Haj Amin al Husseini rejected the White Paper, demanding immediate statehood and an immediate halt to Jewish immigration. The Mufti refused to consider anything short of his maximalist position. This all-or-nothing approach set the stage for decades of subsequent Palestinian rejectionism. But it also carried a legal consequence: the Palestinians renounced and therefore waived the British offer of the one-state solution and eventual Palestinian sovereignty over all of Palestine. 

Following World War II, a frustrated and depleted Britain handed the Palestine matter to the United Nations. The UN convened separate legal proceedings in 1947 under the auspices of UNSCOP (UN Special Committee on Palestine) and the UN Ad Hoc Committee on Palestine, both of which delivered majority verdicts in favor of the two-state solution.

The Jews accepted the UN’s November 29, 1947 offer of partition. But the Palestinian Arab leadership, just as they had done in response to the May 1939 British offer of the one-state solution, likewise rejected the United Nations offer of the two-state solution. That rejection, which the Palestinians made knowingly, voluntarily and willfully, also carried legal consequences, amounting to another renunciation and waiver of Palestinian sovereignty over the portions of Palestine the United Nations had offered them for statehood. 

The Palestinians punctuated their November 1947 renunciation and waiver by launching a violent and bloody war and continued their renunciations, waivers and accompanying violence for decades afterward. At no point during those decades did the Palestinians ever seek statehood in the West Bank and Gaza, choosing instead to demand sovereignty over the entirety of pre-1948 Palestine, including the territory of the State of Israel, in violation of applicable United Nations resolutions and international law. 

Significantly, in May 1964 the Palestinians expressly reaffirmed their longstanding renunciations and waivers of sovereignty over the West Bank and Gaza, declaring in Article 24 of the original PLO Charter: “This Organization does not exercise any regional sovereignty over the West Bank in the Hashemite Kingdom of Jordan, or the Gaza Strip.” [Emphasis added.] 

The ‘victimhood’ narrative

Nevertheless, the Palestinians today insist they are legally entitled to the same outcome they renounced and waived for decades: statehood in the West Bank and Gaza. The Palestinians argue they reversed their legal position after the Six-Day War, and they have consistently demanded statehood in the West Bank and Gaza ever since. They also point to the Oslo Accords as proof they no longer demand Israel’s destruction. 

Those arguments, however, ignore the fundamental legal reality that the Palestinians repeatedly waived sovereignty over the West Bank and Gaza for decades prior to 1967. The repeated Palestinian waivers between 1939 and 1967 stand as powerful historical evidence undermining modern-day Palestinian claims that they are legally entitled to the West Bank and Gaza. 

To this day, sovereignty over the West Bank and Gaza has not been resolved conclusively as a matter of international law. If the Palestinian Arabs deserve statehood in the West Bank and Gaza, despite their leadership renouncing and waiving it for decades, then it is not because they have any legal right to it, but instead because the two-state solution represents perhaps the fairest long-term political outcome. 

But the Palestinian insistence on invoking legal framing and the “victimhood” narrative have become so overwhelmingly identified with the Palestinian national movement that little or no room remains for serious discussion of the future task of state-building. The Palestinians, unfortunately, have opted consistently since the Mufti for conflict perpetuation through “lawfare” and violence, rather than conflict resolution through robust and creative diplomacy. 

Therefore, shaky Palestinian legal claims based on “rights,” “victimhood” and “injustice” should not obfuscate the reality that the conflict is inherently political and must be resolved by diplomats through negotiation, not by lawyers and judges through litigation and judicial gymnastics.