If you are active in the struggle for justice for the Palestinian people, you no doubt are familiar with UN General Assembly 194, which recognized the right of Arab refugees ethnically cleansed by Zionist forces from Palestine to return to their homeland.
What you are likely not familiar with is how this resolution came to be and its significance with regard to Israel’s membership in the UN.
In my forthcoming book, Obstacle to Peace: The US Role in the Israeli-Palestinian Conflict, I drop a bombshell about that matter.
Most people will have to wait until the book is published a little bit later this year, but I want to share an exclusive excerpt with you.
It comes from Chapter 2, titled “The Peace Process”. It is actually one of the last sections written. I had essentially completed the manuscript and realized I had said very little about the right of return. Feeling like this was an egregious oversight, I stepped back, did some additional research, and added this section to the chapter following a section about the true meaning and significance of UN Security Resolution 242.
The full text of this section follows. I hope you enjoy it!
Have a happy, healthy, and prosperous new year.
Jeremy R. Hammond
P.S. — Did you catch my top ten posts of 2015 in my previous email? If you missed it, you can still view it here.
P.P.S. — I’d love to get your feedback on the following excerpt from the book. If you want to share your thoughts after reading it, please email me at firstname.lastname@example.org (or just hit “reply” to this email)!
On November 29, 1948, Israel formally requested membership in the UN, declaring that it “unreservedly accepts the obligations of the United Nations Charter and undertakes to honor them from the day when it becomes a Member of the United Nations.”[i]
The Arab states naturally objected to the request. Syria expressed its view that “the application did not merit consideration” and drafted a General Assembly resolution requesting the ICJ to issue a legal opinion about Israel’s contention that it had authority under Resolution 181 “to partition Palestine for the creation of a Jewish sovereign State, against the wishes of the majority of the Palestine population”.[ii]
Two days after Israel submitted its membership request, its representative at the UN, Moshe Shertok, effectively declared to the General Assembly that Israel intended to annex Jerusalem by rejecting any notion of withdrawal and describing Israel’s control over the city as a fait accompli. He likewise dismissed any notion that expelled Palestinians should be allowed to return to their homes, asserting that the “final solution” for the refugee problem “could be worked out only after the peace settlement had been concluded”.
Also invited to speak was Henry Cattan, the representative of the Arab Higher Committee. Cattan said that the Arabs “were not prepared to consider any solution which was based on the partition of Palestine”, and he “could not concede the right of the so-called Government of Israel to represent any part of Palestine. Palestine belonged to its inhabitants and to those who owned the land, but the Jews owned only 7 percent of the territory and did not represent the majority of the population even in the area which they controlled.” Nor could he agree that the UN “could admit to membership the Government of a State which had come into being through the expulsion of the majority of the rightful inhabitants of the territory it claimed and which had a terrible record of atrocity and pillage.” Israel’s admission to the UN, he foresaw, “would destroy all hope of establishing normal peaceful conditions in the Middle East.”
Israel’s membership was “premature”, said the Syrian delegate, unjustified by the UN Charter and international law. How could Israel be considered eligible for admission, he inquired, when its borders had yet to be legally defined? Furthermore, its actions had shown “that it was not a peace-loving State”.
The Lebanese delegate warned that admitting Israel as a member to the UN would have “dire consequences” and “would come as a bombshell to the 50 million Arabs of the Middle East.” Theodor Herzl, he recalled, “had said that if a Jewish State was created in Palestine, it would constitute a bulwark of European civilization against barbarism. If the civilization which the Jews wished to protect was epitomized by the regime which they had set up in Palestine with all its atrocities, then the Arabs of the Middle East, together with all the other countries of Asia, would almost certainly prefer barbarism.”
The representative from Iraq perceived that the proposal to admit Israel while the question of borders was still under discussion “was an attempt to prejudge the issue”. He inquired of his fellow delegates, “Would it not be more correct to ask the people of Palestine, who were directly concerned, whether the Jewish State was acceptable to them before proposing such action?”
As far as many UN members were concerned, however, the answer to his question had already been provided in the form of UNSCOP’s explicit rejection of the right of the Arab inhabitants of Palestine to self-determination. Following the discussion, the Assembly took a vote on Syria’s proposal to obtain an advisory opinion from the ICJ. It was rejected by a vote of twenty to twenty, with eight abstentions.[iii]
The Western prejudice against the Palestinian Arabs was similarly illustrated two months earlier in a report of the UN Mediator for Palestine, Count Folke Bernadotte. “The Jewish State was not born in peace as was hoped for” in Resolution 181, the report stated, “but rather, like many another State in history, in violence and bloodshed.” The partition of Palestine was now a fait accompli, Bernadotte wrote, notwithstanding the fact that “this was accomplished by a procedure quite contrary to that envisaged for the purpose in the resolution.” The UN’s appointed “mediator” made no effort to hide his admiration for the Zionist leadership for their accomplishment of having established their “Jewish State” by force and ethnic cleansing. “In establishing their State within a semi-circle of gunfire,” he lauded, “the Jews have given convincing demonstration of their skill and tenacity.”
Bernadotte urged the international community “to be more understanding of the Arab viewpoint” and explained that the Arabs had “consistently advocated” the solution of a single independent state of Palestine “with full rights and guarantees for the Jewish minority”. Then he immediately dismissed this solution as “unrealistic”, declaring that “the cantonal and federal state schemes have no practical merit which would make them worthy of consideration.”
He observed that the means by which Israel was established had brought the “new and difficult element” of hundreds of thousands of Arab refugees into the “Palestine problem”. He pronounced that “the right of the refugees to return to their homes if they so desire must be safeguarded”. Then he immediately dismissed the practicability of them ever doing so. “It is futile to assume that the Jewish community could undergo a rapid change of heart”, he needlessly stated. There was “no possibility whatsoever of persuading or inducing the Jews to give up their present separate cultural and political existence and accept merging into a unitary Palestine in which they would be a permanent minority.” The false choice he presented to the Assembly was to either legitimize the Zionists’ territorial gains and ethnic cleansing or “to wipe out the Jewish State and its Provision Government by force.”[iv]
Bernadotte signed his report to the General Assembly on September 16, 1948. The following day, he was murdered in Jerusalem along with UN Observer Colonel André Serot. The perpetrators of his assassination were Jewish terrorists from the Zionist group Lehi, otherwise known as the Stern Gang. One of the leaders of Lehi at the time was Yitzhak Yezernitsky, who later became known as Yitzhak Shamir, Prime Minister of Israel.[v]
In accordance with Bernadotte’s recommendation, the General Assembly paid lip service to the internationally recognized right of refugees to return to their homeland. On December 11, 1948, the Assembly passed Resolution 194, which resolved “that the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible….” The resolution also established a Conciliation Commission for Palestine to take over the work of the assassinated UN Mediator.[vi] The US joined the 59 percent majority of countries that voted in favor of the resolution.[vii]
Also in accordance with Bernadotte’s recommendations, the Assembly proceeded to summarily dismiss the views and legitimate concerns of the Arabs and to prejudice the rights of the Palestinian refugees. Syria again submitted a draft resolution, this time in the Security Council, questioning the legitimacy of the “creation of a Jewish sovereign state” in Palestine “against the wishes of the majority of its population” and deciding “to request an advisory legal opinion of the International Court of Justice” about whether General Assembly Resolution 181 conferred any legal authority for the establishment of the state of Israel “without consulting the lawful inhabitants of the country in securing their consent”.[viii] The resolution failed, with only Belgium joining Syria in favor, and the nine other voting members, including the US, abstaining.[ix]
Also failing to pass were draft resolutions from the UK and France deciding to postpone consideration of Israel’s membership in the UN until the Conciliation Commission had completed its work. The US, which favored admitting Israel as a member, abstained from both votes. The UK’s Sir Alexander Cadogan presciently noted that the US representative had “expressed the belief that the admission of Israel to the United Nations would facilitate the negotiations which are to take place on the subject of the ultimate fate of Palestine. He did not give any particular reasons for that, and I beg to doubt whether, in fact, that would be the effect. I am rather inclined to the belief, or the fear, that negotiations might be found to be rather more difficult if Israel were at this moment admitted to the United Nations.”[x] History, needless to say, proved the UK representative’s view to be the correct one.
Cadogan also expressed his government’s view that it was “necessary for the Council to assure itself that the authorities were complying with resolution 194”, as well as the Security Council’s own various resolutions. He noted that other states’ applications for membership had long been held up and opined that “it seems extremely rash of the Security Council to take a decision for the admission of Israel at this stage. I cannot quite understand the reason for this very great haste with which we are invited to vote for this admission.”[xi]
Sir Cadogan was presumably feigning naiveté for diplomatic purposes, as the reason was perfectly self-evident: admitting Israel would prejudice the rights of the Palestinians and cement Israel’s territorial gains illegitimately acquired through the use of force. That was the transparent goal as far as the Provisional Government of Israel was concerned. Numerous UN members, including the US, contented themselves—for varying reasons relating to their own prejudices, perceived self-interests, and geostrategic considerations—to go along with the plan to disenfranchise the Palestinians.[xii]
In the months that followed, Israel continued to reject the right of Palestinian refugees to return to their homeland. Speaking to the Assembly on February 7, 1949, Moshe Shertok was adamant in reiterating Israel’s position that the subject of Arab refugees must be excluded from any discussions on a peace agreement. The refugees should forget about returning to their homes, he suggested, and just resettle elsewhere.[xiii] The Chairman of the Conciliation Commission, Claude de Boisanger of France, adopted the Zionists’ position, urging a solution requiring the refugees to give up the hope of ever returning home. He favored a solution that could be “worked out practically and not by adhering to rigid law and principle.”[xiv]
In a meeting with the Conciliation Commission on February 24, 1949, Shertok again rejected outright that refugees had a right “to return to their homes if they wished to do so”.[xv] The Commission proceeded to draw up an outline of the practical considerations related to any possible return of refugees to their homes. It stated that “Jewish intransigence” on the question of refugees was “likely” due to “their unwillingness to relinquish the land that belonged to the refugees”; it expressed the fear “that the land of the returning refugees will be expropriated by the Israeli Government whenever this becomes necessary to their plans”.[xvi]
Israel also passed measures to extend its civil jurisdiction to Jerusalem, a move the Conciliation Commission deemed “extremely regrettable, and indeed contrary to the spirit, if not the letter” of Resolution 194 and the duty of parties concerned “to abstain from undertaking any action tending to alter the status quo of the City.”[xvii] The Commission nevertheless took the view that any solution to the problem must be “mutually acceptable” to the interested parties—which is to say that it adopted a position that Israel’s goals must be accommodated regardless of being contrary to international law and its obligations under the Charter as an applicant to UN membership, as well as being prejudicial to the equal rights of the Palestinians.[xviii]
On the right of return, a subsequent report of the Conciliation Commission noted that during its meetings with Arab governments between March 21 and April 5, 1949, “The Arab delegations pointed out that, up to the present, the Government of Israel not only had not accepted that principle but had endeavored to create a de facto situation which would render the practical application of the principle more difficult or even impossible.” The Commission “had no difficulty in recognizing the truth of the Arab contention” that Israel intended to disallow refugees from returning. Indeed, their fears in this regard were “well founded”. Despite visiting several refugee camps and seeing for themselves “the deplorable material and moral situation of the refugees”, the Commission maintained the view that Israel should effectively be allowed a veto power over any proposed solutions to the refugee problem, as well as over the question of territorial boundaries.[xix]
On March 4, 1949, the US submitted a draft resolution to the Security Council judging that “Israel is a peace-loving State and is able and willing to carry out the obligations contained in the Charter” and recommending that the General Assembly admit Israel as a member to the UN.
Illustrative of the attitude of the resolution’s supporters, Norway’s representative expressed doubts about whether Israel’s membership was justified, particularly given its lack of legally defined borders, but said that he would nevertheless vote in favor on the blind hope that Israel would fulfill its Charter obligations. The Soviet representative more enthusiastically supported Israel’s admission, countering with the false claim that Israel’s borders were legally defined by Resolution 181 and declaring despite all evidence to the contrary that Israel was already “loyally complying with its obligations to the United Nations”. He then provided insight into how he managed to arrive at this conclusion by proclaiming that the questions of Jerusalem and the Arab refugees could not be linked to the question of Israel’s membership.
The UK was alone in sitting on the fence. Sir Terence Shone expressed that his government was “disturbed at statements which have been made by responsible Israeli representatives, which suggest that the Israeli Government does not intend to pay attention to certain United Nations resolutions.” He referred to the status of Jerusalem, as well as the plight of the refugees, who were “still dying in hundreds” and were “likely to continue to do so until some further decisive action can be taken to help them.” Israel had a responsibility in this regard, he continued, and until Israel “clarified” its position, the UK could not take a definite stand on the question of its admission. “We hope that the Israeli Government will be able to make clear that it intends to abide by United Nations resolutions and does not intend to flout them, as utterances which bear the stamp of responsible statements suggest may be the case.”
Egypt’s representative, Mahmoud Fawzi Bey, was the lone voice determined to uphold the principles of the Charter and international law. In his plea to the Council, he quoted a news report filed from Tel Aviv the previous month that stated, “It is obvious that most of the displaced Arabs cannot return, because their homes and in some cases even their villages, no longer exist.” UN observers had also reported “that demolition of the homes of the displaced Arabs has been carried out systematically, with the intention and premeditation, so that those Arabs, once having left their homes, cannot return.” He chastised Council members for their willingness to have the UN act as accomplice in the injustices perpetrated against the Arabs of Palestine: “Yes, chase away the Arabs, demolish their old homes, build new ones, take their lands and settle there, and make the conquest complete. Make it an all-around fait accompli. This is legal currency in the eyes of some people—the fait accompli. It is legal tender, accepted, unfortunately so often, in recent months.” He urged the Council not to act “against the principles of justice, against the principle of self-determination for the people, and against the precepts of human rights, which the United Nations, only a short while ago, approved.”
His eloquent pleas fell on deaf ears. With Egypt casting the only negative vote, the resolution was adopted with nine in favor (the UK abstained).[xx] The text of the resolution was transmitted to the General Assembly three days later in a letter from the provisional government of Israel.[xxi]
In the Assembly debate on May 5, Charles Malik reiterated Lebanon’s opposition to Israel’s UN membership. Surely, the UN General Assembly, by adopting Resolution 181, had “not intended that the Jewish State should rid itself of its Arab citizens…. Surely the Jews, who claimed that they had always been an uprooted people whose homelessness had driven them to fight for their ancient home, could not in all justice and conscience seek to remedy that uprooting by inflicting it upon others.” Given Israel’s rejection of the right of refugees to be repatriated, to admit Israel would effectively reward it for defying the will of the UN. It “would be tantamount to a virtual condemnation of one million Arabs to permanent exile” and would ensure “the perpetuation of the homelessness of the Arab refugees.” Additionally, to admit Israel before the question of borders and the status of Jerusalem had been legally settled “was equivalent to giving it a blank cheque to draw its frontiers wherever it wished. In effect, it meant condoning, by a solemn act of the United Nations, the right of conquest.” He could not understand the attitude of favoring Israel’s request “in the hope that it would ultimately abide by the Assembly’s earlier decisions, in view of the fact that Israel had demonstrated in advance its unwillingness to abide by those decisions.”
Taking his turn, the Israeli representative then reiterated his government’s position precisely as Malik had just outlined: Israel’s control over Jerusalem was a fait accompli, and its government would not accept any responsibility for the plight of Arab refugees apart from accepting an obligation “to make compensation for abandoned lands.” They would not be allowed to return.[xxii]
In subsequent debates, the Arab states reiterated the concerns about Israel’s attitude towards the Arab refugees and the lack of legally recognized borders. The idea of a “Jewish state” itself was contrary to the spirit of the UN Charter, Yemen’s representative noted on May 7. “The theory of national homogeneity”, he said, “could not be supported by the United Nations.”[xxiii]
But the states supporting Israel’s membership could not be reasoned with and continued to content themselves in willful ignorance of the actual situation. On May 9, for example, Norway’s representative expressed his government’s attitude that it was enough to favor Israel’s membership “on the assumption” that Israel “would do its utmost to arrive at a solution” to the refugee problem. Colombia remained unsatisfied with Israel’s attitude towards the refugees and supported their right to return. It rejected the notion that a state could unilaterally establish its own borders through the use of force. Yet it favored admitting Israel nevertheless. Denmark took a slightly different view, arguing bizarrely that, to gain membership, Israel was not required to respect the right of Arab refugees to return to their homes in accordance with the principle of customary international law and UN Resolution 194.
The UK alone dissented from the views of non-Arab member states. Sir Terence Shone agreed with the Arabs that it was indeed “desirable to examine the applicant’s qualification in the light of its record, particularly in connection with its willingness to comply with any existing relevant resolutions of the United Nations.” Israel’s intentions “did not appear to be entirely in accordance with” UN resolutions, he understatedly observed. “It would be deplorable”, he further stated, “if the plight of the refugees were used as a bargaining factor” in negotiations over a formal peace settlement.[xxiv]
The final debate on the matter occurred on May 11. Warren Austin expressed the US government’s equal disregard for Israel’s actual deeds and contrary declarations; it was enough that “Israel had solemnly pledged its word to carry out the obligations of the Charter”. The Netherlands, Canada, New Zealand, and Iceland all expressed their like view. Israel could be “trusted” to honor its responsibilities and obligations (Canada), and there was “no doubt” that it would do so (Iceland). Bolivia proclaimed that Israel had “fulfilled the conditions” required for membership under Article 4 of the UN Charter. Peru argued that once Israel was admitted, “it would be under greater moral obligation” to accept the will of the UN. Guatemala adopted the US’s puzzling argument that admitting Israel “would contribute greatly to the solution”. France and Uruguay expressed their support, the latter by invoking the Holocaust and expressing the belief that the problems of persecution, refugees, and racial discrimination “would disappear” with international acceptance of the state of Israel—a statement obviously intended to apply to the Jews, but not the Arabs, who were evidently regarded as something less than human by Western policymakers. With no less hypocrisy, Ecuador lectured the Arab states that they “would benefit from the admission of Israel” and could adopt “the democratic spirit” by accepting the Assembly’s inevitable decision to grant Israel’s request—the “democratic spirit” again being inapplicable to the Arabs, whose equal right to self-determination had already been summarily dismissed. The Cuban government also invoked the Holocaust and adopted the Soviet Union’s position that the question of Israel’s admission “was completely divorced” from the matters of Jerusalem, borders, and Arab refugees. It was “inappropriate”, in Cuba’s view, to consider these issues when addressing the question of whether to admit Israel. By means of so willfully ignoring the Israeli government’s actual deeds and candid declarations of intent, Cuba could declare that Israel was “proving its love of peace” and its willingness to fulfill its obligations as a Charter member.
The Arab states pleaded with the other members of the Assembly to consider their own obligations under the UN Charter. The Iraqi delegate had to remind members once more that, having only recently adopted the Convention on Prevention and Punishment of the Crime of Genocide and the Universal Declaration of Human Rights, they “should be mindful of the plight of three-quarters of a million human beings.”
The Syrian representative lamented that “never before in history had the forcible invasion of a country and the expulsion of its original inhabitants been welcomed by countries professing their attachment to justice and peace. It would not be a happy omen for the United Nations if it were to reward aggression by approval and admit to membership a Government which had not only disregarded the wishes of the United Nations, but had also indicated its intention to continue to do so.”
Charles Malik excoriated the UN for its “perpetual meetings for the purpose not of bringing reality into conformity with the will of the United Nations, but of revising and transforming that will in order to adapt it to the independently developing reality. Thus, the United Nations could only stand by helplessly and take note of events; it remained powerless to determine them.” He noted further that the International Refugee Organization, established by the UN in 1946 in light of the refugee crisis created by World War II, “was spending millions of dollars on the resettlement of Jews in Palestine. By that very act, it was contributing to the unsettling of as many Arabs outside Palestine.”
The Yemen delegate similarly noted that admitting Israel would prejudice the rights of displaced Arabs and equate to “the sanctioning of aggression and injustice”.
Sheikh Ahmed Jabbar, the representative of Saudi Arabia, noted that the same powers that had pushed for the adoption of UNSCOP’s partition plan—which had explicitly rejected the rights of the majority of its inhabitants—was now pressing for the admission of a state “artificially created through terrorism and aggression. There was no limit to prejudice when certain great Powers found it expedient to adopt a policy regardless of whether or not it was in conformity with the principles of the Charter.”
Following the futile debate, by a vote of thirty-seven in favor, twelve against, and nine abstentions (including the UK), the General Assembly admitted Israel as a member of the United Nations on the grounds that it was “a peace-loving State which accepts the obligations contained in the Charter and is able and willing to carry out those obligations”.[xxv]
Article 4 of the UN Charter states that “Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.”[xxvi] As the ICJ has pointed out, this establishes five requisite conditions for UN membership: “an applicant must (1) be a State; (2) be peace-loving; (3) accept the obligations of the Charter; (4) be able to carry out these obligations; and (5) be willing to do so.”[xxvii]
The attributes of statehood defined under the 1933 Montevideo Convention on the Rights and Duties of States include having “a defined territory”.[xxviii] As the unilaterally-declared state of Israel had no legally defined territory, it did not meet the first requirement under Article 4 for UN membership. As the territory within the de facto boundaries of Israel was acquired through the use of force in contravention of international law and the UN Charter, including by ethnically cleansing Palestine of most of its Arab population, Israel patently did not meet the second requirement for membership. As the Israeli leadership repeatedly proclaimed their intent to annex territory acquired by force, including Jerusalem, and rejected the internationally recognized right of refugees to return, it patently did not meet the fifth requirement for membership, rendering the third and fourth requirements moot.
That is to say, the adoption on May 11, 1949, of UN General Assembly Resolution 273 (III), the US-sponsored resolution that admitted Israel as a UN member, was a violation of the very Charter under which the Assembly was purporting to operate and is thus illegal, null and void.
[xii] The US and USSR, for example, were of like mind on this issue, albeit for opposing reasons. The Soviets charged that the UK was seeking to advance its own interests in the region by limiting the territory in which the state of Israel would be recognized so that Transjordan—Britain’s former protectorate, which “played the role of a puppet of the United Kingdom”—could annex much of Palestine for its own. The Soviets argued that the US had colluded with the UK in its aims by suggesting amendments to an earlier UK draft resolution, which originally proposed annexation by Transjordan, in order for it to gain more support in the Assembly. In furtherance of its own goal of challenging this perceived Western plot, the USSR opposed Syria’s proposal to refer the matter to the ICJ. The Soviet delegate attempted to rationalize this opposition with the circular argument that since Resolution 181 “granted” the Zionists “the right” to create Israel, therefore there was “no need to appeal to the International Court on this matter.” His argument for admitting Israel into the UN similarly begged the question: its admission would be “consistent with the provisions of international law. There is therefore no need to consult the International Court.” See A/PV.186.
[xvii] United Nations Conciliation Commission for Palestine, Summary Record of the Twelfth Meeting, A/AC.25/SR.12 (February 7, 1949). It should be noted that the UN itself sought to alter the status quo of Jerusalem by implementing the recommendation of Resolution 181 to place it under an international regime. This was one of the reasons Egypt and other Arab states voted against Resolution 194, which reiterated this proposal. As the Egyptian foreign minister expressed to the Commission, “he saw no reason why Jerusalem should not remain under Arab control as it had been for so many centuries.” See: A/AC.25/SR/G/3.