The 1948 Arab-Israeli Conflict and International Law

by

Noura Erakat

• LAST MODIFIED: 25 August 2021
• DOI: 10.1093/obo/9780199796953-0226

Introduction

International law’s indeterminacy and its capacity to be shaped by what Duncan Kennedy describes as “legal work,” or the intervention of the legal worker to shape many available parts, (i.e., evidence, primary documents, testimony) into an argument makes certain that there is no singular account of a conflict in international law. Despite the myriad legal arguments presented in jurisprudence, scholarship, and advocacy, not a single one of them is the “truth” to the exclusion of all others as the law itself represents a terrain of battle rather than a science to be discovered or verified. This could not be truer in the case of the 1948 Arab-Israeli conflict. The conflict itself refers to the establishment of Israel, self-defined as a Jewish state, in Mandate Palestine, where a native, and numerical majority, Arab population sought to be self-determined. Perhaps the worst way to pursue this scholarly inquiry is to begin in the 1948 War between Israel and six Arab armies. Doing so effectively erases the three decades of British colonial oversight in its capacity as the Mandatory power that facilitated the settler-colonization of Palestine, the supplanting of nascent Palestinian sovereignty with Jewish-Zionist settler-sovereignty, and, ultimately, the country’s transformation into the modern state of Israel. While I begin this inquiry roughly during the First World War, which ended with the defeat of the Ottoman Empire and its dominion over Palestine since 1299, there is room to begin much earlier especially in regard to the development of legal regimes regulating nationality and citizenship as well as land to understand their mutations over the course of the Palestine Mandate between 1922 and 1948. Similarly, it would be a mistake to end this inquiry upon Israel’s establishment, and then begin again during the 1967 War and the subsequent occupation of Arab lands, as do most legal accounts. The intervening decades between the two wars serve as an analytical bridge to understand the continuities in law between Britain’s colonial oversight of Palestine, Israel’s racialized governance of Palestinian natives who remained, and Israel’s occupation of the West Bank and Gaza, which together provide a more holistic picture of an ongoing settler-colonial regime of land usurpation, native removal, and settler replacement. This bibliography aims to provide historical context as well as reflect some of the debates within the historiography and legal literature. It includes a mix of primary sources, legal analysis, and historical accounts that together should help shape a robust research project.

Palestinian Nationalism and the Quest for Self-Determination

At the turn of the 20th century, the majority of the world’s population existed under imperial dominion. The calls for national independence from imperial rule steadily increased in direct correlation to the crystallization of national identities, what Anderson 2016 has argued are “imagined communities.” The subjects of the Ottoman empire, which stretched from North Africa across southeastern Europe, through the Levant and as far east as the Persian Gulf, were no exception to this trend as Antonius 2015 details beginning in the early 19th century. (See also Balfour Declaration). Initially, Arab Palestinians considered themselves part of Greater Syria, a geopolitical imaginary that included modern day Syria, Lebanon, Jordan, and the northernmost part of Palestine and, as Thompson 2009 shows, struggled for self-determination on those terms. Palestinian national identity congealed in dialectical relationship to regional developments, resistance movements, and colonial interventions, most notably the 1916 Sykes-Picot Agreement that carved the former Ottoman Empire into French and British spheres of influence. The Agreement imposed upon peoples of the Middle East arbitrary borders without regard to ethnic and religious distinctions nor to the will of local populations. The Zionist movement (see Zionism) which sought to establish a Jewish national home in Palestine, similarly influenced the development of Palestinian national identity as explored by Khalidi 2009 and Porath 2016. Tucker 1998, Seikaly 2015, and Doumani 2007 offer refreshing approaches to understanding Palestinian national identity on their own terms. Qafisheh 2009 provides a thorough breakdown of Palestinian citizenship and nationality in law under Ottoman and then British rule while Banko 2016 documents the evolution of Palestinian citizenship during the British Mandate.

• Anderson, Benedict. Imagined Communities: Reflections on the Origin and Spread of Nationalism. Rev. ed. London and New York: Verso, 2016.

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  This canonical text traces the idea of nationalism to South America, in contrast to dominant literature that has tied its emergence to 19th-century Europe. The text illuminates that nationalism is a sociopolitical construct tantamount to an “imagined community” that reshaped concepts of belonging and place.

• Antonius, George. The Arab Awakening: The Story of the Arab National Movement. Reprint. n.p.: Allegro Editions, 2015.

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  This text examines the development of Arab nationalism and helps provide context for the crystallization of Palestinian national identity, at many junctures subsumed, and always shaped by, this broader national identity. The book spans from the early 19th century to just after the First World War. In addition, it includes a rich appendix of original documents critical to any research effort.

• Banko, Lauren. The Invention of Palestinian Citizenship, 1918–1947. Edinburgh: Edinburgh University Press, 2016.

  DOI: 10.3366/edinburgh/9781474415507.001.0001Save Citation »Export Citation » Share Citation »

  This book traces the development of Palestinian citizenship as a site of contest and negotiation. It illustrates how such citizenship both reflected legacies of the Ottoman empire and helped facilitate Zionist settler-colonization.

• Doumani, Beshara. “Palestine Versus the Palestinians? The Iron Laws and Ironies of a People Denied.” Journal of Palestine Studies 36.4 (2007): 49–64.

  DOI: 10.1525/jps.2007.36.4.49Save Citation »Export Citation » Share Citation »

  This essay offers a critical approach to studying Palestinian national identity by urging for a move away from state-centric approaches that have defined Palestinian national aspirations for decades. Doumani considers how the incongruence between territory and national identity has been weaponized to negate Palestinian national existence and nevertheless overcome by Palestinian struggle.

• Khalidi, Rashid. Palestinian Identity: The Construction of Modern National Consciousness. New York: Columbia University Press, 2009.

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  This text is foundational and an ideal place to begin to begin your research on Palestinian national identity. Rashid Khalidi attempts to respond to the claims that Palestinians did not identify as a people, until the emergence of the Zionist movement. He concludes with complex findings that like all peoples, Palestinian national identity is a construction with multivalent elements that both preceded, and were shaped by, the Zionist movement.

• Porath, Yehoshua. The Emergence of the Palestinian-Arab National Movement, 1918–1929. London: Routledge, 2016.

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  This seminal text uses Arabic and Hebrew primary texts as well as English and French official and unofficial documents to trace the origins of Palestinian national identity. It meticulously traces how the relationship between Zionist settlement, colonial policy, regional developments, and local resistance together forge Palestinian national identity up to 1929.

• Qafisheh, Mutaz. “Genesis of Citizenship in Palestine and Israel. Palestinian Nationality during the Period 1917–1925.” Journal of the History of International Law/Revue d’histoire Du Droit International 11.1 (2009): 1–36.

  DOI: 10.1163/157180509X421368Save Citation »Export Citation » Share Citation »

  This article examines citizenship and nationality in Palestine under the Ottoman and British Empire through an international law framework. It focuses on the revocation of Ottoman citizenship—afforded by the Ottoman Nationality Law (1869)—upon British occupation of Palestine in 1917 through the enforcement of the Palestinian Citizenship Order legislated by the British in 1925.

• Seikaly, Sherene. Men of Capital: Scarcity and Economy in Mandate Palestine. Stanford, CA: Stanford University Press, 2015.

  DOI: 10.1515/9780804796729Save Citation »Export Citation » Share Citation »

  Sherene Seikaly’s text is a refreshing approach to the question of Palestinian nationalism and national identity as it escapes the shadows of Zionism to narrate the story of Palestinians on their own terms. In doing so, she manages to write a complex story that illuminates cleavages within Palestinian society along class lines and evidence of multiple approaches to Palestinian nationalism.

• Thompson, Elizabeth. “Justice Interrupted: Historical Perspectives on Promoting Democracy in the Middle East.” 2009..

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  In this Special Report, the author draws on the ill-fated Arab constitutional experiment following the First World War to highlight the folly of US intervention in Iraq for the sake of promoting democracy. The report highlights how the promise of self-determination was denied to all Arab nations and not just Palestinians.

• Tucker, Judith E. In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine. Berkeley: University of California Press, 1998.

  DOI: 10.1525/9780520925380Save Citation »Export Citation » Share Citation »

  This extraordinary book does not directly address Palestinian nationalism but it does shed light on the formation of sociolegal constructions of gender and family within Palestinian and Syrian societies under the Ottoman empire.