The interaction between International law and the Arab-Israeli conflict needs to be appreciated because much of the debate around the Arab-Israeli conflict is based on assertions about the applicability of various and diverse elements of International law. The basis for these arguments are discussed in this article.
The basis for legal arguments
International law is different from domestic law in many important respects, but its interpretation and application relies on a formal structure similar to that of domestic law. Legal arguments are also distinct from moral arguments, historical arguments, and religious arguments, all of which come into play in the Arab-Israeli conflict.
Criteria for making legal arguments
- International treaty law is embodied in a wide range of documents and conventions, where they are articulated explicitly. In other words, any legal argument bound in international law must start with a reference to the applicable International_law#Sources_of_international_law.
- The argument must then show how the statute is applicable to the situation.
- For example, states are not bound by treaties that they haven't signed or ratified; nor are non-states bound by treaties that only apply to states.
- By the same token, treaties typically are limited in scope in various ways.
- This is complicated by the fact that there may be a state of affairs that some interpret de facto as falling into one category; and others interpret differently.
- It is further complicated by the controversial principle that if a sufficient number of states has ratified a treaty, the relevant statutes become part of customary international law that may be considered binding on all states.
- Evidence must then show that an applicable statute in international law has been violated in one way or the other, and that this violation outweighs other legal considerations.
Each of these criteria is subject to dispute within the context of the Arab-Israeli conflict.
Monism vs. dualism
Most common-law countries (including Israel) apply a dualist principle in contending that international and domestic law are distinct systems of law, and that international law only applies to the extent that it does not conflict with domestic law. Most civil law countries (including most European countries) apply a monist principle and contend that there is only one system of law that incorporates both international and domestic law. This philosophical difference leads to different interpretations of the supremacy of international law over domestic law.
Legal issues related to sovereignty
The vast majority of the world's sovereign states are a result of wars that were resolved through peace treaties. Some of these peace treaties were imposed on the losing side in a war; others came about as a result of negotiations that followed wars, or were entered into under the threat of war. In these cases, the applicable law is bound in peace treaties among the states.
All international treaties recognize the supremacy of national sovereignty over other considerations.
Origins
The legal sovereignty over areas now under Israeli rule (including areas within the armistice lines from the War of 1948, areas in Gaza, the Golan Heights, and west of Jordan captured during the Six-Day War) is subject to two different interpretations:
- The Israeli perspective is that the San Remo conference in 1922 explicitly granted the mandate for the relevant areas and today's Hashemite Kingdom of Jordan to Great Britain in order to set up a Jewish homeland there. Since the resolution of this conference is still in force, they claim it's the only applicable treaty.
- The Arab perspective is that sovereignty over these areas, and other areas ceded by the Ottoman Empire after World War I is determined by the legitimate struggle for national self-determination, as exemplified in other struggles for independence in former European colonies. They also claim the areas in question were never intended for Israel in the UN partition plan for Palestine; they were seized from Jordan during the Six day war and are thus considered occupied by Israel.
Subsequent treaties and resolutions
During the course of the British mandate in Palestine, the British government sought to reconcile the two claims in different ways. A number of proposals and declarations were put forward, all of which were rejected by one party or the other, and usually both. Again, two different interpretations apply:
- The Israeli perspective is that Great Britain only had the mandate to propose solutions in keeping with the San Remo conference, not to enforce them. And even if the proposals had greater authority, their rejection and non-enforcement rendered them null and void for further consideration.
- The Arab perspective views the proposals as promises (subsequently broken) to the people of Palestine, see also the Hussein-McMahon Correspondence.
After World War II, the British government decided to abandon its mandate in Palestine. A United Nations Commission (UNSCOP) was assigned to recommend a solution to the conflict to the General Assembly. The recommendation was a partition plan that would result in an Arab and a Jewish state in the remaining mandate, and Jerusalem under UN rule, was approved by General Assembly. This plan does not have the authority of international law, since the General Assembly can only express international diplomatic consensus, not make international law. In any case, the plan was rejected by Arab states at the time.
However, on the basis of the resolution, the State of Israel was founded at the same time that Great Britain had announced its mandate would expire. Many states granted the State of Israel either de facto or de jure recognition. Israel was accepted as a sovereign member state in the United Nations and enjoys diplomatic relations with many, but not all, sovereign states.
The legal consequence of subsequent events
Several events have affected the legal issues related to the conflict:
- After the war in 1948, the mandate ended up being split between Israel, Egypt and Jordan. Israel and Jordan annexed all areas under their administration; Egypt maintained a military occupation of Gaza. The United Nations did not assert its authority of Jerusalem, and the city ended up being split between Israel and Jordan.
- Although there were numerous informal and backchannel communications between Israel and Arab states through the years, all Arab states refused to accept Israel's sovereignty until 1979, and most persist in rejecting Israel's right to exist.
- The war in 1967 brought all remaining parts of the mandate (as defined by Great Britain in 1947) as well as parts of the Golan Heights under Israeli administration. Israel subsequently annexed East Jerusalem and the Golan and asserted that the West Bank and Gaza were disputed territories.
- Both as a result of the wars in 1948 and 1967, Arab residents of the former mandate were displaced and classified by the United Nations as refugees
- In approximately the same time frame, the majority Jews in Arab states fled. Most of these were absorbed by Israel.
- United Nations Security Council issued resolution 242 that set the framework for a resolution through "land for peace".
- In 1979 Egypt and Israel signed a peace treaty in 1979, agreeing on international borders between the two states, but leaving the disposition of Gaza for peace negotiations between Israel and the Palestinians.
- In 1988, the Palestinian National Authority declared the formation of an independent Palestinian state, with Jerusalem as its capital
- In 1993, the PLO and Israel signed a declaration of principles that included mutual recognition and the ultimate goal of establishing self-determination for the Palestinian people.
- In 1994, Jordan and Israel also signed a peace treaty.
- No other Arab state has granted legal recognition of Israel's sovereignty. A formal state of war still exists between Israel and several Arab states, though armistice agreements govern interaction between the states.
- Several attempts at finalizing the terms for a peace agreement between Israel and the PLO have failed, though both parties accept each other as legitimate negotiation partners
Legal issues related to the wars
International law recognizes that there are legal reasons to go to war. For example, states have the right to defend themselves against overt external aggression, in the form of an invasion or other attack. A number of states assert that this principle extends to the right to launch military actions to reduce a threat, protect vital interests, or pre-empt a possible attack or emerging threat. As a practical matter, these distinctions may not matter much: once a war breaks out, the efforts shift toward ending it and preventing it from starting again rather than hashing out legal distinctions.
Wars between Israel and Arab states
Nevertheless, Security Council resolution 242 emphasized "the inadmissibility of the acquisition of territory by war," setting the stage for controversy on the legal status of areas captured in 1967, and (according to some) in 1948.
There are two interpretations of this matter:
- The Israeli position is that:
- The wars in 1956, 1967, and 1973 were waged by Israel to ensure the state's survival. Whether or not hostilities were initiated by one party or the other, Israel had to fight and win these wars in order to ensure the state's sovereignty and safety. Territories captured in the course of those wars are therefore legitimately under Israeli administration.
- In the absence of peace treaties between all the parties at war, Israel has under all circumstances the right to maintain control of the captured territories. Their ultimate disposition should be a result of peace treaties, and not a condition for them. Even so, Israel asserts that:
- The 1956 war was caused by a pattern of Egyptian belligerency against Israel, culminating with the nationalization of the Suez Canal and the blockage of the canal for Israeli traffic, in their view a clear casus belli (i.e. an act justifying war
- The 1967 war was similarly caused by the closing of the Straits of Tiran, the rejection of UN forces in the Sinai desert, and the redeployment of Egyptian forces. Jordan and Syria entered the war in spite of Israeli efforts to keep these frontiers peaceful.
- The 1973 war was a surprise attack against Israel by Syria and Egypt.
- The Arab position is that:
- The war in 1967 was an unprovoked act of aggression aimed at expanding the boundaries of Israel, and the territories captured during this war are illegally occupied.
- As a result, the territories must be returned in order for peace to be achieved.
As noted above, Israel, Egypt, and Jordan have resolved this impasse and have recognized international borders between these states. The dispute has now shifted to the conflict between the Palestinian National Authority/PLO and Israel
Armed conflict between Israel and Palestinian groups
The Declaration of Principles (see above) established Israel and the PNA/PLO as negotiation partners for purposes of determining the resolution of several issues, including:
- The borders and legal status of Palestinian self-determination, including the eventual establishment of a sovereign Palestinian state
- The disposition of Palestinian refugees
- Other arrangements to resolve grievances, such as financial reparations
However, the application of international law is complicated by the fact that Israel is a sovereign state, while the PNA/PLO is recognized (by Israel and other states) as the legitimate representative of the Palestinian people, and not a sovereign state. Hence, the PLO/PNA has neither the rights nor obligations of a sovereign state.
This issue is further complicated by the fact that the PLO/PNA has limited authority over other Palestinian groups, such as Hamas and the Palestinian Islamic Jihad within territories under Israeli or Palestinian administration; or over Hizballah and other organizations in other states.
Israel does not recognize enemy Palestinian combatants as soldiers and prosecutes them under Israeli criminal law. On the other hand, Israel invokes its sovereign right to self-defense as justification for targeted killings of enemy leaders.
Legal issues related to occupation
The Geneva Conventions and other international tractates recognize that land a) conquered in the course of a war; and b) the disposition of which is unresolved through subsequent peace treaties is "occupied" and subject to international laws of war and international humanitarian law. This includes special protection of individuals in those territories, limitations on the use of land in those territories, and access by international relief agencies.
"Occupied" vs. "Disputed" territories
- See related article Political status of the West Bank and Gaza Strip.
Several arguments are brought forward on this issue:
- "Rejectionists" on the Arab side point out that the armistice lines of 1949 should not prejudice future borders, and that all of Israel is in fact occupied territory
- Hardline Israelis agree that the armistice lines of 1949 have no legal standing, but assert instead that all of the West Bank and Gaza is legally Israeli, on both legal and historical bases
- The more mainstream Israeli position is that:
- The Golan Heights and East Jerusalem are annexed and belong to Israel; all inhabitants there have been offered Israeli citizenship
- The West Bank and Gaza are "disputed" and not occupied territories, because:
- The international perspective, excepting only the US in some cases, is that:
- The annexation of the Golan Heights and East Jerusalem are illegal and not recognized by international law
- The West Bank and Gaza are "occupied," because:
- They were captured by force of arms and against the will of their populations
- The residents in these areas were stateless
- Israel has put the territories under military rather than civilian administration, creating a de facto state of occupation
- Non-Jewish residents who reject Israeli citizenship and/or hegemony have the right to self-determination
Jerusalem
Recognizing the controversial nature of sovereignty over Jerusalem, UNSCOP recommended that the city be placed under United Nations administration in the partition plan. This was never implemented, and both Israel and Palestinians claim Jerusalem as their capital. Israel annexed Jerusalem after the 1967 war and offered all inhabitants Israeli citizenship, but the annexation is not generally recognized. Most states maintain embassies and consular offices outside of Jerusalem (typically in Tel Aviv for representation to Israel; and Arab suburbs to Jerusalem for representation to the PNA).
Settlement in territories
The Fourth Geneva Convention prohibits an occupying power from deporting or transferring "parts of its own civilian population into the territory it occupies." On this basis, Palestinians and much of the world community has declared that Israel in violation of international law in establishing, funding, or allowing Jewish communities in the West Bank and Gaza.
The Israeli position is that the territories in question are not occupied within the meaning of the Geneva Conventions, based on arguments discussed above. They further assert that Jewish settlement in these areas does not in any way displace or cause hardship for the Palestinians, which is the original purpose of the Conventions.
Security barrier
Israel has completed long stretches of barriers between Jewish and Palestinian communities, see the Israeli West Bank barrier and the Israeli Gaza Strip barrier articles. There are several interpretations of this issue:
- Critics make one or several of the following arguments:
- While a security barrier may be a necessary and effective way to stop attacks against Israeli targets, Israel has no right to build the barrier in territories considered occupied.
- The barrier is nothing but an attempt to establish de facto borders between Israel and a future Palestinian state
- The barrier attempts to separate Palestinians from their means of livelihood and from interaction with others and is therefore comparable to something the apartheid regime in South Africa might attempt
- Israel defends the security barrier by arguing that:
- The barrier and its route are solely security measures that will have no bearing on future peace negotiations
- The land is not (for reasons outlined above) subject to the Geneva Conventions
- Even if it were, the Geneva Conventions explicitly allows structures to be built for purposes of self-defense
- The Israeli Supreme Court is reviewing the route on a continuous basis and has forced it to change
The International Court of Justice issued an advisory opinion on July 9,2004 that it was contrary to international law for Israel to build a barrier in areas the court considered "occupied."
Legal issues related to refugees
Legal definition of refugee
Most prominent among tractates dealing with refugees is the 1951 Convention relating to the Status of Refugees. The definition of "refugee" is most often summarized as "... a person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution."
The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) applies a somewhat different version of this definition:
"Under UNRWA's operational definition, Palestine refugees are persons whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict. UNRWA's services are available to all those living in its area of operations who meet this definition, who are registered with the Agency and who need assistance. UNRWA's definition of a refugee also covers the descendants of persons who became refugees in 1948."
Critics of both the definitions and work of UNRWA have raised several objections as to the number of people that should be considered refugees, by arguing that:
- There was a significant migration of Arabs into the mandate of Palestine concurrent with the Jewish immigration, in large part in response to the economic development.
- UNRWA's services have led a number of people in the region to apply for refugee status for economic reasons, facilitated by lenient criteria for refugee status and an unwillingness on the part of UNRWA to screen applicants
- It is unprecedented that also descendants of refugees inherit the refugee status
Arab-Israeli peace diplomacy and treaties
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