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International law and the Arab-Israeli conflict |
| Israel |
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Other countries · Atlas Politics portal |
Arguments about the applicability of various elements of international law underlie the debate around the Arab-Israeli conflict. This article discusses the basis for these conflicts.
Unlike a treaty agreement, customary international law is usually not written. Customs of a longstanding nature can be codified by formal treaties. The Laws and Customs of War on Land (Hague IV); October 18, 1907 is one such example.1 To prove that a certain rule is customary one has to show that it is reflected in state practice and that there exists a conviction in the international community that such practice is required as a matter of law. In this context, "practice" relates to official state practice and therefore includes formal statements by states. A contrary practice by some states is possible because if this contrary practice is condemned by the other states, or subsequently denied by the government itself, the original rule is actually confirmed.2
In accordance with article 13 of the UN Charter, the General Assembly is obligated to initiate studies and to make recommendations that encourage the progressive development of international law and its codification.3 Acting in that agreed-upon treaty capacity, the General Assembly affirmed the principles of international law that were recognized by the Charter of the Nuremberg Tribunal and directed that they should be codified.4 Many of those same principles were subsequently adopted by a subordinate UN organ, the International Law Commission of the United Nations, and were also incorporated through the agreement of the High Contracting Parties into the Geneva Conventions.5
In 1950, the International Law Commission listed the following sources as forms of evidence to customary international law: treaties, decisions of national and international courts, national legislation, opinions of national legal advisors, diplomatic correspondence, and practice of international organizations.6
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.
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:
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 the General Assembly. In any case, while the Zionists accepted the plan, the plan was rejected by the Palestinians and the Arab states.
However, the resolution served partially as a basis for the Declaration of the Establishment of the State of Israel to take effect when Great Britain's mandate expired. 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 has diplomatic relations with many, but not all, sovereign states.
Several events have affected the legal issues related to the conflict:
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.
Nevertheless, the Security Council's opinion, as noted by the passed of 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:
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 Palestinians and Israel.
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:
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, but 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 influence over other Palestinian groups, such as Hamas and the Palestinian Islamic Jihad within territories under Israeli or Palestinian administration; or over Hezbollah 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 assassinations of enemy leaders.
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.
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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 approved by the General Assembly in November, 1947, accepted by the Jews and rejected by the Arabs. However, the 1948-1949 war resulted in Israel occupying the western portion of the city . Israel made Jerusalem its capital in 1950, establishing governmental offices in areas it controlled. Soon afterwards, Jordan annexed the eastern part along with the remainder of the West Bank.
After the 1967 war, Israel put the parts of Jerusalem that had been captured during the war under its jurisdiction and civilian administration, establishing new municipal borders. Arguing that this did not amount to annexation at the time, subsequent legal actions have been interpreted as consistent with an annexation.
On July 30, 1980, the Knesset passed a basic law making "Jerusalem, complete and united…the capital of Israel." Since then Israel has extended the municipal boundaries several times.
On October 6, 2002, Yasser Arafat signed the Palestinian Legislative Council's law making Al Quds "the eternal capital of Palestine."
International bodies such as the United Nations have condemned Israel's Basic Law concerning Jerusalem as a violation of the Fourth Geneva Convention and therefore hold that the establishment of the city as Israel's capital is against international law. Consequently, countries have established embassies to Israel's government outside of Jerusalem. Similarly, missions to the Palestinian National Authority are at the insistence of Israel's government located outside of Jerusalem.
Israel has filed strenuous protests [3] against this policy, asserting that:
See related article Israeli settlement.
Article 49 of the Fourth Geneva Convention states in paragraph 1, [4]
Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
and states in paragraph 6,
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
Arguments supporting the position that establishing, funding, or allowing settlements in the territories is a violation of international law are,
Arguments supporting the position that settlement in the territories does not violate international law are,
Israel has completed long stretches of barriers between Jewish and Palestinian communities in the West Bank.
In 2004, the United Nations passed a number of resolutions and the International Court of Justice issued a ruling on the Israeli West Bank barrier. Israel did not recognize the jurisdiction of the ICJ on this matter, stating that the ICJ had no standing to hear the case in the first place, so its determinations are rendered void and irrelevant. The United States and the European Union supported Israel's position on the jurisdication of the ICJ. [14]
In October 2003, the United States vetoed a United Nations Security Council resolution, which stated:
The construction by Israel, the occupying power, of a wall in the Occupied Territories departing from the armistice line of 1949 is illegal under relevant provisions of international law and must be ceased and reversed.
The United Kingdom, Germany, Bulgaria, and Cameroon abstained from the vote. The justification given by the U.S. for the veto was that the resolution did not condemn terrorist attacks made by Palestinian groups (see Negroponte doctrine). The United States, however, has been condemned by some countries for its support of the barrier.
One week later, on October 21, a similar (though non-binding) resolution (ES-10/13) was passed by the UN General Assembly 144-4 with 12 abstentions. The resolution said the barrier was "in contradiction to international law", and demanded that Israel "stop and reverse" its construction. Israel called the resolution a "farce".
In December 2003, the United Nations General Assembly passed a resolution requesting the International Court of Justice (ICJ) to make a non-binding advisory opinion on the "legal consequences arising" from the construction of the barrier.
The hearings began in February 2004. The Palestinian Authority is not a member of the court but was allowed to make a submission by virtue of being a UN observer and a co-sponsor of the General Assembly resolution. In January 2004, the court also authorized the League of Arab States and the Organisation of the Islamic Conference to make submissions.
Israel initially announced that it would cooperate with the court, while noting that advisory rulings of the ICJ are not binding. Israel later made a written submission to the court rejecting the authority of the court to rule on the case, but announced (on February 12, 2004) that it would not appear at the court to make oral submissions.
On January 30, 2004, Israel announced officially it did not recognize ICJ authority to rule over the barrier issue. Israel also dispatched a 120 page document, elaborating on the security needs to build the "terror prevention fence" and purporting to demonstrate the atrocities committed by Palestinian terrorists. The document also included a judicial part with legal accounts supporting Israel's claim that the issue of the barrier is political and not in the ICJ authority.
On 23, 24, and 25 February 2004 the hearings before the International Court of Justice took place in the Peace Palace at the Hague.
On July 9, 2004, the International Court of Justice issued its opinion against the barrier, calling for it to be removed and the Arab residents to be compensated for any damage done. The Court advised that the United Nations General Assembly, which had asked for the ruling, and the Security Council should act on the issue.
The ICJ opinions were as follows 15:
- The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, are contrary to international law;
- Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion;
- Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem;
- All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention;
- The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due account of the present Advisory Opinion.
The opinion were passed 14-1 by the court judges, except for the 4th decision which was passed 13-2.
Thomas Buergenthal was the sole dissenting member of the 15 judges on this ICJ panel. In his declaration [15] he concluded that the court should have declined to hear the case since it did not have before it "relevant facts bearing directly on issues of Israel's legitimate right of self-defense".
Palestinian leader Yasser Arafat said: "This is an excellent decision. This is a victory for the Palestinian people and for all the free peoples of the world."
Israel rejected the ICJ ruling and emphasized the barrier's self-defense aspect [16], and stressed that Israel will continue to build the barrier. The United States also rejected the ruling, declaring that the issue was of political rather than legal nature. Colin Powell stated that barrier was effective against terror, and noted that the ICJ ruling was not binding, but insisted that Israel not use the barrier to predetermine permanent borders. [17]
Numerous human rights organizations welcomed the ICJ ruling. Amnesty International said that Israel should immediately cease constructing the barrier. The governments of Israel's neighbors Lebanon, Syria, Jordan, and Egypt also welcomed the ruling.
On July 13, 2004, the U.S. House of Representatives passed Resolution HR 713 deploring "the misuse of the International Court of Justice (ICJ)... for the narrow political purpose of advancing the Palestinian position on matters Palestinian authorities have said should be the subject of negotiations between the parties." [18] The Resolution further noted that twenty three countries, including every member of the G8 and several other European states, had "submitted objections on various grounds against the ICJ hearing the case."
On July 20, 2004, the United Nations General Assembly passed a resolution demanding that Israel obey the ICJ ruling.[19] Israel, the U.S., Australia, the Federated States of Micronesia, the Marshall Islands, and Palau voted against the resolution, 10 nations abstained, and 150 nations voted in favor.
The tractate that is most often invoked for legally defining 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 convention is administered by the United Nations High Commissioner for Refugees (UNCHR).
The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), which was established prior to the 1951 convention in response to the humanitarian crisis, applies a different 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. Only descendants in the male line are automatically included.
Since the definition used by UNRWA was originally made on an operational basis rather than dictated by specific international law, obligations and rights related to Palestinian refugees under international law are a matter of some debate. The debate centers on questions such as: whether the status of refugees can properly be passed through inheritance to individuals who have never lived in the vacated areas, and whether individuals who have repatriated in other countries can legally claim refugee status.
Palestinian refugees were excluded from the 1951 Convention due to the clause that "This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance." As interpreted by UNHCR, this caused some anomalies, since UNRWA admits some persons as refugees that are not automatically admitted by the Convention, and, conversely, some of the legal protections given to refugees by the Convention were not available to most Palestinians. In 2002, UNHCR adopted a revised interpretation (PDF) that fills some of these gaps.
Critics of the definition that UNRWA uses have raised objections as to the number of people that should be considered refugees under international law, by noting that the practice of awarding refugee status to descendants was not mandated by the later 1951 convention. However, common practice according to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status is that "if the head of a family meets the criteria of the definition, his dependants are normally granted refugee status according to the principle of family unity". In the case of both the UNRWA and UNHCR, actual provision of assistance to a refugee is contingent on a perceived need.
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