Tuesday, August 2, 2016

Arab–Israeli conflict - International law and the Arab–Israeli conflict


 Arab–Israeli conflict 
The Arab–Israeli conflict (Arabic:الصراع العربي الإسرائيلي‎‎ Al-Sira'a Al'Arabi A'Israili; Hebrew: הסכסוך הישראלי-ערבי‎‎ Ha'Sikhsukh Ha'Yisraeli-Aravi) refers to the political tension, military conflicts and disputes between a number of Arab countries and Israel. The roots of the modern Arab–Israeli conflict are bound in the rise of Zionism and Arab nationalism towards the end of the 19th century. Territory regarded by the Jewish people as their historical homeland is also regarded by the Pan-Arab movement as historically and currently belonging to the Palestinians,[7] and in the Pan-Islamic context, as Muslim lands. The sectarian conflict between Palestinian Jews and Arabs emerged in the early 20th century, peaking into a full-scale civil war in 1947 and transforming into the First Arab–Israeli War in May 1948 following the Declaration of the Establishment of the State of Israel.
Large-scale hostilities mostly ended with the cease-fire agreements after the 1973 Yom Kippur War. Peace agreements were signed between Israel and Egypt in 1979, resulting in Israeli withdrawal from the Sinai Peninsula and abolishment of the military governance system in the West Bank and Gaza Strip, in favor of Israeli Civil Administration and consequent unilateral annexation of the Golan Heights and East Jerusalem.
The nature of the conflict has shifted over the years from the large scale regional Arab–Israeli conflict to a more local Israeli–Palestinian conflict, peaking during the1982 Lebanon War. The interim Oslo Accords led to the creation of the Palestinian National Authority in 1994, within the context of the Israeli-Palestinian peace process. The same year Israel and Jordan reached a peace accord. A cease-fire has been largely maintained between Israel and Baathist Syria, as well as more recently with Lebanon (since 2006). However, developments on the course of the Syrian Civil War effectively reshuffled the situation near Israeli northern border bringing Syrian Arab Republic, Hezbollah and Syrian Opposition in odds with each other and complex relations with Israel.
The conflict between Israel and Hamas-ruled Gaza, which resulted in the 2014 cease-fire, is usually also included as part of the Israeli–Palestinian conflict and hence the Arab–Israeli conflict. Its 2006-2012 phase is however also attributed to Iranian proxy war with Israel in the region, which however has cut ties with Sunni Hamas movement due to the Syrian Civil War.
Despite the peace agreements with Egypt and Jordan, interim peace accords with Palestine and the generally existing cease-fire, the Arab world and Israel generally remain at odds with each other over many issues.
Background
Religious aspects of the conflict
Some groups opposed to the peace process invoke religious arguments for their uncompromising positions.[8] The contemporary history of the Arab–Israeli conflict is very much affected by the religious beliefs of the various sides and their views of the idea of the chosen people in their policies with regard to the "Promised Land" and the "Chosen City" of Jerusalem.[9]
The Land of Canaan or Eretz Yisrael (Land of Israel) was, according to the Hebrew Bible, promised by God to the Children of Israel. This is also mentioned in the Qur'an.[10] In his 1896 manifesto, The Jewish State, Theodor Herzl repeatedly refers to the Biblical Promised Land concept.[11] Likud is currently the most prominent Israeli political party to include the Biblical claim to the Land of Israel in its platform.[12]
Muslims also claim rights to that land in accordance with the Quran.[13] Contrary to the Jewish claim that this land was promised only to the descendants of Abraham's younger son Isaac, they argue that the Land of Canaan was promised to what they consider the elder son, Ishmael, from whom Arabs claim descent.[13] Additionally, Muslims also revere many sites holy for Biblical Israelites, such as the Cave of the Patriarchs and the Temple Mount. In the past 1,400 years, Muslims have constructed Islamic landmarks on these ancient Israelite sites, such as the Dome of the Rock and the Al-Aqsa Mosque on the Temple Mount, the holiest site in Judaism. This has brought the two groups into conflict over the rightful possession of Jerusalem. Muslim teaching is that Muhammad passed through Jerusalem on his first journey to heaven. Hamas, which governs the Gaza Strip, claims that all of the land of Palestine (the current Israeli and Palestinian territories) is an Islamic waqf that must be governed by Muslims.[14]
Christian Zionists often support the State of Israel because of the ancestral right of the Jews to the Holy Land, as suggested, for instance, by the apostle Paul in his letter to the Romans, chapter 11, in the Bible. Christian Zionism teaches that the return of Jews in Israel is a prerequisite for the Second Coming of Christ.[15] [16]
National movements
The roots of the modern Arab–Israeli conflict lie in the rise of Zionism and the reactionary Arab nationalism that arose in response to Zionism towards the end of the 19th century. Territory regarded by the Jewish people as their historical homeland is also regarded by the Pan-Arab movement as historically and presently belonging to the Palestinian Arabs. Before World War I, the Middle East, including Palestine (later Mandatory Palestine), had been under the control of the Ottoman Empire for nearly 400 years. During the closing years of their empire, the Ottomans began to espouse their Turkish ethnic identity, asserting the primacy of Turks within the empire, leading to discrimination against the Arabs.[17] The promise of liberation from the Ottomans led many Jews and Arabs to support the allied powers during World War I, leading to the emergence of widespread Arab nationalism. Both Arab nationalism and Zionism had their formulative beginning in Europe. The Zionist Congress was established in Basel in 1897, while the "Arab Club" was established in Paris in 1906.
In the late 19th century European and Middle Eastern Jewish communities began to increasingly immigrate to Palestine and purchase land from the local Ottoman landlords. The population of the late 19th century in Palestine reached 600,000 – mostly Muslim Arabs, but also significant minorities of Jews, Christians, Druze and some Samaritans and Bahai's. At that time, Jerusalem did not extend beyond the walled area and had a population of only a few tens of thousands. Collective farms, known as kibbutzim, were established, as was the first entirely Jewish city in modern times, Tel Aviv.
During 1915–16, as World War I was underway, the British High Commissioner in Egypt, Sir Henry McMahon, secretly corresponded with Husayn ibn 'Ali, the patriarch of the Hashemite family and Ottoman governor of Mecca and Medina. McMahon convinced Husayn to lead an Arab revolt against the Ottoman Empire, which was aligned with Germany against Britain and France in the war. McMahon promised that if the Arabs supported Britain in the war, the British government would support the establishment of an independent Arab state under Hashemite rule in the Arab provinces of the Ottoman Empire, including Palestine. The Arab revolt, led by T. E. Lawrence ("Lawrence of Arabia") and Husayn's son Faysal, was successful in defeating the Ottomans, and Britain took control over much of this area.
Sectarian conflict in Mandatory Palestine
First mandate years and the Franco-Syrian war
In 1917, Palestine was conquered by the British forces (including the Jewish Legion). The British government issued the Balfour Declaration, which stated that the government viewed favorably "the establishment in Palestine of a national home for the Jewish people" but "that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine". The Declaration was issued as a result of the belief of key members of the government, including Prime Minister David Lloyd George, that Jewish support was essential to winning the war; however, the declaration caused great disquiet in the Arab world.[18] After the war, the area came under British rule as the British Mandate of Palestine. The area mandated to the British in 1923 included what is today Israel, the West Bank andGaza Strip. Transjordan eventually was carved into a separate British protectorate – the Emirate of Transjordan, which gained an autonomous status in 1928 and achieved complete independence in 1946 with the approval by the United Nations of the end of the British Mandate.
A major crisis among the Arab nationalists took place with the failed establishment of the Arab Kingdom of Syria in 1920. With the disastrous outcome of the Franco-Syrian War, the self-proclaimed Hashemite kingdom with its capital in Damascus was defeated and the Hashemite ruler took refuge in Mandatory Iraq. The crisis saw the first confrontation of nationalist Arab and Jewish forces, taking place in theBattle of Tel Hai in March 1920, but more importantly the collapse of the pan-Arabist kingdom led to the establishment of the local Palestinian version of Arab nationalism, with the return of Haj Amin al-Husseini from Damascus to Jerusalem in late 1920.
At this point in time Jewish immigration to Mandatory Palestine continued, while to some opinions a similar, but less documented, immigration also took place in the Arab sector, bringing workers from Syria and other neighbouring areas. Palestinian Arabs saw this rapid influx of Jewish immigrants as a threat to their homeland and their identity as a people. Moreover, Jewish policies of purchasing land and prohibiting the employment of Arabs in Jewish-owned industries and farms greatly angered the Palestinian Arab communities.[19] Demonstrations were held as early as 1920, protesting what the Arabs felt were unfair preferences for the Jewish immigrants set forth by the British mandate that governed Palestine at the time. This resentment led to outbreaks of violence later that year, as the al-Husseini incitedriots broke out in Jerusalem. Winston Churchill's 1922 White Paper tried to reassure the Arab population, denying that the creation of a Jewish state was the intention of the Balfour Declaration.
1929 events
In 1929, after a demonstration by Vladimir Jabotinsky's political group Betar at theWestern Wall, riots started in Jerusalem and expanded throughout Mandatory Palestine; Arabs murdered 67 Jews in the city of Hebron, in what became known as the Hebron massacre.
During the week of the 1929 riots, at least 116 Arabs and 133 Jews[20] were killed and 339 wounded.[21]
1930s and 1940s
By 1931, 17 percent of the population of Mandatory Palestine were Jews, an increase of six percent since 1922.[22] Jewish immigration peaked soon after the Nazis came to power in Germany, causing the Jewish population in British Palestine to double.[23]
In the mid-1930s Izz ad-Din al-Qassam arrived from Syria and established the Black Hand, an anti-Zionist and anti-British militant organization. He recruited and arranged military training for peasants and by 1935 he had enlisted between 200 and 800 men. The cells were equipped with bombs and firearms, which they used to kill Jewish settlers in the area, as well as engaging in a campaign of vandalism of Jewish settler plantations.[24] By 1936, escalating tensions led to the 1936–39 Arab revolt in Palestine.[25]
In response to Arab pressure,[26] the British Mandate authorities greatly reduced the number of Jewish immigrants to Palestine (see White Paper of 1939 and theSS Exodus). These restrictions remained in place until the end of the mandate, a period which coincided with the Nazi Holocaust and the flight of Jewish refugeesfrom Europe. As a consequence, most Jewish entrants to Mandatory Palestine were considered illegal (see Aliyah Bet), causing further tensions in the region. Following several failed attempts to solve the problem diplomatically, the British asked the newly formed United Nations for help. On May 15, 1947, the General Assembly appointed a committee, the UNSCOP, composed of representatives from eleven states.[27] To make the committee more neutral, none of the Great Powers were represented.[28] After five weeks of in-country study, the Committee reported to the General Assembly on September 3, 1947.[29] The Report contained a majority and a minority plan. The majority proposed a Plan of Partition with Economic Union. The minority proposed The Independent State of Palestine. With only slight modifications, the Plan of Partition with Economic Union was the one the adoption and implementation of which was recommended in resolution 181(II) of November 29, 1947.[30] The Resolution was adopted by 33 votes to 13 with 10 abstentions. All six Arab states who were UN-members voted against it. On the ground, Arab and Jewish Palestinians were fighting openly to control strategic positions in the region. Several major atrocities were committed by both sides.[31]
Civil War in Mandatory Palestine
Map comparing the borders of the 1947 partition plan and the armistice of 1949.
Boundaries defined in the 1947 UN Partition Plan for Palestine:
  Area assigned for a Jewish state;
    Area assigned for an Arab state;
    Planned Corpus separatum with the intention that Jerusalem would be neither Jewish nor Arab
Armistice Demarcation Lines of 1949:
      Israeli controlled territory from 1949;
    Arab controlled territory until 1967
The rise of Palestinian Nationalism was during the Mandate period, Arab Christian owned Falastin newspaper was the first to warn about the perceived dangers of Zionism. 18 June 1936 issue featuring a caricature, 'The Zionist Crocodile to Palestine Arabs "Don't be afraid!!! I will swallow you peacefully..."'
In the weeks prior to the end of the Mandate theHaganah launched a number of offensives in which they gained control over all the territory allocated by the UN to the Jewish State, creating a large number of refugees and capturing the towns of Tiberias, Haifa, Safad,Beisan and, in effect, Jaffa.
Early in 1948, the United Kingdom announced its firm intention to terminate its mandate in Palestine on May 14.[32] In response, U.S. President Harry S. Truman made a statement on March 25 proposing UN trusteeship rather than partition, stating that "unfortunately, it has become clear that the partition plan cannot be carried out at this time by peaceful means. ... unless emergency action is taken, there will be no public authority in Palestine on that date capable of preserving law and order. Violence and bloodshed will descend upon the Holy Land. Large-scale fighting among the people of that country will be the inevitable result."[33]
History
1948 Arab–Israeli War
On May 14, 1948, the day on which the British Mandate over Palestine expired, the Jewish People's Council gathered at the Tel Aviv Museum, and approved a proclamation which declared the establishment of a Jewish state inEretz Israel, to be known as the State of Israel. The declaration was made by David Ben-Gurion, the Executive Head of the World Zionist Organization.[34]
There were no mention of the borders of the new state other than that it was in Eretz Israel. In an official cablegram from the Secretary-General of the League of Arab States to the UN Secretary-General on May 15, 1948, the Arab stated publicly that Arab Governments found "themselves compelled to intervene for the sole purpose of restoring peace and security and establishing law and order in Palestine." (Clause 10(e)). Further in Clause 10(e) – "The Governments of the Arab States hereby confirm at this stage the view that had been repeatedly declared by them on previous occasions, such as the London Conference and before the United Nations mainly, the only fair and just solution to the problem of Palestine is the creation of United State of Palestine based upon the democratic principles ..."
That day, the armies of Egypt, Lebanon, Syria, Jordan, and Iraq invaded/intervened in what had just ceased to be the British Mandate, marking the beginning of the1948 Arab–Israeli War. The nascent Israeli Defense Force repulsed the Arab nations from part of the occupied territories, thus extending its borders beyond the original UNSCOP partition.[35] By December 1948, Israel controlled most of the portion of Mandate Palestine west of the Jordan River. The remainder of the Mandate consisted of Jordan, the area that came to be called the West Bank (controlled by Jordan), and the Gaza Strip (controlled by Egypt). Prior to and during this conflict, 713,000[36] Palestinian Arabs fled their original lands to become Palestinian refugees, in part, due to a promise from Arab leaders that they would be able to return when the war had been won, and also in part due to attacks on Palestinian villages and towns by Israeli forces and Jewish militant groups.[37] Many Palestinians fled from the areas that are now present-day Israel as a response to massacres of Arab towns by militant Jewish organizations like the Irgun and the Stern Gang (See Deir Yassin massacre). The War came to an end with the signing of the 1949 Armistice Agreements between Israel and each of its Arab neighbours.
The status of Jewish citizens in Arab states worsened during the 1948 Israeli-Arab war. Anti-Jewish riots erupted throughout the Arab World in December 1947, and Jewish communities were hit particularly hard in Aleppo and British-controlledAden, with hundreds of dead and injured. In Libya, Jews were deprived of citizenship, and in Iraq, their property was seized.[38] Egypt expelled most of its foreign community, including Jews, after the Suez War 1956,[39] while Algeria denied its French citizens, including Jews, of citizenship upon its independence in 1962. Over the course of twenty years, some 850,000 Jews from Arab countriesimmigrated to Israel and other countries.[40]
1949–67
As a result of Israel's victory in the 1948 Arab–Israeli War, any Arabs caught on the wrong side of the ceasefire line were unable to return to their homes in what became Israel. Likewise, any Jews on the West Bank or in Gaza were exiled from their property and homes to Israel. Today's Palestinian refugees are the descendants of those who left, the responsibility for their exodus being a matter of dispute between the Israeli and the Palestinian side.[41] [42] :114 Morris concluded that the "decisive cause" for the abandonment by Palestinian Arabs of their settlements was predominantly related to, or caused by, actions of the Jewish forces (citing actual physical expulsions, military assaults on settlements, fear of being caught up in fighting, the fall of nearby settlements, and propaganda inciting flight), while abandonment due to orders by the Arab leadership was decisive in only six out of the 392 depopulated Arab settlements analysed by him.[42] :xiv-xviii Over 700,000 Jews emigrated to Israel between 1948 and 1952, with approximately 285,000 of them from Arab countries.[43] [44]
In 1956, Egypt closed the Straits of Tiran to Israeli shipping, and blockaded the Gulf of Aqaba, in contravention of the Constantinople Convention of 1888. Many argued that this was also a violation of the 1949 Armistice Agreements.[45] [46] On July 26, 1956, Egypt nationalized the Suez Canal Company, and closed the canal to Israeli shipping.[47] Israel responded on October 29, 1956, by invading the Sinai Peninsulawith British and French support. During the Suez Crisis, Israel captured the Gaza Strip and Sinai Peninsula. The United States and the United Nations soon pressured it into a ceasefire.[47] [48] Israel agreed to withdraw from Egyptian territory. Egypt agreed to freedom of navigation in the region and the demilitarization of the Sinai. The United Nations Emergency Force (UNEF) was created and deployed to oversee the demilitarization.[49] The UNEF was only deployed on the Egyptian side of the border, as Israel refused to allow them on its territory.[50]
Israel completed work on a national water carrier, a huge engineering project designed to transfer Israel's allocation of the Jordan river's waters towards the south of the country in realization of Ben-Gurion's dream of mass Jewish settlement of theNegev desert. The Arabs responded by trying to divert the headwaters of the Jordan, leading to growing conflict between Israel and Syria.[51]
The PLO (Palestinian Liberation Organization) was first established in 1964, under a charter including a commitment to "[t]he liberation of Palestine [which] will destroy the Zionist and imperialist presence..." (PLO Charter, Article 22, 1968).
On May 19, 1967, Egypt expelled UNEF observers,[52] and deployed 100,000 soldiers in the Sinai Peninsula.[53] It again closed the Straits of Tiran to Israeli shipping,[54] [55]returning the region to the way it was in 1956 when Israel was blockaded.
On May 30, 1967, Jordan signed a mutual defense pact with Egypt. Egypt mobilized Sinai units, crossing UN lines (after having expelled the UN border monitors) and mobilized and massed on Israel's southern border. On June 5, Israel launched an attack on Egypt. The Israeli Air Force (IAF) destroyed most of the Egyptian Air Forcein a surprise attack, then turned east to destroy the Jordanian, Syrian and Iraqi air forces.[56] This strike was the crucial element in Israel's victory in the Six-Day War.[53][55] At the war's end, Israel had gained control of the Sinai Peninsula, the Gaza Strip, the West Bank (including East Jerusalem), Shebaa farms, and the Golan Heights. The results of the war affect the geopolitics of the region to this day.
1967–73
Egyptian forces crossing the Suez Canal on October 7, 1973
At the end of August 1967, Arab leaders met in Khartoum in response to the war, to discuss the Arab position toward Israel. They reached consensus that there should be no recognition, no peace, and no negotiations with the State of Israel, the so-called "three no's".[57]
In 1969, Egypt initiated the War of Attrition, with the goal of exhausting Israel into surrendering the Sinai Peninsula.[58] The war ended followingGamal Abdel Nasser's death in 1970. Once Sadat took over, he tried to forge positive relations with the USA, hoping they would put pressure on Israel to return the land, by expelling 15,000 Russian advisors from Egypt.[59]
On October 6, 1973, Syria and Egypt staged a surprise attack on Israel on Yom Kippur, the holiest day of the Jewish calendar. The Israeli military were caught off guard and unprepared, and took about three days to fully mobilize.[60] [61] This led other Arab states to send troops to reinforce the Egyptians and Syrians. In addition, these Arab countries agreed to enforce an oil embargo on industrial nations including the U.S, Japan and Western European Countries. These OPEC countries increased the price of oil fourfold, and used it as a political weapon to gain support against Israel.[62] The Yom Kippur War accommodated indirect confrontationbetween the US and the Soviet Union. When Israel had turned the tide of war, the USSR threatened military intervention. The United States, wary of nuclear war, secured a ceasefire on October 25.[60] [61]
1974–2000
Egypt
Begin, Carter and Sadat at Camp David
Following the Camp David Accords of the late 1970s, Israel and Egypt signed a peace treaty in March 1979. Under its terms, the Sinai Peninsulareturned to Egyptian hands, and the Gaza Strip remained under Israeli control, to be included in a future Palestinian state. The agreement also provided for the free passage of Israeli ships through the Suez Canal and recognition of theStraits of Tiran and the Gulf of Aqaba as international waterways.
Jordan
In October 1994, Israel and Jordan signed a peace agreement, which stipulated mutual cooperation, an end of hostilities, the fixing of the Israel-Jordan border, and a resolution of other issues. The conflict between them had cost roughly 18.3 billion dollars. Its signing is also closely linked with the efforts to create peace between Israel and the Palestine Liberation Organization (PLO) representing the Palestinian National Authority (PNA). It was signed at the southern border crossing of Arabah on October 26, 1994 and made Jordan only the second Arab country (after Egypt) to sign a peace accord with Israel.
Iraq
Israel and Iraq have been implacable foes since 1948. Iraq sent its troops to participate in the 1948 Arab–Israeli War, and later backed Egypt and Syria in the 1967 Six-Day War and in the 1973 Yom Kippur War.
In June 1981, Israel attacked and destroyed newly built Iraqi nuclear facilities inOperation Opera.
During the Gulf War in 1991, Iraq fired 39 Scud missiles into Israel, in the hopes of uniting the Arab world against the coalition which sought to liberate Kuwait. At the behest of the United States, Israel did not respond to this attack in order to prevent a greater outbreak of war.
Lebanon
In 1970, following an extended civil war, King Hussein expelled the Palestine Liberation Organization from Jordan. September 1970 is known as the Black September in Arab history and sometimes is referred to as the "era of regrettable events". It was a month when Hashemite King Hussein of Jordan moved to quash the autonomy of Palestinian organisations and restore his monarchy's rule over the country.[63] The violence resulted in the deaths of tens of thousands of people, the vast majority Palestinians.[64] Armed conflict lasted until July 1971 with the expulsion of the PLO and thousands of Palestinian fighters to Lebanon. The PLO resettled in Lebanon, from which it staged raids into Israel. In 1978, Israel launched Operation Litani, in which it together with the South Lebanon Army forced the PLO to retreat north of the Litani river. In 1981 another conflict between Israel and the PLO broke out, which ended with a ceasefire agreement that did not solve the core of the conflict. In June 1982, Israel invaded Lebanon. Within two months the PLO agreed to withdraw thence.
In March 1983, Israel and Lebanon signed a ceasefire agreement. However, Syria pressured President Amine Gemayel into nullifying the truce in March 1984. By 1985, Israeli forces withdrew to a 15 km wide southern strip of Lebanon, following which the conflict continued on a lower scale, with relatively low casualties on both sides. In 1993 and 1996, Israel launched major operations against the Shiite militia ofHezbollah, which had become an emergent threat. In May 2000, the newly elected government of Ehud Barak authorized a withdrawal from Southern Lebanon, fulfilling an election promise to do so well ahead of a declared deadline. The hasty withdrawal lead to the immediate collapse of the South Lebanon Army, and many members either got arrested or fled to Israel.
In 2006, as a response to a Hezbollah cross-border raid, Israel launched air strikes on Hezbollah strongholds in Southern Lebanon, starting the 2006 Lebanon War. The inconclusive war lasted for 34 days, and resulted in the creation of a buffer zone in Southern Lebanon and the deployment of Lebanese troops south of the Litani river for the first time since the 1960s. The Israeli government under Ehud Olmert was harshly criticized for its handling of the war in the Winograd Commission.
Palestinians
The 1970s were marked by a large number of major, international terrorist attacks, including the Lod Airport massacre and the Munich Olympics Massacre in 1972, and the Entebbe Hostage Taking in 1976, with over 100 Jewish hostages of different nationalities kidnapped and held in Uganda.
In December 1987, the First Intifada began. The First Intifada was a mass Palestinian uprising against Israeli rule in the Palestinian territories.[65] The rebellion began in the Jabalia refugee camp and quickly spread throughout Gaza and the West Bank. Palestinian actions ranged from civil disobedience to violence. In addition to general strikes, boycotts on Israeli products, graffiti and barricades, Palestinian demonstrations that included stone-throwing by youths against the Israel Defense Forces brought the Intifada international attention. The Israeli army's heavy handed response to the demonstrations, with live ammunition, beatings and mass arrests, brought international condemnation. The PLO, which until then had never been recognised as the leaders of the Palestinian people by Israel, was invited to peace negotiations the following year, after it recognized Israel and renounced terrorism.
Yitzhak Rabin, Bill Clinton, and Yasser Arafat at the Oslo Accords signing ceremony on September 13, 1993
In mid-1993, Israeli and Palestinian representatives engaged in peace talks in Oslo, Norway. As a result, in September 1993, Israel and the PLO signed the Oslo Accords, known as the Declaration of Principles or Oslo I; in side letters, Israel recognized the PLO as the legitimate representative of the Palestinian people while the PLO recognized the right of the state of Israel to exist and renounced terrorism, violence and its desire for the destruction of Israel.
The Oslo II agreement was signed in 1995 and detailed the division of the West Bank into Areas A, B, and C. Area A was land under full Palestinian civilian control. In Area A, Palestinians were also responsible for internal security. The Oslo agreements remain important documents in Israeli-Palestinian relations.
2000–09
The Second Intifada forced Israel to rethink its relationship and policies towards the Palestinians. Following a series of suicide bombings and attacks, the Israeli army launched Operation Defensive Shield. It was the largest military operation conducted by Israel since the Six-Day War.[66]
As violence between the Israeli army and Palestinian militants intensified, Israel expanded its security apparatus around the West Bank by re-taking many parts of land in Area A. Israel established a complicated system of roadblocks andcheckpoints around major Palestinian areas to deter violence and protect Israeli settlements. However, since 2008, the IDF has slowly transferred authority to Palestinian security forces.[67] [68] [69]
Israel's then prime minister Ariel Sharon began a policy of disengagement from Gaza from the Gaza Strip in 2003. This policy was fully implemented in August 2005.[70] Sharon's announcement to disengage from Gaza came as a tremendous shock to his critics both on the left and on the right. A year previously, he had commented that the fate of the most far-flung settlements in Gaza, Netzararem and Kfar Darom, was regarded in the same light as that of Tel Aviv.[71] The formal announcements to evacuate seventeen Gaza settlements and another four in the West Bank in February 2004 represented the first reversal for the settler movement since 1968. It divided his party. It was strongly supported by Trade and Industry Minister Ehud Olmert and Tzipi Livni, the Minister for Immigration and Absorption, but Foreign Minister Silvan Shalom and Finance Minister Benjamin Netanyahu strongly condemned it. It was also uncertain whether this was simply the beginning of further evacuation.[72]
On March 16, 2003, Rachel Corrie, an American peace activist was crushed to death by an Israeli Defense Forces (IDF) bulldozer in Rafah, Gaza, during a non-violent protest of the Israeli demolition of Palestinian homes.[73] Corrie stood in confrontation with the bulldozers for three hours wearing a bright orange jacket and carrying a megaphone.[73] Although the Israeli government has denied responsibility in the incident and ruled her death as an accident, several eye-witness reports say that the Israeli soldier operating the bulldozer deliberately ran her over.[73] [74]
In June 2006, Hamas militants infiltrated an army post near the Israeli side of the Gaza Strip and abducted Israeli soldier Gilad Shalit. Two IDF soldiers were killed in the attack, while Shalit was wounded after his tank was hit with an RPG. Three days later Israel launched Operation Summer Rains to secure the release of Shalit.[75] He was held hostage by Hamas, who barred the International Red Cross from seeing him, until October 18, 2011, when he was exchanged for 1,027 Palestinian prisoners.[76] [77]
In July 2006, Hezbollah fighters crossed the border from Lebanon into Israel, attacked and killed eight Israeli soldiers, and abducted two others as hostages, setting off the 2006 Lebanon War which caused much destruction in Lebanon.[78] A UN-sponsored ceasefire went into effect on August 14, 2006, officially ending the conflict.[79] The conflict killed over a thousand Lebanese and over 150 Israelis,[80] [81][82] [83] [84] [85] [86] severely damaged Lebanese civil infrastructure, and displaced approximately one million Lebanese[87] and 300,000–500,000 Israelis, although most were able to return to their homes.[88] [89] [90] After the ceasefire, some parts ofSouthern Lebanon remained uninhabitable due to Israeli unexploded cluster bomblets.[91]
In the aftermath of the Battle of Gaza, where Hamas seized control of the Gaza Strip in a violent civil war with rival Fatah, Israel placed restrictions on its border with Gaza borders and ended economic cooperation with the Palestinian leadership based there. Israel and Egypt have imposed a blockade of the Gaza Strip since 2007. Israel maintains the blockade is necessary to limit Palestinian rocket attacks from Gazaand to prevent Hamas from smuggling advanced rockets and weapons capable of hitting its cities.[73]
On September 6, 2007, in Operation Orchard, Israel bombed an eastern Syrian complex which was allegedly a nuclear reactor being built with assistance fromNorth Korea.[92] Israel had also bombed Syria in 2003.
In April 2008, Syrian President Bashar al-Assad told a Qatari newspaper that Syria and Israel had been discussing a peace treaty for a year, with Turkey as a go-between. This was confirmed in May 2008 by a spokesman for Prime Minister Ehud Olmert. As well as a peace treaty, the future of the Golan Heights is being discussed. President Assad said "there would be no direct negotiations with Israel until a new US president takes office."[93]
Speaking in Jerusalem on August 26, 2008, then United States Secretary of StateCondoleezza Rice criticized Israel's increased settlement construction in the West Bank as detrimental to the peace process. Rice's comments came amid reports that Israeli construction in the disputed territory had increased by a factor of 1.8 over 2007 levels.[94]
A fragile six-month truce between Hamas and Israel expired on December 19, 2008;[95] attempts at extending the truce failed amid accusations of breaches from both sides.[96] [97] [98] [99] Following the expiration, Israel launched a raid on a tunnel suspected of being used to kidnap Israeli soldiers which killed several Hamas fighters.[100] Following this, Hamas resumed rocket and mortar attacks on Israeli cities, most notably firing over 60 rockets on December 24. On December 27, 2008, Israel launched Operation Cast Lead against Hamas. Numerous human rights organizations accused Israel and Hamas of committing war crimes.[101]
In 2009 Israel placed a 10-month settlement freeze on the West Bank. Hillary Clinton praised the freeze as an "unprecedented" gesture that could "help revive Middle East talks."[102] [103]
A raid was carried out by Israeli naval forces on six ships of the Gaza Freedom Flotilla in May 2010.[104] after the ships refused to dock at Port Ashdod. On the MV Mavi Marmara, activists clashed with the Israeli boarding party. During the fighting, nine activists were killed by Israeli special forces. Widespread international condemnation of and reaction to the raid followed, Israel–Turkey relations were strained, and Israel subsequently eased its blockade on the Gaza Strip.[105] [106] [107][108] Several dozen other passengers and seven Israeli soldiers were injured,[106] with some of the commandos suffering from gunshot wounds.[109] [110]
2010–present
Following the latest round of peace talks between Israel and the Palestinian Authority, 13 Palestinian militant movements led by Hamas initiated a terror campaign designed to derail and disrupt the negotiations.[111] Attacks on Israelis have increased since August 2010, after 4 Israeli civilians were killed by Hamas militants. Palestinian militants have increased the frequency of rocket attacks aimed at Israelis. On August 2, Hamas militants launched seven Katyusha rockets at Eilatand Aqaba, killing one Jordanian civilian and wounding 4 others.[112]
Intermittent fighting continued since then, including 680 rocket attacks on Israel in 2011.[113] On November 14, 2012, Israel killed Ahmed Jabari, a leader of Hamas's military wing, launching Operation Pillar of Cloud.[114] Hamas and Israel agreed to an Egyptian-mediated ceasefire on November 21.[115]
The Palestinian Centre for Human Rights said that 158 Palestinians were killed during the operation, of which: 102 were civilians, 55 were militants and one was a policeman; 30 were children and 13 were women.[116] [117] B'Tselem stated that according to its initial findings, which covered only the period between 14 and 19 November, 102 Palestinians were killed in the Gaza Strip, 40 of them civilians. According to Israeli figures, 120 combatants and 57 civilians were killed.[118]International outcry ensued, with many criticizing Israel for what much of the international community perceived as a disproportionately violent response.[119]Protests took place on hundreds of college campuses across the U.S., and in front of the Israeli consulate in New York.[120] Additional protests took place throughout the Middle East, throughout Europe, and in parts of South America.[120]
However, the governments of the United States, United Kingdom, Canada, Germany, France, Australia, Belgium, Bulgaria, Czech Republic and Netherlands expressed support for Israel's right to defend itself, and/or condemned the Hamas rocket attacks on Israel.[121] [122] [123] [124] [125] [126] [127] [128] [129] [130] [131]
Following an escalation of rocket attacks by Hamas, Israel started an operation in the Gaza Strip on July 8, 2014.[132]
Notable wars and violent events
TimeName
1948–1949First Arab–Israeli War
1951–1955Reprisal operations
1956Suez War
1967The Six-Day War
1967–1970War of Attrition
1971–1982Palestinian insurgency in South Lebanon
1973Yom Kippur War
1978First South Lebanon conflict
1982First Lebanon War
1985–2000Second South Lebanon conflict
1987–1993First Intifada
2000–2004Second Intifada
2006Operation Summer Rains
Second Lebanon War
2008–2009Gaza War
2012Operation Pillar of Defense
20142014 Israel–Gaza conflict
Cost of conflict
A report by Strategic Foresight Group has estimated the opportunity cost of conflict for the Middle East from 1991–2010 at $12 trillion. The report's opportunity cost calculates the peace GDP of countries in the Middle East by comparing the current GDP to the potential GDP in times of peace. Israel's share is almost $1 trillion, with Iraq and Saudi Arabia having approximately $2.2 and $4.5 trillion, respectively. In other words, had there been peace and cooperation between Israel and Arab League nations since 1991, the average Israeli citizen would be earning over $44,000 instead of $23,000 in 2010.[133]
In terms of the human cost, it is estimated that the conflict has taken 92,000 lives (74,000 military and 18,000 civilian from 1945 to 1995).[6]
See also
References
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  10. Sura 17, "The Night Journey", verse 103
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 International law and the Arab–Israeli conflict 
e
The International law bearing on issues of Arab-Israeli conflict, which became a major arena of regional and international tension since the birth of Israel in 1948, resulting in several disputes between a number of Arab countries and Israel.
There is a broad international consensus that the actions of the nations involved in the Arab-Israeli conflict violate prohibitions contained in international law.[1] [2] However, this legality is disputed by some of the nations involved.[3]
As a result of the Six-Day War in 1967, Israel came to occupy land invaded and occupied in 1948 by neighboring Egypt, Syria and Jordan. Following the peace treaties between Israel and Egypt and Israel and Jordan, the conflict today largely revolves aroundPalestinian statehood.
The main points of dispute (also known as the "core issues" or "final status issues") are the following:
The United Nations General Assembly has voted on a resolution bearing on issues of international law as applied to the conflict every year since 1974.[4] In November 2013, on a resolution entitled "Peaceful settlement of the question of Palestine", was adopted by a recorded vote of 165 in favor to 6 against with 6 abstentions.[5]
Customary international law
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) of 18 October 1907[6] and the Geneva Conventions of 12 August 1949 are examples of conventional laws that are declarations of customary law.[7] 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.[8]
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.[9] 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.[10] Many of those same principles were subsequently adopted for inclusion in draft treaties that were under development by the International Law Commission of the United Nations. They were also incorporated through the agreement of the High Contracting Parties into the Geneva Conventions of 1949.[11] In 1993 the UN Security Council "acting under Chapter VII of the Charter on the United Nations" established an international tribunal and approved a Statute that had been recommended in a report submitted by the Secretary General. It concluded beyond doubt that the law applicable in armed conflict as embodied in the Geneva Conventions of 12 August 1949 and the Hague Convention (IV) of 18 October 1907 had become part of international customary law, and should be part of the subject matter jurisdiction of the International Criminal Tribunal for the former Yugoslavia. In 1998, the United Nations Diplomatic Conference of Plenipotentiaries approved the Rome Statute of the International Criminal Court. The offenses against unwritten customary international law were amenable to prosecution by international tribunals, like the Nuremberg Tribunal, long before they were codified and incorporated into the subsequent treaties.
Forms of evidence
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.[12]
Conventions, resolutions and declarations
Many provisions of international law are based upon principles and norms that were developed in the Americas during the 19th century. They include the principle of uti possidetis of 1810[13] and the related Monroe Doctrine of 1823, regarding non-colonization and non-intervention. In 1890, the First International Conference of American States adopted a proscription against territorial conquest and agreed upon the non-recognition of all acquisitions made by force.[14] Those principles and regional understandings were recognized in Article 21 of the Covenant of the League of Nations.[15] The system of mandates contained in article 22 of the Covenant was based in part upon those normative declarations and state practices. The Kellogg-Briand Pact of 1928, and the League of Nations approval of the Stimson Doctrine in 1931 were efforts designed to end the practice of coercive territorial revisionism through international law.
After World War II, the principles of international law that upheld the territorial integrity of states were incorporated in the Charter of the United Nations,[16] and subsequently reaffirmed in the Declaration on the Granting of Independence to Colonial Countries and Peoples, the Organization of African Unity charter respecting the integrity of inherited boundaries, and the 1975 CSCE Helsinki Final Act which contained a proscription that boundaries could only be altered by consent.[17] The Chapter on Fundamental Rights and Duties of States in the Charter of the Organization of American States provides that:
The territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever. No territorial acquisitions or special advantages obtained either by force or by other means of coercion shall be recognized.
Legal issues related to sovereignty
In their relations with other peoples and countries during the colonial era the Concert of Europe adopted a fundamental legal principle that the supreme legal authority, or sovereignty, lay outside the indigenous nations. That legal principle resulted in the creation of a large number of dependent states with restricted sovereignty or colonial autonomy. Various terms were used to describe different types of dependent states, such as condominium, mandate, protectorate, colony, and vassal state. After World War II there was strong international pressure to eliminate dependencies associated with colonialism.[18]
The vast majority of the world's sovereign states resulted from the grant of independence to colonial peoples and dependent territories. Prior to World War II many states were formed as 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 was bound in peace treaties among the states. The practice of territorial aggrandizement was prohibited by the UN Charter, a multilateral treaty, and the authoritative explanation of its legal principles contained in UN General Assembly resolution 2625 (XXV) of 24 October 1970, Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations.[19] The purpose of the United Nations is the prevention and removal of threats to peace and the suppression of acts of aggression. The Charter requires that members shall refrain from the threat of, or use of force. According to communis opinio the obligations imposed by those provisions of the Charter have become part of customary international law and are binding on all States, whether they are members of the United Nations or not.[20]
Treaties and resolutions
The communities and Holy Places of Palestine have been under the express protection of international law since the early 19th century. For example, the International Court of Justice advisory opinion noted that access to the Christian, Jewish and Islamic Holy Places had been protected by various laws dating back to the early Ottoman Empire, with the latest provisions having been incorporated into the UN Partition Plan, article 13 of the League of Nations Mandate, and Article 62 of the Treaty of Berlin of 13 July 1878.
The Treaty of Paris in 1814 called for a congress of the Great Powers of Europe to settle the future boundaries of the continent. Nearly every state in Europe was represented, and among other things a prohibition on unilateral annexation was adopted. This bolstered the concept of territorial integrity, which was enshrined in the Congress of Vienna in 1815.[21]
The 1856 Treaty of Paris declared that the Sublime Porte, the government of the Ottoman Empire, had been admitted to participate in the Public Law and System (Concert) of Europe.[22] The European system of public law governed territorial accessions and the creation of new states. After the Russo-Turkish Wars in 1878, Russia and the Ottoman Empire concluded the Treaty of San Stefano. Because it modified the terms of the Treaty of Paris of 1856, the other signatories called for a Congress to obtain its revision. The Treaty of Berlin of 1878 was the result. Montenegro, Serbia, and Romania were recognized as new independent states and granted specific territory on condition that religious, political, and property rights of minorities were guaranteed on a nondiscriminatory basis.[23] The delegates of theFirst Zionist Congress acknowledged these customary diplomatic precedents in the Basle Program. It stated that the aim of Zionism was the creation of a home for the Jewish people in Palestine, secured by public law.
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 the United Kingdom only had the mandate to propose solutions in keeping with the resolutions adopted at the San Remo Conference, not to amend them. In other words, that the relevant resolutions adopted at the San Remo Conference are the public law that awarded the Jewish people de jure sovereignty over Palestine.
  • The Arab perspective views British 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 apartition 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.
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 jurerecognition. Israel was accepted as a sovereign member state in the United Nations and has 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, Egyptand Jordan. Israel and Jordan annexed all areas under their administration;Egypt maintained a military occupation of Gaza. The United Nations attempted to assert its authority over Jerusalem but the designated mediator, Count Bernadotte, was killed by the militant Zionist group Lehi while pursuing his official duties, and the city ended up being split between Israel and Jordan. Lehi had feared that Israel would agree to Bernadotte's peace proposals, which they considered disastrous, unaware that the provisional Israeli government had already rejected a proposal by Bernadotte the day before.[24]
  • 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 (excluding Jordan, Mauritania, and Egypt) persisted in rejecting Israel's desire to exist (see Khartoum Resolution) until the 2002 Arab Peace Initiative that offers Israel peace and normal relations with all Arab countries if Israel withdraws from all areas occupied in the 1967 war and "attain a just solution" to the Palestinian refugeeproblem "to be agreed upon in accordance with the UN General Assembly Resolution 194".
  • 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, asserting 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, most Jews in Arab states fled or were forced to leave, with most of them 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, 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 PLO declared "the establishment of the State of Palestine in the land of Palestine with its capital at Jerusalem."[25]
  • In 1993, the PLO and Israel signed a declaration of principles that included mutual recognition and the ultimate goal of establishing self rule 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, thougharmistice agreements govern interaction between the states.
  • Several attempts at finalizing the terms for a peace agreement between Israel and the PLO have failed. In 2006 the Palestinians elected Hamas into power, a party that does not recognize Israel as legitimate.
Legal issues related to the wars
Sovereign 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.
Wars between Israel and Arab states
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 in 1948.
There are two interpretations of this matter:
  • The Israeli position is that:
    • The wars in 1956 and 1967 were waged by Israel to ensure the state's survival. As most hostilities were initiated by the Arab side, 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 for both security reasons and to deter hostile states from belligerence.
    • 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 belligerence against Israel, culminating with the nationalization of the Suez Canal and the blockage of the canal for Israeli traffic in violation of the Convention of Constantinople and other relevant treaties, 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 1956 war came after an Israeli attack on the Gaza strip killing 25 Egyptian soldiers, and was a result of a conspiracy between France, the United Kingdom and Israel in violation of Egypt's sovereignty. Egypt claimed several legal justifications for refusing Israel use of the Suez Canal, including the right of self-defence.
    • 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 ceded 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 Palestinians and Israel.[26]
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.
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 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 in 1950 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.[27] Similarly, missions to the Palestinian National Authority are at the insistence of Israel's government located outside of Jerusalem.
Israel has filed strenuous protests [1] against this policy, asserting that:
  • There is no basis in international law for denying Israel's establishing its capital in Jerusalem, because there is no binding treaty that makes the city a Corpus separatum.
  • The 1980 Basic Law is not a legal innovation and only affirms Israel's long-standing position on Jerusalem.
  • Israel has the sovereign right to establish its capital at the most meaningful place for its people, and its claim is unique.
  • Objections to Jerusalem as Israel's capital are political in nature, and not legal.
In its 2004 advisory opinion on the legality of the Israeli West Bank barrier, theInternational Court of Justice concluded that the lands captured by Israel in the 1967 war, including East Jerusalem, are occupied territory.[28]
Settlement in territories
Article 49 of the Fourth Geneva Convention states in paragraph 1, [2]
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,
  • The International Committee of the Red Cross' commentaries to the Geneva Conventions [3] state that Article 49, paragraph 6, "is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories." It further notes "that in this paragraph the meaning of the words 'transfer' and 'deport' is rather different from that in which they are used in the other paragraphs of Article 49 since they do not refer to the movement of protected persons but to that of nationals of the occupying Power". The Committee has on several occasions described the establishment of Israeli settlements in the occupied territories as a violation of the Fourth Geneva Convention. [4]
  • the International Court of Justice, in paragraph 120 of its advisory opinion on the "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory", asserts that: "That provision [article 49(6)] prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory" and "concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law". [5] The dissenting judge Thomas Buergenthal agreed that "this provision applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6". [6]
  • Article 8(2)(b)(viii) of the International Criminal Court Rome Statute defines "[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" as a war crime. [7] Israel did initially sign the statute, but later declared its intention not to ratify it. [8]
  • The Security Council has in Resolution 446 determined: "that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity".
Arguments supporting the position that settlement in the territories does not violate international law are,
  • Israel ministry of foreign affairs argues "As the West Bank and Gaza Strip were not under the legitimate and recognized sovereignty of any state prior to the Six Day War, they should not be considered occupied territories." [29]
  • Article 49 of the Fourth Geneva Convention is limited to transfers or deportations into or out of Occupied Territories which are 'forcible'. [9]
  • Article 49 "cannot be viewed as prohibiting the voluntary return of individuals to the towns and villages from which they, or their ancestors, had been ousted" from living, e.g., in Gush Etzion, Jerusalem, or Hebron before 1948.
  • the Palestinians, as part of the Oslo Accords [10], agreed that the issue of settlements in the territories shall fall under the jurisdiction of final status negotiations (Article V, Section 3).
  • Jews have a legal right to settle the areas according to the Mandate for Palestine (specifically Article 6 of the mandate concerning Jewish settlements) and to such documents as the Faisal Weizmann Agreement. The British Mandate (granted by the League of Nations) specifically encouraged "close settlement by Jews on the land."
Legal issues related to the Israeli West Bank barrier
Israel has completed long stretches of barriers within the West Bank, separating Israel proper, Israeli settlements and large parts of the Palestinian territories from Palestinian cities and population centers.
  • Those who question the legality of the barrier make the following arguments:
    • The barrier has been found to be illegal by the legal arm of the United Nations (the International Court of Justice).
    • At various locations, the selected route of the barrier required the demolition of homes and the expulsion of the residents of those homes, in violation of Article 49 of the Fourth Geneva Convention.
    • The barrier and Israel's series of checkpoints have made life nearly impossible for residents of the West Bank, constituting collective punishment. Article 33 of the Fourth Geneva Convention categorize collective punishment in occupied territories as a war crime.
    • At various locations, the selected route of the barrier required the demolition of Palestinian property, in violation of article 53 of the Fourth Geneva Conventions.
    • The barrier is an attempt to establish de facto borders between Israel and a future Palestinian state, in effect annexing large parts of West Bank and all of East Jerusalem, in violation of numerous United Nations Security Council Resolutions.
    • The barrier attempts to separate Palestinians from their means of livelihood and from interaction with others and is therefore qualifies as Apartheid. Apartheid is illegal as per the 2002 Rome Statute of the International Criminal Court and is considered a crime against humanity (see also: Israel and the apartheid analogy).
    • The barrier is constructed inside of the West Bank, making it completely in violation of international law.
    • The barrier differs from all other protective barriers built by any other state (such as the Berlin Wall, or the US-Mexico border) in that it is not constructed on the border between states but rather crosses the occupied territories in numerous locations, and with existing/expanding settlements, divides the occupied territories into 4 or 5 cantons.
  • 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 subject to the Geneva Conventions.
    • 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.
    • StandWithUs, a pro-Israel advocacy organization, defends the security fence by pointing out:
      • Israel did not begin building the fence until 2003, when terrorism reached unprecedented levels.
      • The fence is similar to barriers that dozens of other democracies have built to keep out terrorists or illegal immigrants, such as the barriers between the United States and Mexico, India and Kashmir, Spain andMorocco, North and South Korea and even the walls within Belfast that separate Protestant and Catholic neighborhoods.
      • Since construction of the fence began in 2003, the number of completed terrorist attacks has dropped by more than 90%.
      • 97% of the barrier is a chain-link fence similar to those along the United States's border; only 3% (10 miles) is a concrete wall, built to prevent sniper shooting prevalent in certain areas.
      • Only 5%-8% of the West Bank and less than 1% of Palestinians will end up on the Israeli side of the fence.[30] [31]
      • Palestinians can bring their specific grievances about the barrier toIsrael's Supreme Court, which in several cases has ruled that the fence must be re-routed.[32]
In 2004, the United Nations passed a number of resolutions and the International Court of Justice issued a ruling where judges ruled 14–1 that the portions of the Israeli West Bank barrier that are located within occupied Palestinian territories are illegal under international law. [11] Prior to the ruling, Israel had made the claim that the ICJ lacked standing to rule on the legality of the barrier, which the court unanimously rejected.[33] On July 20, 2004, the United Nations General Assembly passed a resolution demanding that Israel obey the ICJ ruling. [12] 150 nations voted in favor of the resolution, 7 voted against, and 10 abstained.
United Nations
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".
Process of the ICJ
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.
Ruling of the ICJ
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:[34]
  1. 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;
  2. 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;
  3. 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;
  4. 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;
  5. 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, the American judge, was the sole dissenting member of the 15 judges on this ICJ panel. In his declaration he stated that there was much in the court's opinion with which he agreed but 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". He stated that his dissenting opinion "should not be seen as reflecting my view that the construction of the wall by Israel on the Occupied Palestinian Territory does not raise serious questions as a matter of international law." On the point of portions of the wall that were being built beyond the green line, which Israel stated were to defend settlements, Buergenthal stated:[34]
Paragraph 6 of Article 49 of the Fourth Geneva Convention also does not admit for exceptions on grounds of military or security exigencies. It provides that "the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies". I agree that this provision applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6. It follows that the segments of the wall being built by Israel to protect the settlements areipso facto in violation of international humanitarian law. Moreover, given the demonstrable great hardship to which the affected Palestinian population is being subjected in and around the enclaves created by those segments of the wall, seriously doubt that the wall would here satisfy the proportionality requirement to qualify as a legitimate measure of self-defence.
Reaction to the ICJ
The opinion was accepted by the United Nations General Assembly,[35] on July 20, 2004, it passed a resolution demanding that Israel obey the ICJ ruling. [13] Israel, the U.S., Australia, the Federated States of Micronesia, the Marshall Islands, and Palauvoted against the resolution, 10 nations abstained, and 150 nations voted in favor.
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 [14], 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. [15]
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." [16]The Resolution further stated 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."
Legal issues related to refugees
Legal definition of refugee
The tractate that is most often invoked for legally defining refugees is the 1951Convention 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 (UNHCR).
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.
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 that fills some of these gaps. The BADIL Resource Center for Palestinian Residency and Refugee Rights published a critical analysis of UNHCR revised interpretation of the 1951 Refugee Convention.[36]
References
  1. Falk, Richard (July 20, 2004). "Support for Wall Mocks International law". Miami Herald. -- "What is most remarkable about the International Court of Justice decision [...] is the strength of the consensus behind it. By a vote of 14-1, the 15 distinguished jurists who make up the highest judicial body on the planet found that the barrier is illegal under international law [...] The International Court of Justice has very rarely reached this degree of unanimity in big cases. The July 9 decision was even supported by the generally conservative British judge Rosalyn Higgins".
  2. See article section "Occupied" vs. "Disputed" territories: "[the] international consensus, excepting the U.S. in some cases, is that [the] annexation of the Golan Heights and East Jerusalem are illegal and not recognized by international law"
  3. Klapper, Bradley S. (November 13, 2008) "Switzerland says Israel breaking international law" Associated Press. -- "An Israeli Embassy spokeswoman [...] said the decision [...] was sanctioned by law."
  4. "United Nations Bibliographic Information System Search Results: Palestine Question". May 1, 2010. Retrieved 2010-05-01.
  5. "Peaceful settlement of the question of Palestine". United Nations. Retrieved 26 February 2015.
  6. "The Avalon Project : Documents in Law, History and Diplomacy". Retrieved 22 April 2016.
  7. Statute of the International Criminal Tribunal for the former Yugoslavia, Security Council Resolution 827, 25 May 1993 The drafters of the Statute had explicitly declined to make it a self-contained criminal code. They instead granted the Tribunal jurisdiction over a set of very broadly defined crimes, the specific content of which was to be found in customary international law. Though the Tribunal recognized that binding conventional law could also provide the basis for its jurisdiction, it has in practice always determined that the treaty provisions in question are also declaratory of custom.
  8. "Customary law". International Committee of the Red Cross. Retrieved 22 April2016.
  9. "The Avalon Project : United Nations Charter; June 26, 1945". Retrieved 22 April2016.
  10. see General Assembly Resolution 95 (I), 11 December 1946, and UN General Assembly Resolution 177.
  11. see Nuremberg Principles and Principles of the Nuremberg Tribunal, 1950
  12. see Evidence of State practice.
  13. "Hasani - Uti Possidetis". Retrieved 22 April 2016.
  14. "The Avalon Project : Inter-American Reciprocal Assistance and Solidarity (Act of Chapultepec); March 6, 1945". Retrieved 22 April 2016.
  15. "Avalon Project - The Covenant of the League of Nations". Retrieved 22 April2016.
  16. "The Avalon Project : United Nations Charter; June 26, 1945". Retrieved 22 April2016.
  17. International Law and International Relations, Beth A. Simmons and Richard H. Steinberg, Cambridge University Press, 2007, ISBN 0-521-86186-1, page 278-279
  18. see American Law Encyclopedia Vol 3, Dependent States, The Declaration Regarding Non-Self-Governing Territories, in Chapter XI of the UN Charter, andThe Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514 (XV)
  19. United Nations High Commissioner for Refugees. "Refworld - Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations". Refworld. Retrieved 22 April 2016.
  20. The International Law Commission's Draft Articles on State Responsibility: Part 1, Articles 1-35, By United Nations International Law Commission, Compiled by Shabtai Rosenne, Martinus Nijhoff Publishers, 1991, ISBN 0-7923-1179-5, page 189
  21. http://www.historycooperative.org/journals/lhr/26.3/benvenisti.htmlBenvenisti, Eyal, The Origins of the Concept of Belligerent Occupation. Law and History Review 26.3 (2008): 46 pars. 1 Jul. 2009
  22. International Law: Achievements and Prospects, by Mohammed Bedjaoui (Editor), UNESCO, Martinus Nijhoff, 1991, ISBN 92-3-102716-6, Page 7
  23. see Defending the Rights of Others: The Great Powers, the Jews, and International Minority Protection, 1878-1938, Carole Fink, Cambridge University Press, 2006, ISBN 0-521-02994-5, page 37
  24. A. Ilan, Bernadotte in Palestine, 1948 (Macmillan, 1989) p194
  25. "Political Communiqué of the Palestine National Council and Declaration of Independence of 15 November 1988". United Nations General Assembly Security Council. 18 November 1988. Retrieved 11 July 2011.
  26. Shalim, Avi (2000). The Iron Wall. Penguin Books. pp. 117–119. ISBN 978-0-14-028870-4.
  27. Quigley, John B. (2005). The Case for Palestine: An International Law Perspective. Duke University Press. pp. 93 and 226. Retrieved 1 July 2011.
  28. "International Court of Justice condemns Israel's wall". July 13, 2004. Retrieved2010-05-01.
  29. "DISPUTED TERRITORIES- Forgotten Facts About the West Bank and Gaza Strip". Retrieved 5 April 2010.
  30. "Israel’s Newly Approved Security Fence Route:". Retrieved 22 April 2016.
  31. "The West Bank Fence:". Retrieved 22 April 2016.
  32. "High Court of Justice rules on security fence around Alfei Menashe". GxMSDev. Retrieved 22 April 2016.
  33. "UN rules against Israeli barrier". BBC News. 2004-07-09. Retrieved 30 June2010.
  34. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice Advisory Opinion, July 9, 2004, paragraph 163.
  35. John Dugard (30 June 2006). International Law: A South African Perspective. Kluwer. p. 477. ISBN 978-0-7021-7121-5. Retrieved 3 May 2013.
  36. "A Critical Analysis of the Revised UNHCR Interpretation". BADIL. November 2002. Retrieved 11 July 2011.
Arab–Israeli peace diplomacy and treaties
External links

 International law and Israeli settlements 
The international community considers the establishment of Israeli settlements in the Israeli-occupied territories illegal under international law.[1] [2] [3] [4] [5] Israel maintains that they are consistent with international law[6]because it does not agree that the Fourth Geneva Convention applies to the territories occupied in the 1967 Six-Day War.[7] The United Nations Security Council, the United Nations General Assembly, the International Committee of the Red Cross, the International Court of Justice and the High Contracting Parties to the Convention have all affirmed that the Fourth Geneva Convention does apply.[8] [9]
Numerous UN resolutions have stated that the building and existence of Israeli settlements in the West Bank, East Jerusalem and the Golan Heights are a violation of international law, including UN Security Council resolutions in 1979 and 1980.[10][11] [12] UN Security Council Resolution 446 refers to the Fourth Geneva Convention as the applicable international legal instrument, and calls upon Israel to desist from transferring its own population into the territories or changing their demographic makeup. The reconvened Conference of the High Contracting Parties to the Geneva Conventions has declared the settlements illegal[13] as has the primary judicial organ of the UN, the International Court of Justice[14] and the International Committee of the Red Cross.
The position of successive Israeli governments is that all authorized settlements are entirely legal and consistent with international law,[15] despite Israel's armistice agreements all being with High Contracting Parties.[16] In practice, Israel does not accept that the Fourth Geneva Convention applies de jure, but has stated that on humanitarian issues it will govern itself de facto by its provisions, without specifying which these are.[17] [18] The majority of legal scholars hold the settlements to violate international law, while others have offered dissenting views supporting the Israeli position.[2]
Background
Shortly after independence, the Israeli Supreme Court ruled that the fundamental principles of international law, accepted as binding by all civilized nations, were to be incorporated in the domestic legal system of Israel.[19] In the aftermath of the 1967 Six-Day War, Israel was in control of the Sinai Peninsula, the Gaza Strip, West Bank and Golan Heights. Immediately after the war, the Israeli government authorised the construction of military settlements for security purposes. They were built on the fringes of the territories, along the Jordanian and Syrian frontiers and along the edges of the Sinai Peninsula.[20] At the same time, Israel conveyed that it was willing in principle to return most of the newly captured territory.[21] [22] Levi Eshkol offered to return the territories with only minor border modifications. Nevertheless, with government permission granted, Kfar Etzion was re-established in September 1967, becoming the first civilian settlement to be built in the West Bank. During the 1970s, Israel's Supreme Court regularly ruled that the establishment of civilian settlements by military commanders was legal on the basis that they formed part of the territorial defense network and were considered temporary measures needed for military and security purposes.[23] After Likud came to power in 1977, using land on the basis of the 1907 Hague Regulations, which implied a temporary nature of Israeli presence, was not employed anymore as the new government declared land in the West Bank "state land".[23]
In 1978 and 1979 the Israeli Supreme court, prompted by the new government policies, ruled on two important cases that set out the requirements for Israeli settlement legality under international law. In Ayauub et al. vs. Minister of Defence (the Beit-El Toubas case), the Court determined that the Hague Conventions but not the Geneva Conventions could be applied by Israeli courts on land and settlement issues in the occupied territories. The following year the Court ruled on Dwikat et al. vs. the Government of Israel (the Elon Moreh case), outlining the Hague Conventions' limitations on Israeli land acquisition and settlements. Settlements, whether on private or public land, could not be considered permanent, nor could the land be permanently confiscated, only temporarily requisitioned. Settlements on private land were legal only if determined to be a military necessity; the original owner retained title to the land and must be paid rental fees for its use. Public lands' "possession cannot be alienated, nor its basic character transformed".[24]
In 2004, an advisory opinion by the International Court of Justice concluded that Israel had breached its obligations under international law by establishing settlements in the West Bank, including East Jerusalem and that Israel cannot rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of imposing a régime, which is contrary to international law. The Court also concluded that the Israeli régime violates the basic human rights of the Palestinians by impeding the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens) and their exercise of the right to work, to health, to education and to an adequate standard of living.[25]
Status of the territories
Although all areas in question were captured by Israel in the 1967 Six-Day War, Israel has treated them in three different ways:
  • "East Jerusalem"—Jerusalem and its surroundings were envisioned as aninternational area under United Nations administration in the 1947 partition plan, which was accepted by the Jewish public but rejected by all Arab nations. In 1948, Jordan captured and annexed the eastern half of Jerusalem, while Israel captured and annexed the west. Following the Six-Day War in 1967, Israel annexed the eastern part, together with several villages around it. In 1980 the Israeli Knesset passed the Jerusalem Law stating that "Jerusalem, complete and united, is the capital of Israel".
  • The Israeli Golan Heights Law of 1981 applied Israel's "laws, jurisdiction and administration" in the Golan Heights, captured from Syria in 1967. The public viewed the move as an annexation, but the law itself refrained from using the term officially.
  • The Gaza Strip and West Bank form part of the areas offered by the UN to a prospective Arab state of Palestine in the Partition Plan, which was rejected by the Arabs. From 1948 until 1967, The Gaza Strip was occupied by Egypt and the West Bank was annexed by Jordan. Together with the annexation of East Jerusalem mentioned above, Jordan's annexation of the West Bank was not recognized internationally. Since 1967, the West Bank has been under military occupation. Gaza was also occupied in 1967, but after Israel's unilateral disengagement in 2005 the status has become disputed, with conflicting opinions on whether or not the occupation has ended.
The Jerusalem Law and the Golan Heights Law have both been deemed illegal by the UN Security Council (resolutions 478 and 497 respectively), and are not recognized by the international community. The United States abstained from the vote on Resolution 478 and the U.S. Congress (which does not define U.S. foreign policy[26] ) passed the Jerusalem Embassy Act,[26] recognizing Jerusalem as the capital of Israel. The U.S. views that parts of Jerusalem are not in Israel[27] and the official U.S. position is that the status of Jerusalem must be resolved in negotiations.[28] The EU views that Jerusalem is a corpus separatum,[29] and the United Nations considers Israel's proclamation of Jerusalem as its capital to be "null and void".[30]
Israel has signed peace treaties with Egypt (removing all Israeli settlements and returning the Sinai Peninsula to Egyptian sovereignty), and Jordan (returning small sections to Jordanian sovereignty); there are currently no peace treaties governing Israel's borders related to the West Bank, the Gaza Strip, and the Golan Heights. Israel therefore asserts that the armistice lines (known as the Green Line) of 1949 have no other legal status.
Palestinians object to this view as the Israel–Jordan peace treaty was not to alter the status of any territories coming under Israeli control during the hostilities of 1967 (article 3(2) of the Israel–Jordan peace treaty).[31]
Article 8(2)(b)(viii) of the International Criminal Court Rome Statute defines "[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" as a war crime.[32] Israel did initially sign the statute, but later declared its intention not to ratify it.[33] [34]
International legal opinions
At present, based on the result of numerous UN resolutions that cite Article 49 of the Geneva Convention, the consensus view of the international community is that Israeli settlements are illegal and constitute a violation of international law.[10] [11] [12][35] [36] According to the BBC, every government in the world, except Israel, considers the settlements to be illegal.[37]
United Nations
In 1979 and 1980, numerous UN Security council resolutions, including 446, 452, 465,471 and 476, considered the settlements as having "no legal validity" under theFourth Geneva Convention.[38] In 2004, an advisory opinion by the primary judicial organ of the UN, the International Court of Justice, also found the settlements to be illegal under international law.[14] The court's finding was based on the provisions of the Fourth Geneva Convention and UN Security Council resolutions that condemned the establishment of settlements and attempts by Israel to alter the demographics of the territories under its control. The United Nations General Assembly, which regards itself as having a chief role in the process of the codification of international law, has passed several resolutions with an overwhelming majority that denounce settlements as being illegal. The United Nations Human Rights Council has also called the Israeli settlements and related activities a violation of international law.[39]
According to records of the 1998 meeting of Committee on the Elimination of Racial Discrimination, Theo van Boven said
The status of the settlements was clearly inconsistent with Article 3 of the Convention, which, as noted in the Committee's General Recommendation XIX, prohibited all forms of racial segregation in all countries. There is a consensus among publicists that the prohibition of racial discrimination, irrespective of territories, is an imperative norm of international law.[40] [41]
International Committee of the Red Cross
The International Committee of the Red Cross (ICRC) holds that the establishment of Israeli settlements violate Fourth Geneva Convention.[42] [43] The ICRC also holds that the displacement of Palestinians that may occur due to the settlements also violates Article 49 of the Fourth Geneva Convention.[44]
Countries
United States
An opinion by a legal adviser to the U.S. Department of State found the settlements contrary to international law in 1978, though no Administration has officially stated so since the Carter Administration. On April 21, 1978, Legal Adviser of the Department of State Herbert J. Hansel issued an opinion, on request from Congress, that creating the settlements "is inconsistent with international law", and against Article 49 of the Fourth Geneva Convention.[45] Hansell found that "[w]hile Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for the reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with international law."[46] [47] This opinion, "has neither been revoked or revised",[45] and remains the policy of the United States according to Hansel, The Washington Post, and the Rand Corporation's Palestinian State Study Project.[48] TheJohnson, Nixon, Ford, and Carter administrations all publicly characterized the settlements as illegal.[49]
The United States has never voted in favor of any UN Resolution calling the settlements illegal except for Resolution 465 in 1980, and in that case the Carter administration subsequently announced that the vote had been cast in error[50] due to miscommunication and would have abstained as it had for Resolution 446 andResolution 452. Two US Ambassadors to the UN have stated that Israeli settlements are illegal: William Scranton and former President George Bush. Secretary of StateCyrus Vance also said the settlements were illegal.[51]
In February 1981, Ronald Reagan announced that he didn't believe that Israeli settlements in the West Bank were illegal.[52] He added that "the UN resolution leaves the West Bank open to all people, Arab and Israeli alike".[53] Hoping to achieve a peace deal, he nevertheless asked Israel to freeze construction calling the settlements an "obstacle to peace". The permissive attitude taken by America accelerated the pace of Israel's settlement programme.[52] Reagan's view on the settlements legality was not held by the State Department.[45] Since the Clinton administration, the U.S. has continued to object to the settlements, calling them "obstacles to peace" and prejudicial to the outcome of final status talks. Although President Barack Obama and diplomatic officials in his administration have stated, "the United States does not accept the legitimacy of continued Israeli settlements,"[49] [54] [55] in February 2011 the U.S. vetoed a Security Council resolution that would have declared the settlements illegal.[56]
Israel
The Israeli government's essential position is that rather than being "occupied territory," the West Bank is "disputed territory." Given that the Arab states prevented the formation of the sovereignty proposed by the 1947 partition resolution, Jordan's subsequent unrecognized annexation of the West Bank in 1950, as well as the fact that there has never been a Palestinian sovereignty in that territory, it has been posited that there is no legally recognized claim to who has sovereignty over the West Bank. Moreover, since the League of Nations Mandate for Palestine, with the intent to form a Jewish state between the sea and the Jordan river, included the area now known as the West Bank, Israel has at least as legitimate claim to the territory as any other state or group. Under the views of Howard Grief and others, according to Article 6 of The Anglo-American Treaty of 1924, Jewish Settlements are not illegal. The rights granted to and guaranteed by Mandate for Palestine survived the League of Nations and the Anglo-American Treaty of 1924 still has the force of law pursuant to Article 80 of the UN Charter by virtue of the 1969 Vienna Convention on the Laws of Treaties. Under this reasoning the Fourth Geneva Convention prohibits forced population transfers, something that Israel is not engaged in since Jewish settlers move to the disputed territories on an individual, voluntary basis.
In 1967, Theodor Meron, legal counsel to the Israeli Foreign Ministry stated in a legal opinion to Adi Yafeh, the Political Secretary of the Prime Minister, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention."[57] The legal opinion, forwarded to Levi Eshkol, was not made public at the time, and the Labor cabinet progressively sanctioned settlements anyway; this action paved the way for future settlement growth. In 2007, Judge Meron stated that "I believe that I would have given the same opinion today."[58] Nevertheless, Israel considers its settlement policy to be consistent with international law, including the Fourth Geneva Convention, while recognizing that some of the smaller settlements have been constructed "illegally" in the sense of being in violation of Israeli law.[59] In 1998 the Israeli Minister of Foreign Affairs produced "The International Criminal Court Background Paper".[60] It concludes
International law has long recognised that there are crimes of such severity they should be considered "international crimes". Such crimes have been established in treaties such as the Genocide Convention and the Geneva Conventions.... The following are Israel's primary issues of concern [ie with the rules of the ICC]: – The inclusion of settlement activity as a "war crime" is a cynical attempt to abuse the Court for political ends. The implication that the transfer of civilian population to occupied territories can be classified as a crime equal in gravity to attacks on civilian population centres or mass murder is preposterous and has no basis in international law.
Israel also argues that some of the settlements are built in areas where Jewish settlements existed before the 1948 Arab-Israeli War and violence prior, when many West Bank settlements were destroyed and the residents massacred or expelled, such as Hartuv, Kfar Etzion, Hebron, and the Jewish Quarter of Jerusalem, and therefore the application of the Geneva Convention is an entirely different issue.[61][62] [63]
Some argue that according to international law Israel is the custodian of absentee property in the West Bank and may not give it to settlers. In 1997 the Civil Administration's legal adviser gave his opinion:
The Custodian of Absentee Property in the West Bank is nothing but a trustee looking after the property so it is not harmed while the owners are absent from the area ... the custodian may not make any transaction regarding the asset that conflicts with the obligation to safeguard the asset as stated, especially his obligation to return the asset to the owner upon his return to the region.[64]
Israel contends that the Geneva Convention only applies in the absence of an operative peace agreement and between two powers accepting the Convention. Since the Oslo Accords leave the issue of settlements to be negotiated later, proponents of this view argue that the Palestinians accepted the temporary presence of Israeli settlements pending further negotiation, and that there is no basis for declaring them illegal.[63] [65] [66]
Israel has justified its civilian settlements by stating that a temporary use of land and buildings for various purposes appears permissible under a plea of military necessity and that the settlements fulfilled security needs.[67] It is further argued that United Nations Security Council Resolution 242 calls for "secure and recognized boundaries", and that neither the 1949 armistice demarcation lines, nor the 1967 cease-fire lines have proved themselves secure.[68]
In 2002, the Israeli Ministry of Foreign Affairs reiterated that the settlements were being developed consistently with international law and that they did not violate any agreements with either the Palestinians or Jordan. They added that the settlements in the West Bank and Gaza Strip were recognised as legitimate by the Mandate for Palestine adopted by the League of Nations, and that the only administration that completely prohibited Jewish settlement was that of Jordan from 1948 to 1967. Regarding the Geneva Convention, they maintained that the Israeli government was not forcibly transferring its population into the territories. Neither had the land that was being settled been under the legitimate sovereignty of any state beforehand. It further highlighted that no clauses in the Convention could be used to prohibit the voluntary return of individuals to towns and villages from which they or their ancestors had been previously ejected by forcible means. It claimed the settlements had only been established after exhaustive investigations making sure none were built on private land.[15]
Canada
Canada, agreeing with UN Security Council Resolutions 446 and 465, argues that the Fourth Geneva Convention applies to the occupied territories (the Golan Heights, the West Bank, East Jerusalem and the Gaza Strip) and that Israeli settlements are a violation of the Fourth Geneva Convention.[69]
United Kingdom
In 2009, British Foreign Secretary David Miliband called Israeli settlements as "illegal".[70] In December 2012, William Hague, the British foreign secretary stated that all Israeli settlements were "illegal under international law".[71]
Other views
In 2003, The Non-Aligned Movement declared Israeli settlements as illegal, stating, "the main danger to the realization of the national rights of the Palestinian people and the achievement of a peaceful solution is the settler colonialism that has been carried out in the Occupied Palestinian Territory, including East Jerusalem, since 1967, through land confiscation, settlement building and the transfer of Israeli nationals to the Occupied Territory."[72] The Organisation of Islamic Cooperationviews settlements, including those in East Jerusalem, as "blatant violations of the relevant United Nations resolution, international agreements – especially the 1949 Fourth Geneva Convention – and of international law".[73] In 2002 and again in 2012, The European Union expressed its view that the settlements are illegal.[74] [75] In June 1980, the (then nine-member) European Economic Community declared in theVenice Declaration that "settlements, as well as modifications in population and property in the occupied Arab territories, are illegal under international law."[76] In 2005, The human rights groups Amnesty International, Human Rights Watch andB'Tselem viewed Israeli settlements as violations of international law,[77] [78] [79] while the Anti-Defamation League has stated that the settlements are legal under international law.[80]
Morris Berthold Abram, an American lawyer who was involved in drafting the Fourth Geneva Convention, argued that the convention "was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people."[81] International law expert Julius Stone, Professor of Jurisprudence and International Law at theUniversity of Sydney, and Eugene Rostow, Dean of Yale Law School, argued that the settlements are legal under international law, on a number of different grounds.[82][83] Stone held that it was legal for Israel to establish Nahal settlements, necessary for military purposes along the ceasefire lines and in the Jordan Valley. The fact that they had been established to initiate profitable agriculture was of no legal concern.[84] William M. Brinton, an American international lawyer, held that Israel was "at least quasi-sovereign with respect to both areas [the West Bank and Gaza Strip] under principles of customary international law", and deemed the settlements legal.[85] [86][87]
Legal arguments
Fourth Geneva Convention
There are two disputes regarding the Fourth Geneva Convention: whether the convention applies to the territories in question and whether the Convention forbids the establishment of Israeli settlements. Article 2 concerns the applicability of the Convention whereas article 49 concerns the legality of population transfers.
Article 2
Article 2 extends the Convention to "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties" and "all cases of partial or total occupation of the territory of a High Contracting Party".[88]
Endorsement
The applicability of the fourth Geneva Convention to "all the territories occupied by Israel in 1967" is held with "a remarkable degree of unanimity" among international actors.[36] In an 2004 advisory opinion to the UN General Assembly, the International Court of Justice stated that Article 2 of the Convention applied to the case of Israel's presence in the territories captured during the 1967 war. It stated that Article 2 applies if there exists an armed conflict between two contracting parties, regardless of the territories status in international law prior to the armed attack. It also argued that "no territorial acquisition resulting from the threat or use of force shall be recognized as legal" according to customary international law and defined by "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations" (General Assembly Resolution 2625).[89]
At their July 1999 Conference, the States parties to the Fourth Geneva Convention issued a statement in which they "reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem". In December 2001, the High Contracting Parties to the Convention reaffirmed the "applicability of the Fourth Geneva Convention to the Occupied Palestiniari Territory, including East Jerusalem". They further reminded the contracting parties, the parties to the conflict and the state of Israel as the occupying power, of their obligations under the Convention.[90]
The International Committee of the Red Cross in a declaration of December 2001 stated that "the ICRC has always affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the state of Israel, including East Jerusalem".[90]
The United Nations General Assembly has affirmed the applicability of the Convention to the Palestinian Territories in many resolutions. The United Nations Security Council has taken the same view. Security Council resolution 271 (1969) called upon "Israel scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation". Security Council resolution 446 (1979) affirmed "once more that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem".[90]
The Supreme Court of Israel in a ruling of 30 May 2004 declared, "the military operations of the [Israeli Defence Forces] in Rafah, to the extent they affect civilians, are governed by Hague Convention IV Respecting the Laws and Customs of War on Land 1907 ... and the Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949."[90] A further June 2004 Israeli Supreme Court ruling concerning the West Bank stated that "the point of departure of all parties – which is also our point of departure – is that Israel holds the Area in belligerent occupation (occupatio bellica)" and that the military commander's authority is "anchored in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949".[91] [92]
Rejection
The official Israeli legal argument against the application of Article 2 to the situation in the West Bank is based on a 1971 interpretation by Israeli Attorney-General, Meir Shamgar.[93] His view was presented by Moshe Dayan in a speech before the 32nd session of the United Nations General Assembly in 1977.[94] [95] Shamgar believed that the Convention did not pertain to the territories captured by Israel since they had not previously been recognised as part of a sovereign state and could not be considered "the territory of a High Contracting Party".[93] [96] [97] [98] According to the argument, the last legal sovereignty over the territories was that of the League of Nations Palestine Mandate, which stipulated the right of the Jewish people to settle in the whole of the Mandated territory. According to Article 6 of the Mandate, "close settlement by Jews on the land, including State lands not required for public use" was to be encouraged. Article 25 allowed the League Council to temporarily postpone the Jewish right to settle in what is now Jordan, if conditions were not amenable. Article 80 of the U.N. Charter preserved this Jewish right to settlement by specifying, "nothing in the [United Nations] Charter shall be construed ... to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments."[99]
Shamgar further stated:
There is no rule of international law according to which the Fourth Convention applies in each and every armed conflict whatever the status of the parties.... The whole idea of the restriction of military government powers is based on the assumption that there has been a sovereign who was ousted and that he was a legitimate sovereign. Any other conception would lead to the conclusion, for example, that France should have acted in Alsace-Lorraine according to rule 42–56 of the Hague Rules of 1907, until the signing of a peace treaty.[94]
The Israeli legal argument was dismissed by the International Court of Justice. The Court cited the Geneva Convention's travaux préparatoires, which recommended that the conventions be applicable to any armed conflict "whether [it] is or is not recognized as a state of war by the parties" and "in cases of occupation of territories in the absence of any state of war" as confirmation that the drafters of the article had no intention of restricting the scope of its application.[90] [a]
Article 49
Article 49 (1) states
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.[88]
Article 49 (6) states
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.[88]
According to Jean Pictet of the International Committee of the Red Cross, this clause intended to prevent the World War II practice of an occupying power transferring "portions of its own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories", which in turn "worsened the economic situation of the native population and endangered their separate existence as a race".[100] [101]
Endorsement
U.S. State Department Legal Advisor, Herbert J. Hansell, in a letter dated 1 April 1978, concluded that although Article 49 (1) prohibits forcible transfers of protected persons out of the occupied territory, "paragraph 6 is not so limited."[47]
He argued:
The view has been advanced that a transfer is prohibited under paragraph 6 only to the extent that it involves the displacement of the local population. Although one respected authority,Lauterpacht, evidently took this view, it is otherwise unsupported in the literature, in the rules of international law or in the language and negotiating history of the Convention, and it seems clearly not correct. Displacement of protected persons is dealt with separately in the Convention and paragraph 6 would seem redundant if limited to cases of displacement. Another view of paragraph 6 is that it is directed against mass population transfers such as occurred in World War II for political, racial or colonization ends; but there is no apparent support or reason for limiting its application to such cases.
Ths interpretation was adopted by the International Court of Justice in its 2004 advisory opinion,[102] and 150 countries supported a non-binding General Assembly resolution demanding Israel to "comply with its legal obligations as mentioned in the advisory opinion".[103]
David Kretzmer, Professor of International Law at Hebrew University of Jerusalem, has argued that it is "quite clear that by actively organizing or encouraging transfer of its own population into the occupied territory, an occupying power does indeed violate Article 49(6)".[104]
Rejection
Those who reject the application of Article 49 to the situation in the Israeli-held territories argue that even if the Convention did apply, it should be read only in the context of the World War II forcible migrations. It is only intended to cover forcible transfers and to protect the local population from displacement:
  • Article 49 (1) specifically covers "individual or mass forcible transfers", whereas the Israelis who live in the settlements have moved there voluntarily.
  • Article 49 (6) only applies when the transfer of the Occupying Powers civilian population involves the displacement of the local population, whereas the Israeli settlements are not intended to, or have ever resulted in, the displacement of Palestinians from the area.[62] [63] [96] [97] [98]
In addition, they state that the Geneva Convention only applies in the absence of an operative peace agreement and between two powers accepting the Convention. Since the Oslo Accords leave the issue of settlements to be negotiated later, proponents of this view argue that the Palestinians accepted the temporary presence of Israeli settlements pending further negotiation, and that there is no basis for declaring them illegal.[63] [66] [96] [98]
Application
In July 1999, the conference of the High Contracting Parties to the Fourth Geneva Convention ruled that the Convention did apply in the Israeli-occupied territories.[105][106] In 2001, the conference called upon "the Occupying Power to fully and effectively respect the Fourth Geneva Convention in the Occupied Palestinian Territory, including East Jerusalem, and to refrain from perpetrating any violation of the Convention." The High Contracting Parties reaffirmed "the illegality of the settlements in the said territories and of the extension thereof".[107] In response, some argued that the conference had amended history and had construed the Convention only for this specific situation. According to barrister and human rights activist Stephen Bowen, arguments dismissing the ruling as applying to more specific cases were rejected "because the Convention also states that it applies 'in all circumstances' (Article 1), and 'to all cases of declared war or of any other armed conflict' (Article 2)".[108]
In practice, Israel does not accept that the Fourth Geneva Convention applies de jure, but has stated that on humanitarian issues it will govern itself de facto by its provisions, without specifying which these are.[17] [18]
Arguments based on UNSC Resolution 242 and the British Mandate
Rostow and others further argue that UN Security Council Resolution 242 (which Rostow helped draft) mandates Israeli control of the territories, and that the originalBritish Mandate of Palestine still applies, allowing Jewish settlement there.[63] [66] [109]In Rostow's view
The British Mandate recognized the right of the Jewish people to "close settlement" in the whole of the Mandated territory. It was provided that local conditions might require Great Britain to "postpone" or "withhold" Jewish settlement in what is now Jordan. This was done in 1922. But the Jewish right of settlement in Palestine west of the Jordan river, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors. And perhaps not even then, in view of Article 80 of the U.N. Charter, "the Palestine article", which provides that "nothing in the Charter shall be construed ... to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments...."[109]
According to Rostow "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there".[110]
This right is based on Article 6 of the Mandate, which states: "The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish Agency referred to in Article 4, close settlement by Jews on the land, including State lands not required for public use". In addition, many Israeli settlements have been established on sites that were home to Jewish communities before 1948 such as Neve Yaakov, Gush Etzion, Hebron, Kalia, and Kfar Darom.
Contrary to this view other legal scholars have argued that under Articles 31 and 32 of the Vienna Convention on the Law of Treaties the only common sense interpretation of UNSC 242 is that Israel must withdraw from all of the territory captured in 1967, as any interpretation permitting the extension of sovereignty by conquest would violate the relevant governing principle of international law as emphasized in the preambular statement, i.e., "the inadmissibility of the acquisition of territory by war" as established through the abolition of the right of conquest by the League of Nations following World War I.
Furthermore, it is argued that UNSC 242 has binding force under Article 25 of the UN Charter owing to its incorporation into UN Security Council Resolution 338 and that it is also binding on Israel and the PLO by agreement owing to its incorporation into the Oslo Accords.[111]
Others argue that the Oslo Accords supersede UNSC 242 rather than making it binding.[112] The Declaration of Principles in the accords only state that future negotiations will "lead to the implementation of Security Council Resolutions 242 and 338".[113]
Additionally, as the international community considered the status of Jerusalem to be unresolved, even after 1967, and did not deem any part of the city to be Israeli territory, including that part held since 1948, UNSC 242 did not settle territorial issues between Israel and Palestine left unresolved by the 1949 Armistice Agreements.[114] Indeed, Sir Elihu Lauterpacht and others have argued that, because of the disorder in Palestine at the time, the territorial framework of the 1947 Partition Plan did not come into effect in such a way as to ipso jure grant Israel sovereignty over the territory allocated to the Jewish state under that plan.[111] Stone agrees with Lauterpacht's analysis, and his view that sovereignty was acquired through other means:
Lauterpacht has offered a cogent legal analysis leading to the conclusion that sovereignty over Jerusalem has already vested in Israel. His view is that when the partition proposals were immediately rejected and aborted by Arab armed aggression, those proposals could not, both because of their inherent nature and because of the terms in which they were framed, operate as an effective legal re-disposition of the sovereign title. They might (he thinks) have been transformed by agreement of the parties concerned into a consensual root of title, but this never happened. And he points out that the idea that some kind of title remained in the United Nations is quite at odds, both with the absence of any evidence of vesting, and with complete United Nations silence on this aspect of the matter from 1950 to 1967?... In these circumstances, that writer is led to the view that there was, following the British withdrawal and the abortion of the partition proposals, a lapse or vacancy or vacuum of sovereignty. In this situation of sovereignty vacuum, he thinks, sovereignty could be forthwith acquired by any state that was in a position to assert effective and stable control without resort to unlawful means.[96]
Antonio Cassese disagrees with this analysis, arguing that although Israel's original occupation of West Jerusalem might have been carried out in an act of self-defense under Article 51 of the UN Charter, this did not confer legal title to the territory owing to the general prohibition in international law on the acquisition of sovereigntythrough military conquest. He further considers that "mere silence" could not constitute agreement by the United Nations to the acquisition of sovereignty by Israel or Jordan as a result of their de facto control of Jerusalem. Cassese concludes that "at least a tacit manifestation of consent through conclusive acts would have been necessary", whereas such relevant acts as did take place confirmed that no such consent to the transfer of sovereignty was given.[115]
Arguments based on the cause of the war
It has been argued that Israel took control of the West Bank as a result of a defensive war. Former Israeli diplomat Dore Gold writes that:
The language of "occupation" has allowed Palestinian spokesmen to obfuscate this history. By repeatedly pointing to "occupation", they manage to reverse the causality of the conflict, especially in front of Western audiences. Thus, the current territorial dispute is allegedly the result of an Israeli decision "to occupy", rather than a result of a war imposed on Israel by a coalition of Arab states in 1967.
He quotes Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, and wrote in 1970 regarding Israel's case:
Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.
However, international law scholar John Quigley has written, "... a state that uses force in self-defense may not retain territory it takes while repelling an attack. If Israel had acted in self-defense, that would not justify its retention of the Gaza Strip and West Bank. Under the UN Charter there can lawfully be no territorial gains from war, even by a state acting in self-defense. The response of other states to Israel's occupation shows a virtually unanimous opinion that even if Israel's action was defensive, its retention of the West Bank and Gaza Strip was not."[116]
Arguments based on property rights and private ownership
On January 30, 2009, the Associated Press reported that Israeli political group Yesh Din plans to use a classified Israeli Government database to prove that many West Bank Israeli settlements were built on land privately owned by Palestinian citizens without compensation.[117]
Unauthorized or illegal outposts
In two cases decided shortly after independence (the Shimshon and Stampfer cases) the Israeli Supreme Court held that the fundamental rules of international law accepted as binding by all "civilized" nations were incorporated in the domestic legal system of Israel. The Nuremberg Military Tribunal had already determined that the articles annexed to the Hague IV Convention of 1907 were customary law, recognized by all civilized nations.[19]
The Court determined in the 1979 Elon Moreh case that only the military commander of an area may requisition land according to article 52 of the Hague regulations. Military necessity had been an afterthought in the planning portions of the Elon Moreh settlement. That situation did not fulfill the precise strictures laid down in the articles of the Hague Convention, so the Court ruled the requisition order had been invalid and illegal.[118]
In subsequent cases, the Court has ruled that Article 43 of the Hague IV Convention is a mandatory planning consideration for approval of building projects on state lands in the West Bank.[119]
Pressured by America, the Sharon administration commissioned the Sasson Report, which found that the Israeli government had funded the creation of Jewish settler outposts in the West Bank that were unauthorized and in violation of stated government policy. According to the report, the Housing and Construction Ministry, the World Zionist Organization, the Education Ministry and the Defense Ministry cooperated to "systematically establish illegal settlement points", paying millions of dollars to create the infrastructure for scores of settlements.[120] [121]
The summary of the Sasson Report[122] explains that local law requires the fulfillment of a number of basic conditions before establishing a settlement in the Judea, and Samaria. It lists four pre-conditions that must be fulfilled in each case. The second pre-condition regarding title to the land cites the precedent established in the Elon Moreh case. The third pre-condition is that a settlement can only be established according to a lawfully designed building scheme, which has the power to produce a building permit. The fourth pre-condition is that the bounds of jurisdiction of the settlement must be determined in advance by order of the Commander of the area. The Israeli Supreme Court has ruled that the fulfillment of the applicable Hague IV Convention criteria is a mandatory and integral part of satisfying those three pre-conditions of the local law. Sasson summed up the situation by explaining:
An unauthorized outpost is a settlement which does not fulfill at least one of the above mentioned conditions. And I must emphasize: an unauthorized outpost is not a "semi legal" outpost. Unauthorized is illegal.
The report found "blatant violations of the law" by officials and state institutions. Many of the more than 100 outposts investigated added at state expense paved roads, permanent housing, power lines and other infrastructure. According to the report, some of the outposts were established on private lands owned by Palestinians with the help of Housing Ministry architects, the Housing Ministry funded many of the trailers used to start the outposts, and Defence Ministry officials allocated such private land to the quasi-official Jewish Agency.[123]
As part of the 2003 "Road map" for peace, Israel committed itself to remove about two dozen such settlements, an obligation it has yet to fulfill.[124]
In response to settler violence directed towards Israeli security forces, Israel declared it would no longer fund unauthorized outposts from November 2008. Settlers claim the violence was sparked by the beating of a settler child; border police spokesman Moshe Pinchi said he had no knowledge of the alleged beating and accused the settlers of "cynically" sending minors to attack the police.[125]However, there is evidence that support continues unabated for illegal outposts. At one unauthorized settlement, Eli there has been recent work on a new road that cuts through Palestinian territory.[126]
According to a report of the Israeli Environmental Protection Ministry, waste water management is "virtually nonexistent" in unauthourized Jewish settler outposts and some other settlements, thus raw sewage is contaminating the ground water in parts of the West Bank. According to the report, the main cause of the contaminated water is that raw waste water flows from Hebron, Ramallah, Nablus, Jenin and other villages, without proper treatment. The report blames Israeli settlements for pumping contaminated water into the sewers, not Palestinian villages. 70% of the Jewish communities east of the Green Line are connected to treatment facilities, so "illegal outposts" are the main source of the untreated water, according to the Israeli report.[127]
In May 2009, Defense Minister Ehud Barak said that over two dozen illegal outposts in the West Bank had been "declared as such by the Talia Sasson Commission", and would be dismantled.[128]
On August 17, 2009, four ministers on Netanyahu cabinet (Deputy Prime Minister andMinister of Internal Affairs Eli Yishai (Shas), Vice Prime Minister and Minister of Strategic Affairs Moshe Ya'alon (Likud), Minister of Information Yuli Edelstein (Likud), and Minister of Science and Technology Daniel Hershkowitz (The Jewish Home)) embarked on a tour of West Bank outposts. During the tour, Yishai stated that the outposts are not illegal:[129] [130]
These are legal settlements built by the governments of Israel. The people of Israel should know this settlement is legal. If someone thinks otherwise and plans to evacuate them, it will have to be approved by the government. You cannot just evacuate people from their homes without due process.
See also
Notes
  1. Ambassador Morris Abram, who was involved in drafting the Fourth Geneva Convention, argued that the convention "was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people."[81]
References
  1. Roberts, Adam. "Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967". The American Journal of International Law (American Society of International Law) 84 (1): 85–86. doi:10.2307/2203016. The international community has taken a critical view of both deportations and settlements as being contrary to international law. General Assembly resolutions have condemned the deportations since 1969, and have done so by overwhelming majorities in recent years. Likewise, they have consistently deplored the establishment of settlements, and have done so by overwhelming majorities throughout the period (since the end of 1976) of the rapid expansion in their numbers. The Security Council has also been critical of deportations and settlements; and other bodies have viewed them as an obstacle to peace, and illegal under international law.
  2. Pertile, Marco (2005). "'Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory': A Missed Opportunity for International Humanitarian Law?". In Conforti, Benedetto; Bravo, Luigi. The Italian Yearbook of International Law 14. Martinus Nijhoff Publishers. p. 141. ISBN 978-90-04-15027-0.the establishment of the Israeli settlements in the Occupied Palestinian Territory has been considered illegal by the international community and by the majority of legal scholars.
  3. Barak-Erez, Daphne (2006). "Israel: The security barrier—between international law, constitutional law, and domestic judicial review". International Journal of Constitutional Law (Oxford University Press) 4 (3): 548. doi:10.1093/icon/mol021.The real controversy hovering over all the litigation on the security barrier concerns the fate of the Israeli settlements in the occupied territories. Since 1967, Israel has allowed and even encouraged its citizens to live in the new settlements established in the territories, motivated by religious and national sentiments attached to the history of the Jewish nation in the land of Israel. This policy has also been justified in terms of security interests, taking into consideration the dangerous geographic circumstances of Israel before 1967 (where Israeli areas on the Mediterranean coast were potentially threatened by Jordanian control of the West Bank ridge). The international community, for its part, has viewed this policy as patently illegal, based on the provisions of the Fourth Geneva Convention that prohibit moving populations to or from territories under occupation.
  4. Drew, Catriona (1997). "Self-determination and population transfer". In Bowen, Stephen. Human rights, self-determination and political change in the occupied Palestinian territories. International studies in human rights 52. Martinus Nijhoff Publishers. pp. 151–152. ISBN 978-90-411-0502-8. It can thus clearly be concluded that the transfer of Israeli settlers into the occupied territories violates not only the laws of belligerent occupation but the Palestinian right of self-determination under international law. The question remains, however, whether this is of any practical value. In other words, given the view of the international community that the Israeli settlements are illegal under the law if belligerent occupation …
  5. International Labour Organization (2005). "The situation of workers of the occupied Arab territories" (PDF). p. 14. The international community considers Israeli settlements within the occupied territories illegal and in breach of, inter alia, United Nations Security Council resolution 465 of 1 March 1980 calling on Israel "to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem".
  6. Israeli Ministry of Foreign Affairs (1 November 2007). "Israel, the Conflict and Peace: Answers to frequently asked questions". Furthermore, Israel had established its settlements in the West Bank in accordance with international law. Attempts have been made to claim that the settlements violate Article 49 of the Fourth Geneva Convention of 1949, which forbids a state from deporting or transferring "parts of its own civilian population into the territory it occupies". However, this allegation has no validity in law as Israeli citizens were neither deported nor transferred to the territories. Although Israel has voluntarily taken upon itself the obligation to uphold the humanitarian provisions of the Fourth Geneva Convention, Israel maintains that the Convention (which deals with occupied territories) was not applicable to the disputed territory. As there had been no internationally recognized legal sovereign in either the West Bank or Gaza prior to the 1967 Six Day War, they cannot be considered to have become "occupied territory" when control passed into the hands of Israel.
  7. Israeli Ministry of Foreign Affairs (1 November 2007). "Israel, the Conflict and Peace: Answers to frequently asked questions". Although Israel has voluntarily taken upon itself the obligation to uphold the humanitarian provisions of the Fourth Geneva Convention. Israel maintains that the Convention (which deals with occupied territories) was not applicable to the disputed territory.
  8. Roberts, Adam. "Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967". The American Journal of International Law (American Society of International Law) 84 (1): 69. doi:10.2307/2203016. SC Res. 446 (Mar. 22, 1979), adopted by 12 votes to none, with 3 abstentions (Norway, the United Kingdom and the United States), reaffirmed the applicability of the fourth Geneva Convention, as well as opposing the establishment of Israeli settlements in the occupied territories.
  9. Benveniśtî, Eyāl (2004). The international law of occupation. Princeton University Press. p. xvii. ISBN 978-0-691-12130-7. In its advisory opinion of July 9, 2004, on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice found Israel in breach of several international law obligations by its construction of a separation barrier on West Bank territory. ... The Court flatly rejects the Israeli claims concerning the inapplicability of the Fourth Geneva Convention to the West Bank and concerning the inapplicability of Article 49 to the Jewish settlements in the areas occupied by Israel. Neither of these claims gained serious support from the international community.
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  13. http://www.icrc.org/web/eng/siteeng0.nsf/html/5FLDPJ Point 12
  14. http://www.icj-cij.org/docket/files/131/1671.pdf paragraphs 95–101 and 120
  15. Gregory S. Mahler (2004). Politics and government in Israel: the maturation of a modern state. Rowman & Littlefield. p. 314. ISBN 978-0-7425-1611-3. Retrieved 7 December 2010.
  16. Lebanon 1952 Syria 1953 Jordan 1951 Egypt 1951 Israel 1951 International Committee of the Red Cross
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  19. see the "Place of customary international law" on pages 5–6 of International Law in Domestic Courts: Israel, by Dr. David Kretzmer and Chapter 2 "Application of International Law", in The Occupation of Justice, by David Kretzmer
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  21. Time Inc (12 March 1971). LIFE. Time Inc. p. 32. ISSN 0024-3019. Retrieved 9 December 2010.
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  25. See the Judgment in "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory", para 120, 134, and 142 [1] and PAUL J. I. M. DE WAART (2005) International Court of Justice Firmly Walled in the Law of Power in the Israeli–Palestinian Peace Process. Leiden Journal of International Law, 18, pp. 467–487, doi:10.1017/S0922156505002839
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3 comments:

  1. YJ Draiman ArticlesSeptember 11, 2016 at 8:13 PM

    Jerusalem and the Jewish people are eternally intertwined. Even in the Diaspora, Jews have always called Jerusalem their home and have yearned and prayed three times a day for the return to their ancestral city in their ancestral homeland.
    King David pronounced it as the capital of Israel in 1004 BCE and paid the Jebusites a sum of money to purchase it and avoid a conflict. And as Eli E. Hertz observes, “For over 3,000 years the Jewish people looked to Jerusalem as their spiritual, political, and historical capital, even when they did not physically rule over the city and it was occupied by various nations.”
    The Lord also sees the intrinsic spiritual value of Jerusalem (i.e., a city holy and special to Him, see Psalm 87:1-3); He commands the Jewish people to go to the city three times a year—for specific feasts—to worship the Lord (Ex. 23:14-17; 34:18-23). The Almighty says He will put His name on the city (1 Kings 11:36). Psalm 132:13-14 states, “For the LORD has chosen Zion; He has desired it for His dwelling place: ‘This is My resting place forever; here I will dwell, for I have desired it.’”
    The Spiritual leaders of the Nation of Israel speaks of the city as representing the whole of Israel and the Jewish people (Matt. 23:37-39). God foretells a restoration of Jerusalem (Jer. 3:17). Likewise, the prophets speak of a time when all nations in the world go up to Jerusalem to worship God (Micah 4:2, Zech. 14:16, Isa. 2:3).

    ReplyDelete
  2. YJ Draiman ArticlesSeptember 11, 2016 at 8:13 PM

    Jerusalem and the Jewish people are eternally intertwined. Even in the Diaspora, Jews have always called Jerusalem their home and have yearned and prayed three times a day for the return to their ancestral city in their ancestral homeland.
    King David pronounced it as the capital of Israel in 1004 BCE and paid the Jebusites a sum of money to purchase it and avoid a conflict. And as Eli E. Hertz observes, “For over 3,000 years the Jewish people looked to Jerusalem as their spiritual, political, and historical capital, even when they did not physically rule over the city and it was occupied by various nations.”
    The Lord also sees the intrinsic spiritual value of Jerusalem (i.e., a city holy and special to Him, see Psalm 87:1-3); He commands the Jewish people to go to the city three times a year—for specific feasts—to worship the Lord (Ex. 23:14-17; 34:18-23). The Almighty says He will put His name on the city (1 Kings 11:36). Psalm 132:13-14 states, “For the LORD has chosen Zion; He has desired it for His dwelling place: ‘This is My resting place forever; here I will dwell, for I have desired it.’”
    The Spiritual leaders of the Nation of Israel speaks of the city as representing the whole of Israel and the Jewish people (Matt. 23:37-39). God foretells a restoration of Jerusalem (Jer. 3:17). Likewise, the prophets speak of a time when all nations in the world go up to Jerusalem to worship God (Micah 4:2, Zech. 14:16, Isa. 2:3).

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  3. umairFebruary 19, 2021 at 3:03 AM


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