Arab-Israeli Conflict and International Law
Arguments about the
applicability of various elements of international law underlie the
debate around the Arab-Israeli conflict.
The basis for legal arguments
International law is different from domestic law in many important
respects, but its interpretation and application relies on a formal
structure similar to that of domestic law. Legal arguments are also
distinct from moral arguments, historical arguments, and religious
arguments, all of which come into play in the Arab-Israeli conflict.
Criteria for making legal arguments
* International treaty law is embodied in treaties, customary law, and
legal practices, from which they should derive unambiguous meaning. In
other words, any legal argument bound in international law must start
with a reference to the applicable law.
* The argument must then show how the statute is applicable to the
situation.
o For example, states are not bound by treaties that they haven't signed
or ratified; nor are non-states bound by treaties that only apply to
states.
o By the same token, treaties typically are limited in scope in various
ways.
o This is complicated by the fact that there may be a state of affairs
that some interpret de facto as falling into one category; and others
interpret differently.
o It is further complicated by the controversial principle that if a
sufficient number of states has ratified a treaty, the relevant statutes
become part of customary international law that may be considered
binding on all states.
* Evidence must then show that an applicable statute in international
law has been violated in one way or the other, and that this violation
outweighs other legal considerations.
Each of these criteria is subject to dispute within the context of the
Arab-Israeli conflict.
Monism vs. dualism
Most common-law countries (including Israel) apply a dualist principle
in contending that international and domestic law are distinct systems
of law, and that international law only applies to the extent that it
does not conflict with domestic law. Most civil law countries (including
most European countries) apply a monist principle and contend that there
is only one system of law that incorporates both international and
domestic law. This philosophical difference leads to different
interpretations of the supremacy of international law over domestic law.
Legal issues related to sovereignty
The vast majority of the world's sovereign states are a result of wars
that were resolved through peace treaties. Some of these peace treaties
were imposed on the losing side in a war; others came about as a result
of negotiations that followed wars, or were entered into under the
threat of war. In these cases, the applicable law is bound in peace
treaties among the states.
All international treaties recognize the supremacy of national
sovereignty over other considerations.
Origins
The legal sovereignty over areas now under Israeli rule (including areas
within the armistice lines from the War of 1948, areas in Gaza, the
Golan Heights, and west of Jordan captured during the Six-Day War) is
subject to two different interpretations:
* The Israeli perspective is that the San Remo conference in 1920
explicitly granted the mandate for the relevant areas and today's
Hashemite Kingdom of Jordan to Great Britain in order to set up a Jewish
homeland there. They further claim that the resolution is still in force
and that it still applies to disputed areas not resolved by peace
treaties.
* The Arab perspective is that the San Remo conference (if it still
applies, which is disputed) made no mention of Jewish sovereignty, nor
did it identify which parts of Palestine a "Jewish homeland" would
occupy. Furthermore, the right of self-determination of national groups
has been recognised many times by the international community.
* Those who reject Israeli claims of sovereignty of all or parts of
Jerusalem, the West Bank, and Gaza claim that these areas were never
intended for Israel in the UN partition plan for Palestine; they were
seized from Jordan (who conquered the area during the 1948 Arab-Israeli
War) during the Six Days War and are thus considered "occupied" by
Israel. Jordan relinquished its claim to these territories in 1988.
Subsequent treaties and resolutions
During the course of the British mandate in Palestine, the British
government sought to reconcile the two claims in different ways. A
number of proposals and declarations were put forward, all of which were
rejected by one party or the other, and usually both. Again, two
different interpretations apply:
* The Israeli perspective is that Great Britain only had the mandate to
propose solutions in keeping with the San Remo conference, not to amend
them. Proposals that were offered but rejected by either or both of the
parties had no legal authority.
* The Arab perspective views British proposals as promises (subsequently
broken) to the people of Palestine.
After World War II, the British government decided to abandon its
mandate in Palestine. A United Nations Commission (UNSCOP) was assigned
to recommend a solution to the conflict to the General Assembly. The
recommendation was a partition plan that would result in an Arab and a
Jewish state in the remaining mandate, and Jerusalem under UN rule, was
approved by General Assembly. This plan does not have the authority of
international law, since the General Assembly can only express
international diplomatic consensus, not make international law. In any
case, the plan was rejected by Arab states at the time.
However, the resolution served partially as a basis for the Declaration
of the Establishment of the State of Israel to take effect when Great
Britain's mandate expired. Many states granted the State of Israel
either de facto or de jure recognition. Israel was accepted as a
sovereign member state in the United Nations and enjoys diplomatic
relations with many, but not all, sovereign states.
The legal consequence of subsequent events
Several events have affected the legal issues related to the conflict:
* After the war in 1948, the mandate ended up being split between
Israel, Egypt and Jordan. Israel and Jordan annexed all areas under
their administration; Egypt maintained a military occupation of Gaza.
The United Nations did not assert its authority of Jerusalem, and the
city ended up being split between Israel and Jordan.
* Although there were numerous informal and backchannel communications
between Israel and Arab states through the years, all Arab states
refused to accept Israel's sovereignty until 1979, and most (excluding
Jordan, Mauritania, and Egypt) persist in rejecting Israel's right to
exist (see Khartoum Resolution).
* The war in 1967 brought all remaining parts of the Mandate (as defined
by Great Britain in 1947) as well as parts of the Golan Heights under
Israeli administration. Israel subsequently annexed East Jerusalem and
the Golan, 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,
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 in 1979, agreeing on
international borders between the two states, but leaving the
disposition of Gaza for peace negotiations between Israel and the
Palestinians.
* In 1988, the PLO declared "the formation of an independent Palestinian
state, with Jerusalem as its capital."
* In 1993, the PLO and Israel signed a declaration of principles that
included mutual recognition and the ultimate goal of establishing self
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, though armistice agreements govern interaction
between the states.
* Several attempts at finalizing the terms for a peace agreement between
Israel and the PLO have failed, though so far, both parties accept each
other as legitimate negotiation partners
Legal issues related to the wars
International law recognizes that there are legal reasons to go to war.
For example, states have the right to defend themselves against overt
external aggression, in the form of an invasion or other attack. A
number of states assert that this principle extends to the right to
launch military actions to reduce a threat, protect vital interests, or
pre-empt a possible attack or emerging threat. As a practical matter,
these distinctions may not matter much: once a war breaks out, the
efforts shift toward ending it and preventing it from starting again
rather than hashing out legal distinctions.
Wars between Israel and Arab states
Nevertheless, the Security Council's opinion, as noted by the passed of
Security Council resolution 242, emphasized "the inadmissibility of the
acquisition of territory by war," setting the stage for controversy on
the legal status of areas captured in 1967, and (according to some) in
1948.
There are two interpretations of this matter:
* The Israeli position is that:
o The wars in 1956, 1967, and 1973 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 as a deterent to initiate more wars by hostile
states.
o In the absence of peace treaties between all the parties at war,
Israel has under all circumstances the right to maintain control of the
captured territories. Their ultimate disposition should be a result of
peace treaties, and not a condition for them. Even so, Israel asserts
that:
+ The 1956 war was caused by a pattern of Egyptian belligerency against
Israel, culminating with the nationalization of the Suez Canal and the
blockage of the canal for Israeli traffic in 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:
o The 1956 war 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.
o 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.
o 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 Palestinian National
Authority/PLO and Israel.
Armed conflict between Israel and Palestinian groups
The Declaration of Principles (see above) established Israel and the PNA/PLO
as negotiation partners for purposes of determining the resolution of
several issues, including:
* The borders and legal status of Palestinian self-determination,
including the eventual establishment of a sovereign Palestinian state
* The disposition of Palestinian refugees
* Other arrangements to resolve grievances, such as financial
reparations
However, the application of international law is complicated by the fact
that Israel is a sovereign state, while the PNA/PLO is recognized (by
Israel and other states) as the legitimate representative of the
Palestinian people, and not a sovereign state. Hence, the PLO/PNA has
neither the rights nor obligations of a sovereign state.
This issue is further complicated by the fact that the PLO/PNA has
limited authority over other Palestinian groups, such as Hamas and the
Palestinian Islamic Jihad within territories under Israeli or
Palestinian administration; or over Hizballah and other organizations in
other states.
Israel does not recognize enemy Palestinian combatants as soldiers and
prosecutes them under Israeli criminal law. On the other hand, Israel
invokes its sovereign right to self-defense as justification for
targeted killings of enemy leaders.
Legal issues related to occupation
The Geneva Conventions and other international tractates recognize that
land a) conquered in the course of a war; and b) the disposition of
which is unresolved through subsequent peace treaties is "occupied" and
subject to international laws of war and international humanitarian law.
This includes special protection of individuals in those territories,
limitations on the use of land in those territories, and access by
international relief agencies.
"Occupied" vs. "Disputed" territories
See related article Political status of the West Bank and Gaza Strip.
Several arguments are brought forward on this issue:
* "Rejectionists" on the Arab side point out that the armistice lines of
1949 should not prejudice future borders, and that all of Israel is in
fact occupied territory
* Hardline Israelis agree that the armistice lines of 1949 have no legal
standing, but assert instead that all of the West Bank and Gaza is
legally Israeli, on both legal and historical bases
* The more mainstream Israeli position is that:
o The Golan Heights and East Jerusalem are annexed and belong to Israel.
o The West Bank and Gaza are "disputed" and not occupied territories,
because:
+ They were part of the Mandate in Palestine and therefore part of what
was to become a "Jewish homeland"
+ The Arab states rejected the 1947 partition plan
+ No attempt was ever made to establish a Palestinian state in the West
Bank and Gaza between 1949 and 1967 (See Occupation of the Gaza Strip by
Egypt and Occupation of the West Bank and East Jerusalem by Jordan.)
+ The Geneva Conventions only apply to sovereign territories captured
from a signatory to the conventions
* The international perspective, excepting only the US in some cases, is
that:
o The annexation of the Golan Heights and East Jerusalem are illegal and
not recognized by international law
o The West Bank and Gaza are "occupied," because:
+ They were captured by force of arms and against the will of their
populations
+ The residents in these areas were stateless
+ Israel has put the territories under military rather than civilian
administration, creating a de facto state of occupation
o Non-Jewish residents who reject Israeli citizenship and/or hegemony
have the right to self-determination
Jerusalem
Recognizing the controversial nature of sovereignty over Jerusalem,
UNSCOP recommended that the city be placed under United Nations
administration in the partition plan. This was approved by the General
Assembly in November, 1947. However, the 1948-1949 war resulted in
Israel occupying the western portion of the city and Jordan occupying
the eastern portion. Israel made Jerusalem its capital in 1950,
establishing governmental offices in areas it controlled. Soon
afterwards, Jordan annexed the eastern part along with the remainder of
the West Bank.
After the 1967 war, Israel put the parts of Jerusalem that had been
captured during the war under its jurisdiction and civilian admistration,
establishing new municipal borders. Arguing that this did not amount to
annexation at the time, subsequent legal actions have been interpreted
as consistent with an annexation.
On July 30, 1980, the Knesset passed a basic law making "Jerusalem,
complete and united…the capital of Israel." Since then Israel has
extended the municipal boundaries several times.
On October 6, 2002, Yasser Arafat signed the Palestinian Legislative
Council's law making Al Quds "the eternal capital of Palestine."
International bodies such as the United Nations have condemned Israel's
Basic Law concerning Jerusalem as a violation of the Fourth Geneva
Convention and therefore hold that the establishment of the city as
Israel's capital is against international law. Consequently, countries
have established embassies to Israel's government outside of Jerusalem.
Similarly, missions to the Palestinian National Authority are at the
insistence of Israel's government located outside of Jerusalem.
Israel has filed strenuous protests[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
Settlement in territories
The Fourth Geneva Convention prohibits an occupying power from deporting
or transferring "parts of its own civilian population into the territory
it occupies." On this basis, Palestinians and much of the world
community has declared that Israel in violation of international law in
establishing, funding, or allowing Jewish communities in the West Bank
and Gaza.
The Israeli position is that the territories in question are not
occupied in any legal sense, based on arguments discussed above.[2] They
further assert that Jewish settlement in these areas does not in any way
displace or cause hardship for the Palestinians, which is the original
purpose of the Conventions.
Security/separation barrier
Israel has completed long stretches of barriers between Jewish and
Palestinian communities, see the Israeli West Bank barrier and the
Israeli Gaza Strip barrier articles. There are several interpretations
of this issue:
* Critics make one or several of the following arguments:
o While a security/separation barrier may be a necessary and effective
way to stop attacks against Israeli targets, Israel has no right to
build the barrier in territories considered "occupied".
o The barrier is nothing but an attempt to establish de facto borders
between Israel and a future Palestinian state
o The barrier attempts to separate Palestinians from their means of
livelihood and from interaction with others and is therefore comparable
to something the apartheid regime in South Africa might attempt
* Israel defends the security barrier by arguing that:
o The barrier and its route are solely security measures that will have
no bearing on future peace negotiations
o The land is not (for reasons outlined above) subject to the Geneva
Conventions
o Even if it were, the Geneva Conventions explicitly allows structures
to be built for purposes of self-defense
o The Israeli Supreme Court is reviewing the route on a continuous basis
and has forced it to change
The International Court of Justice issued an advisory opinion on July 9,
2004 that it was contrary to international law for Israel to build a
barrier in areas the court considered "occupied."
Legal issues related to refugees
Legal definition of refugee
The tractate that is most often invoked for legally defining refugees is
the 1951 Convention relating to the Status of Refugees. The definition
of "refugee" is most often summarized as
"... a person who is outside his/her country of nationality or habitual
residence; has a well-founded fear of persecution because of his/her
race, religion, nationality, membership in a particular social group or
political opinion; and is unable or unwilling to avail himself/herself
of the protection of that country, or to return there, for fear of
persecution." The convention is administered by the United Nations High
Commissioner for Refugees (UNCHR).
The United Nations Relief and Works Agency for Palestine Refugees in the
Near East (UNRWA), which was established prior to the 1951 convention in
response to the humanitarian crisis, applies a different definition:
"Under UNRWA's operational definition, Palestine refugees are persons
whose normal place of residence was Palestine between June 1946 and May
1948, who lost both their homes and means of livelihood as a result of
the 1948 Arab-Israeli conflict. UNRWA's services are available to all
those living in its area of operations who meet this definition, who are
registered with the Agency and who need assistance. UNRWA's definition
of a refugee also covers the descendants of persons who became refugees
in 1948." Only descendants in the male line are automatically included.
Since the definition used by UNRWA is operational rather than legal,
obligations and rights related to Palestinian refugees under
international law are a matter of some debate. The debate centers on
three questions: whether the status of refugees can properly be passed
through inheritance to individuals who have never lived in the vacated
areas; whether individuals who have repatriated in other countries can
legally claim refugee status; and whether the UNRWA's criteria for
conferring refugee status led to inclusion of individuals who sought
such status for economic reasons.
Palestinian refugees were excluded from the 1951 Convention due to the
clause that "This Convention shall not apply to persons who are at
present receiving from organs or agencies of the United Nations other
than the United Nations High Commissioner for Refugees protection or
assistance." As interpreted by UNHCR, this caused some anomalies, since
UNRWA admits some persons as refugees that are not automatically
admitted by the Convention, and, conversely, some of the legal
protections given to refugees by the Convention were not available to
most Palestinians. In 2002, UNHCR adopted a revised interpretation (PDF)
that fills some of these gaps.
Critics of the definition that UNRWA uses have raised objections as to
the number of people that should be considered refugees under
international law, by noting that the practice of awarding refugee
status to descendants was not mandated by the later 1951 convention.
However, common practice according to the UNHCR Handbook on Procedures
and Criteria for Determining Refugee Status is that "if the head of a
family meets the criteria of the definition, his dependants are normally
granted refugee status according to the principle of family unity". In
the case of both the UNRWA and UNHCR, actual provision of assistance to
a refugee is contingent on a perceived need.
From:
http://en.wikipedia.org/wiki/International_law_and_the_Arab-Israeli_conflict
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