It is obvious who will speak for Israel at the peace negotiations. Israel’s elected officials, despite some well-managed contrary rhetoric, will speak for Israel, and probably offer no significant concessions. Israel’s Vice Premier Haim Ramon has already clarified the future of the negotiations by a statement that circulated in an Associated Press report, Dec, 9, 2007: “Israel intends to hold on to all Jewish neighborhoods in Jerusalem, a position that undercuts the Palestinians’ claim to the eastern part of the city for their future capital.”
Who can speak for Palestine? The West Bank Palestinians are economically and politically separated from their relatives in Gaza, and both operate separately from the Palestinian community in the Diaspora. Hamas is divided. Fatah is divided. The Palestinians have no cohesion to create a unified voice, no power to present a coherent voice, no means to manage a compromising voice. It seems that the Palestinians have no voice, but the appearance is deceiving; the Palestinians have potent voices of international law and international reason. A major problem is they lack active support from an international community that has been negligent in providing the necessary means to implement United Nations (UN) resolutions and mandating accepted international laws.
Legal voices have been quietly suppressed; their arguments confined to conferences and journals. These voices are receiving a renewed impetus to take the stage in this decades old struggle and be heard before international institutions, and for good reason; the route described by international law might be the only road that has a solution which brings peace with justice to the Middle East. A disparity between contenders that does not allow for meaningful negotiations has provoked the international community to re-examine resolutions that censored Israel’s checkered development.
Several interlocutors have presented the need for intercession of international law in the Palestinian/Israeli dispute. (Isn’t the use of law the accepted measure for resolving international disputes?) Many of the legal opinions support the Palestinian case before the court of law. These opinions from respected international legal experts, which give a voice to the Palestinians, cannot be conveniently summarized. Nevertheless, some of their more cogent arguments illuminate the legal thrust.1
Ohio State University Law Professor John Quigley, in a lecture at a 1999 Case University symposium — The Legal Foundations of Peace, and prosperity in the Middle East: The Role of Law in a Palestinian-Israeli Accommodation — explored the issues to be addressed in final status negotiations.
“The United Nations had long viewed the rights of the Palestinians as being in jeopardy, particularly since the 1967 war, when Israel occupied the Gaza Strip and the West Bank of the Jordan River, two sectors of historic Palestine that it had not occupied in 1948. As suggested by the United Nations General Assembly, an international conference would be convened with certain principles understood in advance to protect the rights of the Palestinians. These rights would include the right of return for displaced Palestinians, the right of self-determination of the Palestinian people and their right to establish a state, an Israeli withdrawal from the Gaza Strip and West Bank, including Jerusalem, and a rejection of the permissibility of Israeli settlements in the Gaza Strip and West Bank. The United Nations had previously determined Israel to be in violation of international law on these issues. Thus, protection of rights was built into the contemplated peace process.
That approach was abandoned, however, in 1991, when the United States and the Soviet Union hosted a conference in Madrid to promote instead a negotiation between the two parties alone, rather than an international conference, and with no explicit prior specification of the rights to be protected.”
Borders: “Belligerent occupation yields only a right of temporary possession, not title to territory. The sovereign right of the legitimate sovereign remains intact, even though it is not able to exercise control. Thus, even apart from what Resolution 242 may mean, Israel is under an obligation to withdraw from the Gaza Strip and West Bank.”
Settlements: “Under the law of belligerent occupation, the establishment of civilian settlements is unlawful. Article 49 of the Geneva Civilians Convention states, “The Occupying Power shall not … transfer parts of its own civilian population into the territory it occupies “
Displaced Persons: “The only exception to a right of return is that in which a person voluntarily takes on a new citizenship in a manner that indicates a renunciation of residency rights in the former locale. The right of return is not defeated by a change in sovereignty in the territory from which a person was displaced… This norm requiring a state to repatriate the displaced is followed in international practice. In dealing with military conflict situations, the United Nations Security Council requires states to repatriate the displaced.”
“An Israel-P.L.O. agreement that fails to vindicate the legally protected interests of Palestinians would leave claims of individuals to be resolved by whatever international mechanisms that may be in a position to consider them. Rather than resolving the outstanding issues, such an agreement would let these issues fester, causing difficulties for decades to come.”
Jerusalem: “In the absence of any legal base put forward by Israel itself, various scholars have argued, in support of Israel’s claim to sovereignty in Jerusalem, that Palestine had no sovereignty when Great Britain abandoned in 1948 its League of Nations role as mandatory power in Palestine. According to this argument, Palestine was open to occupation by whoever might take it, and on this basis Israel has sovereignty over whatever territory it controls, including west Jerusalem from 1948, and east Jerusalem from 1967. This theory enjoys little following, however, because under the League of Nations arrangement, sovereignty lay in the community of citizens of Palestine, not in Great Britain. A population under a League mandate was deemed to be a subject of international law with a legal interest in the territory that was separate from that of the mandatory power. In Palestine under the mandate, the inhabitants carried a Palestinian citizenship. When Britain withdrew, the community of citizens was entitled to exercise sovereignty. The majority of that community of citizens was represented by a political organization, the Arab Higher Committee, that was recognized by the United Nations, and which asserted a right to establish a government for Palestine. Thus, Britain’s departure left no void of sovereignty…The international community has given little support to Israel’s claims over Jerusalem. Regarding the eastern sector, it has considered it to be under belligerent occupation, and therefore not subject to appropriation by Israel. Regarding the western sector, it has continued to view the proposal for an internationalized status as viable, and nearly all states that maintain diplomatic relations with Israel have declined to locate their embassies in Jerusalem.”
In another article, Professor Quigley argues “that the conflict is best understood — and poses the greatest chance of ultimate resolution — in the context of international law.”2
Under the established norms of international law, the Palestinian people have been unlawfully displaced and have a right to repatriation that is not able to be negotiated away through the international political process…The displaced Palestinians should not have to lobby for their right of return vis-à-vis Israel or vis-à-vis the Palestinian leadership. The right is guaranteed by human rights norms. Just as a state that tortures is obliged to desist without being cajoled and without negotiation, so a state that refuses to repatriate is obliged to desist, namely, by repatriating.
Anthony D’Amato, Leighton Professor of Law, Northwestern University School of Law presents controversial opinions in his legal survey of the conflict in an article:
… the Kellogg-Briand Peace Pact of 1928, as definitively glossed by the International Tribunal at Nuremberg in 1948, has abolished forever the idea of acquisition of territory by military conquest. No matter who was the aggressor, international borders cannot change by the process of war. Resort to war is itself illegal, and while self-defense is of course legal, the self-defense cannot go so far as to constitute a new war of aggression all its own. And if it does, the land taken may at best be temporarily occupied, but cannot be annexed. Thus after all the wars, the bloodshed, aggressions and counter-aggressions, acts of terror, reprisals, and attendant UN resolutions, nothing has changed the legal situation as it existed after Resolution 181 in 1947. The legal boundaries of Israel and Palestine remain today exactly as they were delimited in Resolution 181.3
Professor D’Amato examines another aspect of the controversy:
In my view, the controversy does not solely concern Israel and Palestine. Palestine, it will be recalled, was a Mandate under the League of Nations. Unlike the League’s other mandated territories, it was not transferred to the UN Trusteeship Council when the League dissolved in 1946. But the lack of transfer does not mean that the mandate expired, any more than the death of a trustee would terminate a trust. The “administration” of the Palestine Mandate legally devolved upon the General Assembly. In 1947, the General Assembly passed a resolution partitioning the Mandate into two areas, one to be governed by a new Jewish state and the other to be governed by a new Arab state. Although Israel became a state in 1948, Palestine did not become a state. In my reading of this (admittedly complex) history, the Palestine Mandate has therefore never legally been terminated. Until it is terminated-that is, until a new Arab state is created-the General Assembly retains its supervisory powers over the Palestine territory. While the extent of that supervisory power is disputable given all the events that have occurred since 1947, at the very minimum it entitles the General Assembly to retain a legal interest in the proper disposition of the mandated territory.4
International law is neither precise nor entirely accepted by all nations. Nevertheless, it has been used together with other means to resolve similar conflicts in South Africa, Rwanda, Bosnia and Kosovo. The Palestinian-Israel conflict begs for the force of de jure and the forces of nations; the same economic, political, material and military forces used to resolve previous disputes. Those who are concerned with the effects on Israel by imposition of international law should realize that if Israel is lessened by international law, it will only be due to Israel having ignored international law; if Israel is reshaped by the context of international law, it will only be due to Israel having distorted the context of international law in order to reshape the Middle East in accord with its own vision.
Everyone should realize that the conflict goes beyond the Israelis and Palestinians. This conflict has bred terrorism, caused other severe conflicts, stimulated arms races, strengthened religious extremists; brought death and destruction to many parts of the globe and has a tendency to engulf our entire civilization in a cataclysm. The international community must be assured that the solution is not worked to suit the agenda of a relatively few; but correctly responds to the alarms of all.
The inability to force responses to UN resolutions and provide a legal context to the Israeli-Palestinian conflict is a principal reason for continuation of the decades old conflict. The corollary is that only enforcement of UN resolutions and adherence to international law will resolve the conflict.
- Note: The specific arguments are only presented in order to demonstrate that the legal aspect is most important in resolving the struggle and that the Palestinians have a sympathetic legal voice. There is no intent to conclude these are the only legal opinions and that these opinions are the final conclusions from international laws governing the dispute. [↩]
- “International Law and the Palestinian Refugees,” Hastings International and Comparative Law Review, 2005. [↩]
- “The Legal Boundaries of Israel in International Law,” JURIST, April 8, 2002. [↩]
- “The West Bank Wall,” JURIST, February 24, 2004. [↩]