International law and the Arab–Israeli conflict

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 an international consensus that some of the actions of the states involved in the Arab–Israeli conflict violate international law, but some of the involved states dispute this.

In the Six-Day War in 1967, Israel pre-empted what many Israeli leaders believed to be an imminent Arab attack and invaded and occupied territory that had itself been invaded and occupied by neighboring Egypt, Syria and Jordan in the 1948 Arab–Israeli War. Following the peace treaties between Israel and Egypt and Israel and Jordan, in which the states relinquished their claims to the Israeli-occupied territory, the conflict today mostly revolves around the Palestinians.

The main points of dispute (also known as the "core issues" or "final status issues") are the following:
* Israel's annexation of East Jerusalem (Israel has also annexed the Golan Heights, but that territory isn't claimed by Palestinians), construction of Israeli settlements in the Palestinian territories and the erection of the Israeli West Bank barrier;
* how borders should be decided between Israel and a Palestinian state;
* the right of return of the Palestinian refugees from the 1948 and 1967 wars.

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 Convention IV) of 18 October 1907 and the Geneva Conventions of 12 August 1949 are examples of conventional laws that are declarations of customary law.
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.

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. Acting in that agreed-upon treaty capacity, the General Assembly affirmed the principles of international law that were recognized by th
Charter of the Nuremberg Tribunal
and directed that they should be codified. 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. 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 UN 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.

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 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.
Those principles and regional understandings were recognized in Article 21 of the Covenant of the League of Nations. 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, 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. 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.

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. 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.

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.

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. 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. The delegates of the First 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 a partition plan that would result in an Arab and a Jewish state in the remaining mandate, and Jerusalem under UN rule, was approved by the General Assembly.

However, the resolution served partially as a basis for the Declaration of the Establishment of the State of Israel to take effect when Great Britain's mandate expired. Many states granted the State of Israel either ''de facto'' or ''de jure'' recognition. Israel was accepted as a sovereign member state in the United Nations and has diplomatic relations with many, but not all, sovereign states.

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 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.
* 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 refugee problem "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 the Sinai Peninsula and parts of the Golan Heights under Israeli administration. Israel subsequently effectively annexed East Jerusalem, asserting that the West Bank and Gaza were " disputed territories". The United Nations Security Council rejected the effective annexation of East Jerusalem and Golan Heights as "null and void" in United Nations Security Council Resolution 478 and United Nations Security Council Resolution 497 respectively, and consider Israel to hold the Gaza Strip, the West Bank, including East Jerusalem, and the Golan Heights under military occupation.
* 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, Israel returning Sinai in return for peace, 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." Jordan relinquished its claims to the West Bank.
* 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. 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 and this occupation must end.

The dispute has now shifted to the conflict between the Palestinians and Israel.

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 the city be placed under United Nations administration in the partition plan. This amendment was approved by the General Assembly in November 1947; consistent with the respective stance of both sides regarding the partition plan-it was accepted by the Israel and rejected by the Arab states. During, the subsequent 1948 war, Israel captured and held a western portion of Jerusalem's city limits along much of the lands relegated to the proposed Arab state laid out in the partition plan. Most of Jerusalem, including all of the old city, came under the control of the Hashemite Kingdom of Jordan, with the proposed Arab state for Palestinians never coming into existence. Israel declared Jerusalem its capital in 1950, establishing governmental offices in area it controlled. Soon afterward 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, or only with the western section of the city recognized as legal Israeli territory. Similarly, missions to the Palestinian National Authority are at the insistence of Israel's government located outside of Jerusalem. Despite both Israel and Palestine's long standing claim of Jerusalem as their capital, central government administration is largely conducted out of Tel Aviv and Ramallah for the Israe and Palestine respectively.

Israel has filed strenuous protest

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 (Jerusalem), 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, the International Court of Justice concluded that the lands captured by Israel in the 1967 war, including East Jerusalem, are occupied territory.

Settlement in territories

Article 49 of the Fourth Geneva Convention states in paragraph 1

''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,
* International Committee of the Red Cross, The International Committee of the Red Cross' commentaries to the Geneva Convention

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

* 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 rticle 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"

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"

* Article 8(2)(b)(viii) of the International Criminal Court Rome Statute defines " e transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" as a war crime

Israel did initially sign the statute, but later declared its intention not to ratify it

* The Security Council has in UN Security Council Resolution 446, 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."
* Article 49 of the Fourth Geneva Convention is limited to transfers or deportations into or out of Occupied Territories which are 'forcible'

* 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.