International law and the Arab–Israeli conflict

Much of the debate around the Arab-Israeli conflict is based on assertions about the applicability of various and diverse elements of International law. The basis for these arguments are discussed in this article.

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.

International law is embodied in a wide range of documents and conventions, where they are articulated explicitly. In other words, any legal argument bound in international law must start with a reference to the applicable statute.
The argument must then show how the statute is applicable to the situation.
- 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.
- By the same token, treaties typically are limited in scope in various ways. For example, the Geneva convention only applies to states of war between states.
- 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.
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.

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 1922 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. Since the resolution of this conference is still in force, it is the only applicable treaty.
The Arab perspective is that sovereignty over these areas, and other areas ceded by the Ottoman Empire after World War I is determined by the legitimate struggle for national self-determination, as exemplified in other struggles for independence in former European colonies.

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 enforce them. And even if the proposals had greater authority, their rejection and non-enforcement rendered them null and void for further consideration.
The Arab perspective views the proposals as promises (subsequently broken) to the people of Palestine.

The government of Great Britain subsequently ceded parts of the mandate east of the Jordan River to the Hashemite Tribe of Arabia, making Abdullah king. The legality of Great Britain's act has been questioned, but most agree that the Kingdom of Jordan is legal by de facto standards. Great Britain also ceded parts of the Golan Heights to the French mandate in Syria, a decision that is also in question.

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, 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 not make international law. In any case, the plan was rejected by Arab states at the time.

However, on the basis of the resolution, the State of Israel was founded at the same time that Great Britain had announced its mandate would expire. 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 persist in rejecting Israel's right to exist.
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 and asserted 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, the majority Jews in Arab states fled. Most of these were 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 Palestinian National Authority 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-determination 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 both parties accept each other as legitimate negotiation partners

Legal issues related to starting a war

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, 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:
- The wars in 1956, 1967, and 1973 were waged by Israel as a matter of the state's survival. Whether or not hostilities were initiated by one party or the other, 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.
- 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.
The Arab position is that:
- 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 contemplated.

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.

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.

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:
- The Golan Heights and East Jerusalem are annexed and belong to Israel; all inhabitants there have been offered Israeli citizenship
- 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
  - The Geneva Conventions only apply to sovereign territories captured from a signatory to the conventions
  - Even if they conventions apply, Israel is in compliance with them
The European perspective is that:
- The annexation of the Golan Heights and East Jerusalem are illegal and not recognized by international law
- The West Bank and Gaza are "occupied," because:
  - They were captured in the course of a war
  - The residents in these areas were stateless
  - Israel has put the territories under military rather than civilian administration