The Israeli-Palestinian conflict through the prism of IHL

After Palestine was accepted as a non-member observer state to the United Nations last year, Israel immediately announced that it would construct new settlements in what it continued to recognize as the Occupied Palestinian Territories. It doesn’t take a rocket scientist to gather that this is the biggest obstacle to peace negotiations between both states.

The Israel-Palestine conflict goes back a long way – involving plenty of questions of legality, each beset with plenty of historical, religious and political positions of the conflicting parties. There are complicated and conflicting views that are further buttressed and augmented by the question of demonization and mutual mistrust. In this backdrop, international law can help by being an objective mechanism that can settle the differences between both sides.

International Law has its own means of interpretation – being a body of “soft law” as it is often known. Subject to the interests involved, the practices followed and the methodology used, International Law can involve different “sources” in different cases. The treaties, customary practices and general practices of states that apply to cases are altered by the consent-based system that prevails in international law, for it is only those legal instruments and doctrines that bind a state that it has consented to.

Nevertheless, irrespective of the individual provisions, the way international law works is that it offers legal interpretation of the facts, and, the benefit of precedential rulings – although they are not considered binding in the strictest sense of the term.

The conflict between Israel and Palestine has also involved international law to the extent that both sides have their own contentions under it. Israel claims that it has valid territorial claims in keeping with its historical and religious connections to the land, and in keeping with its recognized security needs – and that the territory it occupies was not under the sovereignty of any state, but came under Israeli control by self-defence. Palestine’s counter is that it was a sovereign state, and that Israel’s claims over the territory are unfounded and unacceptable in that it is occupying another country.

The specific branch of international law that applies to the case in hand is International Humanitarian Law – the branch of law that governs armed conflict. Israel’s occupation of Palestine is belligerent occupation – in that it ousted a sovereign authority, with the aim of satisfying its own sovereign rights. As it stands, a claim by Israel that it has a valid title to the Occupied Palestinian Territories is not valid – both historically and under law. Several states have advanced different arguments, all of which point to the fact that Israel violates International Law and International Humanitarian Law by occupying Palestine. This was accepted and confirmed by the ICJ in 2004. The Security Council has also denounced Israel’s settlements in Palestine as having no legal validity, explaining that it constitutes a serious obstruction to achieving a comprehensive and lasting peace in the region. This is as true today as it was in 1979, when it was said. It remains to be seen if Israel will understand its role in the situation and help further justice, rather than hinder it.

 

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Tags: IHL, Israel, Palestine

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Comment by David Harold Chester on February 5, 2013 at 11:01am

It is always wrongly assumed that a new Jewish settlement is a claim to the soverenty of the land so occupied. This may seem to be so when one considers the short-run politics of the situation but in fact it is a mistaken attitude. There are many non-Jews living in israel and owning sites of land. Their occupation of these sitea does not change the soverignty of the area in question. So why should it be assumed that when the opposite situation occurs, that there is a piece of ground actually changing its nationalty? Are the Palestinians so stubbon-headed as to believe that by some kind of biased international law this situation is going to change their rights to the land, or do they myoptically see it that each and every Jewish settlement is a challenge to their national region?

We should be considering the ethics of what the dual-state solution will have to offer when there is peace and agreement between both sides. Then it will be possible for both Palestinian and Israeli with the same kinds of rights to live and work on either side of the boarder, without any violent threats spoiling what otherwise will be an equitable arrangement.

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