International law and the Arab-Israeli conflict

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Arguments about the applicability of various elements of international law underlie the debate around the Arab-Israeli conflict. This article discusses the basis for these conflicts.

Contents

[edit] 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.

[edit] 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.
    • 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.
    • 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.
    • 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.

[edit] 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.

[edit] 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.

[edit] 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 Palestine to Great Britain in order to set up a Jewish homeland there.[1] They further claim that the resolution is still in force and that it still applies to disputed areas not resolved by peace treaties.[citation needed]
  • 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[citation needed] claim that these areas were never intended for Israel in the UN partition plan for Palestine; they were seized from Jordan (whose annexation of the area after 1948 Arab-Israeli War was not recognized by the vast majority of the international community) during the Six Days War and are thus considered "occupied" by Israel. Jordan relinquished its claim to these territories in 1988. Israel claims the 1967 war was a defensive war and therefore according to common international law where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title (see below) and the 1947 partition plan is non-binding since it was rejected by the Palestinians.

[edit] 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, 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. In any case, while the Zionists accepted the plan, the plan was rejected by the Palestinians and the Arab states.

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.

[edit] 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) did persist in rejecting Israel's right to exist (see Khartoum Resolution) until the 2002 Arab Peace Initiative which offers Israel peace and normal relations with all Arab countries if Israel withdraws from all areas occupied in the 1967 war and accepts a "just solution" to the Palestinian Refugee problem.
  • 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 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, 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. In 2006 the Palestinians elected Hamas into power, a party that does not recognize Israel as legitimate.

[edit] 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.

[edit] 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:
    • 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 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.
    • 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 Palestinians and Israel.

[edit] 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 Hezbollah 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.

[edit] 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.

[edit] "Occupied" vs. "Disputed" territories

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See related article Status of territories captured by Israel.
Several arguments are brought forward on this issue
  • Among both Arabs and Israelis, there is widespread agreement that the armistice lines of 1949 have no legal standing[citation needed] (although both sides agree to S.C resolution 242 which calls for "Withdrawal of Israeli armed forces from territories occupied in the recent conflict" (see semantic dispute) and: "Termination of all claims or states of belligerency" and respect for the right of every state in the area to live in peace within secure and recognised boundaries). Different groups draw very different conclusions as to how they should be treated.
  • Most Arab and many Israeli advocates of a two-state solution assert that the borders between Israel and a Palestinian state should be based on the 1949–1967 armistice lines[citation needed].
  • Some parties on the Arab side assert that the armistice lines of 1949 should not prejudice future borders, and that all of Israel is in fact occupied territory.[citation needed]
  • Some parites on the Israeli side believe that Israel has sovereignty over the territories since Jordan or Egypt did not have a legal sovereignty over the areas, and thus Israel was entitled in an act of self defense during the Six Day War to "fill the vacuum".[2]
  • Some Israelis assert instead that all or part of the West Bank (variously, the formally annexed East Jerusalem, the Israeli settlements, on up to the entire territory) is legally Israel, on various legal and historical bases; until the 2005 Israeli withdrawal from Gaza, many asserted the same about Gaza, as some still do.[citation needed]
The international consensus, excepting the U.S. in some cases, is that
  • The annexation of the Golan Heights and East Jerusalem are illegal and not recognized by international law [3] [4]
  • 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. [5]
  • Non-Jewish residents who reject Israeli citizenship and/or hegemony have the right to self-determination.
The official Israeli government position is that
  • East Jerusalem is annexed and belongs to Israel, while the Golan Heights is annexed with the ratification of the Golan Heights Law.[citation needed]
  • 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".[citation needed]
    • The Arab states rejected the 1947 partition plan, thus making it non-binding.[citation needed] - Reference: http://en.wikipedia.org/wiki/1947_UN_Partition_Plan#Reactions_to_the_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).[citation needed]
    • The Geneva Conventions only apply to sovereign territories captured from a signatory to the conventions.
    • Israel took control of the West Bank as a result of a defensive war. The language of "occupation" has allowed Palestinian spokesmen to obfuscate this history. By repeatedly pointing to "occupation," they manage to reverse the causality of the conflict, especially in front of Western audiences. Thus, the current territorial dispute is allegedly the result of an Israeli decision "to occupy," rather than a result of a war imposed on Israel by a coalition of Arab states in 1967. Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, wrote in 1970 regarding Israel's case: "Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. [1]

[edit] 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, accepted by the Jews and rejected by the Arabs. However, the 1948-1949 war resulted in Israel occupying the western portion of the city . 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 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. Similarly, missions to the Palestinian National Authority are at the insistence of Israel's government located outside of Jerusalem.

Israel has filed strenuous protests [2] 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.

[edit] Settlement in territories

See related article Israeli settlement.

Article 49 of the Fourth Geneva Convention states in paragraph 1, [3]

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 settlement in the territories does not violate international law are,

  • the territories in question are not occupied in any legal sense, based on arguments above. [4]
  • Article 49 of the Fourth Geneva Convention is limited to transfers or deportations into or out of Occupied Territories which are 'forcible'. [5]
  • Jewish settlements in these areas do not displace the Palestinians, which is the original purpose of the Conventions.
  • 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.
  • the Palestinians, as part of the Oslo Accords [6], agreed that the issue of settlements in the territories shall fall under the jurisdiction of final status negotiations (Article V, Section 3).
  • Jews have a legal right to settle the areas according to the Mandate for Palestine (specifically Article 6 of the mandate concerning Jewish settlements) and to such documents as the Faisal Weizmann Agreement. The British Mandate (granted by the League of Nations) specifically encouraged "close settlement by Jews on the land."

Arguments supporting the position that establishing, funding, or allowing settlements in the territories is a violation of international law are,

  • The International Committee of the Red Cross' commentaries to the Geneva Conventions [7] 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. [8]
  • 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 [article 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". [9] 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". [10]
  • Article 8(2)(b)(viii) of the International Criminal Court Rome Statute defines "[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" as a war crime. [11] Israel did initially sign the statute, but later declared its intention not to ratify it. [12]
  • The Security Council has in 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".

[edit] Legal issues related to the Israeli West Bank barrier

See related articles Israeli West Bank barrier.

Israel has completed long stretches of barriers between Jewish and Palestinian communities in the West Bank.

  • Critics make one or several of the following arguments:
    • 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".
    • The barrier is nothing but an attempt to establish de facto borders between Israel and a future Palestinian state
    • 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 (see also: allegations of Israeli apartheid).
    • The barrier has made Palestinians poorer.
  • Israel defends the security barrier by arguing that:
    • The barrier and its route are solely security measures that will have no bearing on future peace negotiations.
    • The land is not (for reasons outlined above) subject to the Geneva Conventions.
    • Even if it were, the Geneva Conventions explicitly allows structures to be built for purposes of self-defense.
    • The Israeli Supreme Court is reviewing the route on a continuous basis and has forced it to change.
    • StandWithUs, a pro-Israel advocacy organization, defends the security fence by pointing out:
      • Israel did not begin building the fence until 2003, when terrorism reached unprecedented levels.
      • The fence is similar to barriers that dozens of other democracies have built to keep out terrorists or illegal immigrants, such as the barriers between the United States and Mexico, India and Kashmir, Spain and Morocco, North and South Korea and even the walls within Belfast that separate Protestant and Catholic neighborhoods.
      • Since construction of the fence began in 2003, the number of completed terrorist attacks has dropped by more than 90%.
      • 97% of the barrier is a chain-link fence similar to those throughout the United States; only 3% (10 miles) is a concrete wall, built to prevent sniper shooting prevalent in certain areas.
      • Only 5%-8% of the West Bank and less than 1% of Palestinians will end up on the Israeli side of the fence.[6][7]
      • Palestinians can bring their specific grievances about the barrier to Israel's Supreme Court, which in several cases has ruled that the fence must be re-routed.[8]

In 2004, the United Nations passed a number of resolutions and the International Court of Justice issued a ruling on the Israeli West Bank barrier. Israel did not recognize the jurisdiction of the ICJ on this matter, stating that the ICJ had no standing to hear the case in the first place, so its determinations are rendered void and irrelevant. The United States and the European Union supported Israel's position on the jurisdication of the ICJ. [13]

[edit] United Nations

In October 2003, the United States vetoed a United Nations Security Council resolution, which stated:

The construction by Israel, the occupying power, of a wall in the Occupied Territories departing from the armistice line of 1949 is illegal under relevant provisions of international law and must be ceased and reversed.

The United Kingdom, Germany, Bulgaria, and Cameroon abstained from the vote. The justification given by the U.S. for the veto was that the resolution did not condemn terrorist attacks made by Palestinian groups (see Negroponte doctrine). The United States, however, has been condemned by some countries for its support of the barrier.

One week later, on October 21, a similar (though non-binding) resolution (ES-10/13) was passed by the UN General Assembly 144-4 with 12 abstentions. The resolution said the barrier was "in contradiction to international law", and demanded that Israel "stop and reverse" its construction. Israel called the resolution a "farce".

[edit] Process of the ICJ

In December 2003, the United Nations General Assembly passed a resolution requesting the International Court of Justice (ICJ) to make a non-binding Advisory opinion#International Court of Justice on the "legal consequences arising" from the construction of the barrier.

The hearings began in February 2004. The Palestinian Authority is not a member of the court but was allowed to make a submission by virtue of being a UN observer and a co-sponsor of the General Assembly resolution. In January 2004, the court also authorized the League of Arab States and the Organisation of the Islamic Conference to make submissions.

Israel initially announced that it would cooperate with the court, while noting that advisory rulings of the ICJ are not binding. Israel later made a written submission to the court rejecting the authority of the court to rule on the case, but announced (on February 12, 2004) that it would not appear at the court to make oral submissions.

On January 30, 2004, Israel announced officially it did not recognize ICJ authority to rule over the barrier issue. Israel also dispatched a 120 page document, elaborating on the security needs to build the "terror prevention fence" and purporting to demonstrate the atrocities committed by Palestinian terrorists. The document also included a judicial part with legal accounts supporting Israel's claim that the issue of the barrier is political and not in the ICJ authority.

On 23, 24, and 25 February 2004 the hearings before the International Court of Justice took place in the Peace Palace at the Hague.

[edit] Ruling of the ICJ

Graffiti on the barrier, reading "Illegal."
Graffiti on the barrier, reading "Illegal."

On July 9, 2004, the International Court of Justice issued its opinion against the barrier, calling for it to be removed and the Arab residents to be compensated for any damage done. The Court advised that the United Nations General Assembly, which had asked for the ruling, and the Security Council should act on the issue.

The ICJ opinions were as follows [9]:

  1. The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, are contrary to international law;
  2. Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion;
  3. Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem;
  4. All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention;
  5. The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due account of the present Advisory Opinion.

The opinion were passed 14-1 by the court judges, except for the 4th decision which was passed 13-2.

Thomas Buergenthal was the sole dissenting member of the 15 judges on this ICJ panel. In his declaration [14] he concluded that the court should have declined to hear the case since it did not have before it "relevant facts bearing directly on issues of Israel's legitimate right of self-defense".

[edit] Reaction to the ICJ

Palestinian leader Yasser Arafat said: "This is an excellent decision. This is a victory for the Palestinian people and for all the free peoples of the world."

Israel rejected the ICJ ruling and emphasized the barrier's self-defense aspect [15], and stressed that Israel will continue to build the barrier. The United States also rejected the ruling, declaring that the issue was of political rather than legal nature. Colin Powell stated that barrier was effective against terror, and noted that the ICJ ruling was not binding, but insisted that Israel not use the barrier to predetermine permanent borders. [16]

Numerous human rights organizations welcomed the ICJ ruling. Amnesty International said that Israel should immediately cease constructing the barrier. The governments of Israel's neighbors Lebanon, Syria, Jordan, and Egypt also welcomed the ruling.

On July 13, 2004, the U.S. House of Representatives passed Resolution HR 713 deploring "the misuse of the International Court of Justice (ICJ)... for the narrow political purpose of advancing the Palestinian position on matters Palestinian authorities have said should be the subject of negotiations between the parties." [17] The Resolution further noted that twenty three countries, including every member of the G8 and several other European states, had "submitted objections on various grounds against the ICJ hearing the case."

On July 20, 2004, the United Nations General Assembly passed a resolution demanding that Israel obey the ICJ ruling.[18] Israel, the U.S., Australia, the Federated States of Micronesia, the Marshall Islands, and Palau voted against the resolution, 10 nations abstained, and 150 nations voted in favor.

[edit] Legal issues related to refugees

[edit] 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 was originally made on an operational basis rather than dictated by specific international law, obligations and rights related to Palestinian refugees under international law are a matter of some debate. The debate centers on questions such as: whether the status of refugees can properly be passed through inheritance to individuals who have never lived in the vacated areas, and whether individuals who have repatriated in other countries can legally claim refugee status.

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.

[edit] References

  1. ^ 'Zionist Aspirations: Dr Weizmann on the Future of Palestine', The Times, Saturday, 8 May, 1920; p. 15.
  2. ^ Yehuda Z. Blum, "The Juridicial status of Jerusalem (Jerusalem, The Leonard Davis Institute for International Relations, 1974);id., "The missing Reversioner: Reflections on the Status of Judea and Samaria", 3 Israel Law Review (1968), pages 279-301
  3. ^ United Nations Security Council Resolution 497 (December 17, 1981), about the Golan Heights. Adopted unanimously.
  4. ^ United Nations Security Council Resolution 478 (August 20, 1980), about East Jerusalem. Adopted by 14 votes to none, with 1 abstention (United States of America).
  5. ^ See, in addition, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice Advisory Opinion, July 9, 2004, paragraph 78: «The territories situated between the Green Line (see paragraph 72 above) and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories, as described in paragraphs 75 to 77 above, have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.»
  6. ^ http://www.washingtoninstitute.org/templateC05.php?CID=2268
  7. ^ Publications
  8. ^ High Court rules on security fence around Alfei Menashe 15-Sep-2005
  9. ^ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice Advisory Opinion, July 9, 2004, paragraph 163.

[edit] Arab-Israeli peace diplomacy and treaties

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