User:John Z/drafts/International law and the Arab-Israeli conflict

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Criteria for making legal arguments International law is embodied in a wide range of documents and conventions, where they are articulated explicitly.

Ungrammatical, prolix and unclear english

In other words, any legal argument bound in international law must start with a reference to the applicable statute and the relevant source.

"Bound" is a very strange word to use here, as is "statute" which is just plain wrong. Only upon reading the discussion several times did I realize that you (apparently) do not intend to deny customary law and general principles as sources of international law - but as you have written it, that is what this sentence says.

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.

International law doesn't really deal with "non-states" though there can be non-state subjects/persons in international law. The clause about "signed or ratified" is just false - just plain consent should be used.


By the same token, treaties typically are limited in scope in various ways. For example, the Geneva Conventions only apply to states of war between states.

The GCs are a terrible example here, for your statement is simply incorrect. Look up article 3, "the convention in miniature", common to all the GCS.

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.

?? - how is this relevant to this conflict?

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.

??????

I think what you are saying in this section is (a) far too unclear - your meaning often escapes me (b) it is very NPOV because I don't see at all how what you say benefits one side or the other in this conflict :-) (c) repetitive (d) it really should not be here, much of it is better explained in other articles. It should be in a general article, not one about a particular conflict. If you think one side or the other hold some (dubious / controversial) abstract legal position simply to favor itself, then the abstract legal positions should be discussed in an abstract article and just referred to here. It just confuses the matter here. You should also acquaint yourself better with the facts of the actual positions of the state of Israel, for there are many statements relating to the conflict on Wikipedia which are just plain wrong. I.e. Israel never annexed the Golan. I'll see if I can find an article by Julius Stone ( I think ) that explains what happened.



One point you seem confused about is customary law, especially with respect to this conflict.

You say "There are no states that would readily agree to subordinate their legislative process to "international customary law" - doing so would violate the preamble to virtually every treaty, etc., in that national sovereignty is absolutey inviolable. "

Well treaties between states are there to have them agree to "violate their own sovereignty" in a tit-for-tat.

Well, Israel has done in at least one important instance exactly what you say no state would do.  Israel never signed the Hague Regulations, although of course it signed the Geneva Conventions.  An Israeli supreme court decision ruled that the Hague Regulations were customary law (everybody else says this too), hence binding on Israel internationally.  It also ruled that they were "self-executing" because they were customary ( a rule they created in this very decision) and thus were automatically Israeli municipal law without a need for enabling legislation.  In effect, the court signed the Hague regulations for Israel and created legislation enabling it, giving individuals the right to sue under it.

Israel is in line with the Anglo-American approach to customary law, where it is basically held to be equal to legislation, which should be interpreted to not conflict, but in the case of a definite conflict does override the international law domestically, while of course thus creating a breach of the international law.

Another example is Germany, where customary international law is essentially overrides


You should realize that for international law to exist at all it is logically necessary - and universally held - that at least one rule is customary and universal and binding without explicit consent, that of pact sunt servanda - that treaties must be observed. Otherwise, one state could just arrogate to itself the right to lie in treaties. So, as wss historically the case, treaty law comes later and needs customary law.


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The interaction between International law and the Arab-Israeli conflict needs to be appreciated because much of the debate around the Arab-Israeli conflict is based on assertions about the applicability of International law. The basis for these arguments are discussed in this article.

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 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 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.

Monism versus dualism would lead to different interpretations of the supremacy of international law over municipal law in Israeli municipal law - not internationally. If something is legal in Israel under Israeli law, that has nothing to do with whether it is legal internationally - what is relevant is whether it breaks a treaty Israel signed, or is against customary law. (I don't think Israel is planning piracy, genocide or slave trading, so the relevance here is not clear)


[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.

All international treaties recognize the supremacy of national sovereignty over other considerations.

???? What does this mean? The treaty compromises the sovereignty. If the treaty is a cession of land, a state had better be careful it it takes its word back later and says " our national sovereignty is supreme over other considerations." and doesn't cede the land, especially if the other state is stronger than it.


[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 different interpretations:

  • An 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. They also claim the areas in question were never intended for Israel in the UN partition plan for Palestine; they were seized from Jordan during the Six day war and are thus considered occupied by Israel.

[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 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, 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 General Assembly. This plan arguably did not have the authority of international law, since the General Assembly can only express international diplomatic consensus, 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.

[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, no Arab state diplomatically recognized Israel until 1979. //78//
  • 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. 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

[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, 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 to ensure 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. Even so, Israel asserts that:
      • The 1956 war was caused by a pattern of Egyptian belligerency against Israel, culminating with the nationalization of the Suez Canal and the blockage of the canal for Israeli traffic, 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 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 returned 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 Palestinian National Authority/PLO 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 Hizballah 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 treaties 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

See related article Political status of the West Bank and Gaza Strip.

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 international perspective, excepting only the US in some cases, 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 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
    • Non-Jewish residents who reject Israeli citizenship and/or hegemony have the right to self-determination

[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 never implemented, and both Israel and Palestinians claim Jerusalem as their capital. Israel annexed Jerusalem after the 1967 war and offered all inhabitants Israeli citizenship, but the annexation is not generally recognized. Most states maintain embassies and consular offices outside of Jerusalem (typically in Tel Aviv for representation to Israel; and Arab suburbs to Jerusalem for representation to the PNA).

[edit] Settlement in territories

The Fourth Geneva Convention prohibits an occupying power from deporting or transferring "parts of its own civilian population into the territory it occupies." On this basis, Palestinians and much of the world community has declared that Israel in violation of international law in establishing, funding, or allowing Jewish communities in the West Bank and Gaza.

The Israeli position is that the territories in question are not occupied in any legal sense, based on arguments discussed above.[1] They further assert that Jewish settlement in these areas does not in any way displace or cause hardship for the Palestinians, which is the original purpose of the Conventions.

[edit] Security barrier

Israel has completed long stretches of barriers between Jewish and Palestinian communities, see the Israeli West Bank barrier and the Israeli Gaza Strip barrier articles. There are several interpretations of this issue:

  • Critics make one or several of the following arguments:
    • While a security 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
  • 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

The International Court of Justice issued an advisory opinion on July 9, 2004 that it was contrary to international law for Israel to build a barrier in areas the court considered "occupied."

[edit] Legal issues related to refugees

[edit] Legal definition of refugee

Most prominent among tractates dealing with 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 United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) applies a somewhat different version of this 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."

Critics of both the definitions and work of UNRWA have raised several objections as to the number of people that should be considered refugees, by arguing that:

  • There was a significant migration of Arabs into the mandate of Palestine concurrent with the Jewish immigration, in large part in response to the economic development.
  • UNRWA's services have led a number of people in the region to apply for refugee status for economic reasons, facilitated by lenient criteria for refugee status and an unwillingness on the part of UNRWA to screen applicants
  • It is unprecedented that also descendants of refugees inherit the refugee status


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But the point is that the government of Israel does agree with its judiciary. The official position of the government of Israel has always been the same as everybody else's: These are occupied territories. Cf article 23 of the recent wall decision and similar articles in a long string of cases back to the 70's before the government of Israel had ever started to talk about disputed territories and used the word occupied like everyone else.

The government of Israel uses "disputed" in press releases. And comes near to saying "the territories are not occupied" but never quite gets there. When it comes to legal documents, it uses "occupied". Which should a rational person, which should Wikipedia use to understand what the official position is?

Israel accepted SC 242 a long time ago, which rather famously uses the word. Saying the territories are not occupied amounts to rejecting 242. Also, if you understand the government of Israel's main argument against the de jure applicability of the Geneva Conventions, you would realize that it requires the territories to be occupied under the meaning of the Hague regulations, which they manifestly are. And uncontroversially, Israel holds that the Hague regulations do apply de jure to the occupied territories (and that they are self-executing customary law).

I think there is a lack of real understanding here what the term means, what Israel and everyone else has always understood it to mean.  It just means conquered, under military rule.  It is a purely de facto term, having nothing to do with de jure issues.  It is uncontroversial that one can occupy one's own territory in a civil war. Indeed the paradigmatic case of the modern law of belligerent occupation was one such - the US Civil War. The Lieber Code was the model of the later European treaties on the laws of war.  By the way, Lieber was ideal to devise such a code - he had one son fighting on each side.  So you can occupy your own territory, and you can occupy someone else's.  It is then preposterous to say you can't occupy territories with disputed ownership - the most likely to be occupied of course.