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Max Planck Encyclopedia of Public International Law [MPEPIL]

Arab-Israeli Conflict

Susan M Akram, Michael Lynk

Refugees — Armed conflict — National liberation movements — Stateless persons — Occupation — Territory, title — States, formation, continuity, extinction

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  History of the Arab–Israeli Conflict

1.  Palestine up to the League of Nations Mandate (1922)

On the eve of World War I, the Levant, including what would become Mandate Palestine and, later, Israel, had been part of the Turkish Ottoman Empire for almost four centuries, and was experiencing the first stirrings of Arab nationalism. The small intellectual class—led by teachers, artists, army officers, and writers—were issuing appeals for greater autonomy for the Arab provinces. According to the 1914 Ottoman census, the population of Palestine was approximately 690,000 inhabitants, 85–90% of whom were Palestinian Arabs; they were predominately Muslim, with a significant Christian minority. The Palestinian population was largely agrarian, cultivating the Galilee, the coastal plain and the inland hill country, with the rest living in such towns as Jerusalem, Gaza, Jaffa, and Haifa. In the Galilee and the southern desert were nomadic Bedouin Arabs. Many of Palestine’s 60–80,000 Jews were living in Safad, Tiberius, Tel Aviv-Jaffa, and Hebron, and constituted the majority in Jerusalem. Small agricultural colonies of Jews, who began immigrating to Palestine in the 1880s, had begun settling in the countryside (Rogan 149–174; Sachar Chapter 2; Abu–Lughod 141).

The Zionist movement arose in pre-World War I Europe, primarily as a response to widespread anti-Semitism and the recurrent cycles of discrimination and violence against Jews. While other European Jewish movements were organized around liberal emancipation or socialism in response to anti-Jewish bigotry, the Zionist movement proposed that only with the creation of a Jewish State in Palestine could Jews flourish as a people. The first Zionist Congress, held in Basel, Switzerland in 1897, stated that: ‘The aim of Zionism is to create for the Jewish people a home in Palestine secured by public law’ (‘The Basle Programme’ in Moore [ed] volIII, 4).

World War I broke out in August 1914, with Great Britain and the Ottoman Empire on opposite sides. To encourage Arab support against the Turks, Great Britain promised to back the independence of the Ottoman Arab provinces in the Levant if the Arabs would join with the Allies against Germany and Turkey. In a series of letters exchanged in 1915 and 1916 between Sir Henry McMahon, the British High Commissioner in Cairo, and Hussein Ibn Ali, Sherif of Mecca, Great Britain stated that it was prepared to support ‘the independence of the Arabs in all of the regions within the limits demanded by the Sherif’, excluding only the areas along the northern Syrian coast between Damascus and the Mediterranean, and the provinces of Baghdad and Basra in Mesopotamia (‘The Hussein-McMahon Letters’ in Moore [ed] vol III, 9).

However, on 16 May 1916, Great Britain and France concluded a secret agreement—the Sykes-Picot Agreement, named after the two negotiators, Sir Mark Sykes of Great Britain and Charles Georges-Picot of France—whereby the two countries divided up the Levantine provinces of the Ottoman Empire into respective British and French zones of influence. These provinces were predominately Arab, with important Kurdish, Jewish, and Armenian minorities. The Agreement would give Great Britain control over much of Mesopotamia, northern Arabia, Trans-Jordan, and Gaza, while France would receive Cilicia, the Syrian coast, Mosul, Aleppo, and Damascus. Palestine would come under a vaguely defined ‘international administration’ (‘The Sykes-Picot Agreement’ in Moore [ed] vol III, 25–28).

Great Britain also issued a promise respecting Palestine to the Zionist movement. On 2 November 1917, the British Cabinet endorsed a letter written by Lord Balfour, the British Foreign Secretary, to Lord Rothschild, a leading Zionist figure. The Balfour Declaration stated: ‘His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine or the rights and political status enjoyed by Jews in any other country’ (‘The Balfour Declaration’ in Moore [ed] vol III, 32).

At Versailles in June 1919, the Allies adopted the Covenant of the League of Nations ([signed 28 June 1919, entered into force 10 January 1920] [1919] 225 CTS 195). Art. 22 created the Mandate system, whereby the colonies of the defeated Powers—Germany, the Austrian-Hungarian Empire, and the Ottoman Empire—were to be re-constituted as mandates of the League of Nations, and awarded to specific European countries. Art. 22 (4) stated that the former Ottoman territories had reached a stage of development where ‘their existence as independent countries can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone’. To the disappointment of the Arabs in the Levant, the Versailles process did not grant them independence.

Later in July 1922, the Council of the League of Nations formalized the entrustment of the Palestine Mandate to Great Britain. The Council’s decision incorporated the Balfour Declaration in the Mandate, promising a national home for the Jewish people in Palestine provided that the civil and religious rights of the non-Jewish communities in Palestine were not prejudiced. The Palestinians were mentioned only as ‘non-Jews’ in the Mandate (‘The Mandate of PalestineConfirmed by the Council of the League of Nations’ in Moore [ed] vol III, 75–84).

2.  The Peel Commission and Proposals of Partition (1937)

On the basis of the Mandate, and with the support of Great Britain, the migration of European Jews was organized as part of its project to build a homeland in Palestine. Through the 1920s and 1930s (particularly following Adolf Hitler’s rise to power in Germany in 1933), the Jewish population in Palestine rose from 56,000 in 1917 to 175,000 in 1931 to 460,000 by 1939. During the inter-war period, the overall economy of Mandate Palestine grew with Jewish immigration and capital, along with Mandate investment in infrastructure. However, with the growing Jewish immigration, widespread fears among the Palestinians respecting the rising threat to their majority status in their homeland resulted in violence between the communities in 1920, 1921, and 1929.

In 1936, the newly-formed Arab Higher Committee, the leading political body among the Palestinians, launched a general strike, demanding an end to Jewish immigration, a halt of land sales to Jews, and national independence. In the wake of the general strike, Great Britain established the Peel Commission to investigate the causes of the unrest. The Report, issued in 1937, acknowledged the contradictory national aspirations of the Palestinians and the Zionist movement: ‘The underlying causes of the disturbances, or (as we regard it) the rebellion, of 1936 are, first, the desire of the Arabs for national independence; secondly, their antagonism to the establishment of the Jewish National Home in Palestine, quickened by the fear of Jewish domination … We have found that, although the Arabs have benefited by the development of the country owing to Jewish immigration, this has had no conciliatory effect’ (‘Excerpts from the Report of the Palestine Royal Commission [The Peel Commission]’ in Moore [ed]vol III, 151).

10  The Peel Report recommended that Great Britain terminate the Mandate in Palestine as constituted, partition the country into Jewish and Arab States, with a British Mandate territory remaining in Jerusalem, Bethlehem, Nazareth, the Sea of Galilee, and a narrow corridor between Jerusalem and the Mediterranean. The Zionist movement was divided over Peel’s two-State recommendation, while the Arab Higher Committee overwhelmingly rejected the Peel recommendation in favour of a unitary State based upon majority rule. The Palestinian revolt resumed, and continued until the British army finally crushed it in 1939, with considerable loss of life.

11  The start of World War II in September 1939 brought an uneasy truce to Palestine. The Grand Mufti of Jerusalem, Haj al-Husseini, fled first to Iraq and later to Berlin, where he became an outspoken supporter of the Nazi regime. Other Palestinian leaders, while opposed to the British Mandate, sought to reach an accommodation with the British during the war. In May 1942, an extraordinary meeting of American Zionists in New York, with David Ben-Gurion and Chaim Weizmann in attendance, adopted the Biltmore Program, which urged that ‘Palestine be established as a Jewish Commonwealth integrated in the structure of the new democratic world’ (‘Declaration Adopted by the Extraordinary Zionist Conference, Biltmore Hotel, New York, 11 May 1942’ in Moore [ed] vol III, 231–232). To defend Palestine against the German army in North Africa, the British Mandate created Jewish brigades which fought against the Axis forces in the Levant and Italy; these units acquired the logistical and operational skills that would later contribute to the Yishuv’s military prowess during the 1947–49 war. By 1944, underground militant Jewish groups—notably, the Irgun and Lehi—began a campaign of sabotage and terror against the British Mandate forces and the Palestinians (see 1946 Report of the Anglo-American Committee of Inquiry 39–42 [‘sabotage and terrorism’], and UNSC Resolution 57 [1948] [18 September 1948] [‘terrorists’]).

3.  The United Nations, Partition and Conflict (1945–49)

12  With the end of World War II in 1945, tensions in Palestine rose markedly. Renewed European Jewish immigration to Palestine, much of it unauthorized, sparked conflict between the Yishuv and the British Mandate authorities. Although in a weakened political state, the Palestinians sought an end to the British Mandate and the establishment of a unitary State based on representative democracy. The Nazi Holocaust had killed six million European Jews and, with the full revelation of the horror, the political and diplomatic momentum in the West shifted decisively in favour of a Jewish State in Palestine. As the levels of violence escalated among the Palestinians, the Jewish Yishuv and the British Mandate army, the British government announced its desire in early April 1947 to end its Mandate and turn the problem over to the UN.

13  In May 1947, the UN General Assembly created the Special Committee on Palestine (‘UNSCOP’), and its eleven member commission toured Palestine in the summer of 1947. The UNSCOP report was issued on 3 September 1947, with its majority report recommending partition of the territory into Jewish and Palestinian Arab States, and the minority report advocating a federal State with distinct Palestinian and Jewish self-governing institutions (‘Excerpts from the Report of the United Nations Special Committee on Palestine’ in Moore [ed] vol III, 260–311).

14  On 29 November 1947, the General Assembly adopted UNSCOP’s two-State partition recommendation, with modifications, by a two-thirds majority vote: 33 in favour, 13 opposed and 10 abstentions. The UNGA partition plan proposed to divide Palestine into Jewish and Palestinian States, with an economic union between them. The two States were to each enact a constitution that would provide specified guarantees including minority religious and political rights. Persons could choose in which State they wished to be citizens. Jerusalem would become a corpus separatum under international trusteeship. The Jewish State would receive approximately 55% of Mandate Palestine (with a minority Palestinian population of approximately 44%), while the Palestinian State would acquire about 44% (with a minority Jewish population of less than 1%) (UNGA Res 181 [II] ‘Future Government of Palestine’ [29 November 1947]). By the end of 1947, Jews constituted approximately one third (610,000) of the population of Palestine, owned 7% of the land, and were concentrated largely on the coastal plain, parts of the Galilee, and in and around Jerusalem. The Palestinians numbered approximately 1,230,000, and lived in large numbers throughout Palestine, although they remained a predominately rural and agrarian population.

15  The Jewish Agency, the leading political institution of the Yishuv, accepted Resolution 181 (although there were prominent Zionist dissenters including Menachem Begin, later Prime Minister of Israel). It was rejected by the Grand Mufti (who remained in exile) and the Arab Higher Committee, primarily because they opposed the division of their homeland. Fighting broke out between the Jewish and Palestinian communities in December 1947, and escalated sharply in early 1948. Large numbers of Palestinians were either expelled by the Jewish militias or fled in fear of massacres (Gelvin 72). By May 1948, approximately 350,000 Palestinians had involuntarily left their homes.

16  Upon the declaration of Israeli independence on 14 May 1948, Arab armies from five countries entered the fighting to oppose the partition of Palestine and the nascent State of Israel (Shlaim [2001]; Cleveland and Bunton;Bickerton and Klausner). For the next six months, most of the fighting between the new Israeli army and the Arab armies took place within the areas allocated to the Palestinian State. With superior arms, training and discipline, the Israeli military decisively defeated the Arab armies. As the war drew to a close in late 1948, Israel had enlarged its area of control through military action from the 55% of Palestine allocated by UNGA Resolution 181 to 78%. After mid-May 1948, another 380,000 Palestinians were expelled or fled, leaving only 150,000 Palestinians within the enlarged area now claimed by Israel. The estimated 730,000 Palestinian refugees left homeless (and subsequently stateless) by the war were sheltered in make-shift tent camps in Lebanon, Syria, Jordan, the West Bank of the Jordan River and the Gaza strip. Both communities lost approximately 1% of their populations as causalities of the war (Morris [2008]).

17  The Declaration of the State of Israel took effect on 14 May 1948, and Israel was immediately recognized by the United States and the Soviet Union. In its Declaration of Independence, the country’s founders proclaimed Israel as the birthplace of the Jewish people, paid homage to the millions of European Jews who perished in the Holocaust, and based the legitimacy of Israel on the Balfour Declaration, the 1922 League of Nations Mandate, and UNGA Resolution 181. The Declaration stated that Israel was a Jewish State, and guaranteed the ‘complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex’ as well as ‘full and equal citizenship’ to the Arab inhabitants (‘Declaration of the Establishment of the State of Israel, 14 May 1948’ in Moore [ed] vol III, 349–51).

18  On 11 December 1948, the UN General Assembly adopted Resolution 194, which established a Conciliation Commission to supervise the final settlement of all outstanding questions between Israel and the Palestinians, called for the protection of the various Holy Places, requested the UN Security Council to ensure the demilitarization of Jerusalem, and called for the return of the Palestinian refugees to their homes (UNGA Res 194 [III] [11 December 1948]).

19  The UN sponsored armistice talks between Israel, Jordan, Egypt, Syria and Lebanon on the Greek island of Rhodes. The ensuing 1949 Armistice agreements did not result in established final borders, but recognized only the lines of demarcation which the various armies held at the ceasefire. Israel maintained control over the 78% of Palestine that it possessed at the end of fighting. Egypt held Gaza, and Jordan controlled the West Bank. In 1950, Jordan made a claim of sovereignty over the West Bank, a claim that was recognized by only two other countries (Great Britain and Pakistan). Egypt, on the other hand, acted as the administrator of Gaza in ‘the name of the Palestinian people’ and never claimed sovereignty over the territory. Jerusalem became a divided city, with Israel assuming control over its western sector and Jordan over its eastern sector including the Old City. The Palestinians were left without a State, with 60% of the population having become refugees and the remaining 40% who had stayed in their homes now ruled by three different governments: Israel, Jordan and Egypt. Israel encouraged large-scale Jewish immigration from the European Jewish refugee camps and from the significant Jewish communities in North Africa and the Middle East: between 1949 and 1952, approximately 700,000 Jews arrived in Israel to join the 650,000 Israeli Jews already there. Many Jews in the Arab world were forced to leave in the wake of anti-Jewish riots, and their homes and properties were confiscated. There was also a boycott of companies trading with Israel. Most of the Palestinian population remaining in Israel after 1948 became Israeli citizens, but lived under special Israeli military regulations—restricting movement, land use and a range of civil liberties—which remained in place until 1966 (Lustick).

20  In December 1949, the UN created the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) to provide basic services—primarily education, housing, social services and health care—to the growing Palestinian refugee population in the Arab countries sheltering them in special camps (UNGA Res 302 [IV] ‘Assistance to Palestinian Refugees’ [8 December 1949]). By virtue of UNRWA’s specific mandate for the Palestinians, they were expressly excluded from coverage by the Convention relating to the Status of Refugees ([signed 28 July 1951, entered into force 22 April 1954] 189 UNTS 150). Initially, the Palestinian refugees lived in tents, and gradually moved into more permanent, if modest, housing in the camps. UNRWA has operated in Lebanon, Syria, Jordan, the West Bank and the Gaza Strip since 1950 (Schiff).

4.  War over Suez (1956)

21  The period between 1949 and 1956 witnessed a number of clashes on the armistice borders between Israel and its Arab neighbours. Some of the skirmishes were between armies, particularly along the Sea of Galilee and the demilitarized zone between Israel and Syria. Other clashes arose from the crossing of the Israeli frontier by exiled Palestinians, some armed and seeking revenge, others unarmed and wanting to visit family or harvest crops on their former lands. The Israeli military regularly responded with commando raids into Gaza and the West Bank, causing the deaths of civilian and militants. Tensions between Israel and Egypt grew with the rise to power of Gamal Abdel Nasser and the tightening of the Egyptian blockade of Israeli shipping in the Straits of Tiran and the Gulf of Aqaba ( Aqaba, Gulf of ).

22  Egyptian President Nasser’s nationalization of the Suez Canal in July 1956 precipitated the decision by Great Britain, France and Israel—secured through the secret Protocol of Sèvres in October 1956—to launch a coordinated attack on Egypt. Great Britain hoped to install a more Western-friendly government and regain control of the Canal; France aimed at crippling Egypt’s aid to the Algerian uprising; and Israel wanted to curb Arab nationalism, as personified by Nasser, and to punish Egypt for its tacit support of Palestinian guerrilla raids from Gaza. Israel’s initial attack on 29 October 1956 quickly captured Gaza and the Sinai from Egypt. On 5 November 1956, Great Britain and France invaded Egypt under the pretext of separating the warring armies, with Great Britain capturing Port Said and marching towards Suez City. Both the United States and the Soviet Union demanded an immediate ceasefire and the withdrawal of foreign troops from Egyptian soil. Great Britain and France withdrew within a week. The UN General Assembly adopted a resolution under Art. 14 of the UN Charter, establishing the UN Emergency Force to act as peacekeepers in the Sinai Peninsula (UNGA Res 1001 [XII] [7 November 1956]). Israel subsequently withdrew from the Sinai and Gaza in early 1957 upon the arrival of the UN peacekeeping troops (Sachar 472–514).

5.  The Creation of the Palestinian Liberation Organization (1964)

23  Scattered around the Arab world after 1948, the Palestinians remained in a prolonged political paralysis, without effective leaders or a national voice. Between 1949 and 1964, guerrilla raids into Israel from Gaza, Syria, and the West Bank inflicted Israeli civilian casualties. But with the emergence of pan-Arab nationalism in the 1950s, Palestinians in refugee camps, Arab universities, and working in the oil fields of the Arabian Gulf began to organize politically. The Palestinian National Charter was issued in 1964 at a meeting of the Arab League, creating a new organization, the Palestine Liberation Organization (PLO), which proclaimed the right to self-determination, called for armed struggle to liberate Palestine and declared Zionism a colonial and expansionist movement (‘The Palestinian National Charter of 1964’ in Moore [ed] vol III, 699–704).

6.  The June War of 1967

24  Tensions between Israel and its Arab neighbours rose dramatically in 1966 and early 1967. The immediate contributing factors included: Palestinian guerrilla raids into Israel from Jordan and Syria; a massive retaliation by the Israeli military into the Jordanian West Bank in November 1966; regular skirmishes on the Israeli–Syrian demilitarized zone which culminated in the shooting down of six Syrian fighter jets in April 1967; and conflict among Israel, Syria, and Jordan over water diversion projects in the Sea of Galilee and the Jordan River.

25  In May of 1967, the UN peacekeeping force—the UN Emergency Force—was withdrawn from the Sinai Peninsula. Egypt moved several divisions into the Sinai and closed the Straits of Tiran to Israeli shipping. President Nasser threatened to destroy Israel, although Israeli military leaders doubted Egypt’s intentions and military strength (‘I do not think Nasser wanted war. The two divisions he sent to the Sinai in May would not have been sufficient to launch an offensive against Israel. He knew it and we knew it.’ Chief of Staff of the Israeli Army General Yitzhak Rabin, quoted in Le Monde, 29 February 1968). On 5 June, Israel attacked and destroyed the Egyptian air force. It then invaded and captured Gaza and the Sinai. Among legal and political scholars, this war is debated as a case of anticipatory self-defence versus an act of aggression. After the Jordanian army attacked Israel in support of Egypt, the Israeli army took East Jerusalem and the West Bank. On 9 June, Israel attacked and occupied the Syrian Golan Heights. A cease fire was finally accepted by all parties on 10 June. With the military victory, over one million Arabs, primarily Palestinians, came under Israel’s rule. Approximately 300,000 Palestinians from the West Bank and East Jerusalem were expelled or fled from their homes and crossed into Jordan. As well, 100,000 Syrians living on the Golan Heights fled the fighting and became refugees (Israel, Occupied Territories).

26  Following the June war, the UN became the diplomatic focus for the international community’s supervision of the conflict. After five months of negotiations and debates at the UN during the summer and autumn of 1967, the UN Security Council unanimously adopted Resolution 242 on 22 November 1967 (UNSC Res 242 [22 November 1967]). It called for ‘[w]ithdrawal of Israeli armed forces from territories occupied in the recent conflict,’ and ‘termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area’. The Resolution has come to be accepted as the legal and political foundation for Arab–Israeli peace negotiations (Bailey). Some legal scholars subsequently argued that the lack of ‘the’ before ‘territories occupied in the recent conflict’ permitted Israel to retain some of the lands occupied in the 1967 war, while others maintained that the preamble in Resolution 242—‘Emphasizing the inadmissibility of the acquisition of territory by war’—requires Israel to return all of the 1967 lands, regardless of the missing ‘the’ (Rosenne; McHugo).

27  On 19 June 1967, the Israeli Cabinet developed an initial guideline on territorial return by which it would give back the Sinai to Egypt and the Golan to Syria with restrictions, but the offer was deliberately silent on the West Bank, Gaza, and East Jerusalem (Ben-Ami).On 27 June 1967, the Israeli Cabinet and Knesset voted for the ‘municipal fusion’ of Jerusalem by annexing East Jerusalem and some of the surrounding West Bank. The UN General Assembly immediately declared that the measures were invalid (UNGA Res 2254 [XXII] [14 July 1967]). The Israeli Cabinet approved projects during the summer of 1967 to populate East Jerusalem, the West Bank, and the Golan Heights with Jewish civilian settlements (Bailey; Lall; Segev).

7.  The October 1973 War

28  Intensive diplomacy by the international community between 1967 and 1973 accomplished little to resolve the Arab–Israeli conflict, to reach a peace agreement or even to create any substantive trust among the belligerent parties. The August 1967 Khartoum Summit of the Arab League decided to withhold recognition from, and peace negotiations with, Israel. Egypt and Israel fought a costly war of attrition along the Suez Canal. Cold War rivalries heightened, as the Soviet Union expanded its relationships with Egypt and Syria, and the alliance between the United States and Israel deepened. A growing rift between the PLO forces in Jordan and King Hussein, followed by a series of airplane hijackings in September 1970, resulted in a short civil war and the expulsion of the PLO from the Hashemite Kingdom and its re-location to Lebanon. Gamal Nasser mediated an end to the Jordan–PLO war.

29  On 6 October 1973, Egypt and Syria attacked the Israeli army positions in the occupied Sinai Peninsula and the Golan Heights in a conflict variously called the October War, the Ramadan War, and the Yom Kippur War. The Arab objective was to regain some of their lost territory and to push the West to re-engage in serious peace mediation. The surprise attack gave the Arab armies an initial military advantage, but Israel was able to launch a significant counterattack. On 22 October 1973, the UNSC passed Resolution 338, which called for a ceasefire and the immediate implementation of UNSC Resolution 242. Approximately 2,800 Israeli soldiers were killed, while the Syrians and Egyptians suffered 8,500 military dead (see Shlaim [2001] 321; Bickerton and Klausner 169; Dupuy 609). At the war’s end, Egypt regained some of its territory in the Sinai, Syria had recaptured part of the Golan Heights, while Israel crossed to the West of the Suez Canal and occupied territory close to Cairo. Jordan and Lebanon did not participate in the war, and the Palestinian territories remained under Israeli occupation. In the aftermath of the war, the Arab petroleum countries initiated an oil boycott of select Western countries, creating a crisis in the international economy.

30  The UN convened an international conference on the Middle East late in 1973, seeking ways to implement Resolution 242 and to establish a just and lasting peace. In 1974, Egypt and Syria signed separate disengagement agreements with Israel, giving the two Arab countries modest territorial recoveries in the Sinai and the Golan. In October 1974, the Arab League declared the PLO as the sole legitimate representative of the Palestinian people. The following month, Yasser Arafat, chairman of the PLO, addressed the UN General Assembly. Meanwhile, a second Egyptian–Israeli disengagement agreement in September 1975, negotiated under American auspices, produced further land transfers in the Sinai back to Egypt (‘Sinai Agreement between Egypt and Israel, 1 September 1975’ in Moore [ed] vol IV, 5–12).

8.  Camp David and the Peace Treaty between Egypt and Israel (1978–79)

31  In a surprise initiative, Egyptian President Anwar Sadat flew to Jerusalem and addressed the Knesset in November 1977. Ten months of difficult bargaining followed, culminating in 12 days of summit negotiations at Camp David in Maryland, between President Sadat and Israeli Prime Minister Begin, mediated by American President Jimmy Carter. The result was the Camp David Accords of 17 September 1978 (‘Framework for Peace in the Middle East Agreed at Camp David’ [Egypt–Israel]). Subsequently, on 26 March 1979 Egypt became the first Arab country to sign a peace agreement with Israel. The 1979 Peace Treaty affirmed Resolutions 242 and 338 as the basis for peace in the region, with the following key points of agreement: 1) the termination of the state of war between Israel and Egypt; 2) a complete Israeli withdrawal of all military forces and civilians from the Egyptian Sinai; 3) full recognition of each other’s rights including the termination of economic boycotts; 4) free passage of Israeli shipping through the Suez Canal, the Strait of Tiran and the Gulf of Aqaba; 5) maintenance of the UN forces in a buffer zone; and 6) full autonomy for the West Bank and Gaza by 1984. Diplomatic relations between Israel and Egypt followed, and Israel withdrew completely from the Sinai in 1982. Upon the signing of the Peace Treaty, Egypt was expelled from the Arab League.

9.  The War in Lebanon (1975–90)

32  In April 1975, the multiple schisms in Lebanon—confessional, class, ideological and economic—erupted into an all-encompassing civil war. The primary causes of the war included tensions between the Maronite militias and the Muslim and Druze communities; the extremes of wealth and poverty; the arrival of the PLO and the discontent of the Palestinian refugees in Lebanon; a weak central government; and the regular interference in Lebanon’s affairs by its neighbours. For the first year of the war, the left-wing-Muslim-PLO military alliance held the upper hand against the various right-wing Maronite militias. Syria then intervened on the side of the Maronites in 1976, shifting the balance of power, but not ending the conflict. Israel supported the Maronite-led militias, and Iran, Iraq and Syria all supplied various confessional and political militias with arms and finances (Khalidi).

33  In March 1978, a terrorist attack, one of several similar occurrences, on an Israeli bus north of Tel Aviv carried out by Palestinian guerrillas from Lebanon resulted in approximately 35 Israeli civilian deaths. Israel immediately launched ‘Operation Litani’, a military attack into southern Lebanon to destroy guerrilla bases. The UNSC passed Resolution 425 on 19 March 1978, calling for an Israeli military withdrawal ‘forthwith’ from Lebanon, and establishing the UN Interim Force in Lebanon (‘UNIFIL’). Although UNIFIL operated in southern Lebanon with 3,000 international troops, it was unable to halt Palestinian incursions into Israel or Israel military raids into Lebanon.

34  In December 1981, the Israeli Knesset legislatively annexed the Golan Heights. This had many repercussions. Politically, it strained Israel’s relations with the new Reagan administration in the United States, which suspended a pending arms sale agreement. The annexation also caused an uproar in the Arab world, further isolating Egypt. The UN Security Council unanimously adopted Resolution 497 on 17 December 1981, proclaiming that ‘the Israeli decision to impose its laws, jurisdiction and administration in the occupied Syrian Golan Heights is null and void and without international legal effect’.

35  On 3 June 1982, a renegade Palestinian faction hostile to the PLO shot and seriously wounded the Israeli ambassador to Great Britain. Within several days, Israel launched ‘Operation Peace for Galilee,’ a massive and well-planned invasion of Lebanon with two principal goals: the destruction of the PLO presence in Lebanon, and support for the ascension of Bashir Gemayel, a Maronite warlord, to the presidency of Lebanon. The Israeli military quickly occupied all of southern Lebanon, and by 13 June had imposed a siege on Beirut. The UN Security Council passed Resolution 508 on the first day of the invasion (5 June 1982), demanding an immediate ceasefire. The following day, UNSC Resolution 509 was adopted, requiring the withdrawal of all Israeli forces from Lebanon. The language of these two resolutions incorporated the UN consensus for ending the conflict: withdrawal of Israeli forces from Lebanon, respect for the territorial integrity and sovereignty of Lebanon within its internationally recognized borders, and respect for the rights of the civilian population (Civilian Population in Armed Conflict). Notwithstanding, Israel continued its military occupation of southern Lebanon and initiated a bombardment of West Beirut for the next several months, where a large Lebanese and Palestinian civilian population was effectively trapped. While the number of casualties is disputed, some estimate that 18,000 Lebanese and Palestinians in Lebanon, primarily civilians, were killed during the Israeli invasion. Approximately 650 Israeli soldiers were killed (Caplan 186).

36  With United States diplomatic intervention, a ceasefire was put in place on 12 August 1982. The PLO implemented the Habib Agreement (named after the American envoy Philip Habib), which called for the evacuation of PLO fighters from Lebanon to Tunisia and other Arab States, and a multinational force to supervise their departure. By 9 September, the PLO evacuation was concluded, and the multinational supervisory force left Beirut shortly afterwards. Less than a week later, Lebanese president-elect Bashir Gemayel was assassinated. Israeli forces moved into West Beirut and took control of the city. As later concluded by the 1983 Kahan Commission Report (created by Israel to investigate the Sabra and Shatila massacre), the Israeli Defence Forces under Defence Minister Ariel Sharon were responsible for allowing Lebanese Maronite Phalangist militias into the Sabra and Shatila refugee camp in Beirut where a large Palestinian civilian refugee population remained after PLO fighters had withdrawn. For 40 hours between 16 and 18 September 1982, with the Israeli forces encircling and monitoring the camp, the Phalangist militias massacred between 800 and 3,500 civilians (‘Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut [Kahan Report], 8 February 1983’ in Bassiouni [ed] vol 1, 702). The Security Council adopted Resolution 521 on 19 September 1982, condemning the ‘criminal massacre of Palestinian civilians in Beirut’ without assigning responsibility. Following the release of the Kahan Report, Sharon was forced to resign as Defence Minister.

37  By June of 1985, Israel had pulled most of its troops out of central Lebanon, but continued to occupy a self-proclaimed ‘security zone’ in South Lebanon, with the support of the Israeli-funded South Lebanese Army (‘SLA’). The Lebanese civil war eventually came to an end in 1990, after the signing of the 1989 Taif Agreement mediated by Saudi Arabia which resulted in alterations to, but no overhaul of, the Lebanese political structure. Over the 15 years of the war, an estimated 150,000 Lebanese and Palestinians, primarily civilians, had been killed. Lebanon then began a slow political and economic reconstruction, impeded by the presence of the Syrian army in the centre and north of the country, and the Israeli army in the south. Hezbollah, a Shiite Lebanese political party and militia, undertook guerrilla operations against the Israeli army and the SLA in southern Lebanon through the 1990s. Under fire, Israel ended its military occupation in 2000. The Syrian military withdrew in 2005, following strong international pressure after the assassination of former Lebanese Prime Minister Rafiq Hariri. On 7 April 2005, the UN Security Council adopted Resolution 1595, which created an international independent investigation commission to investigate the Hariri murder on behalf of Lebanon and the international community.

10.  Intifada I (1988–93)

38  The first Palestinian intifada, or uprising, started in Gaza in December 1987, and quickly spiralled into widespread demonstrations throughout the occupied territories. The uprising led to six years of massive civil resistance, protests, economic boycotts, tax withholding and strikes aimed at ending the Israeli occupation and bringing about independence for the Palestinians. The first intifada was led by a new and well-organized generation of Palestinians who grew up under Israeli occupation; they were sympathetic to the PLO, but not led directly by its exiled leadership in Tunisia.

39  The response of the Israeli political and military leadership was ‘Operation Iron Fist:’ using live ammunition against demonstrators; imposing collective punishment on towns and villages through curfews and home demolitions; and the imprisonment of participants and the deportations of the intifada’s leaders. Approximately 1100 Palestinians and 144 Israelis were killed during the first intifada (Morris [2001] 595–6). Both the UN Security Council and General Assembly adopted resolutions concerning the intifada, which variously confirmed the applicability of Geneva Convention IV to the occupied territories and East Jerusalem, deplored Israeli practices in responding to the uprising, and re-asserted the inadmissibility of the acquisition of territory by force (UNSC Res 681 [20 December 1990]; UNGA Res 46/82 [19 December 1991]). One significant offshoot of the first intifada was the founding of Hamas (‘the Islamic Resistance Movement’ Resistance Movements) in Gaza as a Palestinian Islamist political and military organization; it was formed in response to the perceived failure of secular Palestinian political movements to end the Israeli occupation and achieve an independent State.

40  On 31 July 1988, King Hussein announced that Jordan was withdrawing all administrative and legal claims to the West Bank (‘His Majesty King Hussein of Jordan’s Address to the Nation Concerning Disengagement from the West Bank’ in Bassiouni [ed] vol 2, 586–590). In November of that year, the PLO conference in Algiers accepted the legitimacy of Israel, endorsed all relevant UN resolutions on the Middle East, renounced terrorism, and called for a two-State solution to the conflict, while leaving the PLO Charter largely intact (Palestine Liberation Organization ‘Declaration of Palestinian Independence Issued by the Palestine Liberation Organization, 15 November 1988 [Algiers Declaration]’ in Bassiouni [ed] vol 2, 590–593). The Iraqi invasion of Kuwait in August 1990, and the subsequent military ejection of Iraqi forces by the US-led international coalition in February 1991 led to renewed diplomacy to address the Israeli-Palestinian conflict. In October 1991, the US and the USSR issued a joint invitation to Israel and many Arab countries to a peace conference in Madrid. Neither the Palestinians nor the PLO were specifically invited to Madrid, although Palestinian representatives from within the occupied territories were included as part of the Jordanian delegation, with the PLO’s blessing.

41  In 1990, the Israeli government embarked upon a significant expansion of Israeli settlements in the occupied territories, both to satisfy the territorial aspirations of Israel Prime Minister Shamir’s right-wing political partners in government and to house the significant influx of Jewish immigrants from the collapsing Soviet Union. The settlement policy provoked a showdown with President George HW Bush of the United States, who blocked a US$10 billion loan to Israel in February 1992. The Jewish settlement project in the occupied territories had grown from approximately 10,000 settlers in 1972 to 107,000 settlers in 1983 to 228,000 settlers by 1990. The American loan was subsequently unfrozen after the election victory of Yitzhak Rabin and his Labour alignment party in June 1992 and his commitment to freeze ‘political settlements’ in the occupied territories. The Madrid process quickened after the election of Rabin. Parallel secret negotiations between semi-official Palestinian and Israeli representatives in Oslo under the auspices of the Norwegians were initiated in December 1992. These negotiations culminated in a tentative agreement in August 1993.

11.  Oslo Accords (1993)

42  The secret Oslo negotiations brought about the Declaration of Principles on Interim Self-Government Arrangements of 13 September 1993 (‘DOP’), signed at the White House by Israeli Prime Minister Yitzhak Rabin and PLO Chairman Yasser Arafat in the presence of American President Bill Clinton (‘Declaration of Principles on Interim Self-Government Arrangements between Israel and the Palestinian Liberation Organization’ in Bassiouni [ed] vol 2, 890–897). The DOP enabled the establishment of the Palestinian Interim Self-Government Authority in parts of the occupied territories, with Israel recognizing the PLO as the legitimate representative of the Palestinians. In turn, the PLO recognized the State of Israel and renounced violence. Israel agreed to withdraw its military forces from parts of the West Bank and Gaza. The Oslo Accords also set out a transitional five year process for negotiating a final peace accord between Israel and the Palestinians, within the framework of UN Security Council Resolutions 242 and 338. The Accords left the most difficult ‘final status’ issues—including Jerusalem, the settlements, water, borders, security, and the Palestinian refugees—to be negotiated at the end of the process. A number of subsequent interim agreements between Israel and the PLO followed through the 1990s.

43  The principal territorial feature of the Oslo process was the creation of three zones of control in the occupied Palestinian territories for the interim period: Area ‘A’, consisting of the heavily populated Palestinian cities and towns, would be under the full political and security control of the Palestinian Authority; Area ‘B’, consisting of smaller Palestinian communities and rural areas, would be governed by Palestinian civil control and Israeli security control; and Area ‘C’, consisting of the Israeli settlements, some Palestinian communities, and territory adjacent to the pre-1967 Israeli border, would be entirely controlled by Israeli security. The result was a series of non-contiguous islands of Palestinian-ruled land—Area ‘A’—enclosed by larger areas under Israeli security rule, with the Palestinians required to pass through a multitude of Israeli checkpoints to move from one island of PA control to another. As well, Israel’s military law, with its 2000 military orders enacted since 1967, remained the principal legal framework for governing the Palestinian territories. Under the interim agreements, East Jerusalem would continue to be under full Israeli control. The West Bank and Gaza were to be viewed as a single territorial unit for the purposes of a future Palestinian self-governing entity.

44  In November 1995, a Jewish right-wing militant assassinated Prime Minister Yitzhak Rabin, removing Israel’s most credible supporter of the Oslo process from the country’s political scene. He was succeeded by Shimon Peres, who narrowly lost the subsequent national elections to Benyamin Netanyahu of the Likud Party in May 1996. In January 1996, Palestinians held presidential and legislative elections, which were won by Yasser Arafat and his Fatah organization. In April 1996, a short intensive conflict broke out between Hezbollah and Israel—‘Operation Grapes of Wrath’—which killed several hundred Lebanese civilians.

45  In 1997, the Netanyahu government decided not to hand over further territory to the Palestinian Authority that was required by the Oslo agreements, thereby bringing negotiations on the ‘final status’ issues to a virtual halt. Meetings between Israel and the Palestinian Authority late in the life of the Netanyahu government, pushed by the Clinton administration, resulted in the Wye River Memorandum in October 1998 (Interim Agreement) (Israel–Palestine Liberation Organization). The Wye Memorandum was suspended two months later by Prime Minister Netanyahu, and his government fell shortly afterwards following a vote of no-confidence in the Knesset. In the national elections of May 1999, Ehud Barak and the Labour Party were voted into office on a platform of resuscitating the Oslo process.

12.  Peace Treaty between Jordan and Israel (1994)

46  On 26 October 1994, Israel and Jordan signed a Treaty of Peace at Wadi Araba, witnessed by American President Bill Clinton (Treaty of Peace Between the State of Israel and the Hashemite Kingdom of Jordan). The treaty established a framework for political, economic, cultural co-operation and the basis for permanent peace between the two States based on UNSC Resolutions 242 and 338. The Treaty pledged that the two countries would ‘develop good neighbourly relations of co-operation between them to ensure lasting security, will refrain from the threat or use of force against each other and will settle all disputes between them by peaceful means’ (Shlaim [2008]).

13.  Subsequent Peace Talks: Camp David II

47  Following the election of the Barak government in Israel in May 1999, the faltering Oslo process acquired a new sense of optimism and momentum. Israel and Syria engaged in intensive negotiations in late 1999 and early 2000 for the return of the Golan Heights to Syria. Conducted primarily through American interlocutors, a draft peace agreement was achieved, but the negotiations eventually floundered in March 2000. A key unresolved issue was whether the final border between the two countries would be based on the 1923 Mandate line with all of Lake Tiberias (also known as the Sea of Galilee and the Kinneret) within Israel, or the 1949 armistice line with Syria retaining the eastern edge of the Lake.

48  After the failure of the Syrian track, President Clinton hosted Prime Minister Barak and President Arafat at a summit in July 2000 at the American presidential retreat at Camp David. The three leaders met for two weeks of intensive negotiations in an attempt to reach a final and durable peace agreement. The Camp David II summit failed to achieve a final agreement, with the parties at some distance from each other, primarily due to differences over final borders, the ultimate status of Jerusalem, and the fate of the Palestinian refugees. The parties reached an understanding on some basic principles including the centrality of Resolutions 242 and 338 as the framework for peace, which were incorporated into a Trilateral Statement (‘Camp David II’) (‘Trilateral Statement on the Middle East Peace Summit’ in Bassiouni [ed] vol 2, 1159).

49  In December 2000, the parties returned to the White House to make one final effort to reach an agreement based on the ‘Clinton Parameters’ (‘Clinton Parameters to Palestinian and Israeli Negotiators, 23 December 2000’ in Bassiouni [ed] vol 2, 1160). These parameters called for a return of much of the West Bank and Gaza to the Palestinians, Israeli retention of its principal settlement blocs, Israeli territorial compensation to the Palestinians for some of these retained lands, the demilitarization of the new Palestinian State, the division of Jerusalem according to demography, a form of joint sovereignty over the Old City, and the acceptance of some Palestinian refugees to settle in the nascent Palestinian State. Both sides accepted the parameters, albeit with separate reservations. The Clinton Parameters became the framework for subsequent talks at Taba, Egypt in late January 2001, where further progress towards narrowing the differences was made, but, once again, the issues of borders, Jerusalem and refugees bedevilled the achievement of a final settlement and no agreement was reached (‘European Union Non-paper on the Taba Conference, 2001’ in Bassiouni [ed] vol 2, 1169–70; Quandt).

14.  Intifada II (2000)

50  The second Palestinian intifada, or Al-Aqsa Intifada, was ignited in the aftermath of a visit by Likud opposition leader Ariel Sharon in late September 2000 to the Haram al-Sharif, the holy Muslim sanctuary in Jerusalem’s Old City, several weeks after the end of the Camp David II summit. Many Palestinians viewed the Sharon visit as a deliberate provocation. Palestinian demonstrations erupted over the following three months in Jerusalem across the occupied territories and within Israel.

51  In March 2002, a series of suicide bombings conducted by Hamas militants killed approximately 40 Israeli civilians, which led the Israeli military to launch ‘Operation Defensive Shield’. Israel re-occupied all of the West Bank in order to arrest suspected terrorists, find weapons and destroy suspected weapons-manufacturing facilities. The headquarters of the Palestinian Authority in Ramallah was largely destroyed in the fighting, and President Arafat was confined by Israel to his headquarters for the next two years. The UN Security Council subsequently expressed its concern in a series of resolutions condemning terrorism, calling on all parties to observe international humanitarian law, expressing concern about the grave humanitarian crisis faced by the Palestinian people, and demanding the speedy withdrawal of Israeli forces from Ramallah and all other re-occupied Palestinian cities (UNSC Res 1435 [24 September 2002]). Approximately 2,400 Palestinians and 780 Israelis were killed during the second Intifada (Cleveland and Bunton 517). According to the BBC, between 2001–2008, southern Israel was hit by more than 8,600 rockets (http://news.bbc.co.uk/2/hi/middle_east/7818022.stm [29 August 2011]). From 2000–2007, the Israeli Ministry of Foreign Affairs counted 140 suicide bombing attacks which killed 542 individuals.

52  Just prior to the massive violence in late March and April 2002, the UN Security Council adopted Resolution 1397 on 12 March 2002. For the first time, the Security Council expressly endorsed a two-State solution for the conflict. It expressed ‘a vision of a region where two States, Israel and Palestine, live side by side within secure and recognized boundaries’ (UNSC Res 1397 [12 March 2002]).

53  Two weeks later, at the Arab League summit in Beirut, Crown Prince Abdullah of Saudi Arabia proposed a comprehensive peace plan for the settlement of the Israeli–Palestinian and Israeli–Arab conflict, based on Resolution 242 and the 1982 Fez Arab Peace Plan. The Arab Peace Initiative, which the Arab League adopted on 28 March 2002, contained five significant elements: 1) full Israeli withdrawal from all the territories occupied since the June 1967 war; 2) the establishment of an independent and sovereign Palestinian State in the West Bank and Gaza, with East Jerusalem as its capital; 3) a ‘just solution’ of the Palestinian refugee problem based upon UNGA Resolution 194 of 1948; 4) the end of the Arab–Israeli conflict, and the establishment of a general peace agreement between the Arab counties and Israel; and 5) normal relations between the Arab world and Israel (‘Arab Peace Initiative Established at the Arab League Summit, 28 March 2002’ in Bassiouni [ed] vol 2, 1205).

54  In April 2002, the UN, the Russian Federation, the United States, and the European Union met in Madrid to form the ‘Quartet’, which would focus the activities of these States and institutions on securing the conditions for a lasting peace in the Middle East. At the Madrid meeting, the Quartet expressed concern about the humanitarian crisis caused by the April 2002 conflict between Israel and the Palestinians, reiterated that Resolutions 242 and 338 were the foundation for peace, welcomed the Arab Peace Initiative, condemned terrorism, and called for an end to all Israeli settlement activity and the Israeli occupation (‘Letter from the Secretary-General Containing a Joint Statement by the Quartet, 10 April 2002’ in Bassiouni [ed] vol 2, 1206).

55  As the second Intifada intensified, international diplomatic efforts continued. American President George W Bush proposed a ‘roadmap’ for peace on 24 June 2002, calling for a ‘vision of two States, a secure State of Israel and a viable, peaceful, democratic Palestine’ (‘Speech by United States President George W Bush on Mid-East Peace, 24 June 2002’ in Bassiouni [ed] vol 2, 1208). The concept of the Roadmap was subsequently endorsed by the Quartet (‘Communiqué Issued by the Quartet, 17 September 2002’ in Bassiouni [ed] vol 2, 1212) and by the UN Security Council in Resolution 1515 of 19 November 2003. The Roadmap was envisioned to be a ‘performance-based and goal-driven’ plan to enable the establishment of a Palestinian State living in peace beside Israel within a specific time line. This plan would ‘resolve the Israel–Palestinian conflict, and end the occupation that began in 1967, based on the foundations of the [1991] Madrid Conference, the principle of land for peace, UNSC Resolutions 242, 338, and 1397, agreements reached by the parties’, and the 2002 Arab Peace Plan (‘Elements of a Performance-Based Road Map to a Permanent Two-State Solution to the Israeli–Palestinian Conflict, 15 October 2002’ in Bassiouni [ed] vol 2, 1214). However, with few of its milestones accomplished, the Roadmap subsequently fell into diplomatic limbo.

56  In April 2004, the United States formally revised its position on the status of Israeli settlements. From the late 1960s until the end of the Carter presidency, the United States had taken the position in concert with the rest of the international community, that the settlements were illegal under international law. This position shifted under President Ronald Reagan, who downgraded the official American stance towards the settlements to one that regarded them as being merely ‘an obstacle to peace’. This formal position changed once again in April 2004, when President George W Bush and Israeli Prime Minister Ariel Sharon exchanged letters on the issue of the Israeli–Palestinian conflict. In these letters, President Bush formally accepted the permanency of the Israeli settlements in East Jerusalem and the major settlement blocs in the West Bank. In his letter, President Bush stated that: ‘In light of new realities on the ground including already existing major Israeli population centers … any final status agreement will only be achieved on the basis of mutually agreed changes that reflect these realities’ (GW Bush ‘Exchange of Letters Between United States President George W Bush and Israeli Prime Minister Ariel Sharon, 14 April 2004’ in Bassiouni [ed] vol 2, 1245, 1247). The Jewish settler population in the occupied territories, which stood at 258,000 in 1992, had grown to 440,000 by 2004. By 2011, the settler population had reached 510,000.

57  The special relationship between the United States and Israel has played a significant role in the evolution of the Arab–Israeli conflict. Diplomatically and politically, the United States has provided strong support for Israel at international forums, such as the UN, and through its domestic legislature, by resolutions of support and votes of aid in Congress. According to the United States Congressional Research Service, ‘US military aid has helped transform Israel’s armed forces into one of the most technologically sophisticated militaries in the world,’ enabling Israel to ‘maintain [its] qualitative military edge’. After 1949, American aid levels to Israel were initially modest and consisted largely of economic loans. However, after the 1967 war, the nature and quantity of American assistance, particularly involving military hardware increased significantly. Since 1974, Israel has been the largest recipient of American foreign assistance. Tensions have occasionally risen between the two countries involving aid, including the military use by Israel of American-made cluster bombs in Lebanon in 1982 and 2006 and Israel’s ongoing civilian settlements in the occupied territories (Congressional Research Service ‘US Foreign Aid to Israel’ [4 December 2009]).

58  In 2002, Israel began the construction of a wall and barrier through the West Bank near the 1949 armistice line which would prevent armed Palestinian attacks on its civilian population but would also place a number of Jewish settlements and a significant portion of the occupied territories on the Israeli side of the wall. In December 2003, the UN General Assembly voted in favour of seeking an advisory opinion from the International Court of Justice on the legal consequences of the wall (UNGA Res ES-10/14 [8 December 2003]). On 9 July 2004, the International Court of Justice issued its advisory opinion that the wall was a violation of international law and directed it to be dismantled, with compensation to affected Palestinians (Israeli Wall Advisory Opinion [Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory]). Earlier, on 30 June 2004, the Israeli Supreme Court ruled that sections of the wall had not met the proportionality principle of minimizing its harm to Palestinians, and ordered those specific sections to be moved (‘Israeli Supreme Court Decision: BeitSourik Village Council et al v The Government of Israel et al, 30 June 2004’ in Bassiouni [ed] vol 2, 460–492).

15.  Palestinian Citizens of Israel

59  In October 2000, at the beginning of the second Palestinian Intifada, Israeli police clashed with Palestinian demonstrators in the Galilee in northern Israel. Thirteen Palestinians, 12 of whom were Israeli citizens, were killed by the police. A subsequent judicial inquiry called by the Israeli government—the Or Commission—criticized the Israeli police for excessive force, and labelled the attitude of the Israeli government towards the Palestinian minority within Israel as ‘neglectful and discriminatory’ (‘The Official Summation of the Or Commission Report’ [2 September 2003]).

60  Palestinian citizens of Israel have the right to vote, and several Palestinian political parties have regularly won seats in the Israeli Knesset. However, the Palestinian minority—which makes up approximately 20% of Israel’s population—suffers from inequalities in education rates, income rates, access to social and health services, employment opportunities, land ownership and use, and State funding to local municipalities (‘2008 Human Rights Report: Israel and the Occupied Territories, 25 February 2009’ US Department of State).

16.  Israeli Withdrawal from Gaza (2005)

61  Israeli Prime Minister Ariel Sharon presented a disengagement plan to the Israeli cabinet in April 2004 that proposed a unilateral Israeli withdrawal from the Gaza Strip and four West Bank settlements (‘Israeli Prime Minister Ariel Sharon’s Disengagement Plan, 18 April 2004’ in Bassiouni [ed] vol 2, 1250). The Plan, as approved by the Israeli Knesset, maintained Israeli military control at all access points to Gaza including the sea coast and air space, and the border with Egypt (‘Government Resolution Regarding the Disengagement Plan, 6 June 2004’ in Bassiouni [ed] vol 2, 1255). The Plan was implemented in August 2005, with Israel dismantling the 17 Jewish settlements in Gaza and evacuating all of the 8,000 settlers to Israel and the West Bank.

17.  Lebanon War II (2006)

62  On 12 July 2006, militants of Hezbollah, the Lebanese Shiite political party and militia, attacked a border gate, killing eight Israeli soldiers. Israel considered this a casus belli, and initiated air strikes the following day on civilian infrastructure in Lebanon including the Beirut international airport and the main highway between Beirut and Damascus. Hezbollah launched rockets into northern Israel, hitting Haifa. The Israeli air strikes and Hezbollah missiles continued throughout the subsequent 34 days of the war. Hezbollah considered Israel to be an illegitimate state, citing its occupation of the Palestinians Territories and its attacks on Lebanon and Gaza, while Israel was concerned about Hezbollah’s alliance with Iran and its military threat to Israel’s north.

63  On 23 July, Israeli land forces invaded southern Lebanon. They subsequently fought a number of battles with Hezbollah militia units over the following three weeks. The UN Security Council adopted Resolution 1701 on 11 August, which called for a ‘full cessation of hostilities’, the deployment of the Lebanese army and UNIFIL soldiers to southern Lebanon, the full exercise of control by the Lebanese government over weapons on its territory and the disarmament of all armed groups, and a ‘permanent ceasefire’ leading to a ‘long-term solution’. UNIFIL troops were subsequently placed throughout southern Lebanon. By the end of the war, on 14 August 2006, over 1,000 Lebanese, primarily civilians, had been killed, and approximately one million people were displaced. Israel suffered 119 military and 43 civilian deaths, and more than 250,000 Israelis evacuated the north to escape the fighting (for casualties, see Cleveland and Bunton 549; Bickerton and Klausner 375). In January 2008, the Final Report of the Winograd Commission—appointed by the Israeli government to investigate its conduct of the war—criticized the ‘serious failings and flaws in the lack of strategic thinking and planning in both the political and the military echelons’.

18.  Split between PA/PLO and Hamas (2007)

64  Following the death of Yasser Arafat in November 2004, Mahmoud Abbas was elected President of the Palestinian Authority in January 2005. He had previously served as Prime Minister of the PA for eight months in 2002. In January of 2006, the Palestinian Authority held its second national elections. Hamas, the Islamist party, won 74 seats in the 132 seat Palestinian legislature, while the ruling party, Fatah, won 45 seats. The popular vote was much closer, with Hamas receiving 44.5% and Fatah 41.4%. The 2006 election was broadly accepted, nationally and internationally, as free and fair, although Israel and many Western governments viewed the election of a Hamas government as unacceptable because of its Islamist politics and engagement in terrorism.

65  The following month, the US and the EU ceased assistance to the PA as it was now led by Hamas, a US-designated ‘terrorist organization’. Israel, which also designated Hamas as a ‘terrorist organization’, began to withhold the tax and customs receipts that it collected monthly on the PA’s behalf. As well, the PA lost access to international banking services and loans. Violence broke out between Fatah and Hamas factions. On 8 February 2007, Hamas and Fatah signed the Mecca Accord, a national unity agreement mediated by Saudi Arabia which called for a coalition government, an end to the international boycott of the PA, and the cessation of factional Palestinian violence. Under the Mecca Accord, Hamas and Fatah joined in a government coalition. However, the Accord disintegrated in mid-June 2007, with Hamas taking control of Gaza, and Fatah acquiring control of the West Bank. President Abbas appointed Salam Fayad as the new Prime Minister, and the PA once again received international recognition. Hamas, which claimed to be the authentic PA, was diplomatically isolated.

19.  The Conflict in Gaza (2008–09)

66  Following regular eruptions of violence between Israel and Hamas including rocket attacks on Israeli communities and air strikes on Gaza, an informal six month ceasefire was reached in late June 2008. The ceasefire largely held, although Israel maintained its blockade of Gaza, limiting the amount of food, fuel and other supplies that could enter the territory. Shortly after the ceasefire expired in late December 2008, a ferocious conflict ensued, with Israel bombing numerous Hamas targets and civilian institutions in Gaza, retaliating for heavy rocket attacks on its civilian population, and subsequently sending in several thousand Israeli ground troops and tanks. Approximately 1,300 Palestinians, the majority estimated to be civilians, died in the conflict, along with 13 Israeli soldiers. The UN Security Council passed Resolution 1860 on 8 January 2009, calling for an immediate ceasefire and the full withdrawal of Israeli forces from Gaza. It also requested international efforts to alleviate the humanitarian and economic situation in Gaza, demanded the end of illicit trafficking in arms into Gaza, and encouraged intra-Palestinian reconciliation. In September 2009, the UN Human Rights Council released the report of a fact-finding mission, chaired by retired South African judge Richard Goldstone, which found that both Israel and Hamas had likely committed war crimes during the Gaza conflict, with much of its focus on Israeli military actions (‘UN Fact-Finding Mission on the Gaza Conflict’ [15 September 2009]). The findings of the Goldstone Report were accepted by the UN General Assembly on 5 November 2009 (UNGA Res 64/10). Goldstone subsequently stated that he did not accept that Israel had a policy of deliberating attacking civilians during the Gaza conflict, while the other three committee members confirmed their previous views.

B.  Principle Legal Issues

1.  Belligerent Occupation and Geneva Convention IV

67  The primary outcome of the June 1967 war was to bring the Egyptian Sinai peninsula, the Egyptian-administered Gaza Strip, the Jordanian West Bank and East Jerusalem, and the Syrian Golan Heights under Israeli military control. Between 1975 and 1982, Israel returned the Sinai in territorial stages to Egypt. In 2005, Israel unilaterally withdrew its remaining settlements and troops from Gaza, although it has continued to exercise effective control over its land borders, airspace and sea coast. Israel also maintained military control over different parts of southern Lebanon between 1982 and 2000. The international community has consistently defined the Israeli control of these territories as a belligerent occupation and therefore subject to the applicable international law on the subject. In contrast, Israel has maintained that East Jerusalem is sovereign Israeli territory, the Golan Heights are part of Israel through the formal application of its law, jurisdiction and administration to the territory, its occupation of Gaza ended in 2005, and the West Bank is ‘disputed’ or ‘administered’ territory not subject to the international law on belligerent occupation. Israel ratified Geneva Convention IV on 6 July 1951, Jordan became a party to the Convention on 29 May 1951, and the Palestine Liberation Organization made a unilateral declaration on 7 June 1982 to bind itself to the Convention.

68  Shortly after the end of the June 1967 war, the UN Security Council unanimously adopted Resolution 237, which recommended that the States involved in the war scrupulously respect ‘the humanitarian principles governing … the protection of civilian persons in time of war contained in the Geneva Conventions of 12 August 1949’ (UNSC Res 237 [14 June 1967]). Five months later in its cornerstone resolution on the Middle East conflict, a unanimous Security Council called for the ‘withdrawal of Israel armed forces from territories occupied in the recent conflict’ (UNSC Res 242 [22 November 1967]).

69  In a number of subsequent resolutions, both the Security Council and the General Assembly of the UN have specifically affirmed that the 1967 lands controlled by Israel are occupied territories under international law and the protections of Geneva Convention IV apply. In September 1969, the Security Council called upon Israel ‘scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation’ (UNSC Res 271 [15 September 1969]). In May 2004, the Security Council reiterated its position regarding: ‘the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949’ (UNSC Res 1544 [19 May 2004]). In all, the Security Council has stated that Geneva Convention IV applies to the Israeli occupation of the Palestinian and Arab territories in more than 25 resolutions. Similarly, the General Assembly has adopted over 100 resolutions since 1967 holding that Geneva Convention IV applies to the situation. In December 2009, the General Assembly ‘demand[ed] that Israel accept the de iure applicability of the Convention in the Occupied Palestinian Territory including East Jerusalem, and other Arab territories occupied by Israel since 1967, and that it comply scrupulously with the provisions of the Convention’ (UNGA Res 64/92 [19 January 2010]).

70  In July 2004, the International Court of Justice declared in its Advisory Opinion on the Israeli construction of the wall in the West Bank that Geneva Convention IV applies to Israel’s occupation of the Palestinian and Arab territories captured in 1967. In para. 101, the ICJ ruled that it ‘considers that the Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties. Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out. The Court accordingly finds that that Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories’ (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory[Advisory Opinion] para. 101).

71  Belligerent occupation arises when the military forces of one party have taken possession of enemy territory during an armed conflict (see Occupation, Belligerent). The obligations borne by a belligerent occupier are codified primarily in the Hague Regulations of 1907 and in Geneva Convention IV of 1949 and its Additional Protocols. Art. 43 of the 1907 Hague Regulations and Art. 64 of Geneva Convention IV are considered the cornerstone of the occupier’s obligations in the territory it occupies. Benvenisti has posited that Hague Art. 43 has been increasingly disregarded, and its key proscription—that the occupier should not change the laws in force in the occupied territory—has become defunct. He asserts that the incorporation of this principle in Geneva Convention IV’s Art. 64 has not changed this fact, and that Israel is no different than other recent occupiers in setting aside the principle. ‘The occupant’s powers have expanded through time to cover almost all the areas in which modern governments assert legitimacy to police … contemporary attention is paid more to the interests of the indigenous community under occupation rather than to the wishes of the ousted government … [M]ost contemporary occupants ignored their status and their duties under the law of occupation’ (Benvenisti [1993] 6). Dinstein comes to essentially the same conclusion about the law of prolonged occupation, but concludes that it is based on a broad reading of the Hague Regulations and Geneva Convention IV: ‘[T]he scope of authority vested in the Occupying Powers must be commensurate with the objective need—accelerating the longer the occupation lasts—to enact new legislation, to introduce new development projects, and to consider new schemes of socio-economic reform’ (Dinstein [2009] 287).

72  The High Contracting Parties to Geneva Convention IV, meeting in Geneva in December 2001, called upon ‘the Occupying Power to fully and effectively respect the Fourth Geneva Convention in the Occupied Palestinian Territory including East Jerusalem, and to refrain from perpetrating any violation of the Convention’ (‘Declaration of the Conference of High Contracting Parties to the Fourth Geneva Convention’ [5 December 2001]). At the same Conference, the International Committee of the Red Cross (ICRC) said that it ‘has always affirmed the de iure applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the State of Israel including East Jerusalem’ (‘Conference of High Contracting Parties to the Fourth Geneva Convention: Statement by the International Committee of the Red Cross’ [5 December 2001]).

73  The Government of Israel has taken the position that, while it will generally apply the humanitarian provisions of Geneva Convention IV within the 1967 Palestinian and Arab territories, the Convention is not applicable de iure because the West Bank, East Jerusalem, and Gaza were not territories validly under Jordanian or Egyptian sovereignty at the time of the 1967 war. The Israeli Ministry of Foreign Affairs stated in 2003 that: ‘The West Bank and Gaza Strip are disputed territories whose status can only be determined through negotiations. Occupied territories are territories captured in war from an established and recognized sovereign. As the West Bank and Gaza Strip were not under legitimate and recognized sovereignty by any State prior to the Six Day War, they should not be considered occupied territories’ (Israel, Ministry of Foreign Affairs ‘Disputed Territories’ [February 2003]).

74  Israel’s position was based upon two influential articles written shortly after the June 1967 war. Blum (later Israel’s Ambassador to the UN) wrote in 1968 that, since Israel acquired the territories through a defensive war and no State could demonstrate a better title, its control of the Palestinian territories amounted to a valid title in international law (Blum [1968]). Shamgar (later President of the Israeli Supreme Court) stated in 1971 that the legal position of the territories captured by Israel in June 1967 was sui generis because Jordan had acquired the West Bank and East Jerusalem following an unlawful invasion in 1948. Similarly, Egypt had no better title to Gaza. Accordingly, the captured Palestinian territories were not validly a ‘territory of a High Contracting Party,’ as per Art. 2 Geneva Convention IV (Shamgar; see also Gerson; Schwebel).

75  Among legal scholars who are critical of Israel’s position regarding the non-applicability of Geneva Convention IV to the Palestinian and Arab territories, Dinstein has written that the argument is ‘patently sterile’, as the Convention applies to all armed conflicts and all occupations. Dinstein notes that, notwithstanding this position, the Israeli government has indicated an ad hoc acceptance of the Convention vis-à-vis the West Bank when arguing before the Israeli Supreme Court (Dinstein 21, 30). Imseis has argued that the ‘Missing Reversioner’ theory is undermined by its reliance on the unsupported concept of ‘defensive conquest’, and by its inability to recognize the self-determination rights of the Palestinian people in international law. He also noted that the Israeli argument has found very little support among legal scholars or the international community (Imseis [2003]; see also Kretzmer; Falk and Weston).

76  The Supreme Court of Israel (sitting as the High Court) has declared that it is competent, within limitations, to review the actions of the Israeli military authorities in the occupied territories captured in 1967. The Court has accepted that the law of belligerent occupation, as codified by the Hague Regulations, applies de facto to the legal regime in Gaza (prior to Israel’s withdrawal in 2005) and the West Bank, but not to East Jerusalem (Ja’mait Ascan v IDF Commander in Judea and Samaria [1982]) 37 (4) PD 785). However, the Court has also declared that Geneva Convention IV is treaty law and has not become part of customary international law; as such, it is not applicable to the occupied territories, and is not enforceable by the Israeli judiciary (Nasralla v IDF Commander of the West Bank [1988] 43(2) PD 265). Under Art. 43 of the Hague Regulations “[the occupying power] shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”. The Supreme Court has interpreted Art.43 to place some limitations on the authority of the Israeli military authorities, but also to legitimize a broad range of security and political considerations when balanced against the welfare and civil life of the local Palestinian population. In Ja’mait Ascan, the Court accepted that the Israeli settlers on the West Bank are part of the local population for the purposes of Art. 43, and proceeded to approve the creation of a major highway network in the occupied territories linking the settlements to Israel and Jerusalem. In Abu-Aita v Commander of Judea and Samaria (1983) (37 (2) PD 197), the Court ruled that integrating the economies of Israel and the occupied territories would benefit public order and the civil life of the local population, and endorsed the legality of applying a value-added tax in the territories when it was introduced in Israel.

77  Israel has occupied the Palestinian territories and the Golan Heights since 1967. International humanitarian law prohibits the occupier from altering the status quo respecting the laws, economy and social structure of the occupied territory beyond what is strictly dictated by military necessary and security. A significant legal question is whether a prolonged occupation changes the legal dynamics of the governing rules of belligerent occupation. The Israeli Supreme Court has addressed the issue of whether a prolonged occupier can reform the laws and administrative structures of an occupied territory to adapt to economic, social, and political changes and whether doing so entrenches the occupation in such a way as to defeat the purpose of the law on belligerent occupation. The Supreme Court ruled that the occupier’s powers widen as the occupation lengthens: The Christian Society for the Sacred Places v Minister of Defence (1971)(26(1) PD 574); Ja’mait Ascan (1982). Commenting on the prolonged Israeli occupation, Dinstein maintains that a military government must be permitted some leeway in the application of its law-making powers if the occupation becomes protracted (Dinstein 120). Roberts recommends that a prolonged occupation should become a distinct category within the law of belligerent occupation, but insists that, whether short or prolonged, an occupier’s rights are significantly curtailed (Roberts). Ben-Naftali, Gross, and Michaeli submit that belligerent occupation is meant to be temporary, and Israel’s deliberate violation of this principle renders its occupation unlawful per se (Ben-Naftali, et al). Benvenisti argues that the occupier in a prolonged occupation must not be permitted to unilaterally extend its powers as circumstances require, but should be required to engage the participation and input of the indigenous community in the affairs of the territory (Benvenisti 147).

2.  Refugees

78  The historical and legal issues underlying the Palestinian refugee problem have been a major source of contention among Israel, the Palestinian Authority, and the Arab States. In 2011, 4.9 million refugees were registered with the UN Relief and Works Agency for Palestine Refugees (‘UNRWA’), the specialized UN agency dedicated to the provision of humanitarian assistance to the Palestinian refugees. The majority are refugees from the 1948 war and their descendants, while the rest are refugees and their descendants from the 1967 war. UNRWA operates 58 Palestinian refugee camps in Jordan, Lebanon, Syria, Gaza and the West Bank, with a total camp population in 2011 of 1.4 million refugees.

79  The causes of the 1947–9 Palestinian refugee problem have been the subject of a protracted historical debate. Count Folke Bernadotte, the first UN Mediator for Palestine, stated in September of 1948: ‘The exodus of Palestinian Arabs resulted from panic created by fighting in their communities, by rumours concerning real or alleged acts of terrorism, or expulsion’ (‘Progress Report of the UN Mediator on Palestine, 14, Delivered to the General Assembly’ [16 September 1948]). Some modern historians, relying on archival material from Israeli State records, have maintained that the leadership of the Zionist movement, through its Plan Dalet in the spring of 1948, authorized the expulsion of the Palestinian Arab population from the designated Jewish and Arab territories (Pappe; Masalha; Shlaim [1995]).

80  The official Israeli position is that the Palestinian Arabs left on their own volition during the 1947–49 conflict or at the direction of the warring Arab armies (see Government Press Office, State of Israel, ‘The Refugee Issue: A Background Paper’ [October 1994]). Some modern historians who have adopted this position have suggested various theories to explain the exodus of the Palestinian refugees including a direct call by the Arab leadership to the population to leave, or that the Palestinian exodus was a natural consequence of the tragedy of war. Some historians have also described the refugee crisis of 1947–9 as a de facto exchange of Arab and Jewish populations (Karsh; Sachar; Sykes).

81  Israeli historian Benny Morris, among the first to review the declassified 1948 materials in the Israeli archives in the 1980s, has argued that many Palestinians fled their homes in 1947–9 either because of Israeli military attacks or fear of such attacks. He has also maintained that, while there was no centralized expulsion policy by the Israeli leadership, expulsions of Palestinians regularly occurred during the war. Morris’s central argument was that the Palestinian refugee problem was ‘born of war, not of design’ (Morris [1994] and [2004]).

82  A number of contentious legal issues on the Palestinian refugee issue have emerged over the years. The first has to do with the definition of Palestinian refugee. As the Palestinian refugee problem grew in size and political importance in the autumn of 1948, the UN General Assembly passed Resolution 194 on 11 December 1948, which, among other issues, addressed the Palestinian refugee crisis. Resolution 194 established the United Nations Conciliation Commission (UNCCP), with a mandate to provide international protection to the refugees, and defined the refugee population for whom it was responsible: all persons displaced from their homes in Palestine due to the 1947–49 conflict. This group-based international protection definition would encompass over 8 million of the worldwide Palestinian population of approximately 10 million persons today. In contrast, UNRWA’s is a needs-based humanitarian definition which applies to approximately 5 million of the total refugee population. Further complicating the definition question is the debate over the provisions that purport to exclude Palestinian refugees from the coverage of the United Nations High Commissioner for Refugees (UNHCR) mandate under its Statute, and the 1951 Convention on the Status of Refugees under its Article 1D. These definitions and provisions affect what durable solutions are to be afforded the Palestinian refugees, and the meaning of Paragraph 11 of Resolution 194 (UNGA Res 194 [III] [11 December 1948]).

83  Resolution 194’s formula for a durable solution for the refugees appeared in paragraph 11: ‘[T]he refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and … compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good’. Resolution 194 has been re-affirmed virtually every year since its initial passageby the General Assembly (UNGA Res 65/98 [12 December 2010]) (Akram and Rempel).

84  The second has to do with whether Palestinians have a right of return to any part of the territory of historic Palestine. Central to this debate is the legal standing of UNGA Resolution 194, and whether it provides a right for the Palestinian refugees to return to their homes and properties in present-day Israel. Some leading legal academics have argued that Resolution 194, as a General Assembly resolution, is nonbinding. Further, they maintain that Resolution 194 neither creates a ‘right’ to return nor affirms a pre-existing legal right; that either permission to return or a ‘right’ to return is preconditioned on the refugees ‘living at peace’ with Israel; and that Israel alone has the right to determine when the preconditions have been fulfilled, when and how many refugees might return as part of an overall peace agreement. This position interprets the phrase ‘his own country’ found in Art. 12 (4) International Convention on Civil and Political Rights (1966) and Art.13 (2) Universal Declaration of Human Rights (1948) to mean that the right to return extends only to a State’s own nationals; this would not apply to Palestinian refugees, who are neither citizens nor nationals of Israel. Above all, permitting a substantial right of return is seen in Israel’s eyes, as an ‘existential threat’ (Peters and Gal; Lapidoth; Radley).

85  Other legal scholars writing on the issue have maintained that Resolution 194 has a broad meaning and application, and is based on concrete legal rights for Palestinian refugees found in a number of distinct bodies of law. In their view, Resolution 194 and its regular re-affirmation requires Israel to admit the refugees back to their homes on the basis of nationality, state succession, and non-discrimination principles that prohibit denationalization of ‘habitual residents’ of the territory of a successor state and prohibit discriminatory application of nationality laws (Oppenheim; Brownlie). These principles are found in such treaties as the International Convention on the Elimination of Racial Discrimination (1965). Other scholars argue that the right of Palestinians to return to place of origin is based on humanitarian law principles found in the Fourth Geneva Convention that guarantee the right to return at the end of conflict. These positions are based on the fact that the Palestinians were the ‘habitual residents’ of what was once Palestine and now is Israel. This right applies to both the 1948 and the 1967 refugees, and their descendants. Furthermore, some of these scholars assert that this right vests in the individual refugees, and cannot be waived or surrendered by a political institution (Quigley; Takkenberg; Lawand). Finally, scholars ground the right of Palestinian refugee return in modern principles of international refugee law (Goodwin-Gill; Akram and Rempel).

86  A third significant area of legal controversy on the Palestinian refugee issue is the issue of restitution and compensation of Palestinian refugee properties and other losses. This debate focuses on the individual and collective claims of the Palestinian refugees for the restitution of their lost homes and properties in present day Israel, as well as monetary damages for related losses. Israel’s position is that Palestinian refugee property was taken in exchange for the property Jews left behind in Arab states, and that only compensation will be awarded in a final settlement. Israel has stated its preference for a global collective fund which would be primarily used for refugee resettlement either in a Palestinian State or elsewhere in the world, and financed largely by the international community. Any contributions made by Israel would be ex-gratis, and not arise from any legal or financial liability (‘Private [Israeli] Response on Palestinian Refugees’, Taba Talks [23 January 2001]). The Palestinians have argued that international law supports Israel’s obligation to restitute Palestinian properties and pay for refugee properties expropriated or destroyed in 1948 and afterwards in present-day monetary valuations. As well, they assert that additional damages are owed for individual and collective suffering, for Israel’s use of Palestinian properties since 1948, and for rehabilitation (‘Palestinian Non-Paper on Palestinian Refugees’, Taba Talks [23 January 2001]; see also Lynk; Benvenisti and Zamir).

87  During the negotiations process on the resolution of the Palestinian refugee issue, Israel has regularly advanced the issue of Jewish refugees from Arab lands who left, or were forced to leave, their homes and properties in 1948 and afterwards. This issue has been raised in the context of requesting compensation for the material and non-material losses of these refugees. The Palestinian position has consistently been that the issue of compensation for the Jewish refugees should not be linked to the Palestinian refugee issue; rather, this issue should be negotiated by Israel with the responsible Arab governments.

88  UN Security Council Resolution 242 of 22 November 1967 called for ‘the necessity [of] achieving a just settlement of the refugee problem’, without further guidance. The 1993 Declaration of Principles, the initial legal and diplomatic framework between Israel and the PLO, provided that the refugee question would be one of the ‘final-status’ issues to be addressed at the end of the envisioned five year process. While the DOP stated that its purpose was to recognize mutual legitimate and political rights, it did not define them with respect to any of the ‘final-status’ issues including the refugee issue (‘Declaration of Principles on Interim Self-Government Arrangements between Israel and the Palestinian Liberation Organization’ in Bassiouni [ed] vol 2, 890–897).

89  The 2000 Camp David talks did not result in any agreements. While the Taba Summit in January 2001 also did not reach a peace agreement, it did produce two separate draft proposals from Israel and the PLO on the Palestinian refugees. The Palestinian proposal rests on an interpretation of UNGA 194 grounding a right of return in human rights and humanitarian law. It focused on refugee choice of returning to home or land within 1948 Israeli borders, or from available resettlement options. The Palestinian proposal discussed Israel’s moral and legal responsibility for forced displacement and dispossession of Palestinian refugees in 1948 and for preventing their return (‘Palestinian Non-Paper on Palestinian Refugees’ Taba Talks [23 January 2001]). The Israeli proposal includes the Israeli narrative of the Palestinian refugee issue, a framework for solution and mechanism for implementation, modalities for compensation and rehabilitation, a special clause for Jewish refugees, and an ‘end of claims’ clause. The five options set out in the Israeli proposal are a limited number of refugees ‘returning’ to Israel; a land swap; resettlement primarily in a Palestinian State; rehabilitation in Arab host countries; or resettlement in third States (‘Private [Israeli] Response on Palestinian Refugees’ Taba Talks [23 January 2001]).

90  Following the demise of the Oslo Process after Camp David and the Taba Summit, the next initiative on the Palestinian refugees came from the Quartet and its Performance-Based Road Map issued in April 2003. The Road Map, similar to the Oslo DOP, sought to resolve the refugee issue during the third and final phase of the renewed peace process. As part of this third stage, the parties were to: ‘reach final and comprehensive permanent status agreement that ends the Israel-Palestinian conflict in 2005, through a settlement negotiated between the parties based on UNSC Res. 242, 338 and 1397, that ends the occupation that began in 1967, and includes an agreed, just, fair, and realistic solution to the refugee issue’ (‘Elements of a Performance-Based Road Map to a Permanent Two-State Solution to the Israeli–Palestinian Conflict, 15 October 2002’ in Bassiouni [ed] vol 2, 1214).

3.  Jerusalem

91  Jerusalem is unique among cities. As a centre of religious faith, it is holy to Christianity, Islam and Judaism. As a city of politics, it is highly contested, with both Israel and the Palestinians claiming it as their political capital. As an urban habitat, it is demographically divided, with Jews and Palestinians living in separate districts and neighbourhoods, and possessing different levels of access to services, opportunities and rights. In international law, the special status of Jerusalem has been regularly addressed by the UN and the international community, particularly since 1947.

92  In the November 1947 partition plan adopted by the UN General Assembly in Resolution 181, Jerusalem was designated as a corpus separatum, politically separate from the proposed Jewish and Arab States and governed under a special international trusteeship to be overseen by the UN. This proposal for a separate administrative regime for Jerusalem had been earlier recommended by the partition proposals contained in the 1937 Peel Commission report and the 1947 UNSCOP report.

93  With the ensuing war, the proposal for the internationalization of Jerusalem was effectively stillborn. The Israel-Jordan General Armistice Agreement of April 1949 confirmed the de facto division between eastern and western Jerusalem as the armistice line, but did not confer de jure sovereignty over Jerusalem to either side (‘General Armistice Agreement between Israel and Jordan, 3 April 1949’ in Moore [ed] vol III, 397–406).

94  Following the defeat of Jordan in June 1967, Israel occupied East Jerusalem and the West Bank. On 27 June 1967, the Israeli Knesset extended its jurisdiction to any part of ‘Eretz Israel’ designated by the Government. Israel immediately applied its authority to incorporate East Jerusalem and parts of the West Bank into the Jerusalem municipality (‘Israel’s 1967 Enactments concerning the Application of Israeli Law, Jurisdiction and Administration to East Jerusalem, 27 June 1967’ in Lapidoth and Hirsch [eds] 167–8). Soon afterwards, the Government of Israel initiated intensive settlement construction for Israeli Jews in East Jerusalem, and by 1972 approximately 8600 Israeli Jews were living in settlements in eastern Jerusalem.

95  The UN Security Council subsequently adopted a number of resolutions concerning the status of Jerusalem. In Resolution 476 of 30 June 1980, the Security Council deplored ‘the persistence of Israel in changing the physical character, demographic composition, institutional structure and the status of the Holy City of Jerusalem;’ affirmed the application of Geneva Convention IV to the occupation of Jerusalem; and stated that ‘all measures which have altered the geographic, demographic and historical character and status of the Holy City of Jerusalem are null and void’ (UNSC Res 476 [30 June 1980]). Similarly, UNSC Resolution 298, adopted in September 1971, deplored ‘the failure of Israel to respect the previous resolutions’ on Jerusalem, confirmed ‘that all legislative and administrative actions taken by Israel to change the status of Jerusalem … are totally invalid and cannot change that status’, and called upon Israel ‘to rescind all previous measures and actions and to take no further steps in the occupied section of Jerusalem which may purport to change the status of the City’ (UNSC Res 298 [25 September 1971]).

96  In the 1993 Oslo Declaration, Jerusalem was identified by the parties as one of the final status issues, which would be negotiated as part of a permanent peace agreement (‘Declaration of Principles on Interim Self-Government Arrangements between Israel and the Palestinian Liberation Organization’ in Bassiouni [ed] vol 2, 890–897, Art. V (3)). Following the failure of the Camp David summit in July 2000, President Bill Clinton issued the ‘Clinton Parameters’ in December 2000, which stated that the general principle pertaining to Jerusalem and the Old City would be that ‘Arab areas are Palestinian and Jewish areas are Israeli’. As for the Old City, the Clinton Parameters recommended ‘Palestinian shared sovereignty over the Haram and Israeli sovereignty over the Western Wall’ (‘Clinton Parameters to Palestinian and Israeli Negotiators, 23 December 2000’ in Bassiouni [ed] vol 2, 1160–2). The two sides subsequently accepted this general principle during further peace negotiations at Taba, Egypt in January 2001, although the Palestinian side rejected Israeli sovereignty over the Ma’ale Adumim and GivatZe’ev settlements near Jerusalem (‘European Union Non-Paper on the Taba Conference, 2001’ in Bassiouni [ed] vol 2, 1169–70).

97  Among legal scholars, Dinstein has noted that, while the Supreme Court of Israel has accepted the Israeli annexation of East Jerusalem in a series of cases, ‘it is abundantly clear that the unilateral annexation of East Jerusalem by Israel is not valid under international law’ (Dinstein 18–19). Imseis has argued that both the Israeli settlements and the 1980 annexation legislation are part of Israel’s demographic re-engineering of Jerusalem in order to assert sovereignty, and, as such, are prohibited under international law (Imseis [2000]). Gerson wrote that any Israeli claim to sovereignty over East Jerusalem would be treated no differently in law than its claim to the West Bank, as ‘both seem to stand or fall on the same merits’ (Gerson 213–214). Blum maintained that Jordan did not possess valid sovereignty over East Jerusalem or the West Bank prior to the June 1967 war, and therefore, Israel was entitled to extend its laws and administration to these lands on the same basis as the lands that were not assigned to Israel by Resolution 181, but over which it acquired sovereignty after the 1947–9 war (Blum [1974]).

4.  Settlements

98  The legality of the Israeli civilian settlements constructed in the occupied Palestinian and Arab territories has been a controversial topic since their inception shortly after the June 1967 war. Most diplomatic, judicial and legal commentators have maintained that the settlements are illegal under international law, while a minority view has argued that they are lawful.

99  The analysis employed by commentators and scholars respecting the settlements’ legality commonly starts with the foundational instruments of international humanitarian law. The Hague Regulations concerning the Laws and Customs of War on Land (annexed to the Convention respecting the Laws and Customs of War on Land), which emerged out of the Hague Peace Conferences (1899 and 1907), implicitly prohibit the demographic transformation of an occupied territory by designating the occupying power as an interim administrator and usufructuary, with no greater power over the territories than to protect and beneficially manage them for the indigenous population until their eventual return to the new sovereign government: Arts 43, 46, 52, 55. After World War II, the international community adopted the Geneva Convention relative to the Protection of Civilian Persons in Time of War (‘Geneva Convention IV’) to extend protection to civilians in time of armed conflict. The Convention expressly prohibits the implantation of settlers by the occupying power in the territories that it occupies. Art. 49 (6) Geneva Convention IV states that: ‘the Occupying Power shall not deport or transfer parts of its civilian population into the territory it occupies’. Israel ratified the Geneva Convention IV on 6 July 1951.

100  In its July 2004 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice declared that: ‘ … the Israeli settlements in the Occupied Palestinian Territory [including East Jerusalem] have been established in breach of international law’. In doing so, the Court held that Art. 49 (6) prohibits not only forcible transfers, ‘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’ (at para. 120).

101  The International Committee of the Red Cross released a study in 2005 which sought to identify the established rules of customary international humanitarian law. The ICRC concluded that that the overwhelming weight of present evidence—Geneva Convention IV of 1949, the 1998 Statute of Rome, military manuals from a number of respected countries, UN resolutions, the domestic legal codification of the prohibition by a number of States, and commentaries by international organizations, among others—established that the prohibition against settler implantation had become a rule of customary international humanitarian law (‘Rule 130’ in Henckaerts and Doswald-Beck 462). At least one commentator has criticized the study (see Dinstein [2006]).

102  Additional Protocol I of the Four Geneva Conventions (1977), Art. 85 (4) (a) reiterates the prohibition against transfer of the population of the occupier into the territory it occupies, and elevates the prohibition from a ‘breach’ of Geneva Convention IV to a ‘grave breach.’ The Rome Statute of the International Criminal Court (ICC), moreover, proscribes settler implantation as a ‘war crime’. Art. 8 (2) (b) (viii) prohibits: ‘The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies ….’ There remains a debate on whether the First Additional Protocol and the Rome Statute have become part of customary international law. Israel is not a party to either Additional Protocol I or the Rome Treaty, primarily because of the inclusion of the prohibition against civilian settlements in occupied territories (see Statement by Judge Eli Nathan, Head of the Delegation of Israel to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 9th Plenary Meeting [17 July 1998] http://www.un.org/icc/speeches/717isr.htm).

103  In December 1971, the UN General Assembly passed the first of many resolutions over the years condemning the Israeli settlements, maintaining that: ‘all measures taken by Israel to settle the occupied territories including occupied Jerusalem, are completely null and void’ (UNGA Res 2851 [XXVI] [20 December 1971]). The UN Security Council adopted five resolutions in 1979 and 1980 criticizing the settlements as a violation of international law. On 1 March 1980, the Security Council adopted its lead resolution, UNSC Resolution 465, which states that: ‘ … Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East’. Resolution 465 also called upon Israel to dismantle the existing settlements.

104  Various influential regional, humanitarian and human rights organizations have commented on the legal status of the Israeli settlements. The Council of the European Union in 2008 stated that ‘ … settlement building anywhere in the occupied Palestinian Territories including East Jerusalem, is illegal under international law’ (‘Declaration by the Presidency on Behalf of the European Union on the Middle East’ [14 March 2008]). The Conference of the High Contracting Parties to the Fourth Geneva Convention issued a declaration in December 2001, which reaffirmed its position on ‘ … the illegality of settlements in the [occupied Palestinian Territories including East Jerusalem], and of the extension thereof’. Amnesty International has commented on the issue, stating in 2003 that: ‘The establishment of settlements violates international humanitarian law and constitutes a serious violation of the prohibition on discrimination’ (‘Israel and the Occupied Territories: The Issue of Settlements Must Be Addressed According to International Law’ [8 September 2003]).

105  A number of scholars have judged the settlements to be contrary to international law. According to Kretzmer: ‘the widely accepted view is that [Art. 49 Geneva Convention IV] does apply to establishment, or even promotion, of civilian settlements … Establishing civilian settlements in occupied territory in order to further the economic or political interests of the occupying power is incompatible with these principles [of customary international law]’ (Kretzmer 77). Imseis cited a range of human rights concerns caused by the settlements, finding that: ‘in addition to violating Article 49 of the Fourth Geneva Convention, Israel’s Jewish colonial settlements in the OPT potentially represent very serious transgressions of other international human rights and criminal law conventions …’ (Imseis [2003] 106–7). Dinstein viewed the 2004 pronouncement of the ICJ that the Israeli settlements are illegal as ‘unassailable’, but was critical of the view which assumes the illegality of those settlements where ‘settlers have acted entirely on their own initiative’ rather than relying upon the support or encouragement of the State (Dinstein 240–241).

106  The Government of Israel has consistently maintained that its settlement project conforms to international law. The Israeli Foreign Ministry has stated that Geneva Convention IV does not apply to the Palestinian territories, since they were ‘not under the legitimate sovereignty of any state’ at the time of the June 1967 war, and therefore the prohibitions against settler implantation do not apply. Furthermore, the Foreign Ministry interprets Art. 49 Geneva Convention IV as ‘intended to protect the local population from displacement including endangering its separate existence as a race, as occurred with respect to the forced population transfer in Czechoslovakia, Poland and Hungary before and during the war. This is clearly not the case with regard to the West Bank and Gaza’. It also argues that Art. 49 (6) was intended to prohibit only the forcible transfer of the population of the occupying power, and does not apply to the voluntary migration of the occupier’s civilian population (‘Israeli Settlements and International Law’ [May 2001]).

107  Among those legal scholars disputing the designation of the Israeli settlements as illegal, Rostow argued that the 1922 Mandate of the League of Nations permitted ‘“close settlement by Jews” in all of Palestine’, and this right continued after the end of the Mandate because no trusteeship agreement was reached under Art. 80 of the UN Charter, ‘which leaves intact the Jewish right of settlement in the West Bank and the Gaza Strip’ (Rostow 9–10). In his 1978 analysis, Gerson wrote that: ‘in the perspective of contemporary international law, Israel’s land acquisition and settlement policy was not unlawful as it neither aimed for, nor neared, a stage involving displacement of the existing population as a prelude to future annexation’ (Gerson 173). Stone maintained that Geneva Convention IV did not apply to Israel’s acquisition of the Palestinian territories in 1967 but, if it did, Art. 49 (6) would not be engaged because the provision was intended to prohibit ‘the impairment of the economic situation or racial integrity of the native population of the occupied territory or inhuman treatment of its own population’, neither of which had been a practice of the Israeli government in the territories (Stone 177–181).

108  The Supreme Court of Israel (sitting as the High Court of Justice) has not taken a position on the legality of the settlements, holding that the issue is non-justiciable. In 1979, the High Court of Justice ruled in the Elon Moreh case that private Palestinian lands could not be requisitioned (Requisitions) for settlements under customary international law if the dominant purpose was for political reasons rather than for military needs (Dweikat v Israel HCJ 390/79). However, in this and subsequent decisions, the High Court has specifically declined to rule on the general application of international law including Art. 49 (6) Geneva Convention IV, to the settlements. In 2005, the Court issued Mara’abe v The Prime Minister of Israel, dealing with the route of the Wall around the Jewish settlement of Alfei Menashe. In the decision, it stated: ‘It is not relevant … to examine whether this settlement activity conforms to international law or defies it, as determined in the Advisory Opinion of the International Court of Justice at The Hague. For this reason, we shall express no position regarding that question’ (HCJ 7957/04 para. 19).

C.  Conclusion

109  History and law are deeply intertwined in the Israeli–Palestinian conflict. Both are highly contested and diversely interpreted by the parties, and both are intimately linked to the distinct national narratives woven by each side. Central to the Israeli narrative is the return to an ancient homeland (dedicated to Jews by God) after two millennia of exile, persecution and the Holocaust, the establishment of a modern State ruled by law, and the necessity of the unyielding sword in the face of intractable enemies in the Arab world opposed to its very existence. The Palestinians narrate their history quite differently: after centuries living as the majority indigenous population in Palestine, they were evicted from their homeland by a settler movement after a horrendous genocide against European Jews for which they bore no responsibility, and they have fought back through a prolonged anti-colonial campaign, against formidable regional and international odds, ever since. Throughout the conflict, the neighbouring Arab States have sympathized with the Palestinians, while anxious about the destabilizing consequences of the strife upon their own countries.

110  International law has been frequently relied upon by Israel and the Palestinians to support their respective narratives, their diplomatic and political claims, and their negotiating positions. All of the central issues to the current conflict—occupation, borders, Jerusalem, settlements, refugees, among others—have legal foundations grounded in international humanitarian and human rights conventions, UN resolutions, scholarly writings, diplomatic statements, international and domestic judicial rulings, and treaties and agreements by the regional players. On many of these issues, international law has spoken with clarity and principle. Indeed, at its best, international law is flexible, but it is not subservient to political whim. Kofi Annan, the former Secretary-General of the UN, spoke in March 2002 of the settled framework of legal and diplomatic principles that should inform a final peace agreement in the Middle East: ‘There is no conflict in the world today whose solution is so clear, so widely agreed upon, and so necessary to world peace as the Israeli–Palestinian conflict’ (UNSG ‘Leading their Peoples Back from Brink is “Duty” of Israeli, Palestinian Leaders, Secretary-General Tells Arab League Summit’ [27 March 2002] Press Release SG/SM/8177). Yet international law has insufficiently informed the numerous treaties, declarations and agreements negotiated during the long peace process that began in 1991, and the international community has only occasionally backed up its many resolutions at the UN with meaningful action. The distance between legal principles and Realpolitik in the Middle East has repeatedly dimmed the prospects for a genuine peace in that tormented region.

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