The Palestinian and Israeli conflict in international law

Palestinian and Israeli Conflict in International Law

History by itself and the differing views of history possibly play a very significant role in the conflict between the people of Palestine and Israel. Thus historical accounts and the interpretation of these accounts are made use of in the claims and counter claims of the parties in the dispute. "No two historians ever agree on what happened, and the damn thing is they both think they're telling the truth" (a Brief History of Israel and Palestine and the Conflict)

History of the Conflict from the Time of Creation of Israel

The UN General Assembly agreed to a plan November 29, 1947 for the division of Arab lands into the three parts of Israel Palestine and an internationally-administered zone that centered round Jerusalem. "This plan formed the basis for the declaration of the state of Israel on May 14, 1948." (the History of the Palestinian-Israeli Conflict) Angered over the loss of Arab lands in the formation of the Israeli state, a combined force of Arab states invaded Israel leading to a war. The consequences of the war were disastrous for the Arabs. Israel annexed more land than was provided to them by the United Nations and many of the Palestinian Arabs were displaced rendering them homeless. This war officially ended in January 1949, but the peace was short lived due to the mutual suspicions and sense of betrayal by the Arabs. "Threatened by invasion Israel launched an attack on Egypt on October 29, 1956 and captured the Gaza strip and the Sinai Peninsula from Egypt." (the History of the Palestinian-Israeli Conflict) International protests followed this gradual usurping of Arab lands and Israel withdrew from these territories Another war between the Arabs and Israel broke out on May 6, 1967, provoked by a blockade of the Israeli port in the Gulf of Aqaba and shelling of Israel by Syria from the Golan Heights, as Israel launched an attack on Egypt, Syria and Jordan. (the History of the Palestinian-Israeli Conflict)

The result of this war was further loss of territory by the Arabs to Israel. Israel occupied the Gaza strip and the Sinai Peninsula again and also the Golan Heights, the West Bank and the Arab sector of Jerusalem. "The United Nations Security Council passed a resolution on November 22, 1967, asking Israel to withdraw from these Occupied Territories, but Israel refused and the United Nations did not take any intervening action to enforce its resolution." (the History of the Palestinian-Israeli Conflict) the result was that the Arabs refused to recognize Israel as a state. As a result of the repeated failure wars to retrieve lost lands the Palestinian Arabs formed terrorist organizations to fight against the Israeli occupation. Israel has thus become a target from those days for these terrorist organizations and their guerrilla warfare and this has caused severe loss of life and injuries not only to the combating Israeli soldiers and Palestinian guerrillas, but even more loss of life and injuries to the Israeli and Palestinian civilians. (the History of the Palestinian-Israeli Conflict)

The demise of Yasser Arafat and the election of the more moderate Abbas as the head of the Palestinian people and their aspirations, provide hope that the Palestinians and Israelis will be able to sort out their differences to bring lasting peace in an area that has been an area of concern to the world for more than five decades." (Rice urges Israel to take hard decisions for peace ahead of summit) This is the reason behind the U.S. urging Israel to make use of the more conducive circumstances to bring about more lasting peace. (Rice urges Israel to take hard decisions for peace ahead of summit)

Zionism vs. Pan-Arabism

Nathan Birnbaum was the person responsible for the coining of the term Zionism. Zionism represents the movement that called for the state of Israel and the return of the Jewish people spread all over the world to Israel. Zionism also required the Jewish sovereignty over Israel. "The Zionist movement spread to embrace all sets of Jews irrespective of their political and religious leanings and all the Jews worked towards this goal of Israel." (a Definition of Zionism) There were rifts as was to be expected from a collection of people with differing views and perceptions and yet at the end of it all they succeeded in setting up the State of Israel., which was the common goal. (a Definition of Zionism)

The greatest strength of Zionism has been its ability to maintain a striking continuity in its aims and methods for over hundred years. The drive for the Jewish statehood paid scant attention to the presence of the Palestinian majority and their national aspirations. The need for the creation of the Israeli state pushed back any claims of the Palestinians. There were very few supporters for the creation of two nations among the Israelis and territorial partition was considered the best way to achieve statehood and at the same time providing a certain national rights to the Palestinians. To create a homogenous Jewish territory the translocation of Palestinians to the neighboring states was also seen as a possible means. The implementation of these plans provided the means for the formation of independent Israel, even though it led to separation of the Palestinian people and causing the hostility with the Arab world, which has led to a lot of bloodshed. "The Zionist movement and subsequently the state of Israel failed to develop a positive approach to the Palestinian presence and aspirations." (Zionism and Its Impact)

Pan-Arabism is the name given to the movement that aims at the unification of the Arab people and nations of the Middle East. It has a strong relation with Arab nationalism. Pan-Arabism has had a leaning towards socialism and secularism and has a negative stance to Western influence. (Pan-Arabism: Wikipedia, the free encyclopedia) From the 1930s onwards the need to thwart the Zionist aims in Palestine became the rallying point for Arab nationals. The forming though mostly short lived basis of the union of different Arab states on different occasions was an expression of this Arab nationalism. "These unions include the Arab League, the Arab Federation, the United Arab Republic, the Arab Union, the United Arab Emirates, and the Arab Maghreb Union." (Pan-Arabism: Encyclopedia.com) the Ba'ath party became the principal instrumrnt of Pan-Arabism from the 1960's onwards and most of the Arab states including Egypt, Iraq, Jordan, Lebanon, Saudi Arabia, Syria and Yemen were the areas of their activity. The Pan-Arab cause suffered two severe setbacks in the defeat fo the Arabs in the 1967 war eith Israel and in the demise of President Nasser of Egypt in 1970. The 1973 war with Israel saw the return of the Pan-Arabism in strength and the willingness of Arab states to use oil as a tool in furthering their economic and political aims. The accord between Egypt and Israel and the Iran-Iraq war saw Pan-Arabism go into decline. "Despite all the Pan-Arab rhetoric of Sadaam Hussain prior to the Persian Gulf War many Arab countries were part of the coalition that fought against Iraq." (Pan-Arabism: Encyclopedia.com)

An analysis of Pan-Arabism shows that the Arab states showed a symbolic political manipulation towards Pan-Arabism and this gradually waned into a Westphalian state system based on soveriegn states. "The Arab regional system has been fragments with the GCC in a position to have a strong say in matters because of their economic clout and Egypt also because of its military might." (Regional Responses to Conflicts: the Middle East) Iraq made a strong but vain bid to become the leader of Pan-Arabism but its war with Iran as well as the later wars with the West have left it in a totally weakened position. The palestinian cause was used by many of the Arab states just as a cause for their leadership, but with Egypt opting out after it's accord with Israel, no other state has shown the willingness to take on the Israelis in the cause of the Palestinians. This has been the cause of the weakness of Pan-Arabism and the inability of the Arab League or any of the Arab states to intervene with effect in any of the regional conflict or in favor of the paletinian cause. (Regional Responses to Conflicts: the Middle East)

Israeli settlements in the Occupied Palestinian Territories

Israeli Settlements in Occupied Palestine consist mainly of large housing projects that Israel built without legal sanction on the lands that they confiscated from Palestinians. These settlements are located in the West bank, Jerusalem and then Gaza strip. These settlements are linked to one another and to Israel using roads that cannot be used by the Palestinians and are meant for the exclusive use of Israelis. The roads were also built on what was previously privately owned of the Palestinians that were confiscated by the Israelis. These Israeli settlements have an impact not only on the daily life of the Palestinians, but also on the long-term developmental needs of the Palestinians. These settlements make sure that the state of fragmentation and insecurity of the Palestinians continues and thereby hinders the economic, social and political development of the Palestinians. The total number of such settlements in the West bank, Jerusalem and the Gaza strip are 205, with the vast majority of them in West bank and Jerusalem. "These settlements have led to the more than 403,249 settlers in the West bank and Jerusalem itself." (Israeli Settlements on Occupied Palestinian Territories) Israel continues to expand the number of these settlements from time to time as well as the bypass roads connecting them. These new bypass roads as well as the expansions to the existing bypass roads add to the disruption of the Palestine economy, autonomy and society.

The Israeli settlements also have a negative impact on the access of the Palestinians to natural resources like water and arable land. This problem is likely to escalate as the estimation is that the Palestinian population is likely to grow to five million in the West Bank and Gaza strip. These Israeli settlements in the West bank, Jerusalem and Gaza Strip are in violation of International Law. "Article 49 of the Fourth Geneva Convention clearly stipulates that an occupying power cannot transfer or deport part of its own civilian population into the occupied area." (Israeli Settlements on Occupied Palestinian Territories) Article 46 of the Hague convention in addition does not permit the confiscation of private property by the occupying power in the occupied territories. In addition Article 55 of the Hague Convention makes the occupying power only the administrative authority in the occupied territories with on ownership rights. It also places the responsibility of safeguarding the capital including the natural resources on the occupying power and prohibits the diversion of these to the citizens of the occupying power. Article 55 of the Hague Convention states that: "The occupying state shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct." (Israeli Settlements on Occupied Palestinian Territories) These settlements also violate the United Nations Security Council resolutions 242 and 465. (Israeli Settlements on Occupied Palestinian Territories)

The Background of the Right of Return in Practice and law

The status of the Palestinians has had a fraught history since they were exiled from their lands in 1948. Depending of their place of residence in the region their lives have significant differences. "The initial response of the host Arab nations towards the incoming Palestinian exiles was to give them refuge as they believed that this was only temporary till the lost lands were recovered from the Israelis." (Treatment and Rights in Arab Host States) as the fact that this problem would not go away soon sank into the host Arab nations, their policies to these refugees became altered. Their initial sympathies were now coupled with their insistence that the ultimate onus of the refugees fell on Israel. This caused most of the Arab nations to vehemently oppose resettlement and naturalization of the refugees in their lands. The preferred to adopt policies that were aimed at retaining the Palestinian identity of the individuals and their status remained as refugees. In September 1965 the League of Arab States acknowledged the Palestinians refugees and provided them certain rights in the signing of the Protocol for the Treatment of Palestinians in Arab States, which came to be known as the Casablanca Protocol. (Treatment and Rights in Arab Host States)

As per this Protocol "the member states were to take the necessary measures to ensure that Palestinians received full residential rights, freedom to move within and among Arab nations and the right for employment on par with the citizens of the respective Arab countries." (Treatment and Rights in Arab Host States) These good intentions became of bone of contention with the developments that took place subsequently. The growth of the Palestinian nationalist movement led to clashes between the movement and governments of most Arab nations. As this developed a diminishing in the legal status was the result. This has led to the fact that very few Palestinians residing in the Arab world have the secure right to remain in their country of residence. This can be seen clearly in the effect that the growth of the Palestine liberation movement had on the security and quality of lives of the Palestinians in the Arab nations. "The growth of this movement led to political and sovereignty tensions within the host Arab nations." (Treatment and Rights in Arab Host States)

In addition were the attacks that the movement launched against Israel and its civilian population. The host Arab nations were the ones who face the brunt of the immediate Israeli reprisals and these led to injuries and deaths of civilians of the host Arab nations. In Jordan the clashes between the Palestinian fighters and the Jordanian became so frequent that the fighters were expelled in 1971. Their embroilment in a civil war in Lebanon and the attacks launched by them on Israel resulted in the Israel invasion of Lebanon in 1982 and resulted in the expulsion of the Palestinian fighters from Lebanon. The Palestinians thus do not find a secure place to live with basic human rights even in the Arab nations that were sympathetic to their cause. This gives them the right to return to Palestine, their original homeland, just as the Israelis claimed the same right for the creation of Israel in the lands of the Palestinians. (Treatment and Rights in Arab Host States)

United Nations Resolutions in Palestinian Right of Return

The United nations General Assembly Resolution 194 of December 11, 1948 stipulated that "any refugee opting to return home and live in peace with their neighbors must be allowed to act in the like manner at the earliest date that was practical." (UN Resolutions) it also stipulated that compensation should be given to those Palestinians opting not to return and also for any loss or damage to property, which going by the principles of international law or equity required that this be done by the Government or authorities that were responsible for it. "The United Nations Security Council Resolution 242 of November 22, 1967 made the occupation of Palestine by Israel illegal. This resolution stipulated the Israeli forces should withdraw from those territories occupied by it in the war of 1967." (UN Resolutions) it also required the acknowledgement of the sovereignty, territorial integrity and political independence of all the states in that area and their inalienable right to live in peace within safe, secure and recognized borders free from any actions of threat by force.

The United Nations Security Council Resolution 446 of March 22, 1979 made the Israeli settlements in Palestine illegal. This resolution stipulated that the Israeli policy and practices to establish settlements on the Palestinian and other Arab lands, which they had occupied since 1967 possessed no legal validity and instead were a significant hurdle to the achieving of a comprehensive, just and lasting peace in the Middle East region. The United Nations General Assembly Resolution 3236 of November 22, 1974 gave the right of self-determination to the Palestinians. The resolution affirms "Affirms the inalienable rights of the Palestinian people in Palestine...to self-determination without external interference" and "to national independence and sovereignty" (UN Resolutions) "The United Nations Security Council Resolution 1397 of March 12, 2002 reaffirmed the vision of a Palestinian State." (UN Resolutions) This resolution stipulated that it saw the creation of a region in which the two states of Israel and Palestine lived side by side with secure and recognized borders. (UN Resolutions)

The Individual Right of Return for Palestinians in International Law

For over five decades Israel has refused to allow Palestinian refugees to exercise their right to return to their homeland on the basis of number of crucial arguments. These arguments are insufficient physical space, the wish to maintain the Jewish majority, state security and finally international law. The issue of international law is addressed here. The right to return was stipulated in the United Nations General Assembly Resolution 194 and it is this international law that Israel tries to repudiate. "Resolves that the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that 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 by the Governments or authorities responsible" (Palestinian Refugees and the Right of Return: An International Law Analysis)