This article is written by Abhinav Anand, from DSNLU, Visakhapatnam. The article deals with the legal viewpoint of relinquishing Israel’s territory.
Table of Contents
Introduction
We have seen many conflicts in the world among countries or groups of countries. One such conflict is the Israel Palestine conflict. It began in 1917 and it is still ongoing. The parties in conflict have many issues to negotiate but every time one or the other way these issues remain stagnant and tension on the border of Israel and Palestine escalates. This article delves deep into the reasons of the conflict. It examines the stand of international organisations on the issue. It also analyses the legal position taken by the international players on the issue. It concludes by suggesting some constructive mode of negotiation that might result in amicable settlement of the issue.
Reason behind Israel Palestine conflict
These are the following chain of events that has led to the conflict between Israel and Palestine:
- The seeds of the conflict are in the well known “Balfour Declaration”. Under this declaration, the then foreign secretary Arthur James Balfour expressed his opinion of British support regarding a Jewish national home in Palestine. The lack of concern for the “non-Jewish community” i.e. Arabs led to prolonged violence.
- The Arab and Jewish violence erupted since this declaration was announced. Britain withdrew its forces after failing to control the violence. Britain has left the responsibility of improving the condition of the newly created United Nations. The United Nations presented a partition plan in which they separated the Jewish and Arabs in two different states. The plan was accepted by Jews but rejected by the Arabs.
- In 1948, the Jewish Declaration of Israel Independence prompted the Arab States to attack. At the end of the war, Israel took control over more than 50% territory as envisioned in the United Nations plan. West Bank and Jerusalem’s holy city was under Jordan’s control and the Gaza Strip was controlled by Egypt.
- Palestine Liberation Organisation was formed in 1964.
- In 1967 within six days of the Israel and Arab war, Israeli forces seized Golan Heights from Syria, East Jerusalem from Jordan and Gaza strip from Egypt.
- The United Nation Organisation granted Palestinian Liberation Organisation the status of observer and recognized Palestinians right to self-determination.
- Camp David Accords- The framework for peace in the middle east brokered by the United States set the peace talks between Israel and Palestine.
- In 1981 after a tussle, Israel effectively annexed the Golan but it was not accepted by the international community.
- In 1993 under the Oslo accords, Israel and PLO agreed to recognize each other officially and renounce the use of violence. The Oslo accord also established the Palestinian authority which got some autonomy in the Gaza strip.
- Israel started sending the Jews from Gaza but kept the control over the Gaza Strip.
- Hamas scored a victory in Palestinian Authority. The vote leaves the Palestinian parliament divide. After the result, there was separation of the President faction and the Cabinet faction.
- United Nations upgraded the status of Palestinian authorities “non-member observer states”.
- In 2014, Fatah and Hamas formed a unity government, though distrust remains between the two countries.
International legal opinion
International Court of Justice
In 2004, an advisory panel of the ICJ stated that Israel had breached its obligations under international law by illegally occupying the territories of East Jerusalem and West bank. Israel could not use the excuse of self-defence and necessity for occupying these areas as it amounts to gross violation of the International Laws. In its 2004 advisory opinion, the International Court of Justice had unanimously criticised Israel for constructing a wall in the occupied territory of Palestine. The court opined that the very act is in violation of Article 49 of the fourth geneva conventions which clearly prohibits the construction of any establishment in any occupied territory.
International Committee of Red Cross
The International Committee on Red Cross also declared the Israeli establishment as illegal. The ICRC expressly stated that such Israeli establishment is in violation of Article 49 of the Geneva Convention. It has also tried to form a momentum among the international leaders to reach a viable solution for this problem. But, Israel is in close contact with almost all the giant players on the international level, so the efforts of the committee have not left a good impact on the global leaders. Moreover, the conflict has deepened because the leaders were trying to negotiate on their own terms and conditions, leaving behind the needs of the bereaved people from the wars and the people who had to suffer from those wars for many years.
European Union
In 1980, European Economic Community declared in the Venice Declaration that settlements, as well as modifications in population and property in the Arab Territories, are illegal under International Laws. The European Union has time and again strengthened its position on this issue by criticising the forcible capture of Palestinian territory by Israel. European Union said it eroded the possibility of peace in the area and defeated the objective of International Law.
Legal perspective of the issue
Geneva Convention
The applicability of the Geneva Convention to all the territories occupied by Israel in 1967 is held with a remarkable degree of unanimity among International Actors. In 2004, the advisory opinion to the United Nations Security Council and International Court of Justice said that Article 2 of the convention applies to the Israel presence in territories occupied by them during the 1967 war. It is stated that Article 2 applies when there is an armed conflict between the contracting parties, regardless of the territories status in the International Law.
It is also argued that no territorial acquisition resulting from the threat or use of force shall be recognized as legal as per customary international law and defined by “Declaration on Principles of International Law concerning Friendly Relations among States in accordance with United Nation Charter”.
Article 49
Article 49(1) states that individual or mass forcible transfers or as well as deportation of the protected person from the occupied territory to the territory of occupying power or to that of any country occupied or not is prohibited regardless of their motive.
Article 49(6)
The article states that the territory shall not deport part of its own civilian population to the occupied territory. According to John Pictet of International Committee of the Red Cross, this clause was intended to protect the practice of sending the considerable civilian portion to the occupied territory with the motive to colonize the territory and gain political command over the territory.
Role of the United Nation to the mandate of Palestine
After looking into the state of affairs, the United Kingdom had placed a question as to the agenda of the United Nations General Assembly by invoking Article 10 of the United Nation Charter. The General Assembly power to deal with this issue was of discretionary and it is unclear also, and the Arab states contested on this also.
Article 75 of the United Nations Charter
The article says that the United Nation shall establish under its authority an international trusteeship system for the administration and supervision of such territories as may be placed thereunder by subsequent individual agreements. These territories are hereinafter referred to as trust territories.
United Nation competence in the supervision of mandate
Before the General Assembly adopted resolution 181(II) in 1947, the United Kingdom wished to withdraw from Palestine and terminate the mandate of Palestine rather than transfer the territory to the International Trusteeship System. The United Nations’ responsibility for mandated territories was unclear and disputed by the Arab States. It was claimed that with the dissolution of the league, the legal basis for mandate for Palestine had disappeared and consequently had come to an end. The United Nations had not succeeded to the League in the administration of the mandates. Only if and when the mandate is negotiated by a Trusteeship Agreement made with the approval of the General Assembly. After the approval by the General Assembly any competent organ of the United Nations can make a recommendation or proposal with regard to mandate territory.
International Law as an internal element of Israel
Israel is a democratic state and international customary law is automatically part of Israeli law. Israel has an established and well managed judicial system. The High Court of Israel has the authority to declare any decision of the government unconstitutional, if it is in violation of human rights. The Arabs of the west bank are not Israelis but the court also entertains their problem and helps them in getting amicable solutions.
Some 75% of the population in Israel is Jewish but it has people from every religion, so this society is multi-religious. The problem persists there is of the refugee crisis which is the consequence of the leader who rejected to negotiate for the betterment of both the country where people from different castes can survive.
Solutions: International enforcement measures
There are different methods that can be applied in the current situation to alleviate the crisis in affected areas they are as follows:
- The United Nation Chapter VII could be invoked to circumvent Article 51. Economic sanctions can be imposed, criminal liability can be imposed, prosecution via International Criminal Court, remediation via International Court of Justice, or increased international pressure to end the blockade in the affected areas.
- The humanitarian intervention may be achieved by combined state action in conjunction with the United Nations.
- The imposition of individual criminal liability under international criminal law.
- The economic sanction is the viable solution in these conditions. The trade agreements between different countries can be cancelled and it will affect the country. The country will also look forward to improving the condition.
- The case can be brought to the International Court of Justice. It is the Principal Judicial Organ of the United Nation. Israel can be sued in the United Nations as all members are the party to the United Nations. However, the jurisdiction of the International Court of Justice is limited to dealing with the “contentious issue” between the State and it can issue advisory opinions. Palestine may ask the ICJ for a non-binding advisory opinion authorised under Article 65(1) of the ICJ which state that “the court may give an advisory opinion on any legal opinion or on any legal question at the request of whatever body may be authorised by or in accordance with the Charter of United Nations to make such a request”. While the opinion is non-binding, the previous advisory opinions are tremendous in interpreting international law and policy.
- By increasing the action of the international community in providing humanitarian relief and urging the conflicting parties to negotiate, this epoch making conflict could be solved amicably. The international community must strive to protect the life of people in the Gaza Strip and at the same time maintain peace and tranquillity in the world.
Conclusion
The existing condition in the affected territory has led to different kinds of problems in Gaza. Israel has been able to circumvent international law by its international relationships with key international nations important in the international legal order. The gross violation of human rights has been reported ever since the escalation erupted in the territory. Israel has advanced military and combatant equipment because of which it is easy for them to suppress any kind of movement against them. The law which has been laid down to protect the human right, aid in humanitarian crisis and ameliorate the tension between States has been used as a formula to evade any kind of accountability by Israel. The international community should reach a conclusion and pave the way for speedy negotiation in this conflict. This issue needs to be dealt with utmost sincerity as it is going on for many years.
References
- https://www.un.org/unispal/document/auto-insert-203742/
- https://www.diakonia.se/en/IHL/where-we-work/Occupied-Palestinian-Territory/IL–oPT/Applicability-of-IHL-in-the-oPT/
- https://www.sbs.com.au/news/the-israeli-palestinian-conflict-explained_2
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