The Importance of Studying the Position of Israel under International law

By Andrew Tucker, Director at thinc.

Every day, media around the world report on the “illegality” of Israeli settlements, and the obligations of Israel under international law to withdraw from the “occupied Palestinian territories”. Time again, Israeli presence in the “Palestinian territories” is claimed to be an “obstacle to global peace”, and as a result all states are required not to recognize those illegalities, and are even obliged to ensure that they stop.  Such  statements are repeated time and again in the UN organisations like the General Assembly, the Security Council and UNESCO, and are often picked up and repeated by religious bodies like the World Council of Churches. Many national governments, following those statements, are committed as a matter of foreign policy to condemnation of the illegality of many of Israel’s activities and policies, and recognition of the State of Palestine on the basis of the “1967 borders”. Challenging these assertions is often regarded as politically incorrect and those who do so are subject to being shouted down as opponents of peace and justice.

Criticism at the UN

United Nations institutions have been leading the way in criticizing Israel and its policies, both within the accepted borders as well as in the “occupied” territories. Most recently, in December 2016, the UN Security Council adopted Resolution 2334 in which it referred to “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”; condemned “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions”; recalled “the obligation under the Quartet Roadmap, endorsed by its Resolution 1515 (2003) for a freeze by Israel of all settlement activity”; reaffirmed “that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law”, and demanded that Israel “immediately and completely cease all settlement activities” in these territories and “fully respect all of its legal obligations in this regard”; denied any “recogni[tion to] changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiation”; and called upon all States “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”.

This Resolution, in turn, referred specifically to the 2004 Advisory Opinion of the International Court of Justice (ICJ) on “The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (“the Advisory Opinion”) as support for these assertions.

International Law Issues Raised by Resolution 2334 and the Wall Advisory Opinion

Resolution 2334 and the “Wall Advisory Opinion” raise a number of very important and challenging international law issues that not only affect Israel/Palestine but potentially have far-reaching consequences for all states and international actors. Given that there are many other “occupied territories” in the world, and many other states allegedly breaching human rights, it would seem as if Israel is being singled out for special treatment. A quick look at the facts would support that view. Here are some facts:

• Israel is the only member of the United Nations that so far has not been eligible for representation in the Security Council.
• US Ambassador Samantha Power admitted in December 2016 that Israel has been the subject of inordinate discrimination in the UN General Assembly, which in 2016 passed 18 resolutions directed against Israel. Outgoing UN Secretary-General Ban Ki-Moon confirmed this in his final speech by saying that the U.N. has a “disproportionate volume of resolutions, reports and conferences criticizing Israel,” and that “in many cases, rather than helping the Palestinian cause, this reality has hampered the ability of the U.N. to fulfill its role effectively.”
• Israel has been and still is the object of a disproportional criticism by UN Human Rights institutions. Thirty percent of the resolutions concerning specific states adopted by the UN Human Rights Commission in the forty years of its existence were against Israel. In the last few years this percentage was even 50%. Israel is the only country that warrants a dedicated place on the agenda of the UN Human Rights Council. U.S. Ambassador to the U.N., Nikki Haley, criticized the UN Human Rights Council (UNHRC) for what she believes is a biased approach. In an opinion piece for the Washington Post, she said that “the council must end its practice of wrongly singling out Israel for criticism.” “When the council passes more than 70 resolutions against Israel, a country with a strong human rights record, and just seven resolutions against Iran, a country with an abysmal human rights record, you know something is seriously wrong,” she wrote.
• A number of leading specialists in the field of international law ardently promote the view that Israel is one of the world’s foremost infringers of international law. An army of current and former prominent politicians and theologians spare no effort to publicize the view in the media that Israel is guilty of serious breaches of international law, and even that Israel and its leaders should be prosecuted for crimes against humanity. Prominent non-governmental organizations (NGOs) such as Amnesty International and Human Rights Watch devote proportionally more attention to alleged human rights offences in Israel and the Palestinian territories than any other nation. It cannot be a coincidence that both Human Rights Watch and Amnesty International’s single largest donor, the “Open Society Foundation”, is a body created and funded by George Soros, an avowed critic of Israel. (Human Rights Watch received a $100,000,000 pledge by Soros.)
• A plethora of NGO’s have been established to promote the cause of the Palestinians and condemn Israel for breaches of international law, many of which receive significant funding from Western nations – i.e. Western governments – and institutions. A number of NGO’s dependent on government funding have become, de facto, tools for certain governments in the pursuit of their foreign policy objectives to destroy the Jewish state of Israel.

‘Palestine’ and the Requirements of Statehood under International law

In all of this, the reference to “international law” by itself has become problematic. Leading law professors and other scholars are even questioning the philosophical foundations of international law claiming “that since states are motivated primarily by self-interest, compliance with international law is nothing more than high-minded talk”. Recognition and acceptance of international judgments become, to many a nation, conditional depending on the judgment. Many are questioning whether the international legal system is even capable of promoting and protecting the rule of law – which is a foundation stone of all civilized democratic societies, and without which even highly sophisticated legal regimes become instruments of dictators.

An example of this is the fact that in 2015 “Palestine” became the 123rd state party to the Rome Statute of the International Criminal Court (ICC). This was the result of the Palestinian campaign supported by the Arab world to have Palestine admitted to the United Nations and other international institutions, thereby “paving the way for the internationalization of the conflict as a legal matter, not only a political one. It would also pave the way for us to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice. ….” Not only is it doubtful that “Palestine” satisfies the requirements of statehood under international law, but according to the Statute’s principles, Palestine, like any ICC member-state, must ‘exercise its criminal jurisdiction over those responsible for international crimes’ (Rome Statute 1999, Preamble). This can hardly be the case given that the Palestinian-Israeli Interim Agreement on the West Bank and the Gaza Strip 1995 limits the jurisdiction of the Palestinian Authority, including its criminal jurisdiction. Needless to say that, conversely, Israel strongly opposes membership in the ICC. The question of Palestine’s state- or non-statehood characterizes and continues to dominate discussions on Palestine and the ICC. Palestine’s membership of the ICC goes beyond the case of Palestine itself, having political and legal consequences for the ICC and international criminal justice more broadly.

Questioning the Legitimacy of Israel

These developments are at the very least remarkable when one considers that in 1922 – only some 90 years ago – the general opinion of states (as expressed in the League of Nations) was that Jerusalem and all the territories that are now normally referred to as “occupied territories” were in principle to be reserved for the establishment of a Jewish homeland. Granted, from the 1930s onwards, the world community explored dividing this territory west of the Jordan River – which was simply known as Palestine – into two separate states (one for the Jews, the other for the Arabs). But at no time prior to the early 1970s did other States question the “legitimacy” of the State of Israel, or consider the mere existence of Jews in the Old City of Jerusalem and the “West Bank” as illegal under international law, or the creation of an Arab-Palestinian state as mandatory as a matter of law.

The growing criticism of Israel in recent decades based on international law can be classified under four main headings:

• The first set of claims concerns the legitimacy of Israel as a “Jewish” state. The Jewish State of Israel – a state in which the Jewish people give expression to their own identity as a nation – is regarded as an apartheid, racist, discriminatory and colonial enterprise. Zionism is illegitimate. The state was established, and continues to exist, at the expense of the indigenous Arab population. The Mandate for Palestine was a colonialist initiative of European powers imposed at the expense of the indigenous population. The Jews ethnically cleansed Palestine of the Arab population (or at least intended to do so) in the conflict of 1947/49, and continue to do so. The Palestinian refugee problem was caused by the establishment of the State of Israel, and the refugees have a right to return to Israel. The Jewish State of Israel should be dismantled.
• The second kind of criticisms focuses on the status of the land, and notions of territorial sovereignty. The West Bank and Gaza “belong” to the Palestinians. Israel is illegally occupying “Palestinian” land which it took in 1967. Israel is accused of building settlements in order to effect “creeping annexation” of the territories captured in 1967. All Jewish settlements in Jerusalem and the West Bank outside the Green Line are illegal, and Israel’s refusal to remove them is an obstacle to peace.
• The third category of claims looks at the conflict from the perspective of the human rights of the non-Jewish Palestinians, who are regarded as the truly indigenous people and now simply referred to as “Palestinians”. Israel is infringing and obstructing Palestinian human rights – especially the right of the Palestinian people to self-determination and political independence. This line of argument was originally focused on challenging Israel’s presence in the so-called occupied territories, but has extended to undermine the legitimacy of the State of Israel as such.
• Finally, there is the question of the conduct of Israel’s leaders and army in combating terrorism. Israel, it is said, has been guilty of war crimes since 1973, in particular the use of force to eliminate combatants in neighboring territories. Of special concern are the invasions of Lebanon in 2006 and Gaza in 2008/9, 2012 and 2014, and the Flotilla incident in 2010.

The Term ‘Palestine’ or ‘Palestinian’ and its Change Over Time

Core to this change in the way we look at Israel and the Jewish people is the use of the term “Palestine”. Up until the mid 20th century, “Palestine” meant the whole of the area covered by the British Mandate – including all of what is today recognized as the state of Israel, plus Gaza and the West bank and even the territory covered by the state of Jordan – and all inhabitants of that land – including Jews – were referred to as Palestinians. Today, the name “Palestinian” is used in the media and by political leaders and international organizations, and even international jurists including judges of the International Court of Justice, to refer exclusively to the non-Jewish, Arab-speaking inhabitants of the land, with the implication that they alone are the rightful owners of (part of) the land.

Other International Law Issues in the Context of the Israel-Palestine Conflict

The discriminatory and imbalanced interpretation and application of international law to Israel/Palestine raises many questions which are very relevant to all international lawyers and states. This includes:

• what is the status of rights and obligations created under mandates and trusts, after such mandates or trusts have been terminated?
• Can international law prohibit certain ethnic groups from living in certain territories?
• Does the principle of “sovereign equality of states” allow states or other actors to directly or indirectly “delegitimize” and “criminalize” other states, or support non-governmental actors that seek to do so?
• To what extent does international law offer solutions to conflicts that the parties themselves seem unable to resolve, in the absence of consent to dispute resolution by all relevant parties?
• Does the international law of belligerent occupation apply to a territorial dispute between a state and a people that does not yet qualify as a state? Indeed, in what way does that body of law apply, if at all, if the dispute is rightly to be characterized as a dispute between a state and a people group claiming self-determination?
• Does the law of belligerent occupation prevent the occupying state from promoting economic activity in the occupied territories, or require an occupying state to withdraw all of its citizens from occupied territories, pending the reaching of a peace treaty?
• What is the relationship between the rights of states to territorial inviolability and secure borders, and the rights of minority people groups within those states to self-determination?
• How is the right of states to self-defence and secure borders to be balanced with rights of minority groups to self-determination, in the context of terrorism and incitement to hatred?
• What is the legal significance and effect of widespread recognition of a people as a “state” which on any analysis does not satisfy the objective criteria of statehood under international law?
• What is the significance of UN Charter values like friendly relations between states and the peaceful resolution of disputes?

An Initiative for International Cooperation

The Hague Initiative for International Cooperation has been established to help international lawyers and policy makers examine these and related questions, by tracing the way international law has been used and interpreted in the last century, and is done so today, with respect to Israel and its relationship with other nations.

One of the driving reasons for doing so is the belief that the disproportionate application of international law not only results in an unjust treatment of particular states and peoples, it threatens to destroy the credibility of the international legal system itself as an instrument capable of contributing to the maintenance of the rule of law, and ultimately to the creation of conditions more likely to advance rather than undermine real peace, prosperity and justice in this world. Granted, international law, being a creature of states, is inevitably influenced by moral and political choices, and it is impossible to completely separate international law from the political processes within which it is developed and applied. It is also axiomatic that the application of international law requires room for creativity and flexibility, and that there will inevitably be differences of opinion about the way moral choices should be made. Nevertheless, international law will only retain its credibility and usefulness as a set of international norms if it is applied fairly, objectively, reasonably and with full regard to both context and historic realities.

By providing and facilitating study of the application of international law to Israel/Palestine, The Hague Initiative for International Cooperation strives to –

• assist international lawyers to better understand the complexities and dilemmas involved in applying international law to  complex situations;
• stimulate and support those who seek to understand what international law is, the way it works, and its inherent possibilities and limitations, in the context of other peoples, states, disputes or territories; and
• assist political leaders, policy advisors and opinion-makers to understand, interpret, and apply international law as an instrument in the formulation of public policy.