The Palestinian – Israel Conflict

The above brief introductory discussion on Arab cultural characteristics, tribal spirit and loyalties, the unifying force of Islam and that of Palestinian identity raises a number of important issues which will emerge with greater prominence as the historical, political and legal aspects of the Arab-Israeli conflict develop.

• Palestinian Identity and Interest Differentiated from other Arabs
  Under Ottoman, British and Jordanian rule, the Palestinians had not displayed any characteristics significantly different from those of the Arab population in Jordan and Syria. It was only after the Six Days War that a significant Arab population came under Jewish-Israeli control and Arabs living in Judea and Samaria directly confronted the “other”- the Jews. The issue is whether without destroying the territorial integrity of the State of Israel, the Palestinians are a sufficiently differentiated people not only from the Israelis but also from the populations of the other neighbouring Arab states to justify and sustain a claim in international law for self determination as an independent viable state politically and economically.
• Concentration of Power
  As been shown above, in Arab society honour and power are intertwined and the exercise of power is decentralised. In the West, by way of contrast, the exercise of power is not only the exclusive preserve of state governments but in international conflicts, there are political moves towards extending the centralisation of the exercise of power in the hands of the United Nations or under the auspices. Such tendency appears to be at odds with Arab–Islamic values as seen recently in Afghanistan, Chechnia and Iraq.

• Arab Customs in the Initiation and Conduct of War Diverge from those Pertaining in the West
  

Even if the resolution of the conflict between Israel and the Palestinians is unattainable by negotiation, and the parties continue to resort to violence, given their cultural and religious differences, it is necessary to review afresh whether contemporary rules and customs of international law in relation to war and the pacific settlement of international disputes can be truly applied to a clash between Islam and the West.
As will be shown in Chapter VI and subsequent Chapters, the movement to establish the League of Nations and its successor, the United Nations, as new international institutions dedicated to pacific resolution of international disputes were led by Western statesmen. Although the customs and norms in relation to the initiation and conduct of war may now be seen as secular they nonetheless developed out of Christian western values, namely,

• • maintaining a distinction between combatants and non-involved ‘civilians’
  • military necessity, and
  • proportionality.

These values form the bedrock of western military culture but they have no express parallel in Arab tribal ‘military’ culture and tradition. There, the bearing of arms is considered a sign of masculinity in the protection of personal, family and tribal honour, as are their women and children.

However, in confronting a non-Muslim enemy, war –  Jihad – expresses a religious rather than a nationalist objective. Persons who do not submit to the dominance of Islam may become legitimate targets: combatants do not appear to be differentiated from non-combatants; males are slain while females are taken into captivity for purposes of reproduction to maintain the strength of the tribe or clan.

A recent Arab declaration on the subject of Jihad declares

“the sanctity of the blood of women, young children, and elderly infidels is not absolute. There are cases under which it is permitted to kill them, if they are part of a nation of war….[I]f only one of these circumstances holds true, then he must permit the operations because the circumstances are not conditional upon fulfilling all of them, but only one will suffice. …
Muslims are permitted to kill infidel innocents reciprocally; if the infidels are targeting the women, the young children and the elderly Muslims, then it is permissible for the Muslims to act reciprocally, and kill just as they were killed. in Jenin, Nablus, Ramallah, and other places”
(Communique from Qu’idat al- Jihad Concerning the Testaments of the Heroes and the Legality of the Washington and New York Operations, April 24, 2002, in David Cook, Understanding Jihad, U of California Press, 2004, pp 175 et seq.)

• The objectives of fundamentalist Islam are in conflict with the Western notion of the illegality of resorting to war except in self defence or in accordance with UN Security Council resolutions. For Islam, a higher value is the submission of all peoples to the will of Allah which is to be achieved by jihad if necessary.
  (Muhammad And The Treaty Of Hudaybiyya, http://www.answering-islam.org/Silas/hudaybiyya.htm; Holy Prophet’s Life, Joint Conspiracy of Qoraish and Jews and Ghazwah Ahzab http://www.anwary-islam.com/prophet-life/holly-p-13.htm ;see also http://www.historyofjihad.com/ )
  See particularly David Cook, Understanding Jihad, University of California Press, Berkley

Even the accepted Western principle that agreements and international pacts are to be observed by all parties is in conflict with Islamic tradition and values. Islamists who, for the time being, may be unable to overcome stronger infidel opponents and decide therefore, for strategic reasons, to enter into a truce or even a peace agreement with such opponents, are permitted by Arab cultural and religious tenets to breach that agreement if at some later date the earlier Islamists’ position of weakness is reversed to one of superiority. See Treaty of Hudabeya http://www.witnesspioneer.org/vil/Articles/companion/19_ali_bin_talib.htm;
Denis MacEoin, Tatical Hudna and Islamic Intolerance, Middle East Quarterly, Summer pp.39-84 http://www.meforum.org/article/1925 )

Thus, to what extent should Israel rely on Arab promises and solemn undertakings?

Assuming that the European and Western powers see themselves as possessing a unified western-orientated cultural system and identity and wish to differentiate themselves from other peoples in the Middle and Far East – a questionable assumption today – they view Israel as a Western oriented nation and expect her act as such. In so doing she in direct confrontation with the cultural norms of the Arab peoples and is the European vanguard against Islamic expansion. In a regional and local military confrontation with Arab states and with the Palestinian population in the Territories, she is expected to abide by Western international customary and conventional laws of war even if her enemies do not.

Given the above factors it is difficult to fathom why Israel encounters so much opposition from a number of Western states. It may be due to an unfounded naïve belief and myth that all the conflict between the West and the Arabs is due Israel’s illegitimate birth and her continued existence. Perhaps most of the answer can be found in the West’s voracious need for Arab controlled oil the necessity for securing untrammelled access to its sources.

Israel, as a small and western-oriented Jewish state lying within dar Islam but dependant to a large extent for her continued security on the support of the United States, seems to constitute an impediment to the realisation of Western interests and can therefore be sacrificed in the arena of public opinion

In contrast to Arab society, public opinion in Western democratic societies exercises a powerful influence in governmental and non-government organisational decision-making. Public opinion is moulded by public relations, information and propaganda campaigns operating overtly and covertly in Western civil society. “Acting contrary to international law” has become a mantra in media communications employed by one antagonist to advance its political platform or objectives and to malign or destroy those of its opponents. Initially dominated by the ‘fourth estate’ comprising newspapers, radio and television, this arena is slowly being eclipsed by emergent interactive internet websites and linkages. They have the potential to exert a major influence on national decision-making not only in western democratic states but have even more potential in promoting the free flow of information in non-democratic states.  On the other hand both news media and cyberspace activists are not accountable to any institution or constituency for the veracity of their communications.

In evaluating an assertion that a State, such as Israel, is “acting contrary to international law,” the addressee must be in a position to know not only the factual background on which the accusations are based but also what provisions of international law are allegedly being violated. It is often the case that the specific international legal proposition in question is inapplicable in the territory where an apparent violation has occurred or that the State alleged to be in violation has not acceded to the treaty or Convention in which the norm or principle was formulated; thus opening the way for uninformed and unjustified condemnation.

With the foregoing considerations in mind, Chapter VI is designed to assist and hopefully enable the reader to assess the validity of what is alleged to be in accordance with or contrary to international law or, if this is impossible, it is hoped that the material presented may place the reader at least in a better position to question the assertion being advanced.

However in order to assess the legality of subsequent Israeli actions, it is still necessary to examine in a little more detail the political, demographic and economic conditions which prevailed in Palestine prior to the end World War I and to assess their effect upon Palestinian Arab claims of the being dispossessed of their land by early Jewish land acquisition and immigration. These claims are examined in the Chapter IV following next.

Israel’s frame of reference and perception of the conflict is different from that presented by the Palestinians. She claims that the Jewish people, whom she represents in part, has had an unbroken connection with ‘Eretz Yisrael’ – the Land of Israel from before the rise of Christianity and Islam, notwithstanding their exile by the Romans in the first century.

“Judea capta est,”  inscribed on the arch of Titus (“Judea has been captured”)  memorialises the Roman victory over the Jews, their majority forced into exile, taken into slavery and later dispersed throughout the Roman Empire for over two millennia. Throughout this period, they were denied both freedom of national self-expression and the claim of their “right of return” to re-establish a patrimonial sovereignty in their homeland.  For the remnant in Palestine, there followed subjugation and suffering under the oppressive yoke of successive conquerors: Byzantine, Arab, Crusader, Mameluke and Ottoman. The Jewish remnant was a spent force, militarily and politically, but it nevertheless maintained a physical and spiritual continuity in and with the Land.  Acting as caretakers, Jews maintained a vigorous religious presence, mainly in urban centres throughout the country (see Chapter II below), praying for the “return unto Zion”, a day on which Jewish national sovereignty would be, prophetically, restored as it had been under the previous Babylonian exile. That day was to come on November 29, 1947 when the UN General Assembly passed Resolution 181.

Until the eighteenth century, the Jewish people in the Diaspora were seen both as a religion and as a nation.

• As a nation they made attempts to return to the Land but were frustrated by conflicts from emanating from without.
• As a religious group, they were compared to Christians and Muslims and as a nation, they could be compared to Turks or Frenchmen.

However, civic unity in Christianity and in Islam especially, was based on uniformity of belief, within neither of which could Jewish destiny be fulfilled. This made it absolutely impossible for a Jewish group to be anything other than second-class subjects.

It needed the sixteenth century reformation in Christianity and the rise of the nation state in the eighteenth, for Jewish religious imperatives to be redirected and asserted towards the possibility of reviving the notion of a Jewish State in Palestine. However, religious motivation from within was insufficient to meet the economic and political challenge. It required the addition of European anti-Semitism later in the nineteenth century to motivate secular and emancipated Jews to organise politically – in a decentralised movement, meeting centrally at its annual congresses – to advance their political objective for matters.

The emergence of the possibility of the establishment of Israel as a Jewish State came to materialise as a consequence of World War I which saw the disintegration of the Ottoman Empire and World War II which saw the decline of the British Empire. As central power became less effective, so burgeoned the demand for self-determination and the illegitimacy of colonialism backed by American democratic ideals.

In the political restructuring of Europe and the Middle East following the conclusion of WWI, the articulated voice of the Jewish people made itself heard among the nations as did the voices of the Arabs. Although both Zionists and some Arab leaders saw the possibility of working together in regional co-operation, the Great Powers had their own interests in the Middle East to consider:

• America wanted political stability in the region, secure access to oil and to replace Britain as the Great Power;
• France sought to protect what was left of her commercial and cultural interests despite the fact that she played no significant part in the war for control of the Middle East;
• Britain maintained her belief in a continuing need to be able to control – a little or no cost to herself – the Suez Canal to ensure a secure passage to India, access to the Iranian and Syrian oil fields and her commercial interests in the Far East.
  Co-incidentally she also had an interest in containing the expansion of French influence in the region.

For the Allies, an independent and unified Arab Middle East did not bode well if they were to achieve these diverse and conflicting objectives.  To the extent that Jewish interests coincided with those of the Great Powers generally, and of Great Britain in particular, they were accommodated, but in so doing they were played off against Arab tribal sensibilities and Islamic religious principles.

Israel’s contemporary claim to legitimacy is premised on:

• an uninterrupted physical, spiritual and cultural connection between the Jewish people and the Land of Israel since before the second century – as expanded in Chapter II;
• involuntary dislocation and dispersion  of the majority the Jewish people from the land since the second century;
• the disintegration of the Ottoman Empire after World War I which gave the impetus to the rise of both Jewish and Arab nationalism;
• the victory of the Allies over the Central  powers and the disposition of the conquered territory in accordance with a new regime introduced into international law – mandate or trustee territory;
• the Balfour Declaration expressing its support for the establishment of a Jewish homeland in Palestine.
• The Treaty of Sevres 1920, under which Turkey ceded its sovereignty over Palestine and accepted the Balfour declaration with its incorporation into the Mandate as an international agreement. This formed a constituent part of the Middle East post war settlement between the Allied and Central Powers in which Turkey, Britain and the United States participated and in which both Jews and Arab expressed their interests.
  

Notwithstanding attempts by the British mandatory power to frustrate the clear objectives of the Mandate, and despite the fomentation of Islamic religious opposition against the establishment of a Jewish homeland, the Jewish people succeeded in creating a viable political and economic entity.

British financial investment and a colonial style of government coupled with an infusion of Jewish capital, migration and labour brought a higher standard of living to the Palestinian population – both Arab and Jewish –  than that enjoyed in the neighbouring states.

However, the economic advances in Palestine attracted Arab immigration from outside of its borders.  Rather that regulating such Arab migration, the British Administration, contrary to the terms of the Mandate, placed restrictions on Jewish immigration to Palestine which prevented the creation of a Jewish majority in cis-Jordan – Palestine;

• Arab violence fomented by anti-Zionist elements in the British Administration, and the continued demographic Jewish imbalance made more favourable to the Arabs by British immigration policy ultimately led to violence between Arab and Jew.
• The Mandatory found its solution in a proposal to partition the territory lying to the west of the Jordan River between Arab and Jew while retaining certain strategic locations to itself.
• The Jews accepted the Mandatory’s partition proposal but the Arabs rejected it.

World War II intervened, creating the Holocaust.

Although this tragedy gave a big impetus towards partition, British policy remained steadfastly against any change in its Palestinian immigration policy, with the result that Jews became actively obstructive to continued British rule, both civilly and militarily:

• Britain, unable to control the violence directed against her Administration, referred the matter to the United Nations General Assembly;
• The Assembly recommended in Resolution 181, passed on November 29, 1947, the partition of Palestine into two states, one Jewish and one Arab.
• Again the Jews accepted the proposal, but the Arabs rejected it.

Britain decided to surrender its mandate. In the process of the British military withdrawal, armed conflict broke out between Jews and Arabs with the British Administration publicly taking a more or less neutral stand while surreptitiously assisting the Arabs.

On the day following the final British withdrawal on May 14, 1948:

• The Jewish population of Palestine declared themselves as the self governing state of Israel in accordance with the UNGA Resolution and the major powers (excluding Britain) accorded her international recognition.
• The Arab Palestine failed to follow the same course.

Instead,

• contrary to international law, five Arab armies invaded the nascent Jewish State but failed to eliminate her;
• Jordan became an occupying power of the West Bank (Judea and Samaria including Jerusalem) and Egypt took control of the Gaza strip.
  

In the process,

• between 600,000 and 800,000 Arab Palestinians left or abandoned their homes on the advice of the Arab leadership, or for fear of Jewish brutality which failed to emerge, while a number Palestinians were driven out in the military confrontation between Jewish forces and the Arab armies;
• the Jewish population living in East Jerusalem, the West Bank (Etzion Block) and Gaza were killed or evicted; and
• the surrounding Arab states evicted, without compensation, their Jewish population which numbered over 800,000 in consequence of the establishment of the Jewish state.
  

A humanitarian problem was thus created:

• the majority of Palestinian Arab refugees found themselves languishing in camps located in the Jordanian controlled West Bank and Egyptian controlled Gaza or in camps located in Jordan, Lebanon and Syria.
• Apart from Jordan, Palestinian Arab refugees were neither offered citizenship nor otherwise absorbed by their host states.
• The new State of Israel absorbed all the Jewish refugees driven out from the Jerusalem, West Bank and Gaza, and those Jews evicted from the Arab states.
  

The United Nations ultimately arranged a cease fire between the belligerents:

• Israel organised itself as a civic society within the cease fire-lines as determined in Armistice Agreements made between herself and the invading states- Jordan, Lebanon, Syria and Egypt respectively, while reserving her claims over the territory held by Jordan and Egypt.

However:

• the Armistice Agreements were constantly breached by Arab terrorist infiltration emanating out of Jordan and Egypt; and
• Egypt breached international law and the Armistice Agreement with Israel by blockading the Straits of Tiran to Israeli shipping intermittently from 1948 until 1956, thereby prevented free access to the Israeli southern port of Eilat, as well as closing the Suez Canal to all shipping bound for other Israeli ports. http://www.mfa.gov.il/MFA/Foreign+Relations/Israels+Foreign+Relations+since+1947/1947-1974/FREEDOM+OF+NAVIGATION-+INTRODUCTION.htm ;
• The blockade was broken by a joint British, French and Israeli attack on the Suez Canal in 1956 in response to Egypt’s nationalisation of the international waterway. As part of the withdrawal arrangements, UN peace-keeping troops were stationed along the Egyptian border with Israel while the maritime nations gave their undertaking to support Israel should Egypt seek to re-impose its blockade.
  

In 1967,

• Egypt re-imposed its maritime blockade in the Straits of Tiran and closed the Canal to Israel shipping;
• the maritime nations failed to implement their guarantee,
• the UN removed its peace-keeping force; and
• the armies of Egypt, Syria and Jordan were poised in offensive mode against Israel which was threatened with annihilation.
  

Israel’s appeals to the Security Council were in vain and on June 5, 1967 she executed pre-emptive self defensive strikes against Egypt, and Syria and retaliated against Jordanian attack, in what later became known as the “Six Day War.”

• Israel overcame the immediate threats facing her and gained control and occupation of
  • the previously held Jordanian positions on the West side of the Jordan River including Jerusalem;
  • Egyptian occupied Gaza Strip and Egyptian sovereign territory in Sinai;
  • Syrian sovereign territory in  the Golan Heights
• The Arabs rejected Israeli offers of peace at the Khartoum: “no negotiation; no recognition and no peace.”
• The United Nations Security Council passed UNSC Resolution 242 which was accepted by both Jews and Arabs. Unfortunately the terms of the Resolution have been interpreted differently by the parties.
  

With intensive American support, extended peace negotiations took place between Israel and her adversaries in the 1980’s and a cold peace reigns between Israel and Egypt which regained all of  the territory it lost in 1967.
A slightly warmer peace pertains with Jordan which relinquished in favour of the Palestinians all its claims to the territory lying to the west of the Jordan River.

In taking military control of the West Bank and Gaza, over which no state has exercised legitimate sovereignty since the Ottoman defeat in 1920, Israel has the best claim to title based on the Treaty of Sevres 1920, Article 95; Palestine Mandate 1922, Article 8 and on the UN Charter, Article 80.

• Based on the above international agreements and also consistent with the laws of belligerent occupation Israel, has also erected a number of military outposts in the West Bank territory to maintain the peace as well as establishing a number of civilian settlement blocks in the West Bank. Some of these have been erected on land owned by Jews prior to 1948 and others on undeveloped and unoccupied public or waste land owned by the Ottoman government in 1918.
• While not illegal, a significant number of settlements have created a political obstacle to peace.
  

Following secret direct negotiations between Israel, led by Yitzhak Rabin, and the PLO, headed by Yassir Arafat, the parties succeeded – with Norwegian and American assistance – to agree the Oslo Accords in 1993 which included

• mutual recognition of the opposing party;
• an undertaking by Israel for a transfer of civilian powers to a Palestinian Authority, the members of which were to be chosen by Palestinians within the West Bank (including East Jerusalem) and Gaza in free and democratic elections;
• an interim arrangement on Palestinian self government by the Palestinian Authority for a period of five years; and
• an undertaking to commence negotiations on a number of “Final Status” issues within three years of the commencement of the interim agreement- from which such issues had specifically been excluded.

The Accords provided for and resulted in:

• recognition by Israel of Palestinian aspirations and of the PLO as representing the Palestinian population in negotiations;
• PLO recognition of Israel as having a legitimate existence;
• An undertaking by the PLO to cease violence and to resolve its conflict with Israel by negotiation;
• the admission into Gaza and the West Bank from their exile in Tunis, of the PLO political leadership and military of elements of  its organisation in the form of a “strong police force” to maintain the peace and suppress terrorism in Palestinian self governing territory;
• a withdrawal and redeployment of Israeli forces from a large proportion of the Palestinian urban territory it captured in 1967; and
• Palestinian self rule exercised over approximately 95% of the Palestinian population;
  

Unfortunately the parties have been able to resolve the political issues which appear to remain outstanding between them- sovereignty over Jerusalem, the extent of territorial; adjustments secure borders and the “Right of Return” of Palestinians refugees. Neither has there been a cessation of Palestinian violence.  In 2000, final status negotiations between Israel and the PLO broke down and the Palestinians resorted to armed attack on Israel’s civilian population waged by suicide bombers recruited, trained, armed and operationally directed by Hamas, an organisation linked to the Muslim Brotherhood and Fatah, one of the militant wings of the Palestinian Liberation Organisation.

To counteract these attacks Israel has:

• initiated targeted killings against the Palestinian terrorist leadership;
• temporarily re-entered a number of  Palestinian cities in 2002 to eliminate  terrorist nests and destroy bomb building factories;
• attempted to prevent the smuggling of weapons and armaments through subterranean tunnels between the Gaza Strip with Egypt; and
• commenced the erection of a terrorist security barrier situated mainly on  previously held Arab land on the West Bank beyond the 1948 Israeli-Jordanian cease fire lines, the route of which has been adjusted many times to minimise the personal and economic hardship to Palestinians.

The barrier has dramatically reduced Israeli civilian casualties but its erection has brought international condemnation and an adverse advisory non-binding opinion issued by the International Court of Justice (ICJ). The opinion has, however, been subjected to serious professional criticism as being politically motivated and based on incorrect factual information. The ICJ opinion is inconsistent with a number of rulings made by the Israel Supreme Court based on detailed and actual facts on the ground.

International intervention in the search for a resolution to the conflict has been renewed as part of a global concern over continuing instability in the Middle East generally which has given rise to fears of an interruption or even a cessation in oil supplies to the West and the bringing into question by certain Middle Eastern powers of Israel’s very legitimacy.

The United States, under its own auspices and those of the United Nations, the European Union and Russia initiated a new peace proposal – “A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict” (Road Map) in 2003. Thus far, the initiative has failed to produce any concrete results towards a rapprochement between Israel and the Palestinians.

In order to reduce continuing military confrontation between Israel and Palestinian militants, Israel took unilateral action and withdrew her military occupation and civilian settlements completely from the Gaza Strip in 2005, leaving the physical infrastructure and economic assets in the form of extensive greenhouses available for Palestinian use.

Palestinian elections held in 2005 brought victory to the Hamas party, whose declared political and military objectives are the elimination of Israel as an independent Jewish State. Since then an internecine conflict has been carried on between Hamas and Fatah for control over the Palestinian Authority, its assets and political largesse funded from abroad.

The Gaza Strip, now completely controlled by Hamas, is currently (2008) being employed both for smuggling weapons and ammunition from Egypt contrary to the Oslo Accords and as a staging area for the launching of short and medium ranged rockets directed against Israel civilian targets located inside Israel ‘proper’ i.e. well within the ‘green’ 1948 cease fire line.