The Palestinian – Israel Conflict

The development of this reference book grew out of the demand by a very determined young lady, Ms. Rona Hart. The proposition she proffered was that the public debate concerning the Israel-Arab dispute demanded that someone with a legal background and expertise respond in a competent and professional manner to press allegations that Israel has been acting illegally and contrary to international law in occupying the West Bank and Gaza Strip captured by Israel after the 1967 Six Days War.

My response at that time was that I was now retired and that in any case my legal expertise had been confined to international commercial law. This I told her did not extend to international public law about which I knew too little to be able to argue the case at a reasonable professional level. Her blithe response was simply – “Why can’t you study it? I’ll phone you in six months to see how you’re getting on.” With that she put down the phone.  That was five years ago! Not only she, but others have jumped on the wagon- including Rev. Geoffrey Smith. All have expressed the need for a resource, in a concentrated and compact form, which would enable students of the Middle East conflict and pro-Israeli advocates to respond more effectively to Arab propaganda and to correct biased or factually unsubstantiated criticism directed at Israel. While its size and scope has gone well beyond what I originally intended, I hope that this collection of material goes some way to fulfilling the needs of those who pushed me into preparing it.

I have long been of the opinion, however, that international law is really an amalgam of international relations, political science and social anthropology with a bit of ‘hard’ law thrown in to bind it together. And so it proved to be.  It became clear to me that the legal aspects of this conflict had to be placed in a historical and political context and that under examination the boundaries between the disciplines were very blurred. As a commercial lawyer used to dealing with law within definable limits, I have tried to integrate them. Whether I have succeeded remains to be seen.

For the most part, the non-legal material contained in this handbook is of a secondary nature, being based neither on unpublished documents nor on interviews with those who participated in the events described herein

In the process of preparing for this project I learned that an analysis of the legal aspects of Israel’s occupation of the West Bank, Jerusalem and Gaza, did not make sense if I just started from 1967. I had to go back to 1948. But even that was insufficient. In the end I opted- quite arbitrarily for the late 1800’s with the advent of something quite prosaic – a railway- because out of such small events, bigger movements can be seen to develop.

The next issue in writing, or – to be more accurate – in “compiling” this collection since very little in it is original, was to determine a potential target readership in addition to those who had dragged me into this mire in the first place.  I concluded that my work could best be used by those who advise opinion and decision makers as well as editors, their sub-editors and reporters in the visual and written news media for whom context and balance are crucial. All of them work under tremendous time constraints and pressure such that they frequently have neither the time, nor sometimes the inclination or energy, to go below the surface of an issue to a depth greater than is absolutely necessary to satisfy their immediate demands.

I have tried to provide the reader with a relatively short description and analysis of the main legal issues arising out of the long conflict within its historical and political context so that the events are logically linked and their relative importance is expressed in the paragraphing of the text. For example- the massacre of Sabra and Shatilah gained international prominence and a public figure – Ariel Sharon – was designated by the media as the villain of the event. I have placed the subject as being one of relatively minor importance at the fourth level of indentation. In reality, the massacre was just one of a number of such dreadful acts committed between warring militants in Lebanon. The real and actual commander of those who perpetrated the killing – was a Christian Philangist, controlled and manipulated by Syria. This personage has been either ignored or conveniently forgotten both by the media and those who are bent upon seeing Israel as the cause of, and an obstacle to, peace in the Middle East.

While this work was originally intended to view the conflict from an essentially Israeli perspective, during its composition I have naturally had to learn and understand the Palestinian position. This has caused me to view the situation somewhat differently from when I originally embarked on this project and to reconsider my opinion on a number of issues. I have therefore tried to bring into my analysis a fair balance of the claims made by both Israelis and Palestinians if my efforts are to be utilised by those for whom it is intended.

Gerald  M. Adler,
Haifa and Hove, August 2008

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.