International Legal Issues of the Arab-Israeli Conflict. An Israeli Lawyer’s Position

• Author: Robbie Sabel
• Position: Visiting Professor of International Law, Hebrew University, Jerusalem
• Pages: 407-422

Robbie Sabel. Visiting Professor of International Law, Hebrew University, Jerusalem. Ph.D (Jerusalem). Member of the Israel Bar. The author’s book, PROCEDURE AT INTERNATIONAL CONFERENCES: A STUDY OF THE RULES OF PROCEDURE AT THE UN AND AT INTER-GOVERNMENTAL CONFERENCES (2006) was awarded the Certificate of Merit of the American Society of International Law. The author wishes to express his thanks to Ms. Ariella Gild for her invaluable assistance in researching and writing this article and to Ms. Ellen Rosenberg for her cogent editorial comments. The author may be contacted at: msrobbie@mscc.huji.ac.il / Address: 107 Yasmin St., Mevasseret 90805 Israel.

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1. Introduction

International law has played a central role in attempts to solve the Arab-Israel conflict. Both Arab and Jewish societies are based on strict written legal codes and in bothPage 408 cultures great respect is given to legal matters. Both parties to the conflict tend to base their narratives, their information campaigns and negotiating positions on international law, on the premise that “legitimacy and lawful authority are key components of political power.”¹ Israel is an open pluralistic society so there is no one monolithic Israeli view and all this paper can attempt to do is to present some of the major international law issues from the perspective of one individual Israeli jurist. The paper first deals with the fundamental issues of: the right of self determination and Arab and Jewish nationalism; sovereignty over Palestine and the proposed Jewish national home; the territory allocated for the Jewish national home; the end of the mandate and Israel's declaration of independence; the borders of Israel and the status of the West Bank. The paper then examines some of the following issues in international law: occupation; Israeli settlements in the West Bank; international law as an internal element of Israel law; Arab refugees and the claim to a right of return to Israel; refugee property; the law of the return; the Israeli security fence and Israeli measures against Hamas in the Gaza Strip. The final section presents a vision for peace.

2. The Right of Self-Determination and the Arabic and Jewish Nationalism

Among the major international law issues involved in the conflict is the question of the right of self-determination. The author would maintain that international law recognize the right of self-determination of both the Jews and Palestinians.² The constitutive elements of a ‘people’have been defined as “a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance.”³ The Jews share a distinct identity which includes the Hebrew language, the Jewish religion, a complex legal code, national and religious holidays, common cultural icons, a body of literature, a shared historical narrative and a continuing sense of common destiny and people-hood. The Bible was written in Hebrew and is mostly set in the territory of modern day Israel. The Jews have a history of independence and self rule in the land of Israel going back thousands of years. During the long period ofPage 409 time, the territory has been subjugated by various empires but no people, other than the Jewish people, has ever had an independent state in the area. Jewish independence continued till 135 A.D. when the Roman Empire suppressed the Jewish revolt, exiled most of the Jewish population and renamed the area Palestine.⁴ Throughout the centuries that followed there always remained a Jewish population in Palestine and the majority of the population of Jerusalem has been Jewish for the last 200 years.⁵

The latter part of the 19^th century and early part of the 20^th century saw the growth of both Arab and Jewish nationalism.⁶ Arab nationalism was encouraged by the British Government as part of its campaign against Ottoman Turkey during the First World War.⁷ After the war, the independent Arab states of Iraq, Lebanon, Syria, Saudi-Arabia and Transjordan (now Jordan) were created. Palestinian nationalism, as a distinct aspect of Arab nationalism developed later; at first the Palestinian Arabs regarded themselves as part of Southern Syria.⁸ Although there were some manifestations of Palestinian nationalism at the beginning of the twentieth century, Palestinian nationalism fully formed after 1948 and further developed after 1967. The Palestinian Arabs are, however, nowadays universally accepted as a people entitled to the right of self-determination.

Zionism, that is, the Jewish national movement, sought to rebuild the Jewish national home within Palestine which at the time was a neglected corner of the Ottoman Empire.⁹ Large scale Jewish immigration to Palestine began in the 1880’s. The Jews settled mostly on purchased wasteland, sand-dunes and malarial marshes.¹⁰ Between 1919 and 1939, about 360,000 Jewish people immigrated. In addition, over 50,000 Arabs immigrated to Palestine from nearby Arab states, attracted by the improving agricultural conditions and growing job opportunities, mostly created by JewishPage 410 development of the land.¹¹

3. Origin and Evolution of the Middle East Conflict

A Sovereignty over Palestine and the Proposed Jewish National Home

The Turkish Ottoman Empire ruled Palestine from the Sixteenth Century until World War I. In its peace treaty with the Allied Powers following the war, Turkey relinquished any claim to Palestine.¹² In accordance with international law, as it was at the beginning of the Twentieth Century, the victorious allies had the right to dispose of territory ceded from the Ottoman Empire. Following an ideological shift away from colonialism and towards recognition of the rights of peoples to self-determination, however, the allies did not annex the territories but rather agreed to administer them according to a mandate to be negotiated with the League of Nations. The Council of the League of Nations, in its 1922 Mandate for Palestine,¹³ incorporated the principle of establishing a Jewish national home in Palestine, a principle that had been set out in an earlier unilateral British statement of policy known as the 1917 Balfour Declaration.¹⁴

The mandate of League of Nations by explicitly calling for the establishment of a Jewish national home in Palestine,¹⁵ recognized the right of the Jewish people to self determination in Palestine.¹⁶ The Preamble stated “recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.” [Emphasis added] The operative terms declared that: “[T]he Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home ... and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.”¹⁷Page 411 [Emphasis added] The mandate referred to the political rights of the Jewish people, but only to the civil and religious rights of the local Arab population. The background to this distinction was the idea that the Arabs would be exercising their political rights in the new Arab states bordering Palestine while Palestine was to be designated for a future Jewish national home. The mandate document stipulated that: “while ensuring that the rights and position of other sections of the population are not prejudiced, [The British Mandatory Authorities] shall facilitate Jewish immigration under suitable conditions.”¹⁸ Notwithstanding the instructions of the League of Nations, the British authorities, under Arab pressure, limited Jewish immigration to Palestine. The British restrictions on Jewish immigration continued even after 1938 while six million European Jews were being murdered in a systematic state-sponsored genocide by Nazi Germany. Ships carrying Jewish refugees were shuttled from port to port as no state was willing to grant them entry and many ships were forced to return to Europe. Notable exceptions were certain Asian states, including China which voluntarily gave asylum to many Jewish refugees. The Arabs by now had some twenty independent states. The realisation that no state was obliged by international law to grant asylum to Jewish refugees and that the Jews had no homeland of their own, other than Palestine, led to widespread international support for the creation of an independent Jewish state in Palestine.

B The Territory Allocated for the Jewish National Home

While encouraging the reestablishment of the Jewish national home in Palestine, the League of Nations, taking into account the existing Arab population of Palestine, ordered that the Jewish national home be created only in Western Palestine. This excluded the whole of Palestine East of the River Jordan, comprising two thirds of the original mandated territory of Palestine, from being part of the Jewish national home.¹⁹ This area, of Eastern Palestine, at the time called Transjordan, now comprises the independent Arab Hashemite Kingdom of Jordan, most of...