The Perpetual Problem of Palestine–Israel: A Legal Analysis

The Nakba Never Ended – A Brief Overview of the Conflict 

The Nakba or Great Mishap, literally meaning the “catastrophe” in Palestine, refers to the 1948 independence of Israel, its subsequent declaration of statehood on Palestinian land, the Deir Yassin massacre and the ensuing forced displacement of over 7,00,000 Palestinian Arabs. This exodus was viewed as the perfect storm for the casus belli by the Arab world and sparked the first Arab–Israeli war in 1948. The war ended in 1949, with the green line demarcations based on Armistice Agreements between Israel and its neighbours Jordan, Egypt, Syria and Lebanon. With over half of the Arab inhabitants of Mandatory Palestine, as mandated by the League of Nations, expelled due to war, this led to a huge refugee crisis in the neighbouring states at the time (Morris 2006).

While Israel has been at constant loggerheads with the Arab world, it is within their state boundaries that they face the strictest of fights ever since the Six-Day war. During this war in 1967, Israel hit back hard and acquired territories far beyond the Armistice lines from all of its Arab neighbours and has retained some of them ever since. The territories occupied were the Gaza Strip and the Sinai Peninsula (traded for peace after the Yom Kippur war) from Egypt, West Bank from Transjordan and the Golan Heights (two-thirds still withheld) from Syria. 

Latest tensions arose due to the eviction process in Sheikh Jarrah and the emanating damage to the Al Aqsa Mosque by the Israeli police. Clashes with the public made matters worse and a ceasefire was possible only after many days of relentless bloodshed. Many term Israeli occupation of territory as “belligerent,” especially when weighed on the scales of international and humanitarian law (Kretzmer 2012). It, therefore, becomes imperative to understand the conflict and subsequent actions from a legal point of view. 

International Law and Israel 

Occupation is defined as the effective control by a power over a territory to which that power has no sovereign title, without the violation of the said territory’s sovereignty. Regulation is required as the situation always implies a potential push back, since the administrative functions of a country are conducted by a foreign entity with no sovereignty over it. International law is instrumental in regulating the relationship between the occupied people and occupant power. 
The first source of law of occupation is the customary international law as defined in Article 38(1) (b) of the Statute of the International Court of Justice, “general practice accepted as law.” Although unwritten, it is binding on all states. Second are the Hague Regulations, flowing from the Hague Conventions held in 1899 and 1907. Hague Regulations 42 through 56 formed the substratum of the law on belligerent occupation. Instead of affording greater protection to life and liberty of people in occupied territories, the focus lies heavily on property rights. Third, the Fourth Geneva Convention 1949 (GCIV) contained sections dealing with the treatment of aliens by the belligerent power during an armed conflict and offered provisions for their (civilians) protection. Israel stood in violation of GCIV Article 43, para 6, “no occupying power shall deport or transfer parts of its civilian population into the occupied territory.” The de facto forced annexation of territory behind the fences, coupled with Israeli settlements built on Palestinian territory puts Israel in direct violation of GCIV. Lastly, the Additional Protocol to the Protection of Victims of International Armed Conflicts, 1977 (Protocol 1), which was annexed to the GCIV, offers safeguards for detained persons including repatriation or re-establishment. International law dictates that sovereignty in an occupied land is vested in the population under occupation, based on the rule of self-determination. Occupying power should manage public order and the civil life of the occupied people cannot be ignored. Further, an occupation can never be permanent or indefinite. As per these criteria, Israeli occupation does not pass the tests of international laws (Smuha 2014).

In 1979, Israel and Egypt signed a treaty of peace under which Israel agreed to withdraw from the Sinai Peninsula, but no agreement was reached on vacating the Gaza Strip. Though, in 2005, Israel unilaterally withdrew from Gaza Strip under its “Disengagement Plan Implementation Law,” yet the overall occupation did not end and renewed clashes intensified with the emergence of Hamas in the Gaza Strip. Curiously, Israel reserved the right to re-enter the Gaza Strip whenever a military need arose. A major breakthrough seemed to have been achieved with the signing of Oslo Accords in 1993, which entailed rights and responsibilities of both the parties and allowed the Palestinians a greater degree of autonomy through an interim Palestinian government in Gaza and Jericho. However, the peace objectives could not be achieved as disputes regarding Jerusalem and Israeli troop withdrawal could not be resolved, and after 2000, the region saw marked increase in violent clashes once again (United Nations 2005).

Approach of the Supreme Court of Israel, United Nations and the International Court of Justice

Considering thousands of petitions relating to acts by the Israeli authorities, the Israeli Supreme Court has definitely shaped the legal debates regarding occupation of Gaza and the West Bank since 1967. The Court in Tzemel v Minister of Defence (1983), stated that its jurisdiction stems from its statutory power and that it can pass orders on all bodies which perform public function under law covering acts and decisions of governmental authorities wherever they may take place.

The Court also interpreted certain integral principles of International Law concerning the conflict. Although Israel has not ratified Additional Protocol 1 to the GCIV, its Supreme Court in the Targeted Killings case (2007) and Fuel and Electricity case (2008) acknowledged that several provisions of the Protocol 1 enshrine the Customary International Law. In the Beth El case (1978) regarding the requisition of private land for the strategically positioned settlements, the Court, while relying on the widest possible ambit of Article 52 of the Hague Regulations, opined that occupying power had the responsibility to enforce public order and security in the occupied territory even when dealing with dangers from that territory towards the occupied territory. However, establishing strategically positioned civilian settlements, in order to facilitate defence in the area, was viewed as a military necessity, thereby justifying requisitioning of private land.

More recently, the Israeli Supreme Court adapted the threefold proportionality test developed in German public law. The three questions raised are whether there is a rational connection between the administrative act and its legislative purpose, whether it is the least invasive way of achieving that purpose and whether the benefit outweighs the harm caused to the interest of others. In the Beit Sourik case (2004), the Court went as far as stating that this test became the general standard in both domestic as well as international law especially concerning belligerent occupation. It is uncommon for states to recognise their hold over territories as “occupied,” however, Israel does recognise that the norms of belligerent occupation apply to its contested territories but the Supreme Court has avoided passing any substantive decisions as regards settlements till date.   

In 2003, the UN General Assembly under Article 96 of the Charter requested the International Court of Justice (ICJ) for an advisory opinion regarding the legal consequences of the 26 feet tall and 708 km long wall built by Israel in the occupied territory around East Jerusalem. The ICJ concluded that the construction of the fence/wall for security reasons as stated by Israel was nonetheless a violation of international law. Israel was alleged to have specifically violated the Hague Regulations and GCIV along with the UN articles on state responsibility. Israel’s self defence argument was struck down citing that the Palestinian territories were in fact occupied by Israel. This occupation was noted to be violative of the Charter and several UN resolutions which prohibit interference with territorial sovereignty and territorial annexation by force, thereby denying the right to self-determination to the people of Palestine (United Nations 2004).

In 2002, the ICJ while referring to the articles on Responsibility of States for Internationally Wrongful Acts, 2001, stated that the term “necessity” cannot be used by Israel to justify either the wall or the occupation and the same cannot be used to absolve the state from the wrongful acts done in violation of international law (Tams 2006).

To Be or Not to Be: An Existential Dilemma

Under Customary International Law, which regulates the existence of a new state, the Montevideo criteria are required to be met for a state. It entails having a government, a defined territory, permanent population and a capacity to engage with other states apart from independent control by the government over its territory and citizens (Davids 2012). In 2009, 138 out of 193 member states of the UN General Assembly voted to grant Palestinian state the legal status of an “observer state” from “observer entity.” If Palestine becomes a state, it is entitled to its rights under international law. Right of self-defence in the event of an attack from outside will be considered legitimate and it will get access to international courts such as International Court of Justice and International Criminal Court. After being granted the status of “observer state” by the UN General Assembly, there is a possibility that it may satisfy the required criteria of statehood even though the UN Security Council continues to block the move for an official member state. India’s recent statement at the UNSC supporting “The Just Palestinian Cause” is a sign that more and more countries seek to achieve lasting peace in the region and are supportive of the Palestinian people (Lakshman 2021).

In Conclusion

Israel, the occupying power, must be held to the same standards as other states. It must comply with international law and cannot continue to be absolved of its legal obligations. The international community must strive for protection for the Palestinian people in accordance with international humanitarian law. Flying rockets killed children on both sides and perhaps scarred an entire generation. As per the Book of Exodus in the Torah, the Ten Commandments were revealed to Moses atop Mount Sinai, one of which was “thy shalt not kill.” If only the faithful paused and heeded those words, there would be a lot more children playing today in the Promised Land.