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INTERNATIONAL
JOURNAL FOR LEGAL
RESEARCH & ANALYSIS
(ISSN 2582 – 6433)
VOLUME 2 ISSUE 2
(June 2021)
Email –
editor@ijlra.com
Website – www.ijlra.com
56565656565651
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Volume 2 Issue 2 | June 2021 ISSN: 2582-6433
DISCLAIMER
No part of this publication may be reproduced or copied in any form by any means
without prior written permission of Managing Editor of IJLRA. The views
expressed in this publication are purely personal opinions of the authors and do not
reflect the views of the Editorial Team of IJLRA.
Though every effort has been made to ensure that the information in Volume I
Issue X is accurate and appropriately cited/referenced, neither the Editorial Board
nor IJLRA shall be held liable or responsible in any manner whatsever for any
consequences for any action taken by anyone on the basis of information in the
Journal.
Copyright © International Journal for Legal Research & Analysis
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Volume 2 Issue 2 | June 2021 ISSN: 2582-6433
EDITORIAL TEAM
EDITORS
Ms. Ezhiloviya S.P.
Nalsar Passout
Ms. Priya Singh
West Bengal National University of Juridical Science
Mr. Ritesh Kumar
Nalsar Passout
Mrs. Pooja Kothari
Practicing Advocate
Dr. Shweta Dhand
Assistant Professor
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ABOUT US
INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANLAYSIS
ISSN
2582-6433 is an Online Journal is Quarterly, Peer Review, Academic Journal,
Published online, that seeks to provide an interactive platform for the
publication of Short Articles, Long Articles, Book Review, Case Comments,
Research Papers, Essay in the field of Law & Multidisciplinary issue. Our aim
is to upgrade the level of interaction and discourse about contemporary issues
of law. We are eager to become a highly cited academic publication, through
quality contributions from students, academics, professionals from the
industry, the bar and the bench. INTERNATIONAL JOURNAL FOR
LEGAL RESEARCH & ANALYSIS ISSN
2582-6433 welcomes contributions from all legal branches, as long as the
work is original, unpublished and is in consonance with the submission
guidelines.
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ISRAEL-PALESTINE CONFLICT AND ITS RELEVANCY IN THE
PRINCIPLES OF INTERNATIONAL LAW\
By : Payal Mishra
ABSTRACT
When it comes to contemporary international law, the dispute of Israel and Palestine ranks as the
most widely discussed conflicts of all. Besides political debates on condemning each other of
bearing the responsibility for this long-decade tragedy, questions on who is ultimately the
rightful owner of the “Holy Land”, poses a variety of difficult debriefing legal issues. Whether
the Jews and Palestinians are entitles to self-determination in the historical areas of Palestine,
along with the status of the intermediate area, known as the West Bank, is yet to be determined.
The right of self-defense against irregular violence, characterization of the Gaza strip and the
proportionality in the asymmetric warfare is still unsolvable. In order to give insights into the
topics, the paper is split into four distinct chapters; elaborating the issues with the help of a short
introduction and brief historical facts. Following which there has been a discussion on the
application of international legal instruments, several charters, conventions, reports and opinions.
Last but not the least, the most recent facts of violence have been covered along with opinions to
let the readers have their own slant.
Keywords: International law, Israel, Palestine, self-determination, Conflicts, Jews, Arabs, West
Bank, Gaza
CHAPTER I
1.1 INTRODUCTION
Although conflict resolution and peacemaking are political more than a legal exercise, yet
international law has played a central role in solving conflicts among nation states. The Arabs
and the Jewish society are based on strict written legal codes and the legal matters are
equivalently looked upon. Usually, the parties to the conflict tend to base their narratives and
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negotiating positions through international law. But at times, they may relinquish the rights
granted under international law and particularly some "peremptory norms".
From the context of the Israel-Palestine conflicts, there are two such norms with its implications
for the territorial aspects, which is the principle of the right to self-determination and Arab-Jew
nationalism with respect to prohibition against the acquisition of territory by war. Along with
such norms, the other fundamental issues are of on the sovereignty of Palestinians, territory
allocated or proposed for the Jewish as their national home, the borders of Israel and the status of
the west bank, the right of return.
Additional to this the paper examines the international law issues such that of occupation, Israeli
settlement in west bank and also deals with the needs of the negotiations between the parties on
security arrangements, borders, settlements, the status of Jerusalem, refugees as well as water
issues. However, the solution cannot be solely based on international legalities because no
superior authority can impose their ideas upon the conflicting parties to resolve the issue due to
the vertical system of international law. Thus, to some extent degree of disagreement or
disregard can be expected. It is observed to be the longest conflict in the history which has been
addressed by the UN system as a result its agenda of 1945 still remains unresolved. The final
chapter impartially aims to present a vision for peace.
1.2 HISTORY OF ISRAEL & PALESTINE
Since the beginning of 1915, during the world war I, when the British, French and Arab
revolutionaries fought against the Ottoman Empire, the British asked for support from the Arabs
revolutionaries and in return promised them with the Palestinian area. The Arabs were easily
convinced in the want of a unified Arab country from Syria to Yemen. On the other hand, similar
promise was made to the Jews through the Balfour Declaration to help them create their own
Jewish Country near Palestine. The map of Palestine was formed in 1922 in the geographical
region between the Mediterranean Sea and the Jordan River which was in the hands of the
Ottoman Empire. Since the World War I to the UN Partition Plan in 1947, Palestine is marked as
a frequent conflicting and violent land.
The administration after being entrusted to the Great Britain, in November 1947, the United
Nations (UN) General Assembly voted to end the British mandate over Palestine. The General
Assembly of the United Nations adopted a partition plan by the Resolution 181 in order to allot
equal parts to the Arabs and the Jews. The territory was partitioned in three parts: Israel
(including West Jerusalem), the Gaza strip (then occupied by Egypt) and the west banks of
Jordan river. This resulted into an arm violence between the two groups of Jews and Arabs. The
war later spread and formed an international war with other Arab states known was the "Six-Day
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War". The Arab-Israeli War of 1967 radically changed the 1949 map and, along with it, the
political atmosphere in the Middle East Israel occupied the Gaza Strip as well as the West Bank.
As a consequence of the war, however, Israel's neighbouring states gradually withdrew from the
military struggle against Israel (though not before another major war in 1973), leaving it,
essentially, to the Palestinians themselves. The disengagement of the Arab states became
dramatically clear with the visit of Egyptian President Anwar Sadat to Jerusalem in 1977, which
eventually led to the Egyptian-Israeli peace treaty of 1979. The Palestinians, on their part, took
repossession of their own struggle. An independent Palestinian movement emerged, which
eventually-under the leadership of Yasser Arafat, as the head of Fatah-took over the Palestine
Liberation Organization (PLO).
The onset of the first intifada-the uprising in Gaza and the West Bank-in December 1987 made
the occupied territories the focal point of the Israeli-Palestinian struggle. The intifada was carried
out under the political slogan of ending the occupation and establishing a Palestinian state
alongside of Israel, which in effect became official PLO policy at the emergency meeting of the
Palestine National Council in Algiers in November 1988. This brough significant changes in the
political thinking of the Israelis and it persuaded them to think that the continuing occupation
was not tenable and that the Palestinians were indeed a people whose national movement had to
find some political expression if there was to be a peaceful accommodation between the two
sides.
The border lines endorsed by the PLO in the 1988 as a Historic Compromise for peace and was
accepted for future Palestine states. These borders were also recognized as the legal borders of
Israel. In 1993, Israel and Palestine were very close to drafting a peaceful solution and embarked
on a historic quest for peace after a year in 1994 which provided for the acknowledgement of the
sovereignty, territorial integrity, and political independence of the states of the Middle East.
Although the 1967 war created the conditions for resolving the conflict by a two-state formula, it
took a quarter of a century and many intervening events-including the Egyptian-Israeli peace
treaty, the Israeli settlement project in the occupied territories, the Lebanon War of 1982, the
intifada of the late 1980s, and the first Gulf War-before serious Israeli-Palestinian negotiations
pointing to the possibility of a two-state solution
But the peace treaty gets severe backlashes from Jewish fanatics in Israel and similarly the
Hamas group starts hating the PLO for compromising with Israel in order to bring peace. In
1996, the Hamas group not only boycotts the Palestinian election but also carries out suicide
bombings in Israel. As a result, the increase in tension makes situations worse between
Palestinians and Israelis.
Over the years, the hatred between the nations increases which gives rise to violent protests in
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and around the year 2002. More than 100 people die on both the sides of the border. They remain
skeptical of each of the communities and in order to protect its land, Israel starts building walls
around its settlements, encroaching upon Palestinian territories. The wall is declared illegal by
the International Court of Justice.
In order to calm the situation, in 2005 the Israeli government plans of disengagement from the
Gaza strip but retains control over its border. In the following years, tensions focus around the
Gaza strip mainly against the Hamas which came into power, who regularly fired rockets into
Israeli territories. The violence against both sides build up until 2014, when Israeli war destroys
50 thousand houses, 100 schools, dozens of hospitals and regional powerplants. A humanitarian
disaster was faced by the population in Gaza.
Although, under the Governments control, several Israelis settle in the Western Banks, the
Palestinians also occupy key areas of land including the Gaza Strip and West Bank. Several
international rights groups consider the respective settlements of illegal as the borders are not
clearly defined and such conflict persists even now. A substantive proportion of Israelis still
believe to find peaceful ways to resolve their land disputes with the Palestinians.
1.3 FUNCTIONS OF INTERNATIONAL HUMANITARIAN LAW IN THE ARMED
CONFLICT
The International Humanitarian Law paved few guidelines for the states to follow in armed
conflicts before and after the war. Two of the major functions were performed by jus ad bellum
and jus in bello, where the former refers to the laws towards justice in going to war and the later
refers to justice in the conduct of war or law in the war. Jus ad bellum discusses the objectives
behind a war whether it is initiated as a result of self-defense or for the protection of human
rights. Jus in bello discusses the governance of the actual conduct of hostility. In this regard,
question arises about the prolonged conflict between Israel and Palestine for about 72 years.
The major sources of jus ad bellum are in the UN Charter under Article 2(4) and Chapter VII,
which reads “All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any State, or in any other
manner inconsistent with the purpose of the United Nations.” Chapter VII refers to “Actions with
respect to threats to the peace, breaches of the peace, and acts of aggression”. Due to lack of
proper definition of the term “aggression”, there are many grey areas in the Israel-Palestine
conflict. Thus, dragging this complexity into international law. The Arabs are accused of
aggressing first against Israel, as it was a newly born nation state via the UN Resolution 181.
Whereas, the Arabs representing the Palestine accused Israel of illegally establishing a State in
the land previously owned by Palestine. In addition, Israel took the help of jus ad bellum to
justify its war as self-defense. Similarly, Arabs argued that the war launched by the Palestinians
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against Israel was also articulated in jus ad bellum.
Chapter VII failed to convict Israel under the jus ad bellum since the term “aggression stood in
favor of Israel in the Cold War between 1945-1990 because of the western nations and the US
who interpreted the same in the Arab-Israel wars. It is often seen Israel being protected by the
US veto power which is granted to them under Article 27(3) of Chapter V. In the process, jus ad
bellum was usually sacrificed in the case of Palestine. The conception of “One man’s terrorist is
another man’s freedom fighter” became popular in the world of politics. ‘Self-defense’ was
observed by real-politics as a fundamental cause of the Palestinian uprisings and no fine line
could be drawn between fight for freedom and self-defense. Also, the Hamas group claimed to be
fighting for self-defense of Palestine, but their status remained controversial, as for Israel and
other like-minded nations, they are terrorists. In such situations, justifying jus ad bellum becomes
complicated.
The principle of jus in bello, and the second function of International Humanitarian Rights, was
developed through the Geneva Law and Hague Law. The Hague Convention of 1899 and 1907,
prohibited the use chemical weapons, projectiles to diffuse gas, landmines and also prohibited
dropping of bombs and expanding bullets. Similarly, the guidelines on the treatment of military
combatants and non-combatants, codifying rape as an international crime in war was established
by the Geneva Conventions in 1864,1929 and 1949. Addition to this, the 1949 Geneva
Convention dealt with a) wounded and sick on land; b) shipwrecked at sea; and c) prisoners of
war and civilians.
As a matter of fact, many conflicts, even beyond the Israel-Palestine conflict, failed to conform
to the IHL norms and principles. The reasons for them being persuasive, cannot be overlooked.
Such that of Israel which is prone to breach jus in bello in pursuit of national interests and
security. Being unable to define or distinguish between “non-combatants” and “combatants”,
Israel attacked on the Palestinian civilians and their land during war against Palestine, which is
contravening jus in bello as coded in the Geneva Conventions. In December 1949, Israel signed
the Geneva Convention which was ratified in 1951.
It is evident, that power plays a very important role in any conflict despite the existing laws and
this shows the anarchic condition of the international system which is the main factor causing the
collapse of the nations.
CHAPTER II
2. EVOLUTION OF THE MIDDLE EAST CONFLICT
The conflict of Israel and Palestine comprised of several controversial, political and complex
legal issues; such as the self-determination movement of claiming the same territory, notion of
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sovereignty of the Jewish Israelis and Islamic Arab Palestinians. While international law is clear
on some of the issues like law of occupation and various rights envisaged under different
conventions and charters, the conflict majorly operated within political context with a tinge of
religious and national importance. In order to elaborate the relevance of international law in the
Israeli-Palestinian conflict an in-depth analysis of the past events has to be closely noted. Three
points based on the historical exposé of the Israel-Palestine conflict are territory, issue related to
Jerusalem and Right of return to Palestine.
2.1 TERRITORIAL & BORDER ISSUES
Back to the end of 19th century in 1947, the resolution adopted by United Nations in Resolution
181, also known as the Partition Plan, was sought mainly to divide the land, (then mandated by
the British rule) into Arabs and Jewish states. Through various deliberation, on May 14, 1948,
the Israeli State was created and the very first border of Israel was determined which led to the
first war between the Arabs and the Israelis. Even though the war ended up in 1949 with Israel’s
victory and loss on the part of the Palestinians which divided its territory into three different
parts: the state of Israel, the West Bank and the Gaza Strip, the war kept arousing over the years.
The wars particularly arose between Israel and Egypt, Jordan, and Syria. Following this, when
Israel invaded the Sinai Peninsula and Gaza Strip from Egypt; the East Jerusalem and West Bank
from Jordan and the Golan Heights from Syria. Several attacks were launched by the respective
nations to regain their territory but it did not result in any significant gains.
Among most of the modern States Israel is the only one that has avoided defining its territorial
limits. In the Yishuv period the Zionists had a characteristic choice to keep their boundaries
undefined from a future national home. This gave Israel a legacy of multiple boundaries. The
Zionist revisionist questioned the formation of Transjordan in 1921 by the British and the reason
of his execution from the purview of the wall for declaration. In the United Nations special
committee on Palestine plan and the one approved by the UN suggested about the boundaries
which was later revised in favor of the Jews. The Declaration of Independence (DOI) which was
considered to be the most precise and eloquent among all, was also silent on Israel’s border and
its capital. In 1949 the Armistice Agreements reached a conclusion and helped to pave a way for
the de facto borders of Israel and its wide acceptance in the international community stop. This
line was recognized as the Green Line and it survived until the June war. After capturing the
Peninsula and Gaza Strip from Egypt; the East Jerusalem and West Bank from Jordan and the
Golan Heights from Syria a strategic landscape was altered. The disengagement from Gaza
(2005) led to restoring of the pre-June position of the southern Palestine.
On the other hand, the clauses of the GA resolution 181 defines the territory of the state of Israel
that has been ignored by the international community. The SC resolution 338 written stated the
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requirements of the Resolution 242. However, when resolution 181 recognized the state of Israel
it also recognized the necessity of creating an Arab state in the Western side of the Jordan rivers.
In 1979, after a series of negotiations, peace treaties and cease-fires the Camp David Accords1
peace treaty was signed which ended the thirty-year conflict between them, but the issue of
Palestine, it’s self-determination and self-governance remained unsolved. With the help of the
Oslo I and Oslo II Accords2 mutual recognition of the Palestinian authority and Israel’s
government was achieved and withdrawal of Israel from six cities was mandated in the West
Bank. This however, raises the question of the status of the ‘West Bank’.
Today, the west bank under the Israeli occupation is nominally controlled by the Palestinian
Authority. The Israeli troops have enforced security restrictions on Palestinian movement and
activities. They have also built ever-expanding communities in the West Bank and have denied
the land to Palestinians. Moreover, Gaza is controlled by Hamas, an Islamist fundamentalist
party, and not under the occupation of Israel.
It is difficult to claim that the Palestine side should compromise further in territorial terms
beyond 1967 borders. The peace cannot be granted in the International Law. The right of the
people of Palestine to determine has been recognized by Israel, and authoritatively endorsed by
the International Court of Justice. 3
2.3 JERUSALEM (STATUS OF WEST BANK)
It is often believed that Jerusalem is the most difficult problem when it comes to dealing with the
conflict by the peacemakers. Jerusalem which is the centrality of the issue is derived neither from
the security considerations not from any economic interest but it is more of religious and
emotional sensitivities of the people. The complexity in the issue resulted from three main
factors; where the Christian adherents considered it to be there holy city, Islam and Judaism
considered it sacred for millions of people, even for those who do not live in the city. Due to the
heterogenous population of both the states, it became a subject of national conflict claim of the
Israelis and Palestinian Arabs. In accordance to the UN 1947 Partition plan
In the petition resolution of the United Nations Partition Plan Jerusalem was supposed to be a
corpus separatum i.e., a separate body from the Palestinian and Arab states from the Palestinian
and Arab states, because of the similar holy interest in land. This was never realized as the
Jordan and Israeli army respectively, captured East and West Jerusalem. The indifference in
Jerusalem was also seen in other international communities in particular from the three
monotheistic religions of Judaism, Christianity and Islam. Later in 1949, a formal declaration
1
Camp David Accords and Arab-Israel Peace Process, Office of the Historian, available at:
https://history.state.gov/milestones/1977-1980/camp-david
2
Oslo Accords, History.com Editors, available at: https://www.history.com/topics/middle-east/oslo-accords
3
Legal consequences of the construction of a wall advisory opinion, ICJ Rep, 2004, 171‐
172, para.88 and 199, paras.155‐156.
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was made by Israel of make Jerusalem as its capital and started with shifting and establishing the
sovereign institutions such as presidency, Knesset, Supreme Court and other government offices.
The contention of Jerusalem is not only political but also territorial, historical, theological,
archaeological and emotional. 4 In other words while dealing with Jerusalem coma the
interlocutors are not just citizens of Israel or Palestine but also the Jewish diaspora, non-
Palestinian Arabs and non-Arab Muslims. The Persian Iranians have as much se over the
question of Jerusalem as the Indonesian Muslims, French and American Jews. Over all Jerusalem
will be a deal breaker for an indefinite period or until all other issues have been resolved.
This view is still upheld by majority of the states and which is why with the exception of the US
and few others, no state has an embassy in Jerusalem, east or west.
2.4 SETTLEMENTS & PALESTINIAN RIGHT OF RETURN OF REFUGEES
Post 1967 phenomenon settlement issue is theoretically less complicated than the others. Israel
has been building Jewish residential blocs in the occupied territories partly due to internal
pressures and partly as a state policy after the June war.
The location and timing of the settlements and their establishment were determined according to
a policy of occupying the territory which served as a strategic aim. In 1972 less than 8500 Jewish
settlers where there in the west bank and the Gaza strip and the east Jerusalem. Even before even
before the Oslo accords by 1992 the number grew up to 250000. During the peace negotiations
when Israel was negotiating on the 'land for peace' basis, followed by the declaration of principle
the population rose close to 400000 with the construction of houses in the occupied territories for
the Jewish settlers.
An estimate of about 700,000 Arabs fled from Israel in 1948 5. In the view of Israel, the refugee
problem was due to the unwillingness of the Arabs of Palestine to tolerate the existence of an
independent Jewish state besides an independent Palestinian State. Had the Arabs and the
Arabian States refrain from launching an attack as a war in order to destroy the image in Jewish
state, there would have been no 1948 war and it wouldn't have resulted in the refugee problem. 6
Third issue was the question of the return of Palestinians to Israel. During the war in 1947 to
1948, 700 thousand of Palestinians fled to Israel. The most majority of the people were either
expelled or fled from justified fears of atrocities. In particular, after the massacre of Jerusalem,
4
P.R Kumaraswamy, Border is the core of the Israeli-Palestinian conflict, IDSA ISSUE BRIEF, March 05,
2019, available at: https://idsa.in/issuebrief/border-is-the-core-of-the-Israeli-Palestinian-conflict-
prkumaraswamy-05032019, (last visited on June 12, 2021)
5
Louise W. Holborn, The Palestine Arab Refugee Problem in 1 THE ARAB ISRAELI CONFLICT 664, 670 (JOHN
N. MOORE ED. 1974).
6
Benny Morris, For the Record, THE GUARDIAN, Jan. 14, 2004, available at:
http://www.guardian.co.uk/world/2004/%20jan/14/Israel , (last visited on June 15, 2021).
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the issue of trying to return resulted to complexities which are the following:
1. The Palestinian who fled in the 1948 Palestinian Exodus, were deprived of human rights to
return to their country;
2. Other Arab countries like Jordan, where the Palestinians moved, did not allow them to
integrate;
3. Further, the tons and millions of refugees and their families would have considerable
consequences for the social, economic and political makeup of Israel.
Thus, taking a look from international law point of view, its scope is beyond the international
humanitarian law and human rights law and the specific rules of the specialized bodies of law
which is commonly understood to apply in situations of occupation and on the relevancy and
significance of framing certain types of occupations when unlawful situations as a matter on
international law on comes as a state responsibility and in particular responsibilities of third-
party states.
The basic facts regarding territory are that, it is not justified to claim that the 1967 borders are the
basis for further compromise on the part of Palestinians. As the occupied territories are territories
captured in war from an established and recognized sovereign. The UN Security Council
Resolution 242, places obligations on both sides but does not call for unilateral withdrawal from
the territories. Furthermore, the absence of an established sovereigns in the West Bank or Gaza
strip to the Six Day war signifies that it should not be viewed as “occupied” by Israel. But in the
later years, after the signed peace treaties of Egypt-Israel and Jordan-Israel, the Israel borders
on being recognized by the then Palestinian leader, in return agreed to withdraw the Israeli forces
from the Gaza strip and West Bank as a possible peace solution between the most conflicted
nations of Israel and Palestine. But the political success of the militant group of Hamas led to a
downfall in the two-state solution between the two nations.
Secondly, in Jerusalem the clash of community has a legitimate and recognized interest
internationally as well as in addition to the two nations. The UN Partition Resolution (General
Assembly Resolution 181) established Jerusalem under international regime as a corpus
separatum. The attempts made by the United Nations to establish its sovereignty failed due to the
hostilities among nations. Moreover, Israel’s measure to annex west Jerusalem following the
June 1967 outbreak had no legal effects. It is for this reasons that Israel’s claim to sovereignty
over west Jerusalem has not been recognized.
International law though is a source of various customs; however, it is not based on conjectures,
religious or sentimental beliefs, thus the claim made by Palestine of sovereignty over Jerusalem
has no substance on the ground that it formed an integral part of the territory and under the
Ottomans and British rule and has religious importance. The 1967 war made the legality of
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occupation as regulated by the UN charter and to be known as jus ad bellum. Accordingly,
Article 2 of the Fourth Geneva Conventions applied to the territories obtained during
international hostility.
As regards to the East Jerusalem territory, it is contended that prior to the 1967 war, this part of
the city was recognized as under the administration of Jordan. Due to rule of international law
the belligerent occupation cannot make Israel confer any title. But in the signed peace treaty of
Israel-Jordan in 1994, Israel recognized the special role of Jordan in Muslim Holy Shrines in
Jerusalem and committed to give high priority to their historical role in such negotiations. As a
result, the treaty settled land and water disputes.
Thirdly, the right to return to Palestinian remains applicable to all Palestinians whether man or
women and their descendants as well irrespective of their number, location, place of birth or their
social, economic or political situation as it is legally affirmed by international laws.
The right of return is an inalienable human right within all tents of the international law. This
right cannot be surrendered or abrogated by any agreement or any other political charter. It is
guaranteed in the Universal Declaration of Human Rights in Article 13(para. 2)7, which states
that everyone has the right to leave any country, including his own and to return to his homeland.
Article 17(para. 2)8, says that it is not permitted to arbitrarily deprived any person from his or
her property. Article 12(para. 2)9 states that it is not permitted to arbitrarily deprived any person
from returning to his or her country.
Article 49 of the Fourth Geneva Convention10 states that individual or mass forceable transfer
as well as deportations of local inhabitants according to the convention, from occupied territory
to the territory of the occupying power or to that of any other country occupied or not are
prohibited regardless of their motive.
Protracted and asymmetric conflict between Israel and Palestine and the long-standing legal
claims to territory, right to return and sovereignty as well as establishment of Jerusalem’s legal
status looks forward to a peaceful solution.
CHAPTER III
APPLICATIONS OF THE PRINCIPLES OF INTERNATIONAL LAW
In the violation of human rights by one or the other of the two parties, International Law is often
referred. In the current situation, it is more important to discuss what the principles of
international law has to say about the eventual solution in the conflict rather than what are the
7
Universal Declaration of Human Rights (UDHR), art. 13, para 2, available at: https://www.un.org/en/about-
us/universal-declaration-of-human-rights, (last visited: June 10, 2021)
8
Id., art. 17, para 2
9
Id., art. 12, para 2
10
IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, art. 49
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violations and who is to be blamed for all. However, both of the dimensions are interlinked and
one cannot be discussed without the other. Thus, the sources of the principles have to be
narrowed down either into the instruments of humanitarian law or the human rights, as well as
the governance of UN General Assembly and Security Council Resolutions.
3.1 NEGOTIATION OF THE PEACE AGREEMENT
The process of negotiating through peace agreement between the Israeli and Palestinians is about
political pressure than requirements of international law.
The resolution initiated an international peace conference under hundred the UN general
assembly in the early 1980. It receives support only from a minority of States an increase in
number of states particularly in the Western States change the position as a result a vast majority
of UN members including Canada, were supporting the international peace conference under the
auspices of the UN for settling the dispute. The protection of the rights was built into the process
as expressive principles in the resolution. The peace process being an important concern of the
governments of both the nations, began from September, 1993, when Israel and Palestine
liberation organization started recognizing one another as nation states in exchange of letters
between the Prime Minister Rabin and chairman Arafat. Few days later the Israeli Prime minister
Yitzhak Rabin and the Palestinian Liberation Organization chairman Yasser Arafat signed a
Declaration of Principles on Interim Self-Government Arrangements.11
Lacking a commitment to a final outcome, the Oslo-based peace process was hampered by
reserve options, which increased avoidance at the expense of approach tendencies as the parties
moved toward a final agreement.
3.2 RIGHT OF SELF-DETERMINATION
Among the major international law issues in the conflict the question of right of self-
determination is also involved. The claim of self-determination is that it is an immediate and
unconditional right on people to exercise free choice over its territorial and political destiny. In
order to maintain the International Law, the right of self-determination is recognized among
between the Jews as well as the Palestinians.
The Jewish shared a distinct identity which includes the Hebrew language, complex legal code,
national and religious holidays, the Jewish religion a body of literature, historical narrative, and
controlling sense of common destiny and people-hood. The elements of a 'people' have been
defined as “a history of independence of self-rule in an identifiable territory, a distinct culture,
11
Text: 1993 Declaration of Principles, BBC NEWS, November 29, 2001, available at:
http://news.bbc.co.uk/2/hi/in_depth/middle_east/israel_and_the_palestinians/key_documents/1682727.stm, (last
visited June 15, 2021)
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and a will and capability to regain self-governance”12. In the wake of the Holocaust, Israel has a
long struggle with its self-identification as both a western-style democracy that offers equal right
to all the citizen regardless of religion or race and the country envisioned as a refuge for from
Russia and Eastern Europe South America and Ethiopia as well as Arab countries has kept Israel
Jewish population growing. The Jews have a history of independence and self-rule in the land of
Israel going back thousands of years. During such a long period of time the territory was
executed by various Empires but no people other than the Jewish ever had an independent state
in that area. Throughout the centuries that followed their bi they always remained the Jewish
population in Palestine and the majority of the population of Jerusalem has been Jewish for the
last 200 years.13
During the latter part of the 19th Century and early part of 20th century the growth of Rose
Arabs in new nationalism was seen the British government increased the Arab nationalism as a
part of its campaign against the Ottoman Turkey during the first world war as a result
independent states like Iraq, Lebanon, Syria, Saudi Arabia and Transjordan (now Jordan) was
formed. The Palestinian nationalism was fully formed after 1948 and it further developed after
1967. In recent times, the Palestinian Arabs are universally accepted as a people and are entitled
to the right of self-determination.
The right of self-determination is now a customary international law, as it is demonstrated by its
inclusion in the Declaration on Principles of International Law Concerning Friendly Relations
and Co-operation among States in Accordance with the Charter of the United Nations, Annexed
to Resolution 2625 (XXV) of the United Nations General Assembly 14. The UN Charter under
Article 73 specifies that:
the UN members who have or assumed responsibilities for the administration of territories,
whose peoples have not yet attained a full measure of self-government recognize the principle
that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust
the obligation to promote to the utmost, within the system of international peace and security
established by the present Charter, the well-being of the inhabitants of these territories, and, to
this end:
a. to ensure, with due respect for the culture of the peoples concerned, their political, economic,
social, and educational advancement, their just treatment, and their protection against abuses;
b. to develop self-government, to take due account of the political aspirations of the peoples, and
12
AURELIU CRITESCU, THE RIGHT TO SELF-DETERMINATION, U.N. Doc. E/CN.4/Sub.2/404/Rev.1 U.N.
Sales No. E.80.XIV.3 (1980), and HECTOR GROS ESPIELL, THE RIGHT TO SELF-DETERMINATION, U.N.
Doc. E/CN.4/Sub.2/405/Rev.1. U.N. Sales No. E.79.XIV.5 (1980)
13
Israel Central Bureau of Statistics Jerusalem’s Population, available at:
https://www.jewishvirtuallibrary.org/history , (last visited on June 20, 2021),
14
24 October 1970, Official Records of the General Assembly, Twenty-fifth Session, Supplement No.18 (A/8018).
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to assist them in the progressive development of their free political institutions, according to the
particular circumstances of each territory and its peoples and their varying stages of
advancement;
c. to further international peace and security […]
The right of self-determination is also recognized in the International Covenant on Civil and
Political Rights and is more explicit with the notion of freely determining their political status
and freely disposing their natural wealth.
3.2 ISRAELI SETTLEMENTS IN THE WEST BANK
The political wisdom of setting up Israeli settlement in the west bank 15 is a controversial issue.
However, it can be well argued that it is impossible to freeze a situation for 40 years on the part
of the Palestinians. They have incurred an inevitable reserve by refusing to reach a peace
agreement as a result the demographics of the area have changed over the years by the natural
phenomenon of population movement and natural increase.
Through the 1949 Geneva Convention the legality of such settlement can be interpretated related
to the protection of civil persons in time of War (the convention). A sovereign hostile state being
party to the convention has occupied the west bank and thus the convention prohibits an occupier
from transferring its population to the occupied territory. 16 However, it is noticed that this area
was never recognized as a sovereign Jordanian territory and Jordan has subsequently
relinquished any claim to sovereignty it might have had. 17 A sovereign Palestinian state is not yet
in existence.
Article 49 of the Fourth Geneva Convention also prohibits the "individual or mass possible
transfers, as well as deportations of protected person from occupied territories" 18
The appropriation of land and the extensive appropriation and destruction of property is required
to build and expand the settlement where are also against the rules of international humanitarian
law. Under the Hague regulation of 1907, the public property of the occupied population such as
Land forests in agricultural estates is subject to the law of usufruct, which means that an
occupying territory is only allowed a very limited use of the property for stop this limitation was
derived from the core idea of the law of occupation and from the notion that occupation is
temporary. The International Committee of the Red cross states that the occupying power “has a
duty to ensure the protection commerce security and welfare of the people living on the
15
The UN Security Council draft resolution referring to the inadmissibility of ‘occupation’ (UN Doc. S/8227) was
not put to the vote. See R. Lapidoth, UN Security Council 242: An Analysis of its Main Provisions, available at:
https://jcpa.org/%20text/resolution242-lapidoth.pdf, (last visited on June 17, 2021)
16
The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949,
art. 49, para. 6
17
The 1988 Declaration by King Hussein on Relinquishing All Rights to the West Bank in favour of the
Palestinians, 27 I.L.M 1637-1645(1988)
18
Supra, note 16, art 49
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occupation and to guarantee that they can live as a normal life as possible in accordance with
their own laws culture and traditions”19
The term occupation is legal in times of armed conflict and the Security Council has also never
designated the Israeli occupation as illegal. 20 The Former ICJ President, Rosalyn Higgins stated
that “[t]here is nothing in either the Charter or general international law which leads one to
suppose that military occupation pending a peace treaty is illegal.” In this context, the
International Court of Justice (“ICJ”), in the Legal Consequences of the Wall which also dealt
with the status of West Bank, refrained from characterising the Israeli occupation as “illegal”.
CHAPTER IV
MOST RECENT FLARE-UP IN THE CONFLICT
Recently, the situations had become extremely tense, accompanied by serious violations of rights
on both the sides of the conflict. Such violence has been monitored and reported by several local
and international groups.
The recent violence began with a number of interrelated incidents in East Jerusalem which built
some points of conflicts which has been smoldering for the past decades and now has rapidly
received oxygen.
During the holy month of Ramadan in the Jerusalem's Old City at Damascus Gate, Israeli
authorities banned congregating on its gate step by barricading the area. The Palestinian youth
found the metal barriers as provocation and thus, launched protests which were not politically
related. Within few days the Jew nationalists responded to it by marching towards central
Jerusalem chanting "death to Arabs". This outrage spilled over to the West Banks and in the
neighborhood of Jordan. The Gaza militants popularly known as the Hamas group fired dozens
of rockets into Israel. Soon, social media was filled up with filmed videos of attacks on Jews by
the Palestinians. Following violent confrontations for twelve days in East Jerusalem, Israelis took
down the barricades on April 25, 2021.
On May 18 in Jerusalem, seven days into their fourth war, Israel and Hamas already face
allegations of conceivable atrocities in Gaza. Watchdogs says Israel is using inordinate force,
while Israel says Hamas is using Palestinian civilians as human shields. Especially in the fog of
battle it becomes really hard to say who is right. The firing of many imprecise rockets into Israel
by Hamas and other Palestinian groups is genuinely obvious. Using indiscriminate force in
civilian area and targeting civilians is prohibited by international law. Rockets slamming into Tel
19 Occupation and international humanitarian law, International Committee of the Red Cross, available at:
https://www.icrc.org/en/doc/resources/documents/misc/634kfc.htm, (last visited June 20, 2021)
20
The UN Security Council draft resolution referring to the inadmissibility of ‘occupation’ (UN Doc. S/8227) was
not put to the vote. See R. Lapidoth, UN Security Council 242: An Analysis of its Main Provisions, available at:
https://jcpa.org/%20text/resolution242-lapidoth.pdf , (last visited on June 21, 2020).
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Aviv apartment blocks is a clear violation. 21 In Gaza the situation is far murkier, 2 million
individuals are packed into a narrow coastal strip. The two sides operate in dense, urban terrain
since that is pretty much all there is. Due to the restricted space and extreme bombardments,
there are not many safe spots for Gazans to go. After Hamas seized power in 2007, a blockade
imposed by Israel and Egypt made it virtually difficult to leave. With a political activity and
charities separate from its secretive armed wing, Hamas is profoundly implanted in Palestinian
society as a grassroots movement. While Israel and Western nations see Hamas as terrorist
organization, it is as well Gaza's de facto government, employing a huge number of individuals
as government workers and police. So being associated with Hamas doesn't mean somebody is a
combatant, and there are numerous in Gaza who go against the group - and all are equally
exposed with no place to run. Recently, the International Criminal Court launched an
investigation concerning conceivable war crimes perpetrated by Israel and Palestinian militants
during the last war, in 2014. The two sides as of now seem to be utilizing similar strategies in
this one.
Proportionality: Israel's critics frequently blame it for the lopsided utilization of force. The toll
in the current conflict is dramatically disproportionate, with no less than 200 killed in Gaza,
almost 50% of them being women and children, and 10 in Israel, all but one of them civilians.
Proportionality in international law additionally applies to individual attacks, but specialists say
proving a particular attack being asymmetric is extremely difficult. The presence of Hamas to
coordinate combat operations is also believed, during the bombing in a building house in Gaza
where Israel had already warned residents to vacate the places and no one was hurt.
Urban Combats: Palestinian fighters are clearly working in built-up local areas. Likewise,
Israel's military power is incredibly solid thus they are equally harming Palestine. Therefore, it is
seen that international humanitarian law is applying to both the sides in this contention.
The future of the both the nations are at stake if the situation continues in similar ways in the
coming years. the recent plan choked out by the United States ex-president Donald Trump was
called “the deal of the century” by Benjamin Netanyahu, Prime Minister of Israel. This plan was
dismissed by the Palestinians and never got off the ground. The future peace deal depends upon
both the sides and their acceptance to resolve complex issues. But if the status quo does not
change favorably, another round of such violence is not too far, and the consequences of such
repeated conflicts might be unreachable, not only from political but also legal control.
CONCLUSION
21
Tel Avil, Israel’s Busting Financial Hub, Is Shaken As Rockets Rain Down, THE NEWYORK TIMES, May 16, 2021,
available at: https://www.nytimes.com/2021/05/16/world/middleeast/israel-tel-aviv.html, (last visited June 25,
2021)
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Every time an eruption of violence breaks out between the two nations, the government urges de-
escalation and experts warn that the situation should end immediately. But one has to closely
understand and analyze the political, military as well as economic status of both Israel and
Palestine to resolve the conflict with the help of moral persuasion and understanding their
respective needs. The recurring pattern of violence reflects the abhorrence cultivated over the
past few decades with numerous events. A study of Bar- Ilan University while strategically laying
down the disparities shows Israel’s per capita GDP to be double that of Saudi Arabia, six times
that of Lebanon, eight times that of Iran and 14 times that of Egypt. Israel also excels in the
fields of industrial and informative economy, research and development and foreign exchange
reserves and is ahead of Britain. Thus, it shows the invulnerable gap with Palestinians, who are
not only economically but also politically weak and divided. The political group of Hamas who
led Gaza are even despised by Arab states such as Egypt and Saudi Arabia.
It is very difficult to interpret the number of laws both the states have knowingly or unknowingly
infringed upon in the name of national security and human rights. Looking at the conflict in an
unprejudiced manner, a major decisive role needs to be established to end the long-lasting
conflict helping both the nations equally and impartially.
In summary, a framework of mutual commitment to a historic compromise is the need of the hour
that offers the two peoples the opportunity and hope for a better future for the two states and
societies. This opportunity can be expressed in a vision that contemplates a secure and
prosperous existence for each society, mutually beneficial cooperation in various spheres
between the two societies, for regional development, and stable peace and ultimate
reconciliation.
Explicit acknowledgment of each other's national identity and aspirations would counter the fear
that a negotiated compromise would be just a convenient temporary measure by the other side in
anticipation of resuming the struggle for total victory at a later point. The proposed formulation
could provide a mutually beneficial compromise to make a final agreement without any power of
bargaining. Formulating an agreement in these terms would shift the focus from the painfulness
of the concessions to the positive prospect of a fair and mutually satisfactory solution. In
articulating this vision, leaders could take pride in offering a model that could inspire future
generations. Conceivably, over time the two peoples might develop a transcendent identity
(alongside of their separate national identities), an identity based on the distinction between
country and state: Each group could maintain an attachment to and identification with the entire
country-as a geographical focus for both historic memory and current cooperative activity-while
claiming ownership of and statehood in only part of that country.
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