The fact that international law supports the two-state paradigm is not sufficient reason to preserve its current role, if at present, international law serves to perpetuate the conflict. International law is increasingly being applied when deemed relevant to an ideological agenda, and therefore its impact is limited.
By David Hughes
In response to former Justice Edmond Levy’s report on the status of the West Bank, Itamar Mann considers Levy’s controversial proposal that Israel’s presence in the West Bank does not amount to an occupation. Mann’s position is surprising: perhaps easing the collective fixation on the terminology of occupation “will enable us to rethink self-determination for both groups much more ambitiously.” In other words, he is suggesting that abandoning the term “occupation” might indeed open an opportunity to advance the self-determination both societies crave.
Mann thus challenges the way the occupation is conceived. International law holds that territory becomes occupied when it is placed under the authority of a hostile army. Following the recognition of an occupation, the Four Geneva Conventions are applied – these serve to regulate the conduct of armed hostilities and limit its effect. Recognizing occupation in a legal sense entails a host of obligations, ranging from defining the status of the settlements to ensuring the safety of civilians. Rejecting the notion of occupation would limit the application of international law within the West Bank, compromising several of the prescribed protections for the Palestinian population currently in place.
Still, it is worth considering Mann’s proposal, and its ramifications should be debated by lawyers, activists, politicians, and all those affected by or engaged in the conflict. In fact, it’s time to open up the broad question of the effectiveness of international law in general, in its current role within the conflict and the peace process.
A strong case can be made for re-evaluating the role of international law within the Israeli-Palestinian conflict. Following 45 years of Israeli political, military, and civilian presence in the West Bank, an ongoing cycle of indiscriminate violence, and untold adversity on the lives of all involved, it appears that the grand legal appeals to human rights and self-determination embraced in the latter half of the twentieth century have failed Palestinains and Israelis alike.
After all, under international law, the law of belligerent occupation serves to maintain the status quo ante bellum (the state of things before the war). Those like the former Justice, who favor the unabated development of Israeli settlements throughout the West Bank, argue that prior to 1967 the “status quo” involved a territory that did not fall under the recognized sovereignty of a nation-state (Jordan’s annexation was never recognized extended its sovereignty to the West Bank). Therefore, they say, the West Bank was never ‘occupied’ by Israel.
Others who view the settlements as an impediment to peace, which denies the basic rights of Palestinian inhabitants, and insist that the West Bank was not Israeli territory prior to 1967. Therefore, they argue, Israel’s continued presence amounts to an occupation – which justifies invoking the associated legal regime of international humanitarian law.
In sum, although the spirit of international law is intended to protect the occupied population and allow for a return to the status quo, in fact, the varying interpretations are sufficiently conducive to contradictions that they have led to the current stalemate. International legal norms have become yet another source of contention within the conflict, an adversarial tool employed to advance competing ideologies.
Still, minimizing the role of international law could have other problematic consequences, and these must be explored.
Perhaps the central consequence is that formally abandoning the language of occupation, whether for the reasons promoted by Edmond Levy or Itamar Mann would evolve into a conceptual paradigm shift in favour of one state. Many are comfortable advancing this paradigm given that the two-state solution heralded during the Oslo era now lies dormant or is considered a dangerous failure. Proponents of such a shift, though, face a series of perplexing questions – from a demographic swing to charges of apartheid – that run afoul of the prevailing international orthodoxy and popular consensus.
Mann asks why so many are attached to the category of occupation, and I suggest that this term maintains a conception of the status quo that allows for the eventual realization of a two-state solution. Clearly such a solution is not the preference of all; some from both the left and right call for a single state, either directly or implicitly and albeit for wildly divergent reasons. However, the majority of mainstream Israelis and Palestinians alongside the international community remain in favor of two states.
But the fact that international law supports the two-state paradigm is not sufficient reason to preserve its current role, if at present, international law serves to perpetuate the conflict. International law is increasingly being applied when deemed relevant to an ideological agenda, and therefore its impact is limited. The modern development of human rights and international humanitarian law were intended to contribute to a new world in which war and undue suffering would become obsolete. Despite this, international law has failed to ensure sufficient rights, security, and self-determination for the inhabitants of Palestine and Israel.
These failures provide ample justification to reconsider the role of international law within the conflict. One consequence may be the weakening of the legal framework upon which a two-state solution may have been realized. But there is a need for new normative vocabularies, as Mann suggests, and international legal norms need not hold a monopoly over how we think about the conflict. Still, such norms do provide value and thus it is important to expose the increasingly adversarial uses of international law, while still seeking to preserve its underlying virtues.
David Hughes is a doctoral candidate in law at Osgoode Hall Law School in Toronto, Canada, whose research focuses on international legal aspects of the Israeli-Palestinian conflict.
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