+972 Magazine's Stories of the Week

Directly In Your Inbox

Analysis News
Visit our Hebrew site, "Local Call" , in partnership with Just Vision.

Re-thinking the role of international law in the Middle East conflict

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

Children of Bil'in sit where the fence once stood, looking at land returned to their village and the new position of the separation wall (photo: activestills.org)

Children of Bil'in sit where the fence once stood, looking at land returned to their village and the new position of the separation wall (photo: activestills.org)

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.

Related Articles:

Panel appointed by Netanyahu concludes: There is no occupation
Israeli human rights lawyer: Occupation is not temporary
Report that claims ‘there is no occupation’ presents an opportunity
‘Nonexistent occupation’ memes go viral in social media

Before you go...

A lot of work goes into creating articles like the one you just read. And while we don’t do this for the money, even our model of non-profit, independent journalism has bills to pay.

+972 Magazine is owned by our bloggers and journalists, who are driven by passion and dedication to the causes we cover. But we still need to pay for editing, photography, translation, web design and servers, legal services, and more.

As an independent journalism outlet we aren’t beholden to any outside interests. In order to safeguard that independence voice, we are proud to count you, our readers, as our most important supporters. If each of our readers becomes a supporter of our work, +972 Magazine will remain a strong, independent, and sustainable force helping drive the discourse on Israel/Palestine in the right direction.

Support independent journalism in Israel/Palestine Donate to +972 Magazine today
View article: AAA
Share article
Print article
  • LEAVE A COMMENT

    * Required

    COMMENTS

    1. un2here

      Preserving the rights of the invaders to invade while simultaneously preserving the rights of the invaded not to be invaded indeed has some problems attached that are hard to just talk away …

      Reply to Comment
    2. Noam W.

      I am not sure what the suggestion here is. Of course international law does not hold a monopoly, this is first and foremost a political problem. International law only provides a framework for debate, it does not provide a solution.
      .
      You can claim that this is an occupation and then decide to have a one state solution (as long as the Palestinians agree to the one state).
      .
      Also – even if we concede that there is no occupation – international law does not disappear – if international humanitarian law does not apply, the regular international human rights law does, as it does anywhere that isn’t under belligerent occupation.

      Reply to Comment
    3. Ruvi Ziegler

      Re: ‘Jordan never extended its sovereignty to the West Bank’:
      In fact, it has – the West Bank was annexed, though the annexation was recognised by none other than the UK and Pakistan. Notably, Jordanian citizenship was extended to some Palestinians living in the WB. Jordan has relinquished its purported (?) claims to the territory following the failure of the London peace initiative.

      Reply to Comment
    4. Kolumn9

      The suggestion here is that international law is an ambiguous and ineffective piece of crap. Overreliance on the terminology provided by international law leads to disputes that center on legal terms rather than actually looking at the situation as it is and looking for potential viable solutions. In other words, the author wants to backpedal on all the legalese garbage that has been strewn over this conflict by 20 years of lawfare mostly by pro-Palestinian lawyers because overreliance on it has pushed many people’s perception of the conflict into a political dead end.
      .

      Also, no, I don’t believe you would be able to structure a consistent legal narrative that includes both the claim of an occupation and a one state solution which would presumably be based on the annexation of occupied territory acquired in a war.

      Reply to Comment
    5. Dr. Denis MacEoin

      un2here writes of ‘invaders’, presumably in reference to Israel. But all Israel’s wars have been defensive, and 1967 was recognized as that by the UN. The Israelis came into possession of the West Bank because they were about to be invaded by several Arab states (and not for the first time). Recognition of the defensive nature of 1967 is crucial to any understanding of the ‘occupation’, alongside UN Resolution 181. Israel has behaved impeccably all along and has placed some 90% of the West Bank under control of the PA, retaining a small area for security purposes. Creation of two states depends, as it has always depended, on the Palestinians and their willingness to try peace for a change. The ‘occupation’ issue is moot, since what this really revolves around is whether the Arabs will finally give up a policy of aggression that has only brought misery on themselves. Given a few decades of non-aggresssion, a Palestinian state would doubtless prosper and benefit from proximity to one of the most successful countries sin the world. Israel won’t stop them prospering, only their own extremist and terrorist groups can do that.

      Reply to Comment
    6. Aaron

      I’ve been wondering, why *should* Israel or any other state obey international public law, now, in 2012, other than simply for the sake of national interest? In other words, why is international law morally binding? Again, I’m talking about today, not, say, Europe in the 18th century, when I think it *was* morally binding. And I’m not recommending unjust acts; but I am suggesting that Israel and other states should evaluate the justice of their acts themselves, even with all the self-serving bias that inevitably implies.
       
      I can give good reasons why municipal, or domestic, law is morally binding today, except in failed states, tyrannies, and the like. But the international order today – again, as opposed to a few centuries ago – is kind of like a tyranny and kind of like a failed state, or what some legal theorists have called nihilism. So why play by *their* rules, unless it’s in our national interest? Not a rhetorical question – I’m hoping there’s a good answer, actually.

      Reply to Comment
    7. Aaron

      I’ll add that Noam’s comment, above, seems to strengthen mine. If international law *only* provides a framework for the debate, and if we think the framework is (here’s that word again) nihilistic and unjust, then that seems like even more reason to violate international law when doing so is both just and expedient.

      Reply to Comment
    8. John Turnbull

      When a law of any level is not enforced, do we place it in the category of a failed law, or do we design an adequate way to enforce it?

      We haven’t even attempted to enforce the relevant law in Palestine. Are we deciding that this is impossible?

      Reply to Comment
    9. Mihai-Robert Soran

      Vishy-vashy – brings no new contribution to the matter.

      Reply to Comment
    10. max

      Only parts of a county’s laws have to do with ‘justice’ – the law is mostly about setting up a functional community.
      .
      The law is then interpreted according to ideology. Active ideology could becomes (good) politics. Legal activism becomes political.
      Activists – on the right and on the left – would not always accept the judgement, and 972mag is very active when the judgement – legal interpretation – doesn’t fit its ideology (as is the extreme right)…
      .
      Those of us who live in democratic countries would have more ‘natural’ respect to laws in democratic liberal- than non-democratic countries.
      .
      The vast majority of the world’s counties aren’t democratic and / or liberal.
      .
      So what is it about international law that would make it so attractive? Why would any country abide by it – if it has the possibility – when it assesses that the judgement contradicts its vital interests?

      Reply to Comment
    11. Noam W.

      Kolumn9 – your inability to conceive a one state situation whilst recognizing that there is an occupation just shows how limited your ability to see the other side is.
      .
      The Palestinians people, who are occupied, can agree (by plebiscite or whichever other legitimate mechanism we can come up with) to cede their sovereignty and become part of one state between the River and the Sea.

      Reply to Comment
    12. After civil unrest has flared, probably more than once, under de facto full soverignty, perhaps Noam W.’s idea of a plebiscite to accept a one state will be one way out. The point, of course, is that to get to that place things will first get quite unpleasant. And I won’t be living that; but so many others will have to.

      Reply to Comment
    13. joel

      David says:

      “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.”

      Can someone dumb this statement down for me?
      I’ve read it six times and I can’t make heads or tails.
      Thanks, in advance.

      Reply to Comment
    14. Kolumn9

      Noam, recognizing the flaw in your argument does not mean I accept its flawed premises.
      .

      Whether the Palestinians deign to cede their non-existant sovereignty or not is irrelevant and doesn’t fundamentally change the logical flaws in your argument. The legal status of beligerent occupation of the land does not derive from its population, but from the acquisition of the territory during war. Likewise, the inability to annex on the part of Israel derives from the inability of a country to acquire territory by force. As such, regardless of what the Palestinians do there is no consistent legal narrative on which to base both an occupation and a one state solution that would a priori have to include an unambiguously illegal annexation under international law. To make your case you would have to argue that there is no belligerent occupation and the land is disputed, that the Israeli claim of sovereignty is valid and with the Palestinians abandoning their own claim.
      .

      This is before even raising the obvious option Israel has in renouncing its own claim over large chunks of the territories, as it has already done with Gaza which should throw some additional cold water on any legal argument you can muster. In other words, Israel is under no obligation to accept sovereignty over territory outside its borders even if its supposedly sovereign population has declared its desire to be annexed by Israel.
      .

      Note that I am arguing on the basis of your definitions as defined in a discussion following a previous article, not on the basis of my own understanding of the situation. Not that my own understanding is terribly relevant given that I have absolutely no respect for international law on similar grounds to those raised above by Aaron that are similar to a question I asked on a previous thread which you decided to avoid responding to, as it appears is the case with Aaron’s queries.

      Reply to Comment