“Exploring Legal Perspectives: Israel-Palestine Conflict”

INTRODUCTION:

The conflict between Israel and Palestine has political, religious, and historical undertones. It is a complicated and long-standing problem. The conflict centers on conflicting geographical claims and national ambitions, especially in relation to the creation of a Palestinian state alongside Israel. Examining international law, the historical background, and the dynamic character of the conflict are necessary for determining the legality of any action committed by any side.

 

HISTORICAL BACKGROUND:

The conflict’s origins may be found in the Middle East’s nationalist movements of the late 19th and early 20th centuries. The British government endorsed the creation of a “national home for the Jewish people” in Palestine in the 1917 Balfour Declaration. However, there were conflicts in the area between the Arab and Jewish populations as a result of this pronouncement.

The United Nations suggested dividing Palestine into several Jewish and Arab governments following World War II. Following the creation of the State of Israel in 1948, hundreds of thousands of Palestinians were forced to flee their homes due to military wars. Tensions were exacerbated further when Israel occupied the Gaza Strip, East Jerusalem, and the West Bank during the 1967 Six-Day War.

UNITED NATIONS RESOLUTIONS:

United Nations Resolutions: Over the years, the Israel-Palestine issue has been covered by a number of UN resolutions. The 1967 UN Security Council Resolution 242, which emphasises the “inadmissibility of the acquisition of territory by war” and demands the evacuation of Israeli forces from areas they captured during the Six-Day War, is notable among them. Additionally, a truce and discussions are required under Resolution 338, which was established in 1973. These resolutions offer a legal foundation for resolving territorial disputes and advancing peace, as well as reflecting the position of the international community on the matter. The evaluation of the legitimacy of measures taken by Israel and Palestine revolves around the issue of compliance with these resolutions.

Major legal frameworks that are pertinent to the dispute:

1. UN Security Council Resolution 242 (1967): The resolution highlights the “inadmissibility of the acquisition of territory by war” and demands that Israeli forces leave the areas they captured in 1967 during the Six-Day War. It is a fundamental resolution that will support the two-state solution and the peace process.
2. UN Security Council Resolution 338 (1973): This resolution, which was adopted during the Yom Kippur War, demands talks and a cease-fire. It highlights the significance of diplomatic efforts in ending the dispute and restates the fundamentals of Resolution 242.
3. General Assembly Resolution 194 (1948): In addressing the Palestinian refugee question, this resolution upholds their entitlement to compensation or to return to their homes. It has served as a main source of information while talking about the rights of Palestinian refugees.^[1]

 

GENEVA CONVENTIONS:

Adopted in 1949, the Fourth Geneva Convention lays out the legal foundation for safeguarding civilians during armed conflicts. Because it deals with the treatment of people in occupied regions, it is especially pertinent to the Israel-Palestine conflict. The transfer of civilians from an occupying power into the region it occupies is forbidden by the agreement. Israeli settlement development in the West Bank and East Jerusalem has drawn heavy criticism for violating the Fourth Geneva Convention in the context of the war. The establishment of these communities is in conflict with international law, according to an advisory opinion published by the International Court of Justice (ICJ) in 2004.

1. Settlements and Occupation: One of the main points of disagreement for a long time has been the establishment of Israeli settlements in the West Bank and East Jerusalem. Partially relocating its own civilian population within the land it occupies is forbidden by the 1949 Fourth Geneva Convention, specifically Article 49. In a 2004 advisory opinion, the International Court of Justice (ICJ) declared that Israeli settlement development in the occupied Palestinian territories—including East Jerusalem—violates international law.
2. West Bank Barrier: There has also been legal scrutiny surrounding Israel’s construction of the West Bank barrier. The International Court of Justice (ICJ) declared in its 2004 advisory opinion that building the barrier violates international law. The International Court of Justice (ICJ) demanded that the barrier be taken down and emphasised how it affected the Palestinian people, especially with regard to movement limitations.
3. Gaza Strip: There are concerns over the observance of international humanitarian law in light of the circumstances there, particularly the blockades and military actions. When determining whether military operations are lawful, the proportionality principle—which mandates that parties refrain from causing undue harm to civilians in comparison to the anticipated military advantage—is essential.
4. Alleged Violations: During a number of wars, both Israeli and Palestinian organisations have been charged with breaking international humanitarian law. The use of excessive force, the indiscriminate targeting of people, and the impediments to humanitarian access are among the accusations. Determining the legality of an activity necessitates a case-by-case examination grounded on particular events and situations.
5. International Community Responses: Diverse opinions about the legitimacy of activities in the Israel-Palestine conflict have been voiced by the international community. Israel’s right to self-defense has been upheld by some nations and organisations, while others have denounced specific Israeli policies and acts. Divergent views of international law and decisions are frequently reflected in the legal debate.^[2]

INTERNATIONAL COURT OF JUSTICE:

When it comes to offering legal opinions on the Israel-Palestine issue, the ICJ has been involved. Apart from providing advice on settlements, the International Court of Justice also tackled the matter of building the West Bank barrier. The International Court of Justice (ICJ) found that building the wall would violate international law in the case of “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (2004).

The rulings of the International Court of Justice (ICJ) are significant in the legal discourse surrounding the war as they impact the legitimacy of certain activities, especially those concerning the alteration of territory and the welfare of civilians.

International Criminal Court (ICC) Complaints:

1. Reporters Without Borders (RSF): RSF filed a complaint on October 31, 2023, to the ICC, citing “war crimes committed against journalists in Israel and Palestine.” The complaint highlights the death of nine journalists during the conflict and the destruction of 50 press-related premises in Gaza.
2. Israeli Families: On November 2, nine Israeli families who had been affected by the October 7 Hamas attack filed a case with the International Criminal Court (ICC), charging Hamas with “war crimes, crimes against humanity, and genocide.” The families asked the ICC to take into account granting international arrest warrants for Hamas chieftains.
3. Jurists Collective: On November 8, a group of jurists from several nations submitted a third lawsuit alleging “genocide” in Gaza. Members of the bar, private citizens, and association representatives are all parties to the case; Gilles Devers, a French attorney, is representing the latter.
4. Palestinian Human Rights Organizations: Three Palestinian human rights organizations (Al-Haq, Al Mezan, and the Palestinian Centre for Human Rights) filed a complaint on November 8, accusing Israel of “war crimes,” “apartheid,” “genocide,” and “incitement to genocide.” The complaint requests the ICC to issue arrest warrants against three Israeli leaders.

ICC Investigation :

The International Criminal Court (ICC) intends to look into potential war crimes in Gaza and Israel. The inquiry includes incidents related to the 2014 Gaza War (Operation “Protective Edge”) as well as ongoing hostilities.

ICJ Advisory Opinion: Public hearings on the “legal consequences arising from Israel’s policies and practices in the Occupied Palestinian Territory, including East Jerusalem,” are scheduled for February 2024 before the International Court of Justice. A UN General Assembly resolution that addressed concerns about Israel’s occupation, settlement practices, and changes to the demographic makeup of the lands it has occupied since 1967 and was ratified by 87 governments called for this advisory opinion.^[3]

INTERNATIONAL HUMANITARIAN LAWS:

The laws of war, also referred to as the law of armed conflict or international humanitarian law (IHL), are a body of guidelines and precepts intended to control the conduct of armed conflicts and safeguard those who choose not to participate in hostilities. Under these laws, the Israel-Palestine issue has been examined. These are the main IHL tenets that are pertinent to the dispute:

1.  Protection of Civilians: During armed conflicts, IHL places a strong focus on protecting civilians. With regard to the Israel-Palestine conflict, the 1949 Fourth Geneva Convention—which addresses the protection of civilians during times of war—is especially pertinent. Basic guarantees for anyone who choose not to participate in hostilities are also outlined in Article 3 of the Additional Protocol II of the Geneva Conventions. The Fourth Geneva Convention, which forbids the transfer of an occupying power’s civilian population into territory it occupies, has been heavily criticised in the context of the war for Israeli settlement expansion in the West Bank and East Jerusalem.
2. Treatment of Occupied Territories: International humanitarian law (IHL) specifies rules for handling occupied regions. Article 42 of the Fourth Geneva Convention, Additional Protocol I, and the Hague Regulations of 1907 delineate the responsibilities of the occupying power, which encompass refraining from annexing occupied territory and upholding the rights of the occupied people. The International Court of Justice (ICJ) issued an advisory opinion in 2004 stating that the building of the West Bank barrier by Israel is against international law due to legal concerns presented by the barrier’s construction and the settlements’ creation.
3. Proportionality and Distinction: International humanitarian law mandates that parties to a war make a distinction between fighters and civilians and refrain from actions that might inflict damage that is out of proportion to any expected military benefit. The goal of the proportionality principle is to reduce damage to people and their infrastructure. Regarding the military operations in the Israel-Palestine conflict, accusations of violations of distinction and proportionality have been made.
4. Treatment of prisoners: International Humanitarian Law (IHL) sets down guidelines for the treatment of prisoners, which include the right to a fair trial and a ban on torture and other cruel, inhuman, or degrading treatment. The Additional Protocol I and the Geneva Conventions both uphold these ideals. International scrutiny and accusations of breaches of these norms have surrounded the detention policies of both parties involved in the Israel-Palestine conflict.^[4]

 

CONCLUSION:

There is still no resolution to the Israel-Palestine issue, and tensions and violent outbursts continue on a regular basis. The international community, which includes the US, the EU, and the UN, is still working to find a workable and long-term solution. Given that both Israel and Palestine have engaged in activities that have been found to be breaches of international law, the question of whether the measures conducted by either party are legitimate is complex. A thorough and equitable settlement of the dispute will probably include concessions, diplomacy, and international collaboration.

In conclusion, international law offers a framework for evaluating the legality of actions, but political will, negotiations, and a commitment to the principles of justice and human rights will be necessary for a comprehensive and sustainable resolution. The Israel-Palestine conflict is a deeply entrenched and delicate issue with legal implications for both parties involved.

 

By: Aastha Ganesh Tiwari

 

^[1]https://www.britannica.com/topic/United-Nations-Security-Council

^[2]https://www.cfr.org/article/what-international-law-has-say-about-israel-hamas-war

^[3]https://unric.org/en/israel-palestine-the-role-of-international-justice/

^[4]https://reliefweb.int/report/occupied-palestinian-territory/alleged-violations-international-humanitarian-law-israel-palestine-conflict-simple-explainer