The 1948 war is regarded by Israel as its war of independence in which it managed to repel attacks by all the neighboring Arab States. The Arab population of Palestine regard the war as a catastrophe, al Nakba, that caused the exodus of some 750, 000 Arabs. As a result of the 1948 war, Israel occupied the Western Galilee and Beersheba, Jordan occupied the West Bank and Egypt occupied the Gaza strip, all territories allocated to the proposed Arab State. Israel and Jordan divided Jerusalem between them. International law issues arising from the war include complaints from both sides of deliberate killing of civilians, clearly a violation of the laws of war. Expulsion of civilians, where it occurred, was justified by Israel as an act of legal military necessity, this is disputed by the Palestinians who viewed it as an illegal act. A smaller number of Jewish civilians were expelled from areas held by Arab forces.A legal issue in dispute is whether the objection of the Arabs of Palestine to partition allowed them to use force and whether the intervention of the neighbouring Arab States was a legitimate exercise of the right of collective self-defence.

It is not clear whether Egypt did in fact intend to invade Israel in June 1967. Egypt, however, mobilized its forces and moved them into Sinai near the border with Israel, placed the Jordanian army under Egyptian command, coordinated its military plans with other Arab States, demanded the removal of UNEF and closed the Strait of Tiran. These actions, combined with bellicose statements, it can be argued, gave Israel legitimate reason to apprehend that an attack was imminent. It might well be that the closing of the Strait of Tiran, was, in itself, an armed attack. Israel’s use of force was legitimate if it had, at the time, a reasonable belief that an Egyptian attack had taken place or was imminent. According to modern international law, Israel’s use of force was not legitimate if it was a preemptive strike to prevent the possibility of an Egyptian attack. Neither the UN Security Council nor the UN General Assembly took a position as to who was the aggressor in the Six Day War. As a result of the June 1967 Six Day War, the region’s strategic geography was drastically changed.

The 1922 Mandate League of Nations Mandate for Palestine was an agreement between Britain and the League of Nations whereby Britain would administer Palestine subject to the terms of the Mandate. The Mandate incorporated the wording of the 1917 Balfour Declaration and added a reference to “the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country” while not prejudicing “the civil and religious rights of existing non-Jewish communities in Palestine.” The Mandatory borders of Palestine with Egypt and Trans-Jordan were later adopted as the borders of Israel with Egypt and Jordan in the 1969 and 1994 Peace Treaties. The Mandate called for the “close settlement by Jews on the land, including State lands and waste lands not required for public purposes” and it is controversial whether this is still relevant to parts of Palestine

This chapter deals with two key documents concerning Palestine adopted during the First World War. The 1916 Sykes-Picot Agreement was an agreement between Britain and France to divide the Middle East into respective areas of influence. The agreement was conditional on Britain and France defeating the Ottoman Empire. The Agreement ignored national interests of both Arabs and Jews. It was, however, a binding agreement between two sovereign States. The fact that it was a secret agreement and ignored rights of self-determination did not affect its legality at the time. An exchange of correspondence between British High Commissioner McMahon and Hussein Sherif of Mecca promised Arab independence. It is doubtful that the correspondence was regarded as a treaty at the time; nevertheless, it can be considered a binding international commitment by Britain. The fact that it was secret and conditional on Britain defeating the Ottomans does not detract from its legal validity. Britain apparently intended to exclude Palestine from the area promised to Hussein but, for political reasons, used ambiguous language that did not make an explicit reference to excluding Palestine.

The Arab claim is that the Palestinian refugees were illegally expelled by Israel or fled from fear of illegal Israeli actions. The Israeli position is that the refugees fled because they were caught in an armed conflict caused by the aggression of Arab armed attempts to prevent the creation of a Jewish state. As to a “right of return,” the Arab position is that such a right exists in international law, and although many refugees may not wish to return, they have the right to do so. The Israel legal position under international law as being that neither under the general international conventions, nor under the major UN resolutions, nor under the relevant agreements between the parties, do the Palestinian refugees have a right to return to Israel. There does not appear to be any legal precedent or the claim that descendants of refugees also have a right of return. In accordance with international law, the refugees are entitled to be compensated for property they left in Israel. The Jews who fled Arab States are also entitled to such compensation; Israel’s position is that such mutual claims will have to be negotiated in a multilateral forum.

In the 1917 Balfour Declaration, Britain recognised the Jews as a people and promised them a national home in Palestine. Although not legally binding in 1917, the Balfour Declaration was of cardinal importance in providing international political support for the idea of recreating a Jewish national home in Palestine. The Declaration was at first a conditional promise, but subsequent to the Declaration, Turkey renounced its claim to Palestine and Britain took control of the whole of Palestine and was in a position to implement it. The Declaration subsequently obtained binding international legal status in the San Remo Resolution and in the 1922 League of Nations Mandate for Palestine. The Balfour Declaration obliged the British Government to preserve the individual rights of the Arab population of Palestine but did not recognise them as a people or promise them national rights, although they constituted a majority of the population at the time. This caused anger amongst the Arab population of Palestine and contradicted the Arab interpretation of the McMahon Hussein correspondence, whereby Palestine was to be part of an independent Arab State.

The proposal to create a transitional regime of autonomy for the Arab population of the West Bank was initiated by Israel Prime Minister Begin. Through US mediation, the idea of autonomy was adopted by Egypt and Israel at Camp David as a program of full autonomy to the Arab inhabitants. The Camp David Accords proposed withdrawing the Israel military administration from the West Bank and Gaza and replacing it, for a transitional period of five years, with an elected council. The issue of the final status, after the termination of the five-year period, was left open to negotiation. The Accords referred to “the legitimate rights of the Palestinian people and their just requirements.” This phrase could be understood as referring to a right of self-determination but it was not stated explicitly. Egypt and Israel failed to agree on the implementation of the autonomy plan. The issues that prevented agreement were participation of East Jerusalem Arabs in the elections for the Council and the powers and responsibilities that were to be transferred to the elected council. The main elements of the Camp David Accords were, later, adopted by the Israel-PLO “Oslo” agreements.

The 1949 Armistice Agreements terminated open hostilities, set out demarcation lines and enabled exchange of prisoners of war. The initial hope was that they would lead to peace treaties but it took another thirty years before the first peace treaty, with Egypt, was signed. The institution of demilitarized zones proved to be problematic as it led to disagreements regarding sovereignty and civilian control of these areas. The Mixed Armistice Commissions often found themselves acting as legal arbitrators on difficult international legal issues for which the Chairman, a military officer seconded to the UN was not qualified. Armistice Demarcation Lines (ADL) are normally temporary, but the 1949 Armistice Demarcation line between Israel and the West Bank and Gaza has achieved a certain de facto status. Most States consider the ADL should serve as a basis for negotiating a future border between Israel and the Palestinians.

It is, I believe, legitimate to ask whether there is a substantial role for international law in international relations in general and in the Arab-Israeli conflict in particular. The Arab-Israeli conflict is a conflict rooted in historical, national, geographic, ethnic and religious elements, and the actors rarely consult international law books before taking action. In Chapter 1 of the book, I attempt to answer this question by stating that, although international law is not a dominant factor, nevertheless, it has played a major and, at times, a crucial part in the development of the narratives of the parties and in attempts to solve the disputes. Another problem is that some politicians feel that law is an inhibiting factor. Former Israel Defence Minister Ezer Weizman writes, concerning the negotiations at Camp David 1978, ‘I was also perturbed by the large number of jurists in the Egyptian delegation – as in the Israeli and American groups, there are lawyers who find a solution to every problem, I observed, and there are those who find a problem for every solution. Camp David teemed with the second kind’.

Military administration is the norm international law applies to territories that are not under the sovereignty of a State. Nevertheless, military government, by its nature, denies the local population the democratic right to choose their own form of government, and it is, therefore, intrinsically a temporary situation. Some ninety per cent of the Arab population on the West Bank are now under the jurisdiction of the Palestinian Authority but, nevertheless, the fact that there are still parts of the West Bank under Israeli military administration, some sixty years after the June 1967 War, is anomalous. It should be hoped that a solution will be found that allows the remaining ten percent of the local Arab population full democratic rights. Such a solution will need to be negotiated between Israel and the Palestinians.

The negotiations over the Egypt-Israel Peace Treaty raised fundamental legal issues of conflict between different treaties and the right to collective self-defence. International law was unable to give unambiguous answers to these issues. The two parties have maintained the peace for over forty years not because of the legal wording of the Peace Treaty, but because it is in their national interests. To the best knowledge of the author, the parties have never had resource to the language of the Peace Treaty, except as regards the changes in the security arrangements, and settling the Taba dispute. Nevertheless, it was important for both sides to try and ensure legal language that represented their interests, and the Peace Treaty can be seen as an extremely successful example of legal draftsmanship. The language of the treaty was copied, nearly verbatim, in successive peace treaties that Israel signed with other Arab States. Begin and Sadat received the Nobel Peace prize, a leading textbook on treaty law chose a picture of the signing ceremony with Begin, Carter and Sadat as the photo on its cover, a compliment to the treaty drafting of Egypt and Israel, done with the help of the United States.

UN Security Council Resolution 242, adopted after the June 1967 Six Day War, was a non-binding recommendation for settling the Arab-Israel conflict. Israel and the Arab States agreed to accept the recommendations. Syria and the PLO at first refused to accept it but later, they also agreed to accept it, and thus it became the accepted framework for ending the Arab Israel conflict. The preamble of the Resolution states that acquisition of territory by war is inadmissible and that the conflict must be settled by peaceful means. The operative parts of the Resolution call for Israel to withdraw from territories occupied in the Six Day War, for the Arab States to end the state of war with Israel, for freedom of navigation in international waterways and for a just settlement of the refugee problem. The phrasing used in the clause about Israel withdrawal is “from territories.” There is a continuous disagreement as to whether this implies withdrawal from all the territories occupied or that the issue of borders is subject to negotiation between the parties. By accepting the Resolution, the Arab States apparently abandoned any legal basis for demanding Israel withdrawal from beyond territories occupied in the Six Day War.

The issue of Israeli settlements in the West Bank is controversial in the international community as well as within Israel society. The case for their illegality is based on the language of Article 49 of the IVth Geneva Convention. The contrary argument is that the population has not been transferred into the territory of an enemy State as set out in Article 49. It is debatable whether such settlements are illegal under international law, it is, however, clear that continued settlement activity is making it harder to achieve agreement on a separate independent Palestinian State or entity in the West Bank. Presumably the issue of Israeli settlements will only be resolved if Israel and the Arab Palestinians in the West Bank can agree on a boundary between them.If such a boundary is fixed, any Israeli settlement on the Palestinian side can only continue to exist with the agreement of the Palestinians. The issue is one of boundaries between Israel and a future Palestinian entity or State. It is not an Apartheid system of a minority controlling a majority but a border dispute that, hopefully, will be negotiated peacefully in the future.

International law has played a part in the Arab-Israel dispute for over a hundred years. The disputes with Egypt, Jordan and Arab Gulf States have been settled and international law played its part. The Palestinians see themselves as the weaker party. They therefore demand that any agreement between the parties must reflect “international legitimacy” and that the relevant United Nations resolutions reflect such legitimacy. To reach agreement on the final status of the West Bank and Gaza both sides will have to make painful compromises. It is ironic that although international law has played a useful and positive part in all stages of the Arab-Israel conflict, these different interpretations of what is international law, in fact, are hindering the possibility of settling Israel-Palestinian issues.

The legal status of the West Bank remains one of the core issues of controversy in the Arab-Israel dispute. After the 1948 War, the Gaza Strip came under Egyptian control and the West Bank under the control of Jordan. Both areas came under Israel control after the 1967 war. The Israel legal position as to the status of these territories was that they were not the territories of a foreign state hence legally Israel did not have to apply the IVth Geneva Convention. Israel undertook to apply the humanitarian provisions of the Convention. Israel unilaterally withdrew its armed forces and civilians from the Gaza Strip. The majority of the population of the West Bank are Arab Palestinians who, under international law, have a right of self-determination. The 1947 UN Partition plan recommended that the West Bank be part of an Arab state. The 1922 League of Nations Mandate, however, promised the Jewish people the right to create a Jewish National Home in Palestine, which at the time, included the West Bank. Israel and the PLO have agreed to negotiate the future status of the West Bank. The majority of the Arab population of the West Bank are under the jurisdiction of the Palestinian Authority, however, the major part of the territory of the West Bank, including all Israeli settlements remain under Israeli military administration. To date, the parties have not yet managed to agree on what will be the final status of the West Bank.

Two major international legal issues that arose during the Israel-Syria negotiations were the issue of borders and the status of offers made during the negotiations. As regards borders, Syriarefuses to accept the validity of the former international boundary claiming it was imposed by colonial powers. The rule of uti possidetis, that new States inherit colonial era borders, is now, however, a rule of customary international law. A strong argument can be made that it should be the basis of the negotiations with Israel. However, there is no legal impediment to Syria trying to change it by agreement with Israel. As to the status of offers made during negotiations. It can be argued, that although not legally binding, as a matter of good faith, offers made during negotiations should not be withdrawn so long as they are being negotiated.

In the recent conflicts there have been a number of controversial issues involving the laws of war including the issue of targeted killing, civilian casualties and the blockade of Gaza. In addition to the public relations aspect, international criminal law is increasingly relevant. In accordance with the principal of universal jurisdiction, any country can prosecute a suspected war criminal even if there is no nexus between the offence and the State concerned. This principle has been used in attempts to bring charges against Israeli politicians and military commanders in a number of European States. To date no prosecutions have taken place and the judicial authorities have tended to see these attempts as a political abuse of legal proceedings. The International Criminal Court has jurisdiction to try war criminals, if the State involved is unwilling or unable to investigate or prosecute the case. Palestine has claimed that Israel committed war crimes in the territory of Palestine and thus the Court has jurisdiction. Israel disputes the claim and the jurisdiction of the Court. The issue has not yet been resolved.

There are two distinct issues in attempting to arrive at a settlement concerning the status of Jerusalem: Holy Places and territorial jurisdiction. As regards Holy Places, both Israel and the PLO, apparently, are willing to accept special arrangements for international religious bodies in the holy sites. The Palestinians demand that East Jerusalem be the capital of a Palestinian State. In accordance with international law, an international organisation cannot be sovereign of territory, but it can administer it. All the parties concerned, Israel, Jordan and the Palestinians object to internationalization. Any attempt to resolve this issue has to consider whether the City should be divided and should the division be a physical barrier. If there is no physical barrier then should there be another physical barrier between Israel and a Palestinian State or entity. As to possible solutions, there appears to be no international call for physically dividing the city again. There have been many proposals for solutions. Proposals include functional division and suspending the issue of sovereignty, treating the Old City within the walls as a separate issue, or dividing the city according to the demography of the different suburbs. Each proposal raises difficulties. It appears that international law may help buttress solutions but, unfortunately, international law holds no magic answer or golden key.