Demographic changes inside the Jewish society produced a new political force in Israel, defeating any chance of a liberal Zionist approach towards the Palestine Question. The last liberal Zionist bid was the Oslo Accord that dismally failed. The occupation after Oslo became much harsher as were the discriminatory policies towards the Palestinian minority inside Israel.

The Oslo Accords were signed between Israel and the Palestine Liberation Organisation (PLO) granting the Palestinians elements of self-government for an interim period leading to negotiations on the final status of the West bank and Gaza. The Accords have been subject to intense criticism. However, for the first time the Arab Palestinians had their own, freely elected, administration, albeit subject to restrictions. The word autonomy, implying that the area is part of an existing State, was used in the 1978 Camp David Accords but was omitted from the Oslo Accords. Jerusalem and Israel settlements were excluded from the jurisdiction of the Palestinian Authority but it was agreed that their status would be part of the negotiations on the final status of the West Bank. The Accords had very broad international support and, although there are mutual claims that the Accords have been violated, neither part has formally abrogated them.

This opening chapter examines whether international law is relevant to the Arab-Israel conflict. The conclusion reached is that although the dispute is political ideological and territorial; nevertheless, international law has played an important role, and will continue to do so. All parties desire that their positions be seen to be legally legitimate, such legitimacy is a political asset as regards both the other party and vis-à-vis third parties. The international language of international relations is, largely, the language of international law; this is particularly true as regards the United Nations and international organisations. Israel and the Palestinians are engaged in an intensive campaign to persuade world public opinion of the legitimacy of their respective cases. Legal precedents, although not binding, play a highly useful role in assisting the parties to reach agreement. The same is true for dispute settlement mechanisms of international law. Finally, the object of negotiations is to reach agreement. The principle that international agreements are binding is a principle of international law and lawyers, based on international law, will examine their validity and context.

The Israel Jordan peace treaty is an example of the role precedent can play in international law. Although precedents are not binding, nevertheless major parts of the Israel Jordan treaty are copied verbatim from the Egypt Israel treaty. This was done for a variety of reasons. Jordan was a far smaller and weaker State than Egypt, and it was convenient for Jordan to rely on text that had been agreed upon by the stronger brother Arab State. Diplomats and international lawyers are, mostly, a conservative group and are happy to follow a beaten path. The Egypt Israel treaty had been signed fifteen years before the treaty with Jordan and had proved itself as viable. An example of this viability is the settlement of disputes clause. The clause in the Egypt Israel Treaty had an element of ambiguity, and Jordan suggested changing it. The Jordanian negotiators agreed to accept the text of the clause in the treaty with Egypt after the Israel negotiators pointed out that the clause in the treaty with Egypt had enabled the parties to successfully submit the Taba dispute to arbitration.

The location of water resources played a role in determining the post-World War I Palestine–Syrian border and presumably will play a part in future negotiations with Syria. Although Syria and Lebanon are upstream riparians on the Jordan basin, the two countries have alternative water resources and are therefore less dependent on the Jordan basin for their water supply. For Israel, Jordan and the Palestinians, however, the Jordan basin offers a primary source of water. The Johnston Plan served as a basis of understanding between Jordan and Israel but without explicit references to international law. The Israel–Jordan peace treaty and the bilateral interim arrangements reached between Israel and the Palestinians deal with allocations of specified quantities of water and not with legal principles. Future negotiations between Israel and the Palestinians will have to find a compromise between two basic tenets of international law, the rule of not causing appreciable harm to existing uses and the inherently contradictory rule of equitable allocations.

In 1948, with the end of the British Mandate, Israel declared its independence. Israel based its declaration on the right of self-determination and the fact that the League of Nations and the UN had recognised this right. Israel’s legal position was not that these institutions had granted the right of self-determination of the Jewish people, but that they had recognised an existing right. The Declaration did not refer to the borders of the new State nor to its capital. Whether the Declaration created an independent State as from 14 May 1948 depends on an examination of whether Israel, at the time, fulfilled the Montevideo criteria for statehood.

In 1947, Britain decided to relinquish its Mandate over Palestine and refer the issue of the status of Palestine to the United Nations. The United Nations General Assembly adopted a resolution recommending partitioning Palestine into Arab and Jewish States with economic union between them and that Jerusalem be a separate area to be administered by the United Nations for an initial period of ten years. The recommendation was not legally binding. The Arab population of Palestine and the Arab States rejected the partition plan. The Jewish population of Palestine accepted the plan, although with misgivings. The partition plan was not implemented.

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.