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.

The legal discourse as to Israel’s right to use the Suez Canal centered on the issue of belligerency. Egypt argued that the 1949 Armistice Agreement with Israel did not end the state of war and, hence, Egypt was entitled to take acts of belligerency not prohibited by the Armistice Agreement. According to Egypt, the 1888 Constantinople Agreement allowed Egypt to take steps to defend the Canal, and prohibiting Israeli shipping was such a step. Israel argued that the Armistice Agreement prohibited all acts of belligerency. The UN Security Council supported Israel’s position. The Egypt Israel Peace Treaty has resolved the issue of Israel navigation through the Canal. The configuration of the Strait of Tiran differs from most other international straits, in that it connects high seas with an enclosed gulf. The Egyptians claimed that they had belligerent rights against Israeli shipping in Egyptian territorial waters. The issue has been finally settled in the 1979 Egypt-Israel Peace Treaty that stipulates that the Gulf of Aqaba and the Strait of Tiran are “International waterways to be open to all nations for unimpeded and non-suspendable freedom of navigation.”

The Palestinian Authority defines itself as the State of Palestine and has the outward organs of an independent State. The State of Palestine conducts foreign relations, albeit the Oslo accords prohibited the Palestinian authority from doing so. Some States will not recognise another State if it was created as a result of an illegal action. This may be relevant to the consideration of whether Palestine should be recognised as a State. It is a subject of controversy as to whether the State of Palestine has a sufficiently effective government and defined territory to be considered a State in accordance with classical international law definitions. It can be argued that the large number of States and international organisations that recognise and treat Palestine as a State overcomes such deficiencies. The issue of whether Palestine is, at present, a State remains controversial.

The award of the arbitrators in the Taba case has been subject to criticism on the grounds that the arbitrators based their decision on existing markers on the ground and refrained from examining when the markers had been placed and by whom and whether their siting was in accordance with the legal boundary. Nevertheless, it was a landmark case in that for the first, and so far only time, Israel and a neighbouring Arab State settled a border dispute by means of an international arbitration. States usually go to arbitration only on matters that they do not consider to be of fundamental importance and losing would not have far-reaching consequences. This is true of the Taba dispute, which involved a dispute of some 250 metres of shoreline.Professor Lapidoth summarises that for political and perhaps even psychological reasons the two parties attributed to this dispute much more weight than was objectively reasonable.

The 2002 Arab League Peace Plan calls for recognition of Israel and normalization of relations. This represents a sea change in the Arab consensus regarding the conflict. It is made conditional, however, on Israel affirming undertakings concerning borders and Palestinian refugees that are unacceptable to Israel. The agreements reached with Arab Gulf States are an extremely positive development. They represent increasing Arab acceptance of Israel as an existing State in the Middle East.There has however has been, as yet, no progress in negotiating with the Palestinians concerning the final status of the West Bank and Gaza.

There would appear to be no controversy that Israel as a belligerent occupier of Sinai was entitled to exploit existing State-owned oil wells, if it was a reasonable use. There does not seem to have been a claim that Israeli use of the wells was wanton or unreasonable. However, there is controversy over the legality of exploring for and exploiting new oil wells. The objection of the United States Department of State to the legality of such exploitation was based, apparently, on the apprehension that it would encourage the longevity of occupation. The issue of new oil wells has not been the subject of any authoritative legal decision and it could be argued that, as a general principle, the onus would be on those wishing to pronounce it as an illegal action. As part of the Egypt Israel Treaty of Peace, “The Parties agree to establish a claims commission for the mutual settlement of all financial claims.” This commission has never met and no claims have been submitted to it.