THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCES, KOLKATA

ANALYZING THE ISRAEL-PALESTINIAN CONFLICT IN THE CONTEXT OF APPLICABLE PRINCIPLES OF INTERNATIONAL LAW
(The Role of United Nations; Breaches of Law of Occupation and Illegal Construction of Security Wall by Israel)

{Public International Law Project Submission}

SHOUMENDU MUKHERJI (209122)

3rd Year
February 24th, 2012
Winter 2012: 6th Semester

"The inadmissibility of the acquisition of territory by war and thus the need to work for a just and lasting peace in which every State in the area can live in security." UN Security Council Resolution 242(1967 ) 1

The United Nations (UN) was established in 1945 with its principal purpose to maintain peace, security and friendly relations amongst all nations of the world. The need for such an organization was realized after the outbreak of two gruesome world wars which led to rising trust deficits amongst the world superpowers. The Israel-Palestine conflict arose in the aftermath of the civil war and creation of Israel. The author through the columns of this paper seeks to analyze the degree of efficiency in the role played out by the UN to bring the warring parties to a possible amicable solution. The author brings out an interesting analysis of how condemnable collateral factors and selfish attitudes of third parties and political allies have avoidably delayed implementation of these benevolent UN efforts. The paper discusses the alleged violations of law of occupation and sovereignty in addition to legality of the construction of the security barrier across the West Bank by Israel. The author concludes that no matter what, it is ultimately the United Nations, being the sole binding authority of effectuating peace in the region, to play a pioneering role if at all a long term solution is to be reached.

EVOLUTION OF THE DISPUTE AND ITS PRESENT DAY STATUS:

During the deplorable years of the First World War I, in 1917, British forces annexed Ottoman Syria2. The territory, now renamed Palestine, remained under the military control of the imperial British till the remainder years of the war. Their rule received formal recognition under the Mandate of 19223. In the aftermath of the Second World War, owing to recurring agitations, the British Government decided to terminate the mandate after twenty six successful and unbridled years and set up a United Nations Special Committee on Palestine (UNSCOP)4 to partition the ruled territory into a Jewish state and an Arab state. In contrast to the Jewish acceptance of the partition plan, the Arab leadership despised it and a resultant civil war broke out. The State of Israel was declared in 1948. Allegedly, Israel captured one fourth of Palestinian territory and seven lakh Palestinians fled from their homes.5 The present day conflict revolves around the recognition of borders, refugee settlements, control over the holy city of Jerusalem etc.
1 2

S.C. Res. 242, 1, U.N. Doc. S/RES/242 (November 22, 1967 ) ARIEH L. AVNERI, THE CLAIM OF DISPOSSESSION: JEWISH LAND SETTLEMENT AND THE ARABS (1984) 3 FRED KHOURI, THE ARAB-ISRAELI DILEMMA (1985); YITZHAK REITER, ISLAMIC ENDOWMENTS IN JERUSALEM UNDER BRITISH MANDATE (1996) 4 YOAV GELBER, JEWISH-TRANSJORDANIAN RELATIONS: ALLIANCE OF BARS SINISTER (1997). 5 ALAN DERSHOWITZ, THE CASE FOR PEACE: HOW THE ARAB-ISRAELI CONFLICT CAN BE RESOLVED (2005)

ROLE OF UNITED NATIONS : DO ACTIONS CARRY TEETH OR ARE THEY MERELY AN EYEWASH ?
The United Nations has strived hard in its diplomatic efforts to bring the Israeli-Palestinian conflict to an end6. Most such efforts have been in line with the ideology influencing the Security Council Resolutions 2427 and 3388. However, sadly, since both have been under Chapter VI and not Chapter VII of the UN Charter, they do not have binding force and have thus been defied9. Superpowers such as the United States of America (USA) have misused their influence10 to allow their belligerent allies, say Israel, to refrain from adhering to the orders of the Council. The Palestinian authorities have repeatedly expressed their grievance and cried foul over the composition of the Security Council which according to them prevents the rightful implementation of many General Assembly resolutions, most of which get passed in their favour, but are however, vetoed by the Security Council permanent members such as the USA and other western powers, in order to safeguard their defense and political relations with Israel. On the other hand, Israels general belief is that in the General Assembly, it has been singled out for condemnation and has not received fair representation.11 Since most Israel related resolutions are initiated by members of the Arab Group, they are passed by a wide margin as these Arab Group states constitute the two largest blocs in the Assembly the Non-Aligned Movement (113 members) and the Group of 77 (130 members).12 Thus, the United Nations has been stumbling without much conviction from one contrivance to the next. It has rarely gained command of events or capitalized on its potential for bringing peace and reconciliation to the region.

CONSTRUCTION OF THE WALL BY ISRAEL: OPINION OF THE INTERNATIONAL COURT OF JUSTICE ON BREACHES OF LAW OF OCCUPATION & TERRITORIAL INTEGRITY
"Israel cannot rely on a right of self-defense or on a state of necessity in order to preclude the wrongfulness of the construction of the wall".
6 7

United Nations Special Committee on Palestine: Report to the General Assembly, A/364, 3 September 1947 acknowledging territorial, sovereignty integrity and political independence of the other State and at the same time termination of all belligerent acts S.C. Res. 242, 1, U.N. Doc. S/RES/242 (November 22, 1967 ) 8 calling for cease-fire S.C. Res. 338, 1, U.N. Doc. S/RES/338 (October 22, 1973 ) 9 Palestinian Statehood at the United Nations : A Resource, QUAKER UNITED NATIONS OFFICE, (18 August 2011) available at http://www.quno.org/newyork/Resources/20110818Palestine.pdf (Last visited on February 22, 2012) 10 UN News Centre, United States vetoes Security Council resolution on Israeli settlements, available at http://www.un.org/apps/news/story.asp?NewsID=37572&Cr=palestin&Cr1= (Last visited on 18 February 2011) 11 Ibid. 12 Moshe Sharabi, Ethnicity, Ethnic Conflict and Work Values : the Case of Jews and Arabs in Israel, JOURNAL OF PEACE, CONFLICT AND DEVELOPMENT ISSUE 15 (March 2010) available at http://www.peacestudiesjournal.org.uk/dl/iss15-art11-with-table3.pdf (Last visited on February 21, 2012)

International Court of Justice (2004 Advisory Opinion)

The controversial wall being constructed by Israel lies along the 1949 Armistice Line13. Estimated to be four times as long and twice as high as the Berlin Wall once complete, the wall covers one-tenth of the West Bank area at present.14 The International Court of Justice, has declared the construction of the wall contrary to international law15 Supporters argue that the barrier protects Israeli civilians from Palestinian terrorism that had increased significantly during the Second Intifada16. Opponents, on the other hand claim the route has substantially deviated into the occupied territories captured by Israel during the SixDay War of 196717, and is an illegal attempt to annex Palestinian land under the guise of security. UN Security Council Resolution No. 1544 (2004) stating that Palestinians' right to selfdetermination has been impeded,18 has unequivocally emphasized Israels obligation as the occupying Power, to act in accordance with Article 49, paragraph 6 of the Fourth Geneva Convention19. Further, destructive acts such as house demolitions, creation of enclaves, restrictions on movement and access to water, food, education, health care, work, are humanitarian violations and a breach of principles under the International Covenant on Civil and Political Rights, The International Covenant on Economic, Social and Cultural Rights and the United Nations Convention on the Rights of the Child. Israel in its defense has stated that construction of the wall was well within the scope of Article 51 of the UN Charter and Security Council Resolutions 1368 and 1373. However, this view has been vociferously dismissed by the Court in saying that Article 51 only applied to armed conflict between two States, and not between a State and a territory subjected to illegal occupation

13

Permanent Observer Mission of Palestine to the United Nations, 1949 Armistice Agreement (OPT since 1967), available at http://www.un.int/wcm/content/site/palestine/cache/offonce/pid/11600;jsessionid=C6B0EBFA491373CD19813E47 BE744AFD (Last visited on February 20, 2012) 14 Ida Audeh, Israels Strangling of the West Bank: Walling in the Palestinians, INTERNATIONAL SOCIALIST REVIEW ISSUE 35, (May-June 2004) 15 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p.136 16 Jeremy Pressman, The Second Intifada: Background and Causes of the Israeli-Palestinian Conflict, THE JOURNAL OF CONFLICT STUDIES (Fall 2003) available at http://www.lib.unb.ca/Texts/JCS/Fall03/pressman.pdf (Last visited on February 23, 2012) 17 Moshe Gat, Nasser and the Six Day War, 5 June 1967: A Premeditated Strategy or An Inexorable Drift to War?, 11(4) ISRAEL AFFAIRS (October 2005) available at http://www.paulbogdanor.com/israel/gat1967.pdf (Last visited on February 20, 2012) 18 UN News Centre, International Court of Justice Finds Israeli Barrier in Palestine Territory is Illegal (July 9, 2004) available at http://www.un.org/apps/news/story.asp?NewsID=11292&Cr=palestin&Cr1 (Last visited on February 24, 2012) 19 the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies: Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV) ( August 12, 1949) available at http://www.ilsa.org/jessup/jessup11/basicmats/Geneva4.pdf (Last visited on February 23, 2012)

However, the ICJ opinion being non-binding has not been adhered to and in blatant disregard of the courts sanctity; these illegal occupations continue to expand. CONCLUSION: Many attempts have been made to broker a two-state solution, a move that has received large scale support in both territories. The United Nations, being the sole body that confers international legitimacy to pan continental coalitions and agreements, alone can bring out a long lasting solution acceptable to the masses. Going by the objective of the UN Charter, there can be and is no alternative to the United Nations. Too long have member states engaged in rhetorical political battles which have only delayed the enforcement of an assuaging peace deal. Most resolutions and court opinions have been blatantly refuted and dismissed by states which enjoy political clout. A change in attitude is warranted and is long overdue. If peace truly has to be fostered, either party stuck at the center of the conflict must take the first difficult step. Israel being the illegal occupier of Palestinian territory must act in accordance with humanitarian law, put an end to blockades, withdraw from illegal settlements and dismantle the wall as per directions of the international court. Palestine on the other hand should also cease unending violence against Israeli civilians before moving the United Nations and other justice seeking avenues. The United Nations needs to be forthcoming in building an atmosphere of intellectual honesty or integrity, in which all governments and all peoples may place their trust. The world today does not need a multitude of global bodies carrying identical responsibilities. In such a way, conflicts will only ascend. As in the words of Terje Rd-Larsen, former United Nations Under Secretary General and Special Envoy, Tomorrows world needs a stronger United Nations, capable of adapting and strengthening its capacity to address the realities of the twentyfirst century. It is thus fervently hoped that the United Nations by becoming a leading actor, third party, or mediator of high credibility in this pressing international conflict will fulfill its primary role as champion of international peace.