Introduction
The conflict between Israel and Palestinians goes back to ancient period, i.e when the ancient Israelites lived in and around Palestine and fought many wars with their neighbors. Territorial disputes over which religion should have control over the holy lands have been ongoing for about two thousand years with little to no resolution in sight.
Everyday, on the news, there is a story about how there was retaliation over the killing of a Palestinian or Israeli. The present conflict is an extension of those religious wars. But now the modern conflict has its roots in modern times, specifically in the disintegration of the vast empire. This dispute forms part of the wider Arab-Israel conflict. In short it is a dispute between two national adenitis which claims over the same area of land. Many attempts have been made to break down the two state solutions, which would entail the creation of an independent Palestinian state alongside Israel.
The promises of the peace process has occurred many times but never upheld by either side, which results as one important problem to this conflict. There is more to the never ending holy war than that of which the media allows us to see, the fear and loathing for that of a better life. The trifling stories of the individual are frequently untold even though they are a transgression committed against personal liberties. The Palestinians and the Israelis could view intervention as a supporting with one side or the other leading to defensiveness and therefore slowing down or sometimes was halting any progress that has been made.
5 June 2008 marks the 41st year of Israel’s occupation of the Gaza Strip and the West Bank, including East Jerusalem. On this occasion Al-Haq calls on the international community to take immediate and concrete action in response to Israel’s continued policy of settlement expansion in the Occupied Palestinian Territory (OPT). This policy continues to consolidate facts on the ground, necessarily undermining the Palestinian people’s ability to exercise their internationally recognized right to self-determination and precluding the possibility of peace.
Israel’s feel that strong measures are necessary to restrict terrorist’s activities of Palestinians. For that they chose barrier as one of the measure desipte strong opposition from international community. They defend themselves stating that circumstance force to act in this manner. (Mitchell Bard, 2008)
Israel’s Settlement Policy
For 41 years Israel has consistently and aggressively pursued settlement construction and expansion in the West Bank. Approximately 30 settlements were established in the first 18 months of the occupation, and Israel has used its effective control over the OPT ever since to construct a total of 149 settlements, now home to more than 470,000 settlers.
The development of these settlements has required extensive expropriation and annexation of Palestinian land and the construction of separate roads for settlers and Palestinians that carve up the West Bank into enclaves. Currently the settlements control over 40 percent of the West Bank, including essential agricultural and water resources, and are accompanied by a vast infrastructure that violates a range of fundamental human rights of the Palestinian people.
The most prominent aspect of this infrastructure is the Annexation Wall, which encloses and further dissects Palestinian communities and incorporates illegal Israeli settlements on its western side. The interesting thing is that various domestic and international actors involved in the conflict. The direct negotiating parties are the Israeli government and the Palestine liberation organization (PLO).
The hallmark in this conflict is that the level of violence has been witnessed for entire duration. Fighting has been conducted by regular armies, terror groups, etc., and no casualties have been restricted to the military.
This very brief account is intended as a balanced overview and introduction to Palestinian and Israeli conflict. It is believed that this document will provide a fair introduction.
Historical background of Israel-Palestine conflict
The ongoing conflict between Israel and the Palestinians is both simple to understand, yet deeply complex. At the heart of this conflict is a basic idea that both sides believe: The Israelis believe that they are entitled to the land now known as Israel, while the Palestinians believe that they are entitled to the land they call Palestine. Unfortunately, both sides claim the same land; they simply call the land by different names. The main problems for this conflict are one is the religion and the other is that hatred and the reluctance to give in to the other side.
Zionism
In the late 1800s a group in Europe decided to colonize this land. Known as “Zionists,” this group consisted of an extremist minority of the Jewish population. They wanted to create a Jewish homeland, and considered locations in Africa and the Americas, before settling on Palestine.
UN Partition Plan-1947
Finally, in 1947 the United Nations decided to intervene. The UN chose to revert to the medieval strategy whereby an outside power divides up other people’s land. Under considerable Zionist pressure, the UN recommended giving away 55 percent of Palestine to a Jewish state – despite the fact that this group represented only about 30 percent of the total population, and owned below 7 percent of the land.
The Great Britain administered the Palestine as mandatory. In 1947, it had given a notice to the United Nations that it was administered forthwith from Palestine. The General Assembly resolved on 29-11-1947 that the Palestine should be divided in to two separate countries in between Arabs and Jewish. The Zionists accepted, it but the Arabs. The Israel declared itself unilaterally as an independent state in 14-5-1948. Annoyed with Israel’s declaration, the neighboring Arab countries invaded against Israel. Israel defeated all of them.
1950-1960 periods
In the 1950s and 1960s, Palestinians conducted cross-border raids into Israel, often with the aid of Egypt, Jordan, and Syria. These attacks prompted Israeli military reactions, and the entire border area, especially around Gaza and the West Bank, was often the scene of violent warfare. The conflict between Israel and the Palestinians reached a new level of intensity and complexity on December 31, 1964, with the first Al-Fatah raid into Israel from Lebanon. Al-Fatah is a Palestinian political and military group formed in the late 1950s with the aim of retaking Palestinian land from Israel. Led by Yasser Arafat, the group joined the Palestine Liberation Organization (PLO) in June of 1964.
1967 War
In 1967, Israel conquered still more land. Following the Six Day War, in which Israeli forces launched a highly successful surprise attack on Egypt, Israel occupied the additional 22 percent of Palestine that had eluded it in 1948 – the West Bank and Gaza Strip. Since, according to international law it is inadmissible to acquire territory by war, these are occupied territories and do not belong to Israel. It also occupied parts of Egypt (since returned) and Syria (which remain under occupation).
Also during the Six-Day War, Israel attacked a US Navy ship, the USS Liberty, killing and injuring over 200 American servicemen. President Lyndon Johnson recalled rescue flights, saying that he did not want to “embarrass an ally.” (In 2004 a high-level commission chaired by Admiral Thomas Moorer, former Chairman of the Joint Chiefs of Staff, found this attack to be “an act of war against the United States,” a fact few news media have reported.)
Legality of Israel’s Annexation of East Jerusalem VS Palestine
Legislation was passed by state of Israel on 28 June 1967 claiming the de facto status on the illegal annexation of East Jerusalem. The ordinance which was brought in 1948 was made law in 1967 through a legislation extending the jurisdiction and administration of the state the occupied land. This amendment brought 30,000 dunums of East Jerusalem, its Old City and the West Bank under Israeli judicial and administrative control.
The Security Council resolution 252 (1968) reaffirmed that the acquiring a land through military conquest was not admissible and not considered as well. The administrative and the legislative measures including expropriation of land and properties which are affecting the legal status by the Israel was declared invalid and they cannot change the actual status of the nation.
The construction of the wall destroys the vast tracts of Palestinian land in contravention of Article 53 of the Fourth Geneva Convention. Article 49 of the convention prohibits the transfer of the civilians from its territory to the territory it occupies. Israel’s actions in East Jerusalem are in breach of the Fourth Geneva Convention and the principles of the convention are applicable to the Occupied Palestinian Territories.
Even the laws governing the international law, obligations under the article 1 of the Fourth Geneva convention and constant objection from the international community are not helping or restricting the Israel’ actions. This failure is treated as the indirect support it is getting by the international community by the Israel and carrying their actions. (AL-HAQ, 2005)
The legality of Israel’s Settlements in the West Bank in the context of the Geneva Conventions vs Palestine
According to the Israeli Ministry of Foreign Affairs the West Bank and the Gaza Strips are disputed territory and not occupied territory. The fact sheet ‘Disputed Territories: Forgotten Facts about the West Bank and Gaza Strip’ contends that their status can only be determined through negotiations.
The establishment an expansion of Israeli settlement in the west bank has no legal validity in 446,452,465 and 471 resolutions. As these resolutions were made under chapter VI of the united nations charter which relates to the “pacific settlements of disputes” between parties. The fourth Geneva convections is irrelevant because the convention applies regardless of claims of sovereignty”
Israel’s political justification
The international humanitarian law also would not oppose Jewish settlement in the OPT as the Article 49 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12August 1949 would not prohibit the voluntary return of Jews to the West Bank and the Gaza Strip as of 1967:
Repeated charges regarding the illegality of Israeli settlements must therefore be regarded as politically motivated, without foundation in international law. Similarly, as Israeli settlements cannot be considered illegal; they cannot constitute a ‘grave violation’ Of the Geneva Convention, and hence any claim that they constitute a ‘war crime’, is without any legal basis. Such political charges cannot justify in any way Palestinian acts of terrorism and violence against innocent Israelis
Arguments based on the fourth Geneva Convention
- Whether the convention forbids the establishment of Israeli settlement
- whether the convention applies to the territories in question
As regarding the 1st question Article 49 concerns the legality of population transfers Article 49 (1) insists that “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive” Article 49(6) insists that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”.
In practice Israel does not accept that the fourth Geneva Convention applies de-jure, but has stated that on humanitarian issue it will govern itself de-facto by its provisions, without justifying. Supporters of the legality of the settlements argue that even if the Convention did apply, it should be read only in the context of World War forcible migrations at the time. It is only intended to cover forcible transfers and to protect the local population from displacement. They point out Article 49(1) specifically covers “[i]individual or mass forcible transfers” whereas the Israelis who live in the settlements have moved there voluntarily, and argue that settlements are not intended to, nor have ever resulted in, the displacement of Palestinians from the area.
In addition, they state that the Geneva Convention only applies in the absence of an operative peace agreement and between two powers accepting the Convention. Since the Oslo Accord leave the issue of settlements to be negotiated later, proponents of this view argue that the Palestinians accepted the temporary presence of Israeli settlements pending further negotiation, and that there is no basis for declaring them illegal
Those who reject that view have a different reading of the article. They note that Pictet’s commentary on Article 49(6) states “the paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words “transfer”
As regarding the second question, Article 2 extends the Convention to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties” and “all cases of partial or total occupation of the territory of a party. Supporters of the legality of the settlements argue that the Convention itself does not apply, as the West Bank and Gaza Strip have never been part of a sovereign state since the defeat of the Ottoman Empire, therefore do not meet the definition of “the territory of a High Contracting Party.
U.N. Security Council Resolution 446 refers directly to the Fourth Geneva Convention as the applicable international legal instrument, and specifically insists that Israel desist from transferring its own population into the territories or changing their demographic makeup
The latter interpretation was adopted by the International Court of Justice in its 2004 advisory opinion, and 150 countries supported a (non-binding) General Assembly resolution demanding Israel to “comply with its legal obligations as mentioned in the advisory opinion
When we compare Article 2 the west bank is never under the territory of a high contracting party. According to barrister and human rights activist Israel’s argument was rejected by the international community “because the Convention also states that it applies ‘in all circumstances’ (Article 1), and ‘to all cases of declared war or of any other armed conflict’ (Article 2).”
The fourth Geneva Convention does not apply in each and every armed conflict .but we should assume that whole idea of restriction of military government powers is based on the assumption that there has been a sovereign who was ousted and that he was legitimate sovereign.
Even the Israel is rejecting the advisory opinions stating the issue as political matter. According to the Amnesty international report the construction of wall from the north to the south of the West Bank and around the Jerusalem will definitely will violate the human rights. (Amnesty international report, 2004)
The legality of Supreme Court and ICJ regarding separation of barriers. The separate barrier issue became severe in 2002, when the Israel started constructing an extension of network of fences and wall to prevent terrorists and suicide bombers from reaching its civilians around. If the has completed as planned, the wall would extend about 400 miles around the West Bank, and in places would reach as far as three miles into the West Bank to encircle Jewish settlements. For this reason Palestinians claims that Israel using the barrier to annex land that they say will theirs if a future state is established.
When we look into government report, the areas where the fence are completed, the rate of criminals, suicide bombers and terrorist entering into Israel has been reduced from 600 per year to 0 per year. It is an important thing which has to be noted down.
Legality of Israel’s Supreme Court against the Barrier
The land mark judgment was given by a three judge panel on June 30th, The case was brought by a group of Palestinian farmers, who argued that the wall’s route, along a 25-mile section, causes unjustifiable suffering, infringing on the rights of more than 35,000 Palestinians.
The court deciding in favor of the plaintiff and recognized Israel’s legitimate security interest in building barrier changed the total focus of the international community. The court has judged that if Israel need be, can expropriate land in the west bank for this purpose if it provides adequate compensation .the important thing must be noted that such amount of compensation, which has been promised earlier has not yet been granted and even the court ordered that it must be provided. With this the court has mentioned that if Israel’s barrier enters into the west bank i.e. is holding the land in belligerent occupation and then international law applies. High court of justice determined the construction of wall in the OPT was legal in Beit Sourik case. (AL-HAQ, 2008).
Legality in International court of justice against the barrier
The generally the international court of justice ruling is just a voluntary and is not binding. But in this case the international court of justice has held that the “barrier injurious the local inhabitants in a severe and acute way while violating their rights under humanitarian and international law”
The Court’s willingness to order compensation to those whose land was taken, and order that the barrier be rerouted, illustrates the independence of Israel’s judiciary in national and international law” The ICJ opinion was contradicting justice in number of respects-ICJ has evidenced a politically driven, and leads to unfair hostility to Israel. The important thing is that as the Israeli Supreme Court’s decision though it is correct but ICJ has contradicted it. The ICJ has also rejected the fact that Israeli citizens who are been killed by suicide bombers are also having fundamental right to live. The last one is that under Article 51 of the united nation Charter regards to right to self defense but ICJ has rejected Israeli claim. Here in this case ICJ opinion was improperly and harmfully converted a political hostility into a purportedly legal precedent.
Criticism on both decisions
International court of Justice
The fact-gathering and fact-analysis process demonstrated in The Hague Advisory Opinion is problematic, as were the Court’s refusal to show any deference to the Israeli authorities and empathy towards the Israeli public. These deficiencies reduce the persuasiveness of the Opinion and render its acceptance by Israel less likely. In the advisory opinion the ICJ concluded that Israel violated the international law. (International Court of Justice Advisory Opinion, July 9, 2004)
Israeli supreme court
The failure of the Israeli Supreme Court to address the link between the route of the barrier and the alleged illegality of the settlement detracts from the normative value of the judgment and high light the political constrains in which domestic courts operate. As a result, resort to a comity-based framework in which the national and international courts strive to draw upon each other’s institutional advantages in the fields of fact-finding, compliance-pull and international law expertise would have been beneficial. Israeli Supreme Court on taking humanitarian view asked the Israeli government to change the route map to ensure negative impacts on Palestinians. Israel cabinet approved the revised route of West Bank Barrier. (West Bank Barrier Update, 2006)
Conclusion
Even the advisory opinion given by the international court of justice was not given enough importance by the Israeli judiciary in providing the justice to the Palestinian population. High court of Israel even upheld the decision in the Ma’arabe case and dismissed the ICJ’s findings. UN assembly also voted demanding the Israel to comply with the ICJ rulings with huge majority. (UN News Center, 2004). Israel is reinstating that the UN charter does not grant the general assembly or the international court of justice the authority to assign or affect ‘ownership’ of the territories. (Eli E. Hertz, 2006).
As a whole the international communities lack of commitment to act on and having a perfect picture to resolve the Israel-Palestine conflict is making the condition more worse and even helping the nation which is mighty than the other to act what ever it better to it and serves its benefits. A strict legal opinion of ICJ, strong actions by the international community and liberal attitude by both Israel and Palestine authorities only can solve this burning problem and wall can not be barrier. History told us wall can be broken just like Berlin wall if the is interest and peace among the people.
References
- AL-HAQ (2005), East Jerusalem Remains Occupied Territory under International Law, 28 June 2005, retrieved from ;http://www.alhaq.org/etemplate.php?id=31;
- AL-HAQ (2008), Sacrificing Justice for Politics: Four Years on, Israel’s High Court Continues to Disregard the International Court of Justice’s Advisory Opinion, 9 July,2008, retrieved from;http://www.alhaq.org/pdfs/press-release-09-07-2008.pdf;
- Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice Advisory Opinion, July 9, 2004, retrieved form ;http://www.icj-cij.org/docket/files/131/1671.pdf;
- UN news center, 20 July 2004, UN Assembly votes overwhelmingly to demand Israel comply with ICJ ruling, retrieved from ;http://www.un.org/apps/news/story.asp?NewsID=11418;Cr=middle;Cr1=east ;
- Israel and the Occupied Territories: The place of the fence/wall in international lawn, 19, February 2004, retrieved from ;http://www.amnesty.org/en/library/info/MDE15/016/2004 ;
- UN office for the Coordination of Humanitarian Affaires (2006), West Bank Barrier Update, July 2006, retrieved from http://www.ochaopt.org/documents/WB_Barrier_Overview_Changes_July06.pdf ;
- Mitchell Bard, 2008) Israel’s Security Fence, 3, 2008, Jewish virtual library, Retrieved from;http://www.jewishvirtuallibrary.org/jsource/Peace/fence.html ;
- (Eli E. Hertz, 2006). Reply to the Advisory opinion of ICJ on the wall, Territories –legality of Jewish settlements, Pp 103,
