Towards a Middle East Peace, Legally

(Jerusalem's Old City - at one time, to be UN Territory)

For a long time now, I've specifically avoided commenting on the Middle East Peace Process (MEPP) on this blog. It's not just that there are plenty of other people blogging on the subject - Googling "Middle East Peace Process Blog" returns some 5.63m hits - but that the legal aspects of the conflict provided no more than the framing of the argument (and at times, struggled to provide that).

However, President Obama's recent speech calling for a negotiation based on the 1967 ceasefire lines have underlined that international legal arguments have returned to centre stage in this dispute. Unsurprisingly, this blog certainly thinks is a good idea. (And in case anyone was wondering if President Obama wasn't being courageous, then the responses suggested otherwise. What is clear is that he is being consistent, as he was reported to have made the same point in 2008.)

(Not a flag you see every day....)

So I thought that I'd lay out my position on some of the legal issues that arise in terms of territory and the potted history of what can most neutrally be called "The former British League of Nations Mandate of Palestine After Nineteen Forty-Six" (Though "TfBLoNMoPANF" is something of a mouthful). What's interesting is that you have to go back to 1947 to have a completely neutral term for the territory now governed by Israel and the Palestinian Authority.

As readers of this blog already know, the British relinquished the Mandate in 1948 after the UN Special Commission on Palestine (UNSCOP) report, under which seven of UNSCOP's 11 members (Canada, Czechoslovakia, Guatemala, Netherlands, Peru, Sweden, and Uruguay) recommended the creation of independent Arab and Jewish states, with Jerusalem to be placed under international administration. Three States (India, Iran, and Yugoslavia) supported the creation of a federal, bi-national state containing both Jewish and Arab constituent states. Australia abstained. On 29 November 1947, the UN General Assembly adopted Resolution 181(II) (A/RES/181(II))  33 to 13, with 10 abstentions, in favour of the Partition Plan. The map is below - a Jewish State, an Arab State, and Jerusalem and its surrounds under UN administration, with, interestingly, an economic union between the two states.

(The 1947 Partition Plan - never voted on by the people it would affect. Oops.)

Critically, GA resolutions do not make international law in the way Security Council resolutions do - they are advisory, hence the reason that UNGAR 181(II) calls on the Security Council to undertake certain acts. And as we all know, the plan was rejected by the Arabs, and the wars between the Israeli forces and the armed forces of Egypt, Iraq, Jordan, Lebanon, Syria, Sudan, and Saudi Arabia began with the end of the British mandate on 15 May 1948, taking place in three phases (15 May - 11 Jun 48; 8 - 18 Jul 48; 15 Oct 48 - 7 Jan 49). Separate agreements were signed between Israel and Egypt (24 Feb 49), Lebanon (23 Feb 49), Jordan (3 Apr 49), Syria (20 Jul 49). Iraqi forces withdrew in March 49, though there was no separate agreement, the Iraqi sector being covered by the Jordanian agreement.

These 1949 Armistice Lines (what President Obama was referring to as the 1967 lines) - or the "Green Line" (so called, because it was drawn in green ink) represented a personal triumph for Ralph Bunche, the eminent American political scientist for which he (rightly!) won the 1950 Nobel Peace Prize. 

(The confusing map that explains it all. Well, some of it, at least.)

A key point is that though these lines (with the exception of Lebanon) were explicitly not international borders, passage of time made them look and feel like them. And it is interesting to note that whilst as late as Nov 55 UK PM Anthony Eden could plausibly call for a compromise between the Arab demand that Israel withdraw to the boundaries of the UN Partition Plan of 1947 and Israel's stand on the borders of the armistice agreements of 1949; whereas no-one has seriously suggested this since then, despite the fact that Green Line Israel represented 78% of "TfBLoNMoPANF" by area, and therefore the international community was acquiescing in the acquisition of territory by conquest, something that had been made illegal with the adoption of the UN Charter in 1945.

 

If this is the story of how the 1949 Lines were arrived at, the second challenge is what are the legal consequences of four issues:

- Lack of a plebiscite in 1947 on the UN Partition Plan

- Status of the 1948 Refugees and their descendents

- Status of Jerusalem, specifically do Israeli assertions of annexation stand up?

- Status of Israeli settlements beyond the Green Line

Lack of a plebiscite in 1947 on the UN Partition Plan

It is inconceivable today that an attempt to change the status of a contested territory like "TfBLoNMoPANF" could take place without a plebiscite on the proposal. Indeed, the very notion that the Good Friday Agreement or the independence of South Sudan could have been negotiated by States without direct reference to the people is risible. But does this failure make the entire process illegitimate from the start?

Arguably, it could. But it doesn't in this case as the representatives of the Palestinians accepted the right of Israel to exist  in the 1991 Madrid Peace Conference and the 1993 Oslo Accords. So though it is interesting as an intellectual point - would we be allowed to do this now? No, it isn't relevant here.

Status of the 1948 Refugees and their descendents

Gail Boling's excellent analysis from 2001 on the rights of the 1948 refugees is very clear: by 1948 there was ample evidence of a customary rule in international law that refugees from a conflict have an individual right to return to their homes at the end of a conflict. This customary right was underscored by UNGAR 194/(III) of 1949, which in paragraph 11(1) lays out the three rights: return, restitution, and compensation. Crucially, these are individual rights that only individuals can waive. 

Israel's point is demographic: the UN Relief and Works Agency (UNRWA) which has been providing basic services to Palestinian refugees and their families since 1950 currently has 4.8 million registered refugees to whom the right of return applies in international law. If all 4.8m refugees were to return to their ancestral homes inside Green Line Israel, then they would constitute 40% of the combined population of 12.5m. As citizens, Israel would be faced with a choice of being a democratic or a Jewish state - it could not be both. 

However, even when combined with the fact that many of the homes no longer exist, and those that do have been occupied by others since 1948, does not extinguish the legal rights of those affected. Only the refugees have the right not to exercise their right to return. (And yes, Israel has flouted international law in resisting this right since 1949).

Status of Jerusalem, specifically do Israeli assertions of annexation stand up?

Jerusalem, as a city sacred to the three Abrahamic faiths, has been fought over for millennia. This is specifically why the original UN Partition Plan set Jerusalem aside and made it an international city. The map below shows the Internationalised proposal of 1947 and the 1949 Green Line:

Obviously, Israel has been in military control of the whole city (and the West Bank) since winning the 1967 war. Israel asserts that it has annexed East Jerusalem to Israel - and therefore that East Jerusalem is not part of the Occupied Territories. On this basis Jerusalem is the "eternal, indivisible capital of the State of Israel" - a mantra repeatedly intoned by senior Israeli politicians, and formalised in the 1980 Jerusalem Law.

But is it legal? Simply put, no. 

It is illegal under the UN Charter to acquire territory by conquest, and in UNSCR 478 (1980) called the enactment of the basic law in Jerusalem, "a violation of international law". UNSCR 478 passed 14-0-1, with the United States abstaining, and notably, refusing to veto. 

Status of Israeli settlements in the Occupied Territories (Golan, West Bank, East Jerusalem)

Israel has been conducting settlements in the West Bank, the Golan and in East Jerusalem since the late 1960s. In other words, long after the passage of the Fourth Geneva Convention of 1949 - to which Israel is a party and which is in any event customary international law. 

The final tiret of Article 49 reads thus "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." The international community has consistently ruled that the Fourth Geneva Convention applies to the territories captured by Israel in 1967, including inter alia UNSCRs  237 (1967), 252 (1968), 271 (1969), 446 (1979), 681 (1990), 799 (1992) and 904 (1994). Indeed, OP 1 of UNSCR 446 (1979) is very specific:

"The Security Council... 

1. Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other territories occupied since 1967 have no legal validity and constitute a serious obstacle to achieving a comprehensive, just and lasting peace in the Middle East."

This is exactly what the Israeli settlement programme is doing, and the ICJ ruled that the settlements were illegal when it issued it's 2004 Advisory Opinion on the legality of building a wall in the occupied territories.

In other words, this 2006 UN map is actually a map of illegal Israeli actions - the construction of settlements in the occupied territories:

 

(These are not the settlements you're looking for.) 

So where does this get us? 

I think it conclusively shows that President Obama's recent speech was brave, eloquent, and legally copper-bottomed. Any settlement does need to produce a realistic two-state solution, with agreed land swaps based on the 1949 Green Line. Anything else would be illegal under international law - and even this relies on the refugees renouncing their right to return to their homes. Israeli PM Netanyahu can get as exercised as he likes but the international legal position is clear - and largely, current Israeli policy is on the wrong side of the line.