Israel's Nationhood: International Law And Middle East History

The creation of Israel in 1948 was supported by the US and the Balfour Declaration of 1917, which advocated for a Jewish national home in Palestine. However, the British, who held a colonial mandate for Palestine until May 1948, opposed the establishment of a Jewish state. Since its inception, Israel has been at the centre of international law debates, particularly regarding its occupation of Palestinian territories and alleged human rights abuses.

The international community, including the UN Security Council, the UN General Assembly, the International Committee of the Red Cross, and the International Court of Justice, has affirmed that Israeli settlements in the West Bank and Gaza Strip violate Article 49 of the Fourth Geneva Convention and international declarations. The Fourth Geneva Convention prohibits the transfer of an occupying power's civilian population into occupied territory, which Israel has been found to contravene through its settlement policy.

The legality of Israeli settlements and its compliance with international law have been contentious issues, with Israel disputing the illegality of its actions and arguing that the Fourth Geneva Convention does not apply to the territories in question. The debate surrounding Israel's actions and their compatibility with international law continues, with ongoing investigations by the International Criminal Court and lawsuits filed against the US State Department for its continued funding of Israeli military units accused of human rights abuses.

International humanitarian law and the Israeli occupation of Palestine

International humanitarian law (IHL) is a set of rules that govern armed conflict and military occupation. IHL binds states, including Israel, as well as non-state armed groups that are involved in conflict, including Hamas and Islamic Jihad. The laws of war only apply in specific situations, such as during an armed conflict or an occupation.

Israel has been occupying the West Bank, including East Jerusalem, and Gaza, collectively known as the Occupied Palestinian Territory (OPT), since 1967. This occupation is the longest military occupation in modern history and is considered illegal under international law. The Israeli occupation of Palestine violates IHL in several ways, including:

• Israel's settlement policy: Israel has transferred parts of its civilian population into the occupied territory, which is prohibited under Article 49 of the Fourth Geneva Convention. This has been deemed a war crime by some legal experts.
• Violations of the right to life: Israeli soldiers, police, and security guards have unlawfully killed and injured Palestinian civilians in the OPT.
• Violations of the right to liberty, security, and equal treatment: Palestinians in the OPT are routinely subjected to arbitrary detention and are tried in a military court system that falls short of international standards.
• Violations of the right to freedom of expression and peaceful assembly: Israel has used military orders to prohibit peaceful protests and criminalise freedom of expression in the West Bank.
• Violations of the right to freedom of movement: Many restrictions on the freedom of movement for Palestinian residents are directly linked to the settlements, including checkpoints and settler-only roads.
• Violations of the right to adequate housing: Since 1967, Israel has constructed tens of thousands of homes on Palestinian land for settlers while demolishing an estimated 50,000 Palestinian homes.
• Violations of the right to water: Most Palestinian communities in Area C are not connected to the water network and are prevented from repairing or constructing wells or water cisterns.

In addition to violating IHL, Israel's occupation of Palestine also violates international human rights law (IHRL) and international criminal law. The International Criminal Court (ICC) is currently investigating the criminality of Israeli settlements as part of its investigation in Palestine.

International human rights law and the legal duties of the Israeli authorities

International human rights law governs the legal duties of the Israeli authorities towards the population of the OPT, especially given the long duration of the occupation.

The Israeli authorities have a duty to respect, protect and fulfil the human rights of people under their jurisdiction, including people living in territory that is outside national borders but under the effective control of the state. The Israeli authorities have well-defined obligations to respect, protect and fulfil the human rights of Palestinians.

However, as has been well-documented for many years by the UN, Amnesty International and other NGOs, Israel’s settlement policy is one of the main driving forces behind the mass human rights violations resulting from the occupation. These include:

• Violations of the right to life
• Violations of the rights to liberty, security of the person and equal treatment before the law
• Violations of the right to access an effective remedy for acts violating fundamental rights
• Violations of the rights to freedom of expression and peaceful assembly
• Violations of the rights to equality and non-discrimination
• Violations of the right to adequate housing
• Violations of the right to freedom of movement
• Violations of the rights of the child
• Violations of the right to enjoyment of the highest attainable standard of physical and mental health
• Violations of the right to water
• Violations of the right to education
• Violations of the right to earn a decent living through work

The applicability of the Fourth Geneva Convention to the Israeli-occupied territories

The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, is a treaty signed by representatives of almost every established state in Geneva, in the aftermath of World War II. The convention sought to regulate the effects of war and its aftermath on civilians in the zones of hostilities.

The Israeli government has commonly taken the position that it is not bound by the Fourth Geneva Convention, arguing that Jordanian and Egyptian control over the West Bank and Gaza prior to Israel's occupation in 1967 was illegitimate. Therefore, Israel argues that these territories were not under the sovereignty of any state and cannot be considered "occupied territory".

However, this position is not supported by the language of the convention. The Fourth Geneva Convention applies to all civilians in a war or under occupation, defined as "Protected Persons" in Article 4 of the convention. These are persons who "find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals".

The International Committee of the Red Cross (ICRC), the body charged with monitoring and promoting adherence to the Geneva Conventions, takes the view that the Fourth Geneva Convention fully applies to Israel's conduct in the West Bank and Gaza Strip. This is also the view of the United Nations, as reflected by numerous UN General Assembly and Security Council resolutions, as well as the position of most legal scholars.

Israel stands alone in its interpretation that the Fourth Geneva Convention and the Hague Regulations do not apply to the West Bank and Gaza Strip. The Israeli government has, however, stated that it will voluntarily abide by the "humanitarian provisions" of the Fourth Geneva Convention.

The Fourth Geneva Convention also specifically prohibits collective punishment, stating that "no protected person may be punished for an offence he or she has not personally committed". It further prohibits the destruction of real or personal property, except where rendered absolutely necessary by military operations.

The convention also places restrictions on the occupying power with respect to the treatment of detainees, stating that protected persons shall be treated humanely at all times and protected against acts of violence, insults, and public curiosity. Torture and ill-treatment of protected persons are totally prohibited.

The legality of Israeli settlements under international law

Arguments Against Legality

The primary argument against the legality of Israeli settlements centres on the Fourth Geneva Convention, specifically Article 49, which states: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." This is interpreted as prohibiting an occupying power from transferring its civilian population into occupied territory, which is precisely what Israel has done in the West Bank, including East Jerusalem. This interpretation is affirmed by the International Committee of the Red Cross (ICRC) and various United Nations (UN) bodies, including the UN Security Council, the UN General Assembly, and the International Court of Justice (ICJ).

The extensive appropriation of land and destruction of property required for the settlements also breach other rules of international humanitarian law. The Hague Regulations of 1907, which are part of customary international law, subject the public property of the occupied population to the laws of usufruct, meaning an occupying state's use of such property is strictly limited. The unlawful appropriation of property by an occupying power amounts to "pillage", prohibited by both the Hague Regulations and the Fourth Geneva Convention, and considered a war crime under the Rome Statute of the International Criminal Court.

Israel's settlement policy also violates peremptory norms of international law (jus cogens), which reflect the seriousness and importance the international community attaches to them. Breaches of these norms give rise to obligations on all other states, known as "third states".

Arguments For Legality

Supporters of the legality of Israeli settlements, including Israel itself, dispute the applicability of the Fourth Geneva Convention to the territories in question, arguing that they were not under the legitimate and recognised sovereignty of any state prior to the Six-Day War in 1967 and thus cannot be considered "occupied territories". They also claim that Israeli citizens voluntarily moved to these territories and were neither deported nor transferred by the state, so Article 49 of the Fourth Geneva Convention does not apply.

Some legal experts, such as Julius Stone and Eugene Rostow, argue that the settlements are legal under international law on various grounds. For example, Stone contends that the settlements constitute the voluntary return of individuals to towns and villages from which they or their ancestors were ousted, and that Israel has valid claims to the territory based on historic and religious connections. Rostow, who helped draft UN Security Council Resolution 242, asserts that this resolution mandates Israeli control of the territories and that the original British Mandate of Palestine still applies, allowing Jewish settlement.

The weight of international consensus, as reflected in numerous UN resolutions and the positions of international bodies like the ICJ and ICRC, considers Israeli settlements in the occupied Palestinian territories of the West Bank and East Jerusalem, as well as the Syrian Golan Heights, to be illegal and in violation of international law, specifically the Fourth Geneva Convention. However, Israel and some legal scholars argue otherwise, citing interpretations of UN resolutions, the British Mandate, and the voluntary nature of Israeli civilian movements to these territories. This dispute remains unresolved, with ongoing investigations by the International Criminal Court.

The role of the International Criminal Court in investigating Israeli war crimes

The International Criminal Court (ICC) is an intergovernmental organization and international tribunal that sits at The Hague in the Netherlands. It was established in 2002 to prosecute individuals for crimes including war crimes, crimes against humanity, genocide, and the crime of aggression. The ICC has 124 member states, including Palestine, which was admitted as a member state in 2015.

On 20 December 2019, the Prosecutor of the ICC, Fatou Bensouda, announced an investigation into war crimes allegedly committed in Palestine by members of the Israeli military and Hamas and other Palestinian armed groups since 13 June 2014. The investigation was opened in 2015. The allegations include the establishing of illegal Israeli settlements in the occupied West Bank and violations of the law of war by members of the Israeli military and Hamas during the 2014 Gaza War.

On 12 October 2023, during the 2023 Israel-Hamas War, the ICC's Chief Prosecutor, Karim Ahmad Khan, stated that the Court's jurisdiction extended to war crimes committed by Palestinians on Israeli territory and by Israelis on Palestinian territory.

On 20 May 2024, Khan announced that he would file applications for arrest warrants against Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh, and Israeli leaders Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant. The warrants were issued on 21 November 2024.

The investigation and arrest warrants have been condemned by Israel, which disputes the ICC's jurisdiction and argues that Palestine is not a sovereign state. Israel has also accused the ICC of antisemitism. The United States, Canada, the United Kingdom, and several other countries have also criticized the ICC's decision, while the Palestinian Authority and several other countries have expressed support.

International law and the Arab-Israeli conflict

The Arab-Israeli conflict has been a major arena of regional and international tension since the birth of Israel in 1948, resulting in several disputes between a number of Arab countries and Israel. There is an international consensus that some of the actions of the states involved in the conflict violate international law, but some of the involved states dispute this.

The main points of dispute, also known as the "core issues" or "final status issues", include Israel's annexation of East Jerusalem, the construction of Israeli settlements in the Palestinian territories, and the right of return of Palestinian refugees from the 1948 and 1967 wars.

Israeli settlements and international law

Israeli settlements in the Israeli-occupied Palestinian territories of the West Bank and the Gaza Strip, as well as in the Syrian Golan Heights, are illegal under international law. These settlements violate Article 49 of the Fourth Geneva Convention, which states:

> "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."

In a 2024 advisory opinion, the International Court of Justice (ICJ) reaffirmed the illegality of the settlements and called on Israel to end its occupation, cease its settlement activity, and evacuate all its settlers. The ICJ's ruling was based on the provisions of the Fourth Geneva Convention and UN Security Council resolutions that condemned the establishment of settlements and attempts by Israel to alter the demographics of the territories under its control.

Israel disputes the illegality of its settlements, claiming that Israeli citizens were neither deported nor transferred to the territories, that the territory is not occupied since there was no internationally recognized legal sovereign prior, and that the Fourth Geneva Convention does not de jure apply. However, the ICJ's 2024 ruling refuted all of Israel's arguments. Furthermore, the Supreme Court of Israel has repeatedly ruled that Israel's presence in the West Bank is in violation of international law.

The International Criminal Court's investigation in Palestine

The establishment of settlements has been described by some legal experts as a war crime according to the Rome Statute (to which Israel is not a party), and is currently under investigation as part of the ICC's investigation in Palestine. The investigation is also looking into other alleged war crimes committed by both Israelis and Palestinians.

Reactions to the ICC's investigation and arrest warrants

Reactions to the ICC's investigation and arrest warrants have varied, with some countries expressing support and others criticizing the Court's decision.

Countries that have expressed support for the ICC's investigation and arrest warrants include Algeria, Bangladesh, Belgium, Chile, Colombia, Denmark, Djibouti, Indonesia, Ireland, Jordan, Malaysia, Namibia, South Africa, Tunisia, Turkey, and others. These countries have generally affirmed the ICC's independence and emphasized the importance of upholding international law and ensuring accountability for war crimes and crimes against humanity.

On the other hand, countries that have criticized the ICC's decision include Argentina, Austria, Bulgaria, Canada, the Czech Republic, France, Germany, Hungary, Israel, Paraguay, the United Kingdom, and the United States. These countries have argued that the ICC's decision undermines the authority of the Court, ignores Israel's legitimate right to self-defense, and equates Israel with Hamas. Some have also questioned the ICC's jurisdiction in this matter.

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