The Legal Basis for Middle East Peace

Words (excluding footnotes): 743
Date: September, 2001

The so-called "peace process" in the Middle East has meandered inconclusively for years, even decades, for one overarching reason: Israel, supported by the U.S., has been determined to evade even the minimum requirements of international law.

Yet only international law--the system of rules that regulates the behavior of nations, just as domestic law governs the conduct of individuals--can provide a solid foundation for peace.

The internationally-recognized formula for Middle East peace was established in United Nations resolution 242 of November 22, 1967: (1) Israel must withdraw from territories it occupied in the 1967 war, including East Jerusalem; (2) Israel must accept "a just settlement of the [Palestinian] refugee problem"; and (3) both Israel and the Palestinians must renounce belligerency and accept the other's right to exist.[1]

The Palestinians have accepted resolution 242 for years.

It is Israel that has not. Israel refuses to relinquish East Jerusalem, which it annexed shortly after the 1967 war. Israel continues to establish and expand settlements in the West Bank and the Gaza Strip. And Israel refuses to allow the return of those Palestinians who, during the 1948 war, fled or were expelled from what is now the state of Israel.

Israel's position on each of these three issues violates customary international law. "Customary" international law denotes those principles that have been generally agreed upon by the community of nations and are therefore binding on members of that community.

The purported annexation of East Jerusalem is illegal because international law absolutely forbids the acquisition of territory by force.[2] There is no exception for annexation of territory to which the occupying power has great emotional attachment. Nor is there an exception for territory occupied during an allegedly defensive war. Either exception would, of course, swallow the rule.

The Israeli settlements are illegal both because they represent an attempt to acquire territory by force and because they are specifically forbidden by the Fourth Geneva Convention of August 12, 1949, to which Israel is a party. Article 49 of this binding document prohibits an occupying power from transferring "parts of its own civilian population into the territory it occupies."[3]

Finally, Israel's refusal to permit the repatriation of the Palestinian refugees from 1948 and their dependents is unlawful because the Palestinians' right to return to their homeland is guaranteed by both the inalienable right of self-determination and specific international instruments. Article 13 of the Universal Declaration of Human Rights--proclaimed on December 10, 1948 by the U.N. General Assembly--provides that "Everyone has the right to leave any country, including his own, and to return to his country."[4] (Eleanor Roosevelt, the chairperson of the U.N.'s Commission on Human Rights at the time, regarded her work on the declaration as her greatest achievement.) Similarly, Article 12.4 of the International Covenant on Civil and Political Rights states that "No one shall be arbitrarily deprived of the right to enter his own country." This treaty came into force on March 23, 1976.[5]

Again note that these international agreements contain no Israeli exception. And in this era of attempted ethnic cleansings, demonstrating the absolute impermissibility of the wholesale exclusion of a people from their homeland shouldn't require extensive argument.

But what of the claim that Israel will never accept these terms?

The answer must be that Israel--like any other nation--is bound by the law. Permanent global instability is the inevitable consequence of international lawlessness. If Israeli intransigence is rewarded, then other countries will surely feel free to repudiate their legal responsibilities.

How, then, can Israel be persuaded--or forced--to comply with the obligations of international law? The answer lies in U.S. pressure. The United States, like all nations, has a responsibility to uphold international law and to encourage other countries to do so. The U.S. has defaulted on this responsibility by supplying the money, armaments and diplomatic cover that allow Israel to defy legal mandates. Our country's betrayal of duty renders the U.S. an aider and abetter of Israel's lawlessness. We have become an outlaw as well.

The United States must pursue a new course. We must respect international law by conditioning all aid to Israel on its complying with its legal responsibilities. Israel will then be forced to chose between peace and territorial aggrandizement.

If at long last it opts for the former, there could be peace--real peace, not an Israeli-imposed military stalemate--in the Middle East.


[1] The full text of Resolution 242 can be found at the UN's website.

[2] This proposition is not seriously contested. See generally Benvenisti, Eyal, The International Law of Occupation, Princeton University Press, 1993 and Playfair, Emma, International Law and the Administration of Occupied Territories, Oxford University Press, 1992.

[3] The full text of the Fourth Geneva Convention can be found here.

[4] The full text of the Universal Declaration of Human Rights can be found here.

[5] The full text of the International Covenant on Civil and Political Rights can be found here. A list of the countries that have signed or assented to this treaty is available here.

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