A Wrinkle in the Peace Negotiations
by Dan Lieberman

Ben Heine/ MWC NEWS

It is obvious who will speak for Israel at the peace negotiations. Israel's elected officials, despite some well-managed contrary rhetoric, will speak for Israel, and probably offer no significant concessions. Israel's Vice Premier Haim Ramon has already clarified the future of the negotiations by a statement that circulated in an Associated Press report, Dec, 9, 2007: 

"Israel intends to hold on to all Jewish neighborhoods in Jerusalem, a position that undercuts the Palestinians' claim to the eastern part of the city for their future capital." 

Who can speak for Palestine? The West Bank Palestinians are economically and politically separated from their relatives in Gaza, and both operate separately from the Palestinian community in the Diaspora.  Hamas is divided. Fatah is divided.

The Palestinians have no cohesion to create a unified voice, no power to present a coherent voice, no means to manage a compromising voice. It seems that the Palestinians have no voice, but the appearance is deceiving; the Palestinians have potent voices of international law and international reason. A major problem is they lack active support from an international community that has been negligent in providing the necessary means to implement United Nations (UN) resolutions and mandating accepted international laws.

Legal voices have been quietly suppressed; their arguments confined to conferences and journals. These voices are receiving a renewed impetus to take the stage in this decades old struggle and be heard before international institutions, and for good reason; the route described by international law might be the only road that has a solution which brings peace with justice to the Middle East. A disparity between contenders that does not allow for meaningful negotiations has provoked the international community to re-examine resolutions that censored Israel's checkered development. 

Several interlocutors have presented the need for intercession of international law in the Palestinian/Israeli dispute. (Isn't the use of law the accepted measure for resolving international disputes?) Many of the legal opinions support the Palestinian case before the court of law. These opinions from respected international legal experts, which give a voice to the Palestinians, cannot be conveniently summarized. Nevertheless, some of their more cogent arguments illuminate the legal thrust.

Note: The specific arguments are only presented in order to demonstrate that the legal aspect is most important in resolving the struggle and that the Palestinians have a sympathetic legal voice. There is no intent to conclude these are the only legal opinions and that these opinions are the final conclusions from international laws governing the dispute.     

Ohio State University Law Professor John Quigley, in a lecture at a 1999 Case University symposium: The Legal Foundations of Peace, and prosperity in the Middle East: The Role of Law in a Palestinian-Israeli Accommodation, explored the issues to be addressed in final status negotiations.

"The United Nations had long viewed the rights of the Palestinians as being in jeopardy, particularly since the 1967 war, when Israel occupied the Gaza Strip and the West Bank of the Jordan River, two sectors of historic Palestine that it had not occupied in 1948. As suggested by the United Nations General Assembly, an international conference would be convened with certain principles understood in advance to protect the rights of the Palestinians.

Ben Heine/ MWC NEWS

These rights would include the right of return for displaced Palestinians, the right of self-determination of the Palestinian people and their right to establish a state, an Israeli withdrawal from the Gaza Strip and West Bank, including Jerusalem, and a rejection of the permissibility of Israeli settlements in the Gaza Strip and West Bank.  The United Nations had previously determined Israel to be in violation of international law on these issues.  Thus, protection of rights was built into the contemplated peace process.

That approach was abandoned, however, in 1991, when the United States and the Soviet Union hosted a conference in Madrid to promote instead a negotiation between the two parties alone, rather than an international conference, and with no explicit prior specification of the rights to be protected."

Borders – "Belligerent occupation yields only a right of temporary possession, not title to territory. The sovereign right of the legitimate sovereign remains intact, even though it is not able to exercise control.  Thus, even apart from what Resolution 242 may mean, Israel is under an obligation to withdraw from the Gaza Strip and West Bank."

Settlements – "Under the law of belligerent occupation, the establishment of civilian settlements is unlawful. Article 49 of the Geneva Civilians Convention states, "The Occupying Power shall not . . . transfer parts of its own civilian population into the territory it occupies "

Displaced Persons – "The only exception to a right of return is that in which a person voluntarily takes on a new citizenship in a manner that indicates a renunciation of residency rights in the former locale. The right of return is not defeated by a change in sovereignty in the territory from which a person was displaced…This norm requiring a state to repatriate the displaced is followed in international practice. In dealing with military conflict situations, the United Nations Security Council requires states to repatriate the displaced."

"An Israel-P.L.O. agreement that fails to vindicate the legally protected interests of Palestinians would leave claims of individuals to be resolved by whatever international mechanisms that may be in a position to consider them. Rather than resolving the outstanding issues, such an agreement would let these issues fester, causing difficulties for decades to come."

Jerusalem - "In the absence of any legal base put forward by Israel itself, various scholars have argued, in support of Israel's claim to sovereignty in Jerusalem, that Palestine had no sovereignty when Great Britain abandoned in 1948 its League of Nations role as mandatory power in Palestine. According to this argument, Palestine was open to occupation by whoever might take it, and on this basis Israel has sovereignty over whatever territory it controls, including west Jerusalem from 1948, and east Jerusalem from 1967. This theory enjoys little following, however, because under the League of Nations arrangement, sovereignty lay in the community of citizens of Palestine, not in Great Britain.