The US Repudiation of International Law in Relation to the Israeli-Palestinian Conflict: Wrong, Counter-productive and Dangerous

Vito Todeschini is an Associate Legal Adviser at the International Commission of Jurists’ MENA Programme. Said Benarbia is the International Commission of Jurists’ MENA Programme Director.

In a UN Security Council Open Debate on the Middle East held on 23 July 2019, Jason D. Greenblatt, Assistant to the US President and Special Representative for International Negotiations, intervened to clarify the US Government’s position in relation to the Israeli-Palestinian conflict, ahead of the disclosure of the new US peace plan ‒ the so-called “Deal of the Century.”

Through Greenblatt’s words, the US administration has essentially repudiated international law as a relevant conceptual framework that should serve as a basis for resolving the Israeli-Palestinian conflict. In so doing, Greenblatt argued that international law is inconclusive when it is sufficiently certain; ambiguous when the norms are clear; and futile when it is absolutely necessary to bringing an end the conflict.

Greenblatt’s remarks should be read in conjunction with other alarming initiatives and statements by the US administration, including the recognition in January 2019 of Israel’s sovereignty over the Golan Heights ‒ a Syrian territory occupied by Israel since 1967; and the statement to the New York Times by the US ambassador to Israel, David M. Friedman, in which he affirms that “Israel has the right to retain some, but unlikely all, of the West Bank.”

Together, these statements and initiatives sound all the more concerning as they might foreshadow a future US approval or recognition of acts of formal annexation by Israel of parts of the West Bank, including East Jerusalem.

The present article addresses some of the assertions made by Greenblatt in his effort to challenge the relevance of international law as a suitable framework for the resolution of the conflict.

International law is “inconclusive” and “futile”

This conflict is … not going to be resolved by reference to “international law” when such law is inconclusive. … International law with respect to this conflict is a tricky subject that could be discussed and argued for years without ever reaching a conclusion. So we can spend years and years arguing what the law is and whether it is enforceable, and prolong the ongoing suffering. Or we could acknowledge the futility of that approach.

According to Greenblatt, international law is inconclusive and therefore unhelpful to resolve the conflict. The contrary is actually true: international law is clear in setting the obligations Israel is bound by in respect of the Occupied Palestinian Territory (OPT). Among others, such obligations include the following:

• The prohibition of territorial acquisition by force. This is a norm of customary international law having jus cogens status (ICJ Wall, para. 87; Hofmann, para. 21), which bars Israel from acquiring sovereign title over any of the territories occupied in 1967. It is a corollary of the prohibition of the use of force codified in article 2(4) of the UN Charter (also enjoying customary status), and has been restated by UN Security Council Resolutions 478 of 1980 and 497 of 1981, which reacted to Israel’s formal annexation of East Jerusalem and the Golan Heights, respectively. This prohibition renders legally invalid any such acquisition of territory, including any acts of annexation of portions of the West Bank.

• The law of occupation and the prohibition of establishing settlements. As the occupying power in the OPT, Israel must abide by the norms of international humanitarian law (IHL) governing situations of belligerent occupation, particularly the 1907 Hague Regulations and Geneva Convention IV (GC IV). As part of its obligations, Israel is forbidden under article 49 GC IV from forcefully transferring or deporting the local population from the occupied territory, or from transferring or deporting its own population into the occupied territory. The establishment and development of Israeli settlements in the West bank is thus in violation of IHL, and may amount to a war crime (CIHL Study, rule 156; ICC Statute, art. 8(2)(b)(viii)). Such a prohibition has been restated by the International Court of Justice (Wall, paras. 119‒120) and the UN Security Council (e.g. Resolution 2334, para. 1); it has also been the long-standing position of all US administrations to uphold it (UN SCOR, p. 5).

• The right to self-determination. This principle is enshrined in the UN Charter as well as in article 1 of the 1966 Covenants (ICCPR and ICESCR); it is recognized as part of customary international law and as having an erga omnes character (ICJ Wall, paras. 119‒120; Chagos, para 150‒153, 180). In the Wall advisory opinion, the International Court of Justice confirmed that the Palestinian people are entitled to the right to self-determination and that Israel must respect it. It further found that measures adopted to alter the demographic composition of the West Bank, such as the construction of the separation barrier and the establishment of settlements, constitute serious impediments to the fulfilment of such a right (paras. 88, 122, 149).

These legal rules and principles are the cornerstones of the international law applicable to the Israeli-Palestinian conflict, and define the boundaries within which policies should be adopted and implemented. In this respect, international law is adamant in prescribing that certain political solutions ‒ like acts of annexation or the establishment of settlements ‒ are illegal.

Contrary to what Greenblatt affirmed, international law is neither inconclusive nor debatable when it comes to the fundamental aspects of the Israeli-Palestinian conflict. The US and Israeli governments might reject the Wall advisory opinion, where the abovementioned rules have been restated, but such objections should not detract from the fact that international law is clear on the matter.

“International consensus is not international law”

This conflict will not end on the basis of an “international consensus” … International consensus is not international law.

The UN Security Council has multiple times reiterated that a just, lasting and comprehensive peace can only be achieved through the respect and implementation of international law. Accordingly, the Security Council has called on Israel to withdraw from all the territories occupied in 1967 (Resolution 242 of 1967), to put an end to all measures aimed to alter the character and status of Jerusalem (Resolution 476 and 478 of 1980), and to cease all settlement activities in the West Bank (Resolution 2334 of 2016).

The US itself previously recognized as much. In the declaration of vote on Resolution 2334, for example, the US ambassador expressly referred to the “established consensus that settlements have no legal validity” (UN SCOR, p. 5). The US has supported or accepted these resolutions by either voting in favour or refraining from exercising its veto power. As such, the US has contributed to establishing the international consensus it is now discarding as useless.

The role of UN “heavily negotiated, purposely ambiguously worded resolutions”

This conflict will not be resolved by constantly referencing the hundreds of UN resolutions on the issue. The constant reference to these heavily negotiated, purposely ambiguously worded resolutions is nothing more than a cloak to avoid substantive debate about the realities on the ground and the complexity of the conflict. The interpretation of one of the most often cited resolutions ‒ Resolution 242 ‒ has been hotly debated over the past half-century. That debate has not brought us closer to a lasting and comprehensive peace. … Resolution 242 and others may have been drafted and voted upon in a genuine attempt to bring an end to the suffering that all involved in this conflict had endured. But we must acknowledge they have not succeeded.

Interpretation of UN resolutions is required only when the text is unclear, such that there are differences of opinion over it. Resolution 242 affirms that “the fulfilment of [UN] Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict;

(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.”

It should be noted that the US voted in favour of Resolution 242, and expressed full support to it by stating that “we have voted for the resolution because we found it entirely consistent with the policy of the United States Government on the Middle East …” (UN SCOR, para. 97).

UN Resolutions, including 242, have not succeeded in bringing to an end the suffering that all people involved in this conflict have endured not because they are ambiguous ‒ the call for the “withdrawal of Israel armed forces from territories occupied in the recent conflict” could not be clearer. UN Resolutions have not succeeded in achieving their objectives simply because they have not been enforced. There has been a total failure by the Security Council to enforce its own resolutions and by UN Member States, including Israel, to comply with and implement them.

Under the UN Charter, the Security Council has primary responsibility for the maintenance of international peace and security (article 24) and all Member States are obligated to “accept and carry out [its] decisions” (article 25), which have a binding character ‒ as opposed to simple recommendations ‒ regardless of whether they have been adopted under Chapter VII (ICJ, Namibia, paras. 113, 116; Simma et al, paras. 8‒19). The wording of Resolution 242, particularly that regarding withdrawal from all occupied territories, cannot be read but as a decision Israel is required to comply with and implement.

“There is no international consensus about Jerusalem”

There is no international consensus about Jerusalem. And, no international consensus or interpretation of international law will persuade the United States or Israel that a city in which Jews have lived and worshipped for nearly 3,000 years and has been the capital of the Jewish State for 70 years, is not — today and forever — the capital of Israel. … It is true that the PLO and the Palestinian Authority continue to assert that East Jerusalem must be a capital for the Palestinians. But let’s remember: an aspiration is not a right.

The unilateral changes to the status of Jerusalem (read: annexation) effectuated by Israel since 1967 have constantly been condemned and rejected at the international level. Originally, General Assembly Resolution 181 of 1947 (restated by Resolution 303 of 1949) established Jerusalem as “a corpus separatum under a special international regime” administered by the UN. Such a regime never saw the light, however.

Shortly after the conclusion of the Six-Day War, Israel enacted laws aimed at expanding its jurisdiction over East Jerusalem and its adjacent areas. The UN General Assembly condemned such measures, declaring them invalid and calling for their rescission (Resolutions 2253(ES-V) and 2254(ES-V) of 1967). The US supported both resolutions. In the voting explanation relative to Resolution 2254(ES-V), the US Ambassador affirmed that, while not considering Israel’s measures as amounting to acts of annexation, “… the United States does not accept or recognize these measures as altering the status of Jerusalem” (UN GAOR, para. 100). This position was reiterated at the voting of Security Council Resolution 252 of 1968, which declared the invalidity of Israel’s measures to change the legal status of Jerusalem (UN SCOR, para 15).

The US’ opposition to unilateral changes in the legal status of Jerusalem has remained unaltered over time. While voting on Resolution 476 of 1980, the US Ambassador stated: “… the draft resolution in question contains much that is consistent with the policy of the United States because in it are deplored the unilateral acts which have sought to change the character of the City outside a negotiated settlement. The significance of those acts is that they are inconsistent not only with international law but with the very nature of negotiations essential for peace” (emphasis added) (UN SCOR, para 20). In relation to Resolution 478 of 1980, which censured Israel’s adoption of the Basic Law declaring Jerusalem as its capital, the US Secretary of State affirmed that “[w]e have encouraged all parties to refrain from unilateral actions which seek to change the character or status of Jerusalem” (UN SCOR, para. 109). As recently as 2016, the UN Security Council underlined that “it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations” (Resolution 2334, para. 3).

The rejection of any alteration to the status of Jerusalem is both well established and deeply rooted in international law. The US’ support to such a position is also well established and has been inspired by international law, at least until the current administration decided that recourse to international law is a futile enterprise. So, when Greenblatt asserts that the Palestinian claim to declare East Jerusalem as the capital of the State of Palestine is nothing more than an “aspiration,” he is not only denying the legitimate choice that a people entitled to self-determination can make regarding the administration of their territory; he is also departing from decades of US official positions on Jerusalem.

Paradoxically, the current US Administration seems to recognize as a right the acquisition of land by force (recognition of Israel’s sovereignty over the Golan Heights and Mr Friedman’s statement that Israel has the right to retain some parts of the West Bank), and as mere aspirations the entitlements that the Palestinian people have in exercising their right to self-determination.

The OPT as occupied territory

Many would rather rail against the supposed evils of what they routinely call an “illegal occupation” than engage constructively on the disputes that characterize the conflict today. … The dispute over the territory is a question that can only be resolved in the context of direct negotiations between the parties. … Those who have weaponized the term “occupation” in order to criticize Israel are doing nothing to promote a resolution to this conflict.

Greenblatt, and through him the US Administration, has expressly endorsed the position of the government of Israel that the West Bank, including East Jerusalem, is a disputed, not an occupied territory. This is confirmed by the change in terminology applied by the US Department of State in its annual reports on human rights practices around the world. While until 2016 the relevant section of the report referred to “Israel and The Occupied Territories”, this was changed in 2017 into “Israel, Golan Heights, West Bank, and Gaza” ‒ while still making reference to “occupied territories” in the main text. Since 2018, the US stopped mentioning “occupied territories” at all and started using the term “Israeli-controlled” with reference to the Golan Heights and the Area C of the West Bank ‒ a clear denial of the state of occupation of such territories.

In terms of international law, particularly IHL, the characterization of the West Bank, including East Jerusalem, as an occupied territory could not be clearer as a matter of settled law. The ICJ (Wall, para. 101), the UN Security Council and General Assembly (e.g. UNSC Resolutions 904, preambular para. 6, and 2334, preambular para. 2; UNGA Resolutions 63/98, preambular para. 12, and 72/85, preambular para. 1), and the Conference of the High Contracting Parties to GC IV (2001 Declaration, para. 3) have confirmed Israel’s status in the West Bank as an Occupying Power. What Greenblatt calls a “weaponization” of the term occupation is nothing more than a reminder of Israel’s obligations under IHL as the Occupying Power, which include refraining from establishing illegal settlements, forcibly displacing Palestinian residents and exploiting the territory’s natural resources for its own benefit, as well as respecting Palestinian private and public property.

Dismissing the situation of prolonged occupation by affirming that the status of the West Bank is a matter of political negotiations means setting aside and arbitrarily disregarding Israel’s obligation to comply with Security Council Resolution 242, and successive resolutions, which expressly call on Israel to withdraw from all the territories occupied in 1967. The withdrawal from such territories should not be seen as a matter of political expediency but rather as a legal obligation to be enforced and complied with. The characterization of the West Bank as disputed, rather than occupied territory is thus legally wrong.

If Greenblatt and the US Administration consider the characterization of Israel’s occupation of the OPT as futile and irrelevant, the following words from the Israeli Supreme Court can help ease any doubts that might exist in this respect:

Since 1967, Israel has been holding the areas of Judea and Samaria [i.e. the West Bank] … in belligerent occupation. … The general point of departure of all parties – which is also our point of departure – is that Israel holds the area in belligerent occupation (occupatio bellica) (Beit Surik, paras. 1, 23).

Conclusion

International law principles bring an element of objectivity and universality to a decades-old conflict that has been fueled and predominantly informed by nationalistic and religious considerations. Greenblatt’s words and the US Government’s recent initiatives seem to support the nationalistic and religious claims of one party as absolute rights, and dismiss the considerations of the other party as mere aspirations.

Palestinians have made it clear they will not see the US as having any role in brokering a peace deal, be it the so-called “Deal of the Century” or otherwise, unless it acts independently and impartially. Any peace broker must appear so to the concerned parties and the public in general. Greenblatt’s words and the US Government’s current moves run counter to such requirements. They espouse fringe positions that depart not only from international law, but also from decades of official US positions inspired by the latter.

The proposed path by Greenblatt and the US Government is thus wrong, counter-productive, and dangerous. Wrong because based on an erroneous understanding of international law; counter-productive because it alienates one of the parties to the conflict by dismissing their claims as mere “aspirations;” and dangerous because it condones and supports the acquisition of land by force, thus severely damaging the very fabric of the international legal order.        

A “Deal of the Century” that is based on such premises is most likely to end in a failure that will only prolong the ongoing suffering.