Peace in the Middle East is Still About “Land for Peace”

[Mona Ali Khalil is the Director of MAK LAW INTERNATIONAL; an Affiliate of the Harvard Law School Program on International Law and Armed Conflict; and a former Senior Legal Officer of the United Nations. She holds a B.A. and M.A. in international relations from Harvard University as well as a M.S. in Foreign Service and a Juris Doctorate from Georgetown University.]

At the heart of the Joint Statement issued by the United States, Israel and the United Arab Emirates on August 13 is an undertaking by Israel to “suspend declaring sovereignty over areas outlined in the [U.S.] President’s Vision for Peace and focus its efforts now on expanding ties with other countries in the Arab and Muslim world”. The viability of such a deal will depend on how long “now” is:

• Whether it will “stop further Israeli annexation of Palestinian territories” as Mohamed Bin Zayed, the Crown Prince of the Emirate of Abu Dhabi, assured his fellow Arabs including the Palestinians; or

• Whether plans for further annexation of Palestinian territories are “not off the table” as  Benjamin Netanyahu, the Prime Minister of Israel, assured his coalition partners including the Jewish settlers.

Either way, it is about what is left of Palestinian land and what, if anything, is left of the two-State solution. As long as the purported peace can be made or broken on whether or not Israel proceeds with the illegal annexation of parts of the West Bank then the way forward is still very much about “land for peace”. 

In a 13 August press release, UN secretary-general António Guterres confirmed that “[a]nnexation would effectively close the door for a renewal of negotiations and destroy the prospect of a viable Palestinian State and the two-State solution”. While welcoming the agreement, the UN secretary-general also expressed the hope that “it will create an opportunity for Israeli and Palestinian leaders to re-engage in meaningful negotiations that will realize a two State-solution in line with relevant United Nations resolutions, international law and bilateral agreements”.

The UN resolutions, international laws and bilateral agreements to which the UN secretary-general rightly refers are concrete and crystal clear.

The primary UN resolution is security council resolution 242 (1967), adopted during the presidency of Lyndon B. Johnson. In it, the council emphasized the “inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security”.  More recently, in its resolutions 1850 (2008) and  1860 (2009), adopted during the presidency of George W. Bush, the security council noted the importance of the Arab Peace Initiative, called for a comprehensive, just and lasting peace in the Middle East and reiterated its vision of “a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders”. The most recent is resolution 2334 (2016), which was adopted during the presidency of Barack Obama, in which the council reaffirmed that “the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace”.

Two indisputable principles of international law are the prohibition against any territorial acquisition resulting from the use of force and the right to self-determination of all peoples.  The first is enshrined in the Fourth Hague Convention of 1907, and its Hague Regulations, which are recognised by all civilized nations, as well as in the Fourth Geneva Convention, which is universally accepted as part of customary international law. As confirmed by the International Court of Justice, the prohibition against the acquisition of territory through the use of force applies to the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem). Citing the UN Charter and the International Covenant on Civil and Political Rights, the Court also upheld the right to self-determination – for both the Israeli people and the Palestinian people.  Although it was an advisory opinion, the Court recognized the erga omnes character of Israel’s obligations with respect to Palestinian land and Palestinian rights including the right to self-determination; the Court also recognized the obligations of other States not to recognize or assist the illegal situation.

At a minimum, the bilateral agreements include the Declaration of Principles and the Oslo Accords, the first agreement between the Israelis and the Palestinians, in which the two sides “view the West Bank and the Gaza Strip as a single territorial unit” and agree to negotiate permanent status issues including “Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest”.

From a purely legal perspective, there are thus at least three scenarios:

A first scenario where international law remains on the table and the illegal annexation of Occupied Palestinian Territory remains off the table:

In this case, the US-Israel-UAE Joint Statement could be a first step towards a full-fledged peace agreement — like the peace treaties signed between Israel and Egypt and between Israel and Jordan.  In the former case, Israel returned the Sinai, which it had captured in the 1967 war, back to Egypt. In the latter case, Israel recognized Jordan’s special role in the Muslim Holy Shrines in Jerusalem and promised to reflect that role in the permanent status negotiations with the Palestinians.

Israel’s agreement with Egypt recognized “the legitimate rights of the Palestinian people.” Israel’s agreement with Jordan was explicitly linked to the Israeli-Palestinian peace process including a provision on finding solutions for the Palestinian refugee problem.  Similarly, the US-Israel-UAE Joint Statement explicitly confirms that the parties will continue their efforts “to achieve a just, comprehensive and enduring resolution to the Israeli-Palestinian conflict”. 

Thus, if Israel does actually refrain from annexing or threatening to annex further Palestinian territory (consistent with international law) and if it does actually pursue a just, comprehensive and enduring resolution to the Israeli-Palestinian conflict (consistent with UN resolutions and Israel’s existing bilateral agreements),  Israel is likely to secure a peace agreement – not only with the UAE but also with Palestine and other Arab States.

An opposite scenario where international law is taken off the table and illegal annexation stays on the table:

To the extent that Prime Minister Netanyahu continues to publicly assure his constituents that he is still actively planning “to apply Israeli sovereignty” over parts of the West Bank including the illegal Israeli settlements and the Jordan Valley, he is blatantly threatening to violate customary international law and the relevant UN resolutions and bilateral agreements. 

In that event, it may be difficult for the UAE to sign a full-fledged peace treaty with Israel. At most, the US-Israel-UAE Joint Statement may lead to a series of bilateral agreements on commerce, trade, investment and other such private international law matters.

A worst case scenario where Israel proceeds to illegally annex parts of the West Bank in direct violation of customary international law, UN resolutions and bilateral agreements:

If Israel unilaterally annexes any part of the West Bank, such a grave violation of the Fourth Geneva Convention would likely jeopardize any possible peace deal with the UAE, as implied in its Crown Prince’s announcement, as well as the existing peace treaty with Jordan, as warned by its King Abdullah II .

Based on the foregoing, and contrary to assertions regarding the US-Israel-UAE deal heralding a new “peace for peace” paradigm, the US-Israel-UAE Joint Statement as well as the broader prospect of peace in the Middle East are thus still very much about “land for peace”.

Accordingly, the further Israel moves away from occupation and annexation of Palestinian land, the closer it moves towards recognition and peace – not only with the Gulf States but also with Palestine and potentially all Arab and Muslim States. In other words, the closer we are to the first scenario above, the closer we are to a sustainable peace in the Middle East.