Give Rights a Chance: International Law as the Indispensable Touchstone for Unlocking the Israeli-Palestinian Conflict

[Michael Lynk is an Associate Professor of Law at Western University, London, Ontario. In May 2016, the UN Human Rights Council appointed Professor Lynk as the Special Rapporteur for the situation of human rights in the Palestinian territory occupied since 1967.]

In late June 1980, the United Nations Security Council adopted Resolution 476, amidst diplomatic reports that the Israeli Knesset was seriously debating a private member’s bill to formally annex East Jerusalem. In its resolution, the Security Council warned Israel that any changes to the legal status or physical character of Jerusalem would be “null and void” and “a flagrant violation” of the Fourth Geneva Convention. The Carter Administration allowed the resolution to pass (the US abstained) because it was upset with the backtracking by Israeli Prime Minister Menachem Begin on his promises during the 1979 Camp David agreement to recognize Palestinian rights and to halt settlement expansion. 

Significantly, Resolution 476 included three provisions which would foreshadow the increasingly empty role of the Security Council and the international community in supervising the Israeli occupation of Palestine. First, the Council reaffirmed “the overriding necessity for ending the prolonged occupation” of Arab territories captured by Israel in 1967. Second, it “strongly deplored the continued refusal of Israel, the occupying power, to comply with the relevant resolutions of the Security Council and the General Assembly.” And third, it reaffirmed its determination, in the event of Israeli non-compliance, to examine “practical ways and means” to secure the full implementation of the resolution.  

A month later, the Knesset adopted the Basic Law: Jerusalem, a quasi-constitutional law which proclaimed the city, “complete and united”, as the capital of Jerusalem. In response, the Security Council approved Resolution 478 in late August 1980 (the US again abstaining), which condemned the Jerusalem law, censured the failure of Israel to comply with Resolution 476, and directed UN members to withdraw their diplomatic missions from Jerusalem. But it did not threaten Israel with any consequences, and none followed. East Jerusalem remains annexed today, with more Israeli settlers and settlements than ever.

In a nutshell, what happened during the summer of 1980 encapsulates all that has followed. The United Nations would anchor its supervision of the Israeli occupation firmly within the framework of international law and human rights. In response, Israel would consistently defy the direction of the Security Council, and continue its largely solitary, and untenable, stance that international law does not apply to the occupation. The various peace initiatives which began with the Madrid-Oslo process a decade later would rely upon realpolitik, rather than international law, to frame the negotiations. And accountability measures, whenever they were raised by the international community, would never be acted upon, signalling to Israel that there would be no costs for its truculence.

International law is the spine of the modern international system, and frequently acts as such. All countries had rhetorically committed themselves to a rules-based international order and, while breaches regularly occur, the promises embedded in international law have significantly modified most countries’ global behaviour. Abba Eban once cynically said that: “International law is the law which the wicked do not obey and the righteous do not enforce”. More profoundly, Louis Henkin observed that: “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”

The 54 year old Israeli occupation of Palestine stands out in today’s world as being, paradoxically, both thick with laws but yet quite lawless. There is no other long-standing conflict in the modern world where the international community has so frequently pronounced on the many principles of international law which are to govern its administration and end point, yet where the dominant state has been so defiant and the international response has been so limp.  International law is not meant to be an umbrella that folds up when it rains.

Over the past five decades, the United Nations has adopted hundreds of resolutions by its leading deliberative organs – the Security Council, the General Assembly and the Human Rights Council – that have overseen the conflict. Accordingly, the prolonged Israeli occupation must fully end. Both the Palestinians and Israelis are entitled to live in peace and security and have the right to self-determination, including sovereign, secure and viable states, within the boundaries of mandate Palestine. All of the 250 Israeli settlements in East Jerusalem and the West Bank are a flagrant violation under international law. East Jerusalem has been illegally annexed by Israel and remains occupied territory. The Palestinian refugees from the 1948 and 1967 wars have the right to choose to return to their homeland. Gaza is an integral part of Palestine, it remains occupied, and the Israeli blockade is a prohibited form of collective punishment.

Yet, as Gideon Levy, the veteran Israeli columnist for Ha’aretz has written: “No country is as dependent on the support of the international community as Israel, yet Israel allows itself to defy the world as few dare.” The Security Council has stated in 22 resolutions since 1967 that the Fourth Geneva Convention of 1949 applies in full to the Israeli occupation. In 11 resolutions on the Israeli occupation, the Council has expressly endorsed the principle that the acquisition of territory by war, force and/or military conquest is inadmissible. And in five resolutions, the Council has held that Israel’s civilian settlements in occupied territory are illegal. Israel has complied with none of them, notwithstanding the obligation under Article 25 of the UN Charter which stipulates that member states are to carry out the decisions of the Security Council. When the Security Council most recently restated these foundational legal principles in December 2016, Prime Minister Benjamin Netanyahu dismissed the resolution as “delusional” and “part of the swan song of the old world.” 

Just as destructively, Israel, with the support of the United States, has successfully insisted since the start of the Madrid-Oslo peace process in 1991 that any negotiations with the Palestinians would be conducted outside of this framework of applicable international law and the prevailing international consensus. The various peace initiatives over the past three decades – from the 1993 Declaration of Principles to the 2013-14 Kerry Initiative (the 2020 Trump Peace for Prosperity Plan is another story) – had listed the final status issues to be addressed, but never referenced the well-established legal framework. This has allowed Israel to treat the core issues of self-determination, Jerusalem, borders, annexation, the settlements and refuges as items to negotiate, rather than principles of law with which it must comply. Instead, realpolitik has shaped all of these agreements, enabling Israel to bargain from the strength of its many illegal ‘facts on the ground’. The lack of a sturdy rights-based approach is the primary reason why all of the many peace initiatives have failed.

The importance of employing international law in conflict resolution involving two quite unequal parties is that it reduces the power imbalance between them and helps to ensure that the final resolution of any conflict is shaped by recognized rights and freedoms rather than by might, thereby offering the best chance for a sustainable peace: “Compliance with international law,” Zeid al-Hussein, the former UN High Commissioner for Human Rights, stated in 2017, “is a sine qua non condition for peace.” A recent report from the Carnegie Foundation for International Peace has cogently argued that a rights-based approach is necessary to break the Israeli-Palestinian status quo because it insists upon accountability for violations of people’s rights and of international law: “[I]t is primarily the phenomenon of impunity that prevents a serious Israeli policy discussion on its future with Palestinians. Without accountability, the center of gravity of Israeli discourse shifted and peace-supporting policies were further marginalized.”

If the international community had determined that Israel’s occupation of Palestine by 1980 was already prolonged and already a matter of overwhelming necessity to end, and if Israel had already demonstrated by 1980 its unwillingness to comply with the explicit directions of the Security Council because it was confident that no consequences would follow, then how are we to understand this situation four decades later? According to statistics from Peace Now, in 1980,  there were 12,500 settlers in the West Bank; by 2019, there were 441,600 settlers, 35 times as many. If realpolitik, the discarding of international law and the absence of accountability have brought us speeding past the last exit to a two state solution, then shouldn’t the next attempt to re-launch a serious peace process be anchored instead in the agreed-upon national and individual rights of both Palestinians and Israelis?

Such an approach would recognize the grossly asymmetrical balance of power on the ground, and it would seek to reward not the occupying power that has further annexation in its sights, but to aid instead the subjugated population whose quest for freedom on its own land has been perpetually thwarted. It would accept that the Israeli leadership will not alter its defiant course unless and until the international community, acting in common, imposes an escalating economic and political cost on Israel for the occupation’s continuation. The enduring advantage of pursuing a rights-based framework to find a lasting solution in Israel and Palestine is not only that it enjoys an overwhelming international consensus, but that its values – including equality, accountability and the rule of law – are the robust pillars that would offer the best chance for a shared, democratic, secure and beneficial future. Only a peace process anchored in the aspirational reach of these fundamental principles can address the realism of the irreducible facts on the ground.