I was in Israel taking part in a program on law and internal diversity, a partnership of McGill and the Hebrew University of Jerusalem, so thankfully I was able to explore Israel’s refugee policies in greater detail in a course on migration and diversity. For conceptual clarity, an asylum seekers is a person who is making a claim under the Refugee Convention and and a refugee is one whose claim has been accepted by the receiving country. It is notoriously difficult to collect statistics on migration flows, which are extremely fluid, but the number of asylum-seekers may range from around17,000 to over 30,000, mostly from the African countries mentioned above.¹ The number of refugees recognized under the Convention by Israel since ratification in 1954? One-hundred and seventy (170). The bulk of these asylum seekers began to arrive in 2005 and although many have since left the country, there are still thousands who remain with precarious status in Israel.

These asylum seekers arrive in Israel by way of a treacherous journey through the Sinai desert and across the Egyptian border, but this is hardly the last barrier they face. Some are immediately sent back to Egypt (so-called “hot returns”), in violation of the peremptory norm of non-refoulement which intends to prevent refugees from being returned to the site of their persecution. This is particularly egregious as the abuse of these migrants by Egyptian authorities is well documented; last spring a principled company of Israeli Defence Forces (IDF) soldiers serving on the border refused to carry out the return of African refugees as they knew the Egyptian border police routinely shot at, sexually assaulted, and even murdered these migrants.

Provided they pass the border successfully, there is still the threat of detention: as of 2009, two thousand asylum seekers were detained in Israeli prisons for indeterminate periods of time, even as unaccompanied minors.² The government distinguishes between those asylum seekers who have contacted the UN High Commissioner for Refugees (UNHCR) to file a petition and those who are apprehended before doing do — the latter are arrested, detained indefinitely, and are eligible for deportation. This places those who arrive at the border and make a claim for refugee status at a disadvantage to those who are able to evade the authorities until they reach Tel Aviv to make a claim with the Commissioner.³

Israel began to assume control over its refugee status determination (RSD) from the UNHCR in 2002 and it now has full control over the system. This process is problematic as the country has no refugee law: asylum seekers have effectively no right representation, appeals must be made to the body responsible for the first decision, and issues of standards obviously arise in attempting to coordinate efforts amongst two bodies with divergent institutional interests.⁴ Asylum seekers’ rights to earn a livelihood and to move freely around the country are restricted: the conditional release documents given to the vast majority do not permit them to work and they often restrict the holder from traveling to or living in key labour market areas.⁵ They are also excluded from receiving social assistance.

What’s more, many asylum seekers are stamped as enemy nationals automatically upon arrival. Last March the Israeli parliament passed a first reading of a bill to update an old emergency measure that the government is currently using to restrict migration flows. The Infiltration Prevention Bill would reaffirm a policy that allows the government to detain “infiltrators”, defined as citizens of an enemy country, for up to seven years; anyone caught with a weapon, even a knife, could face 20 years. The Sudanese government is hostile to Israel and is therefore an enemy country, like most Arab states and Iran. This means that all of its nationals are automatically deemed a security threat and this law could be used to prevent their recourse to flee from the conflict in the region. This is in clear contravention of Article 3 of the convention which forbids receiving countries to discriminate against applicants on the basis of race, religion, or country of origin. Furthermore, anyone who would assist asylum seekers in easing their stay in Israel would also be subject to the same maximum penalties of 20 years behind bars. This means that the dynamic and committed Israeli citizens we met on a field visit with the Hotline for Migrant Workers in Tel Aviv could be potential criminals, all for working to promote the human dignity of refugees and migrant workers.

While Israel has ratified the Refugee Convention, it has not implemented it into its domestic law. Still, the country’s supreme court has affirmed has accepted the Convention as an interpretive guide and in El-Tai’i v. Minister of Interior the court affirmed that the principle of non-refoulement is binding.⁶ This case is yet another testament to the limits of international treaties and human rights standards. How Israel will deal with these asylum seekers is not a simple question of respect or non-respect of the Refugee Convention; the country has underlying identity issues that complicate matters greatly.

As Tally Kritzman-Amir of the Van Leer Jerusalem Institute reminds us⁷, Israel is unlike many other democracies in that to protect the Jewish character of the state, its immigration regime grants citizenship only to Jews and their relatives. Demographics cause the country a great deal of anxiety; it has an interest in maintaining a population advantage over the 20% Arab minority. The reception of African refugees, particularly those from the Sudan who are mostly Muslim (apart from the South Sudanese Christian minority), cannot be assessed without regards to these ethno-religious overtones. Since immigration regimes are governed by the sovereign will of the state, the policy of Jewish return is not in question here. However, this prerogative cannot seep into Israel’s commitments to the international refugee regime if it is to remain an institution based on the principles of non-discrimination.

This influx of migrants is, without a doubt, a massive destabilizing agent in a country of seven million. Still, Israel is actually under no international legal obligation to naturalize these asylum-seekers and refugees; indeed, many of the 170 who obtained refugee status were resettled to other countries like Canada.⁸ The country must only make good on its commitments to international refugee law by giving asylum seekers, regardless of origin, a fair chance at RSD. Donors would jump at the opportunity to fund Israeli efforts to integrate and resettle refugees and display their commitment human rights. And it costs nothing to grant the thousands of asylum seekers in the country the right to work legally and with dignity while their cases are reviewed. Israel describes itself as “the only democracy in the Middle East” and in keeping with this, it should aspire to develop a more cosmopolitan refugee regime, not one that would marginalize some of the most vulnerable people under the banner of security and sovereignty.

The international community has repeatedly affirmed its commitment to Palestinian self-determination. In general terms, its normative obligations to the Palestinian people can be divided into three categories. First, there is a moral duty, arising both from humanitarian interest and from the international community’s exceptionally pronounced role in the protracted conflict between Israelis and Palestinians, to advance peace and reconciliation between the two parties. Second, there is a general legal duty, stemming from the preambles of the UN Charter and the International Covenant on Civil and Political Rights to promote respect for the Palestinians’ human rights, which have been recognized as including the collective right to self-determination.[1] Third, there is a specific legal duty, rooted in the Geneva Conventions, to protect the rights of Palestinians living under Israeli occupation by ensuring Israeli compliance with international humanitarian law (IHL).

Effects of UN recognition on the parties’ compliance with international law

Israeli settlements in the West Bank, often built on stolen private land,[2] have for 44 years increasingly curtailed non-Jewish residents’ access to justice, civil rights, and public resources, creating a situation that several Israeli leaders, including former prime ministers Barak and Olmert, have compared to apartheid. At a time when peoples across the Middle East are rising up en masse against oppressive regimes, it is clearer than ever that the status quo in Palestine is both morally intolerable and logistically untenable.

Common article 1 of the Geneva Conventions obligates all states to “ensure respect for the present Convention in all circumstances.” According to the authoritative commentary of Jean Pictet of the International Committee of the Red Cross, it follows from this that states should endeavour to bring Contracting Parties who violate their obligations “back to an attitude of respect for the Convention.” This “attitude of respect” contrasts starkly with the cavalier indifference consistently demonstrated by Israel with regard to the settlements, which is perhaps best characterized by the 1967 remark of Defense Minister Moshe Dayan: “Settling Israelis in occupied territory contravenes, as is known, international conventions… but there is nothing essentially new in that.”[3]

There is little international contention that Israel’s settlement project violates art. 49(6) of the Fourth Geneva Convention. This the legal position of every country in the world aside from Israel — even the Harper government in Canada, which Israeli foreign minister Avigdor Lieberman has referred to as Israel’s best friend in the world, has affirmed (albeit after much hemming and hawing) Canada’s longstanding position that “Israeli settlements in the occupied territories [the Golan Heights, the West Bank, East Jerusalem, and the Gaza Strip] are a violation of the Fourth Geneva Convention.” This was the unanimous legal finding of the International Court of Justice across its majority and dissenting opinions in the 2003 Wall reference. It was even the legal position of the Israeli govenment’s own legal advisor and justice minister at the time that settlement construction began in 1967.

Far from fulfilling its legal obligation to bring Israel back from its attitude of blatant disregard to one of “respect” for the Geneva Conventions, much of the world, including Canada, has adopted policies which signal implicit acquiescence to Israeli violations of IHL. For example, while the European Union excludes products manufactured in Israeli settlements from preferential import tariffs under its separate trade agreements with Israel and the Palestinian Authority, the Canada-Israel Free Trade Agreement continues to accord preferential treatment to such products. The Canadian government also gives tax credits for donations that help settlement construction.

Palestinian UN membership would do much to encourage Israeli compliance with IHL, especially by granting Palestine access to the International Criminal Court. Should Palestine choose to accede to the Rome Statute (with the caveat that this would necessitate Palestinian compliance with IHL as well, and potentially expose many Palestinian actors to war crimes charges themselves), and should the ICC accept jurisdiction over settlement crimes (as it likely would, non-retroactively, on the basis of complementary territorial jurisdiction given that Israeli courts have deemed the overarching legal question non-justiciable), Israeli officials involved in settlement construction, up to and including the prime minister, could conceivably face prosecution for war crimes in the Hague. Pursuing war crimes charges against Israeli officials would surely prompt retaliatory measures from Israel, but the looming threat — even if not acted upon — would exert massive pressure on Israel to discontinue settlement construction (as it committed to doing in 2003) and stand a good chance of succeeding where 18 years of negotiations have failed. Given other countries’ failure to pressure Israel to halt its settlement activity, enabling the Palestinians themselves to do so through international legal forums would satisfy the art. 1 obligation to promote compliance with the Geneva Conventions, and is therefore a good legal reason to support the UN bid.

Effects of UN recognition on the legal status of Palestine

Contrary to popular belief, statehood is not an attribute bestowed upon entities at the leisure of the UN. The most widely-accepted legal definition of statehood, stemming from the Montevideo Convention of 1933, requires states to have (in order of importance from least to greatest) a permanent population, defined territory, effective government, and the capacity to enter into international agreements. Of importance to note with regard to the second point is that border disputes do not disqualify an entity from statehood. According to the constitutive theory of statehood, statehood arises vis-à-vis other state actors when satisfaction of the aforementioned criteria is recognized at a bilateral level — that is, if Venezuela or the Arab League recognize Palestinian fulfillment of the Montevideo criteria (i.e. the existence of a Palestinian people, territory, and government) and establish international relations with it, than Palestine legally becomes a state vis-à-vis Venezuela or the Arab League.

According to self-determination theorists (a subset of the constitutive school) it is also important to consider just what type of state Palestine would be. Would it be democratic? Tolerant of minorities? Self-determination theorists argue that if the answer to these questions is negative, recognition should not be extended to it even if it meets the Montevideo criteria — a view which is gaining prominence in international legal thought. For example, in 1992 the Badinter Commission initially declined to recognize the newly-formed state of Croatia, citing constitutional shortcomings regarding the protection of minorities. This trend in international law signals a far greater concern for states’ domestic affairs than that exhibited by the drafters of the Montevideo Convention, and could pose problems for Palestine’s bid for recognition. Among other concerns in this regard (mirrored as they may be in Israel) are the Palestinian government’s denial of Jews’ historic connection to Judea, laws categorically banning the sale of land to Jews, and the Palestinian ambassador to the UN’s recent comment to the effect that he sees no room in a Palestinian state for Jewish citizens (currently 510,000 Jews live in the West Bank and East Jerusalem). The UN might — and should — seek to clarify Palestine’s stance on minority rights and democratic accountability before extending it recognition as a state.

If an entity acquires statehood status vis-à-vis the UN it gains access to a wide range of international institutions such as the ICC and the ICJ. There are two ways for an entity to acquire statehood status vis-à-vis the UN: one is through full membership — which is the most robust form of international recognition — and the other through a declaratory resolution of the General Assembly. Acquiring membership requires a super-majority of nine votes at the Security Council, no veto by any of the five permanent members, and a two-thirds majority of 129 votes at the GA; it is also conditional upon acceptance of the UN Charter. If Palestine’s bid for UN membership fails, as it is believed that it will, the PLO will likely seek a special GA resolution, passed by a simple majority, declaring Palestine to be a state and granting it access to a range of international forums.

Even this would be a diplomatic victory for the PLO, by modifying the conceptual framework through which its conflict with Israel is viewed. Instead of treating Palestinians’ exercise of their right to self-determination as a concession to be granted by Israel, it would reframe the negotiations as a dialogue between sovereigns over borders and security. Simply legitimating use of the word Palestine in popular discourse has already been an incalculable moral victory.

Effects of UN recognition on the legal rights of Palestinians

Oxford law professor Guy Goodwin-Gill argues that it is legally problematic for the PLO to seek to replace itself as the “sole legitimate representative of the Palestinian people” with a Palestinian state, as the Palestinian people represented by the PLO comprises a large and scattered diaspora. By redefining the Palestinian people as territorially limited to the West Bank and Gaza Strip, the PLO would be leaving the majority of its constituents bereft of international representation without their consent — arguably violating a fiduciary duty to represent their unresolved legal claims against Israel.

I find this reasoning uncompelling. There is no conceptual problem with the state of Palestine granting citizenship to and/or acting on behalf of all Palestinians who are currently represented by the PLO, much as the state of Israel often claims to represent all Jews. While the PLO’s efforts to seek recognition of a Palestinian state east of the 1949 armistice lines do indeed limit its ability to seek the repatriation of Palestinian refugees west of the Green Line, the PLO is entitled to set its own priorities. Invoking the Universal Declaration of Human Rights, Goodwin-Gill argues that the PLO has no legal authority to effectively waive the rights of its constituents without their approval; however, democratic legitimacy has never been an accepted prerequisite for UN representation.

Effects of UN recognition on the legal status of the Israeli occupation

A common misconception is that international affirmation of Palestine’s statehood would render the Israeli occupation illegal; in fact, it would have no bearing on its legal status whatsoever.

Occupation, under IHL, is not a crime. Proponents of the view that the Israeli occupation is illegal base their arguments in jus ad bellum, arguing that Israel’s possession of the occupied territories resulted from a crime of aggression. I disagree with this assessment; in my view, an analysis of the events leading up to the war which begat Israel’s conquests — in particular Egypt’s threats against Israel, its deployment of troops, and its expulsion of UN peacekeeping forces days before the war broke out — tends to support Israel’s contention that its attack against Egypt on June 5, 1967 and its ensuing war with Jordan and Syria were legitimate acts of self-defense.

Accordingly, Israel’s initial occupation of the West Bank and Gaza was legal, and it remains legal until the Palestinian people have reasonably reassured Israel that its withdrawal would not jeopardize its security (regrettably, Israel has never indicated the circumstances under which it would consider this criterion satisfied). This is not to deny that grave violations of IHL and international human rights law have been and continue to be perpetrated by the military regime, but the illegality of such acts should not be confused with that of the occupation itself.

Barring the unlikely prospect of military intervention, there is nothing the UN or anyone else can do that would obviate the need for Palestinians to negotiate a withdrawal with Israel by addressing its security concerns.

Effects of UN recognition on Palestine’s bilateral negotiations with Israel

The main criticism of the Palestinians’ UN move is that it will accomplish nothing, as at the end of the day the Palestinians need to achieve independence from Israel, not from the UN. Critics claim that the PLO is not trying to build a state, but merely weaken and sideline Israel, and that UN recognition would reinforce Palestinian rejectionism by creating the semblance of an alternative to direct negotiations.

There is little doubt that the UN initiative will increase international pressure on Israel and improve the Palestinians’ bargaining position. However, this in turn may actually help move the peace process forward, in much the same way as the domestic and international consequences of the limited-aims war waged by Syria and Egypt against Israel in October 1973 generated sufficient pressure on Israel for it to make the concessions necessary for peace with Egypt — concessions it had been unwilling to make beforehand. As things stand now, Israel holds virtually all the power in its relationship with Palestine, and there is a general consensus among its allies as well as its enemies that Israel simply lacks incentive to move forward with talks. Personalities ranging from former US president Bill Clinton and European heads of state to Netanyahu’s own father have publicly intimated that the Israeli prime minister is more interested in obstructing negotiations than advancing them. Under the patronage of Netanyahu and his political allies, the Israeli settler population has nearly tripled in the last 18 years alone and continues to grow, and there is unanimous international consensus that the creation of such “facts on the ground” is anathema to peace talks. Israel’s international isolation, which is at a more pronounced level than it has been since the 1970s, makes it particularly susceptible to outside pressure to make the concessions deemed necessary for talks to move forward.

Other arguments have been made against the Palestinian initiative. Some suggest it might lead to violence, others that there is nothing inherently desirable about creating a Palestinian state that will likely be poor, undemocratic, intolerant of minorities, lacking in civil liberties, and embroiled in internal and external conflict. Israelis have very legitimate fears that Palestinian statehood will threaten their security, and Palestinians have very legitimate fears that it will prejudice refugees’ rights. Nevertheless, in light of the impasse that has brought negotiations to a standstill, the massive power imbalance between the parties, the parties’ declared preference for a two-state framework for resolving the conflict, and the near-certainty that a continued deadlock would result in renewed violence, I would view UN recognition of Palestinian statehood as a decidedly positive development from the perspective of advancing the peace process.

Israel, the PLO, and the UN having all accepted the two-state framework, the Palestinians are now urging the international community to stand by it in deed as well as in word by according Palestine the same recognition as any other nation. As the UN bid appears to be the most viable option for advancing negotiations, ensuring respect for the Palestinians’ individual and collective human rights, and promoting compliance with international humanitarian law, it can easily be argued that countries have both a moral and legal duty to support it. On the other hand, it leaves all of the core issues unresolved, and current trends in international law suggest that new states should be obliged to meet minimum thresholds for democratic legitimacy and the protection of human rights which it is not clear that Palestine has yet achieved. At the end of the day, to be sure, countries’ decisions on whether or not to recognize Palestinian statehood will be based overwhelmingly on political factors; yet one might hope that legal considerations such as those I have sought to address here will also play a role in the debate.

[2] According to a report compiled by the Israeli NGO B’tselem, 21% of the built-up area of Israeli settlements is on land that the Israeli govenment recognizes as privately-owned by Palestinians, in contravention of Israeli law and court rulings. See By Hook and Crook: Israeli Settlement Policy in the West Bank (2010).

[3] Cited in Gorenberg, G. The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 (Times Books, 2006).

The controversy surrounding the case stems largely from the circumstances leading to Abu Sisi’s detention: according to credible reports, he was abducted by Israeli agents from a train while visiting his wife in Ukraine. The similarity in the fates of their loved ones, both abducted and detained (or, in the words of some, kidnapped) by enemy forces in the course of Israeli-Palestinian hostilities was surely not lost on Shalit’s father or Abu Sisi’s wife, who spoke by phone earlier this week.

Disregarding for the moment the apparent Israeli violation of Ukrainian sovereignty and the corresponding breach of art. 2 of the United Nations Charter, which will surely have diplomatic repercussions for Israel if the reports are shown to be true (Ukrainian Prime Minister Nikolai Azarov said on a recent visit to Israel that he “doesn’t want to imagine” that possibility), I wish to consider here the legality of abduction missions within the framework of international humanitarian law (IHL) generally, and as applied to the Israeli-Palestinian conflict specifically.

To begin with, it is worth briefly considering whether and to what extent IHL is actually an appropriate normative framework on which to base this analysis. A far more exhaustive discussion on this question can be found in the 2005 Targeted Killings decision of the Israeli High Court, but two key points should be noted : 1) The ongoing hostilities being waged between Israel and the disparate Palestinian factions, most notably Hamas, are of sufficient intensity and severity to be regulated by IHL, which is the primary body of law regulating the conduct of armed conflict, until such time as the occupation comes to an end (art. 3(b) Additional Protocol I). 2) An armed conflict which involves military occupation is automatically characterized as an international armed conflict (common art. 2, Geneva Conventions), meaning that the entire body of IHL, including all of the Geneva Conventions, applies to the situation in question.

IHL recognizes that in the course of hostilities, combatants may be detained by an adverse party; in an international armed conflict, combatants who qualify for prisoner of war status under art. 4(A) of Geneva Convention III are entitled to the protections of that Convention, whereas those who do not are entitled to certain minimum protections under art. 75 of API (to which Israel is not a party, but many of whose provisions—including the aforementioned—in any event reflect binding customary law). None of these protections preclude prosecution for terrorism offenses (which in IHL parlance generally constitute war crimes), subject to the procedural guarantees of art. 75(4) API (in the case of international armed conflicts) and the far more limited protections of common art. 3 (in the case of non-international armed conflicts).

While it is relatively clear from the above that the detention of enemy combatants is tolerated under IHL, some scholars have gone further and argued that common art. 3 in fact authorizes the detention of enemy combatants by listing it as one of the mechanisms by which combatants can be placed hors de combat. In Hamdi v. Rumsfeld, the US Supreme Court affirmed that, in its understanding, the right to detain enemy fighters is inherent in the use of armed force.

According to the guidelines published by the International Committee of the Red Cross (ICRC), members of non-state organized armed groups which are a party to the conflict may be targeted by the adverse party in the same manner as combatants belonging to state armed forces; that is, they can legitimately be targeted at any time while the conflict is ongoing, whether they are actively participating in hostilities or not, subject to the principles of precaution and proportionality. In contrast, enemy civilians may only be targeted if and for such time as they directly participate in hostilities (art. 51(3) API). According to the ICRC, the difference between civilian attacks and those of organized armed groups is that the former are inherently spontaneous, sporadic, and unorganized. While for targeting purposes the ICRC guidelines treat anyone as a member of an organized armed group whose continuous function involves taking direct part in hostilities, US courts have extended membership in an armed group to anyone who “receives and executes orders from the enemy force’s combat apparatus.”

Given that Hamas regularly engages in attacks against Israel of some intensity, that it has an organized leadership structure, and that it purports to many of the functions of government, it can clearly be considered an organized armed group for the purposes of the ICRC guidelines on targeting. Any Hamas member who regularly participates in direct attacks against Israel may therefore be targeted at any point in the conflict, but the US and ICRC approaches diverge on whether this should extend to Hamas members serving in support or logistical roles (though it is generally agreed that Hamas members who do not take orders from the “combat apparatus” of the organization may not be targeted except and for such time as they directly participate in hostilities).

All serving members of the Israeli Defense Forces, the latter being a state armed force, can of course be targeted at any time during the course of the conflict, with the exception of medical and religious personnel (art. 43 API). Off-duty reservists are to be treated as civilians.

If Abu Sisi is indeed a member of Hamas who has regularly taken part in (ICRC) or supported (US Supreme Court) attacks against Israel, then he and Shalit can both be considered to have been belligerents at the time of their capture and as such legitimate targets for abduction. Both he and Shalit were captured during the course of an ongoing international armed conflict (and the fact that Abu Sisi’s abduction took place “off the battlefield” and in the territory of a neutral state is irrelevant for the present discussion). Neither his abduction nor Shalit’s incurred collateral damage, and so both can be said to have been carried out with due regard for the principles of precaution and proportionality. And so—in contrast with Israeli abductions of Palestinians inside the Occupied Territories (which can arguably derive authorization from art. 78 of Geneva Convention IV), or certain other famous Israeli abductions (such as that of Adolf Eichmann, which took place outside the context of an armed conflict)—I can see no basis in IHL for drawing a legal distinction between the abductions of Abu Sisi and Shalit. Both, under IHL, are equally legal.

Of course, this discussion would be incomplete without noting that IHL also obliges the belligerent parties to accord enemy detainees the protections stipulated by the Third Geneva Convention, art. 75 API, or common art. 3 as the case may be; while Israel so far appears to have adhered to this obligation, Hamas (in this matter as in all others) has shown absolutely no respect for or intention to abide by the laws of war.

There are currently around 25,000 African asylum-seekers in Israel, predominantly from the war-torn countries of Sudan and Eritrea, with hundreds more arriving monthly. They began arriving in significant numbers around the year 2000, with massive increases beginning in 2005 as the Egyptian government found itself unable to cope with the tens of thousands of refugees residing on its territory and initiated harsh and often violent crackdowns. Israel, as the only Western country with a land border with an African state, was an attractive option for many given its proximity, strong economy, government-sponsored education, and rule of law. Israel, with an already-delicate demographic balance, has been thoroughly overwhelmed by the number of claimants coming into the country (more, relative to its population, than virtually any other Western country), and is undertaking major reforms to its (previously non-existent) asylum system. To date, a miniscule percentage (less than 1%) of claimants have been granted refugee status; the rest have either been issued conditional visas, renewable every three months, or are held in detention facilities. Israel has adopted a number of strategies aimed at deterring incoming asylum-seekers, and suggestions of building a wall along the border with Egypt were first discussed publicly in 2007.

The proposed barrier is wrong for all sorts of reasons. It’s wrong because it will somehow manage to give Israel, with its 1017 km of land borders, roughly 1419 km of highly-securitized border fences designed to seal it off from its neighbours (whether they be at war or at peace), causing the country to increasingly resemble a fortified ghetto.[2] It’s wrong because a country that was founded by and for refugees should not spend hundreds of millions of dollars building doors for the sole purpose of slamming them in the faces of other refugees in desperate need of assistance.  It’s wrong because when Netanyahu claims the barrier is necessary to preserve Israel’s “Jewish and democratic character”, he tacitly reveals that the term is being used to mask nothing more than a concern for Israel’s ethnic composition.

But is the barrier illegal? There is precedent suggesting that it is not. In its ruling on the West Bank separation barrier, the International Court of Justice suggests that had the barrier been built within sovereign Israeli territory there would be no basis for a legal challenge.[3] This determination is explicitly made in the Israeli Supreme Court’s landmark ruling on that barrier.[4] And so, the act of erecting a border fence would not in and of itself seem to fall outside the legitimate exercise of state sovereignty. Of the dozens of separation barriers that have been or are being constructed around the world, from India to Saudi Arabia to the United States, I have not seen any successfully challenged on the basis of international law. Moreover, the government of Egypt has itself stated that it has no objections to the construction of the barrier, so long as it is built on Israeli territory.

There is, however, another element that must be considered when assessing the legality of the separation barrier. And to do so, we are required to look as far away as Australia. Australia takes one of the toughest stances in the world on illegal immigration; in 2001, it implemented a controversial policy (since suspended) called Pacific Solution designed to prevent asylum-seekers from lodging refugee claims by diverting them to islands that had been excised from Australia’s migration zone. As these claimants were not – at least formally – in Australian territory, Australia claimed that it was not obligated under the UN Convention Relating to the Status of Refugees (Refugee Convention) to protect them or even hear their claims, and that it was free to deport them to third countries.

A report prepared by A Just Australia and Oxfam argues compellingly that Pacific Solution does in fact violate Australia’s treaty obligations under the Refugee Convention by ignoring the principles of asylum and non-refoulement (the obligation not to expel or return refugees or claimants to places where they are likely to face persecution). Citing an article from the International Journal of Refugee Law, the report states:

[…] in Australia “non-refoulement has come to mean non-rejection at the border.” However, while refugees who were placed on Nauru and Manus Island may not have been rejected at the border, the fact that many were ultimately sent back to dangerous situations where they faced persecution falls under the category of refoulement.[5]

Moreover, the report notes, Pacific Solution “[denied] asylum-seekers who are clearly traveling to Australia […] the right to claim asylum in Australia.”[6] This is problematic, because “it [essentially says that] you cannot seek asylum here in Australia. […] You can’t physically exclude asylum-seekers getting into your territory and say that you’re complying with the [Refugee Convention].”[7] While not admitting that the policy was contrary to international law, government members have since acknowledged that Pacific Solution “tarnished Australia’s international human rights reputation.”

Israel, like Australia, is a party to the Refugee Convention. In fact, Israel was one of the Convention’s leading proponents when it was signed in 1951. I would argue that Israel, like Australia, has a general obligation to allow asylum-seekers wishing to apply for refugee protection on its territory to do so, and further, that forcing claimants at the border to turn back to Egypt violates the principle of non-refoulement. It is true that, unlike Pacific Solution, the proposed barrier is a passive rather than active means of exclusion; however, its consequences for asylum-seekers are virtually the same. While countries have the legal right to build walls to protect themselves from terrorism, smuggling, or illegal entrance by economic migrants, building a wall primarily to prevent asylum-seekers from lodging refugee claims certainly violates the spirit (if perhaps not the letter) of the Refugee Convention and customary international law.

Israel, like many other countries in the region and in the world, is dealing with a serious refugee crisis, and the current trends are not sustainable. It needs to work with the international community to find solutions that fit within an appropriate legal and normative framework. Building a wall designed to altogether seal the border to asylum-seekers is not one of them.

–

Daniel Haboucha interned as a Claims Coordinator at the African Refugee Development Center in Tel Aviv, Israel during the summer of 2010.

[1] http://www.independent.co.uk/news/world/middle-east/israel-orders-new-fence-to-keep-out-african-migrants-1864827.html.

[2] According to the CIA’s World Factbook (https://www.cia.gov/library/publications/the-world-factbook/geos/is.html), Israel’s border with Egypt is 266 km; with Gaza 51 km; with Jordan 238 km; with Lebanon 79 km; with Syria 76 km; and with the West Bank 307 km. According to B’tselem (http://www.btselem.org/english/Separation_Barrier/Statistics.asp), the length of Israel’s West Bank separation barrier is 709 km, due to its frequent incisions into the West Bank.

[3] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136 (ICJ) at para. 68.

[4] Beit Sourik Village Council v. The Government of Israel (2004) HCJ 2056/04 (Beit Sourik) at para. 10.

[5] Bem, Kazimierz et al. “A Price Too High – the cost of Australia’s approach to asylum seekers” (August 2007) at p. 45. Retrieved from http://www.ajustaustralia.com/resource.php?act=attache&id=213.

[6] Ibid. at p. 46.

[7] Ibid. citing Mitchell and Henry.

The consequences envisioned by Dunlap constitute only part of lawfare’s potential impact. With increasing frequency over the last decade, litigation as a means of pursuing strategic military or political objectives has been employed in the Middle East conflict against state, non-state, and private actors alike.

The most common tactic involves attempts to indict Israel’s leadership in foreign or international forums for alleged breaches of international humanitarian law. One of the most high-profile cases of this sort involved Israeli general Doron Almog, who fled prosecution for war crimes in the UK after learning upon his arrival there that an arrest warrant had been issued against him for his alleged role in demolishing houses in Gaza in violation of art. 53 of the Fourth Geneva Convention. This incident and similar warrants issued against other Israeli officials in several European countries – including current opposition leader Tzipi Livni in the aftermath of Operation Cast Lead – have prompted Israel to take action, increasing its reliance on legal advisors during military operations and urging its allies to impose legislative limits on the doctrine of universal jurisdiction.[3] Legally-dubious practices applied by Israel in the past, such as punitive house demolitions, use of incendiary munitions in populated areas, and targeted assassinations, have been halted or curtailed.[4]

Another common use of litigation to achieve strategic political objectives with regard to the Middle East conflict involves the application of anti-terrorism legislation to target Palestinian actors. For example, the right-wing Israeli organization Shurat HaDin has been involved in litigating over a dozen cases, mostly in the US and Israel, against banks, Palestinian charities, and Muslim leaders around the world for their alleged support of terrorism. Many of these suits have been manifestly frivolous, such as a 2008 lawsuit against the government of Egypt, filed in an Israeli court, for not doing enough to prevent Hamas rocket fire from Gaza.[5] Others have been less so; on the basis of expansive anti-terrorism legislation, US courts have ordered the North Korean government to pay $378 million to victims of a joint Japanese Red Army-Popular Front for the Liberation of Palestine massacre at an Israeli airport in 1972,[6] the Iranian government to pay $183 million to the victims of a Hamas bus bombing in Jerusalem,[7] and the Palestinian Authority to pay $116 million to the Israeli victim of a West Bank shooting carried out by Hamas members wearing PA uniforms.[8]

The obvious downside of such judgments is that they are generally impossible to collect. Moreover, such thinly-veiled judicial forays into the realms of foreign affairs and international diplomacy threaten the constitutional separation of powers and risk harming the US’s national interests; in the case of the PA, the judgment resulted in $30 million of the Palestinian national bank’s assets in the US being frozen while at the same time the US government was continuing to pour money into PA accounts abroad in compliance with its international commitments. The freeze order was eventually overturned, but there is no question that it embarassed the government diplomatically and set back the US interest in developing the Palestinian economy. However, it apparently suited the political aims of Shurat HaDin; the organization seems to boast on its website that its actions have contributed to the closure of all banks in Gaza,[9] and its director has meanwhile petitioned the US government to break off the peace process on the basis of PA president Mahmoud Abbas’ alleged ties to terrorism.[10]

The third type of litigation relevant to the Middle East conflict comprises claims in tort against parties indirectly connected to the conflict. Such cases are liable to arise in regard to either Israeli or Palestinian actions.

In 2003, US activist Rachel Corrie was crushed to death by an Israeli bulldozer while protesting house demolitions in Gaza. In 2005, her parents and four Palestinian families who had lost relatives in a similar manner initiated legal proceedings against Caterpillar (the manufacturer of the bulldozers) in the US. The bulldozers were paid for by the Pentagon, which supplied them to Israel as part of a US military aid package. The plaintiffs argued that Caterpillar ought to have known that the bulldozers would be used in breach of international law. The suit was dismissed on the grounds that hearing the case would necessarily involve challenging US foreign policy toward Israel, and would therefore overstep the limits of judicial authority.[11]

In 2009, in a saga known as the “courtroom intifada,” the Palestinian village of Bil’in filed suit in Quebec Superior Court against Montreal-based companies Green Park and Green Mount.[12] The two companies were allegedly involved in developing Israeli-occupied land belonging to Bil’in’s residents for use by Israeli settlers, in contravention of the Fourth Geneva Convention. The plaintiffs argued that, in addition to international law, the defendant companies’ actions violated Canada’s Crimes Against Humanity and War Crimes Act, giving rise to civil liability under Quebec’s regime of extra-contractual obligations. The court dismissed the suit on the basis of the doctrine of forum non conveniens, holding that the matter was best heard by an Israeli court.[13]

Most recently, in July of this year, Shurat HaDin filed a lawsuit against the news network Al-Jazeera in the US on behalf of 91 Israelis wounded by Hezbollah rocket fire, alleging that Al-Jazeera’s reports from within Israel during the 2006 Israel-Lebanon war assisted Hezbollah in aiming its rockets.[14] The plaintiffs are seeking $1.2 billion in damages. Unsurprisingly, I do not have high expectations that this suit will succeed, not least of all because it would seem altogether impossible for the plaintiffs to establish causality.

Lawfare, it would seem from the above examples, can be a wildly asymmetrical – if often effective – means of waging conflict. While litigation based on international humanitarian law seems to fundamentally disadvantage Israel, suits based in private law actions seem to be (at least in many western countries) skewed in its favour.

As far as international humanitarian law goes, many commentators have noted the disadvantages faced by Israel, as a democratic member of the community of nations, in contrast with its non-state opponents. A prime example of this is the Goldstone Report, which brought allegations of war crimes against both Israel and Hamas. However, only Israel was subjected to massive internal and external pressure to investigate these findings, hold decision-makers responsible, and alter its actions in the future. Israel is bound by constraints which its opponents are relatively free to ignore. Nonetheless, I would argue that this is as it should be; it in no way strikes me as illogical for a UN member state to be held to different expectations than a designated terrorist organization. The right-wing Israeli organization NGO Monitor apparently disagrees, accusing humanitarian NGOs of hypocrisy in its reports on anti-Israel “lawfare,” which it describes as harassment and exploitation. It is worth noting that NGO Monitor uses the term lawfare in a slightly different manner than Dunlap does. While the latter considers it to be a form of ultimately self-inflicted damage best prevented by promoting adherence to international law, the former considers it to be merely an illegitimate external attack best prevented by suppressing accountability mechanisms. Moreover, NGO Monitor only objects to lawfare that is directed against Israel, opening itself up to the same sorts of accusations of hypocrisy and ideological agendas that it levels against others.

As for private law, its slanted application in Middle East lawfare is apparent when contrasting the case of Corrie v. Caterpillar with Ungar v. Palestinian Authority et al.  Why is it that US courts are more reluctant to step on the toes of the executive branch when foreign relations with Israel are concerned than they are when the interests at stake are foreign relations with the PA, Iran, or North Korea? I think the answer is likely at least somewhat political. It is true that the latter cases involve specific anti-terrorism statutes, but it seems to me there are other statutes - such as the Alien Tort Claims Act - that might similarly apply to the former. Moreover, in Ungar the court showed a willingness to hold the PA responsible for virtually any act of Palestinian terrorism taking place on its watch, a stringency I doubt it would have applied to Israel.

If courts are going to decide on politically-motivated questions, as inevitably they must, they should do so keeping in mind the following two principles which underlie the Supreme Court of Canada’s decision in Khadr II:[15]

1) Willingness to review the legal implications of foreign policy choices (Did Israel’s use of bulldozers contravene international law? Was the PA a supporter of terrorism as defined by domestic statute?); and

2) Due deference to the executive branch when ordering a remedy likely to impact foreign affairs.

Embracing these principles, rather than seeking to curtail judicial intervention in questions pertaining to foreign conflicts, will promote the rule of law and increase compliance with international norms. Moreover, the increasing use of litigation to wage international conflict emphasizes the importance of incorporating diplomatic considerations into national legal frameworks in a uniform and consistent manner, for example through international agreements on the applicability of the universal jurisdiction doctrine.

To be sure, there is considerable room for the involvement of the law in the Middle East conflict beyond the ways discussed here. Most importantly, the Israeli judiciary serves an invaluable, if imperfect, supervisory role over state action and is frequently called on to balance the competing interests of the state with its citizens’ and subjects’. Finally, international forums, like the International Court of Justice, can provide impartial guidance, advising the international community as well as the actors themselves as to their rights and obligations in striving to resolve or manage the conflict through political means.

[1] Dunlap, Charles J. “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts.” Harvard Carr Center (Nov. 29, 2001). Cited at http://www.washingtontimes.com/news/2007/aug/03/lawfare-amid-warfare/.

[2] Ibid.

[3] http://news.bbc.co.uk/2/hi/middle_east/8415161.stm.

[4] http://www.jpost.com/Israel/Article.aspx?ID=182088.

[5] http://imra.org.il/story.php3?id=37522.

[6] http://www.wdbj7.com/la-fg-north-korea-lawsuits-20101003,0,3145600.story.

[7] http://www.jewishreview.org/node/8584.

[8] Ungar v. Palestinian Authority et al. http://www.boston.com/news/world/middleeast/articles/2005/08/30/palestinian_authoritys_us_assets_are_frozen/.

[9] http://www.israellawcenter.org/Last-Bank-in-Gaza-Closes-Out-of-Fear-of-Victim-s-Civil-Suits.html.

[10] http://www.landofisrael.info/News/2003/4/29/abu_mazen_munich.html.

[11] http://ccrjustice.org/ourcases/current-cases/corrie-et-al.-v.-caterpillar.

[12] Bil’in (Village Council) v. Green Park International Ltd., 2009 QCCS 4151.

[13] http://www.legalfrontiers.ca/2009/10/quebec-courts-open-a-new-chapter-on-corporate-civil-liability-paying-for-war-crimes/.

[14] http://www.usatoday.com/news/world/2010-07-13-israelis-sue-al-jazeera_N.htm.

[15] Canada (Prime Minister) v. Khadr, 2010 SCC 3 (Khadr II).

Dershowitz’s first inquiry is to determine if al-Mabhouh was a combatant vis-à-vis his killers. Accepting that the Israelis assassinated him, al-Mabhouh was a combatant—considering that he was an “active participant in the ongoing war by Hamas against Israeli civilians. Indeed, it is likely that he was killed while on a military mission to Iran in order to secure unlawful anti-personnel rockets that target Israeli civilians.[1]” Now that we’ve established that al-Mabhouh was a combatant, we have to determine if there are circumstances in which international law forbids combatant assassinations. Presumably, international law does not allow assassinations of combatants under all circumstances.

Dershowitz writes that geography is the only limitation on assassinations of combatants. Had the assassination taken place in Gaza, it assuredly would have been legal. The only complication to the legality of the assassination is the fact that it took place in Dubai. Dubai law and sovereignty was violated—but nothing else. Perhaps there should be other circumstances in which assassinations of combatants are prohibited. I confess to not being an international law expert; therefore, my analysis will proceed from the assumption that Dershowitz’s interpretation of international law is correct.

What about situations in which a combatant is unengaged in military operations? What if he’s at home with his wife and children? Such a prohibition would be more desirable in a conventional warfare scenario. With many of today’s targeted assassinations occurring in a guerilla/asymmetrical warfare scenario, it is harder for the larger party to detect and respond to the actions of the smaller party. So as to allow the former to fight back against evasive tactics, international law may need to allow the larger party to strike outside of the battlefield context.

Outside of the battlefield context, the target is much more likely to be unprepared. He may be in a civilian area where there is a significant risk of collateral damage. International law allows the assassination, with the caveat that there are constraints on collateral damage; it does not prohibit an assassination attempt simply because of nearby innocents. If we deem the actions of the guerilla/insurgent party problematic when it chooses to strike its enemy in its civilian areas, should we not make the same consideration toward the actions of the stronger party? Without prohibiting outside-of-the-battlefield assassinations, is international law encouraging assassinations that may endanger civilians?

This criticism of international law is not misplaced, but I ultimately feel like international law strikes the right balance vis-à-vis the allowance of assassinations outside of a battlefield context.  This is because parties that don’t give a whit about international law (often the guerilla, or insurgent party to an asymmetric conflict) cannot be constrained by international law. If they cannot be deterred by international law, then it is unfair to place constraints on only the stronger party, since doing so would ensure that killers will continue to operate without impunity. International law cannot expect that all parties will honor it. Indeed, it must be crafted with the pragmatic acknowledgment that many parties will not follow it.

Conflicts of the twenty-first century are very different than conflicts of the mid-twentieth century. International law must encourage parties to end their conflicts, but must also appreciate that it will not always succeed and where it does not succeed, it must not unfairly punish one party. If assassinations are not inherently illegitimate, we must allow them to occur outside of the battlefield, subject to constraints necessary to minimize collateral damage.

The status of Jerusalem is one of the most contentious issues in the Middle East and has no clear-cut solution. I would not presume to offer one. I will, however, attempt to disentangle and analyze some of the various legal and political considerations that are implicated in Israel’s construction in East Jerusalem.

Historical overview

Faced with rising internecine conflict between Jews and Arabs in Mandatory Palestine and the incompatible nationalist aspirations of both groups, Britain in 1947 placed the question of Palestine before the United Nations. The UN General Assembly proposed to partition Palestine (Resolution 181) into two sovereign states, with Jerusalem a corpus separatum to be administered by an international regime under the control of the UN. This proposal was never implemented; during the course of the first Arab-Israeli war of 1947-49, the western half of Jerusalem wound up under the control of Israel and the eastern half under that of Transjordan. This status quo persisted for 18 years.

In the 1967 Six Day War, Israel conquered the West Bank, including East Jerusalem. Though it never formally annexed the territory, Israel expanded the municipal boundaries of Israeli Jerusalem and declared the united city its capital, to be administered by Israeli civilian law. The expansion of Jerusalem’s borders incorporated not only the Jordanian municipality of Jerusalem but also land from surrounding Arab villages comprising close to one and a half times the size of Israeli and Jordanian Jerusalem combined.[2] This de facto territorial annexation was never recognized by the international community and was declared to contravene international law, inter alia, in UN General Assembly Resolution 2253 and UN Security Council Resolution 478 (both of which passed unopposed).

Political issues

The question of recognizing Israeli sovereignty over East Jerusalem is largely a political one. While an analysis of this question should – and indeed must – involve a discussion of relevant international law, it may nevertheless be useful to first discuss some of the unique overarching political considerations.

Recognition of Jerusalem as a political issue to be decided by the parties through negotiations

Under article V(3) of the 1993 Declaration of Principles (Oslo), Israel and the PLO agreed to determine the permanent status of Jerusalem in bilateral negotiations by 1999. Although peace talks collapsed before such an agreement was concluded, both the Israeli and Palestinian official positions recognize an ongoing commitment to negotiate the status of Jerusalem on the basis of Oslo.[3] This suggests: 1) that notwithstanding any international legal opinions on the status of Jerusalem, a final agreement will be concluded on the basis of a political agreement between Israel and the Palestinian Authority; 2) both Israel and the PA can be expected to make concessions from their starting positions on Jerusalem; and 3) neither Israel nor the PA should undertake any actions that will prejudge negotiations on the permanent status of Jerusalem.

The Jewish connection to Jerusalem

The Israeli claim to all of Jerusalem is rooted in the perception of continuity between the present-day state of Israel and the Biblical Israelite polity, whose King David is said to have first conquered the city and made it his capital over 3000 years ago. Once the site of the Jewish Temple, religious Jews have for two millennia prayed toward Jerusalem thrice daily, lamented its destruction in their rituals, and aspired to make it their home. For the last 150 years, Jews have constituted a demographic majority in the city.[4] Jerusalem is also a holy city to Muslims and Christians and a focal point of Palestinian culture, and numerous Israeli, Palestinian, and international declarations have affirmed the importance of guaranteeing freedom of worship and access to all.

The feasibility of dividing the city

Except for the 19 years in which Jordan occupied East Jerusalem, the city was never politically or physically divided. Israel celebrates the re-unification of the city as a victory in itself. The Israeli government and the PA, as well as the international community, have all emphasized that the city should never again be physically partitioned as it was between 1948 and 1967, and that its religious sites should be open to all.

Ambiguity regarding the borders of Jerusalem

Israel more than doubled the size of what were formerly Jerusalem’s municipal boundaries in 1967. It did so largely at the expense of neighbouring villages’ farmland and the division of suburbs and towns. Special funds are allocated each year to develop and expand the city, and virtually all expansion has taken place eastward on conquered land. The international community rejects any unilateral deviations from the 1967 borders. Many of East Jerusalem’s outlying Arab neighbourhoods are disconnected from the city centre and do not receive municipal services. It is unclear whether in the future such areas will or should be considered a part of Jerusalem.

Legal issues

The legal status of the West Bank (excluding East Jerusalem) as territory under military occupation is rather uncontentious; it is recognized as such both by the entirety of the international community and by the Israeli Supreme Court.[5] In contrast, while the entirety of the international community views East Jerusalem as being similarly under belligerent occupation, Israel’s executive, legislative, and judicial branches tend to treat East Jerusalem as a part of Israel.[6]

So the questions arise: On what basis should East Jerusalem be divided from the rest of the West Bank? Has Israel annexed East Jerusalem? If so, is that annexation legal under international law? And what obligations do international and domestic law impose on the Israeli government with respect to the administration of Jerusalem?

On the one hand, Part III(A) of Resolution 181 provides a prima facie basis for treating Jerusalem in its entirety as a separate entity from the rest of the West Bank, and gives credence to Netanyahu’s claim that the question of Jerusalem is not tied to the establishment of a Palestinian state. On the other hand, this clause is considered by Israel to have no binding authority[7] and, in the face of international consensus to the contrary, it is difficult to see any other legal basis on which to draw a distinction between the territories. UNSC Resolution 242, which emphasizes the inadmissibility of acquiring territory by war, draws no distinction between East Jerusalem and the other territories captured (other resolutions, such as UNSC Resolution 465, explicitly include Jerusalem). It does not seem compelling to argue, as Netanyahu seems to do, that East Jerusalem should be treated differently than the other territories simply because the Israeli government considers it to be more holy.

If we accept that there is some legitimate basis on which to distinguish between East Jerusalem and the rest of the West Bank (either based on Resolution 181 or any of the political factors discussed above), we must then ask whether it has been annexed by Israel either de facto or de jure. This is not an easy question to answer. Following its conquest of the territory, Israel explicitly denied that its actions in expanding Jerusalem’s municipal boundaries and applying Israeli law to the whole city constituted annexation.[8] Yet, as early as 1970 Supreme Court jurisprudence shows East Jerusalem having been treated as a part of Israel.[9] In 1980, the Israeli parliament adopted the Basic Law: Jerusalem, which legislatively entrenched “complete and united” Jerusalem as Israel’s capital – yet refrained from using words like annexation, sovereignty, or borders.[10] UNSC Resolution 478 nevertheless declared that law to be “null and void,” and no country maintains its embassy in Jerusalem. At Taba in 2001, Israel agreed that Jerusalem could be the capital of both Israel and Palestine, with Palestinian sovereignty over Muslim holy sites. As recently as last week however, Netanyahu reiterated his government’s position that Jerusalem is the “eternal capital of Israel”, that it will never again be divided, and that it is no different from Tel Aviv.[11] To be sure, the Israeli position on annexation of or sovereignty over Jerusalem is murky at best, and Professor Ian Lustick argues compellingly that Israeli annexation or extension of full sovereignty has never occurred.[12]

International consensus is split between whether Jerusalem should be the shared capital of Israel and Palestine or placed under some form of international administrative control. If Israeli annexation did occur then it is certain that the move was not recognized by any other country, though this does not make it ipso facto illegal either by virtue of the UN Charter or article 47 of the Fourth Geneva Convention. One possible argument for the legality of Israeli annexation is that since Jerusalem was never under the sovereignty of a Palestinian state, nor ever supposed to be under the sovereignty of such (according to Resolution 181), and since Israel acquired Jerusalem from Jordan, whose sovereignty was never recognized, in an (arguably) lawful act of self-defense and (again arguably) never acquiesced to its internationalization, Israel has just as much of a claim to it as anyone else. Especially if it can show that it is the best-placed party to uphold the principles of non-discrimination and free access to holy places which form the basis of Resolution 181 part III.

If, in the alternative, Israeli annexation never occurred to begin with (as Lustick argues), and the territory of East Jerusalem is undisputedly under belligerent occupation, then there would be little doubt that article 49 of the Fourth Geneva Convention and article 52 of the annex to the Hague IV Convention should apply. These articles respectively declare it illegal for the occupier to transfer part of its civilian population into the occupied territory and to expropriate land for any purpose other than military necessity.

As alluded to earlier, without appealing to public international legal instruments it could still be argued that Israeli annexation of East Jerusalem is precluded by its treaty commitments under Oslo, namely the obligation to negotiate the final status of Jerusalem with the PA. As indicated above, this obligation implies a duty on the part of Israel not to prejudge the outcome of negotiations, and an openness to territorial concessions. Even if the Israeli government considered Oslo to no longer be binding upon it, it will surely recognize that these duties are prerequisite to its many other standing commitments to seek peace with its neighbours.

Ironically, though many of Israel’s legal arguments in defense of its actions in East Jerusalem rely implicitly on provisions contained in Resolution 181, Israeli acceptance of this resolution would suggest acceptance of some sort of international regime for the administration of Jerusalem – which Israel has adamantly refused to consider. Some argue that Israel’s admission to UN membership was explicitly made conditional on its acceptance of Resolution 181.[13] Others argue that the legitimacy of Israel’s existence derives not from any UN resolution but rather from the assertion of independence by its people and as such, barring explicit acceptance by the state of Resolution 181, the General Assembly resolution has no binding force.[14] It should be noted in response that the pre-state government of Israel did in fact accept Resolution 181. In either case, it would seem inconsistent for Israel to accept the authority of some parts of the resolution and not that of others.

Turning away from international law for a moment, it is also worth briefly considering whether Israel’s actions in East Jerusalem comply with domestic Israeli law. Israel’s Declaration of Independence guarantees the development of the country for all of its inhabitants and equal social and political rights irrespective of religion, race, or sex. Israel’s Basic Law: Human Dignity and Liberty guarantees the state’s protection of every person’s dignity, property, and freedom from deportation. The government expropriation of more than 30% of East Jerusalem’s land for the building of Jewish-only neighbourhoods[15] and severe discrimination in citizenship/residency status (resulting in a policy of “quiet deportation”)[16] and resource allocation (Jewish neighbourhoods of Jerusalem receive approximately 5 times more resources per capita than Arab neighbourhoods)[17] raise a number of concerns with regard to the government’s compliance with these legislative provisions.

Further Israeli clarification of its legal position on Jerusalem would certainly be helpful. As to the legitimacy (I hesitate to use the word legality) of current Israeli construction in East Jerusalem, I again emphasize that there is no clear-cut answer. Such a determination depends on numerous extra-legal factors and requires a more thorough analysis of international law, international consensus, Israeli law, Israeli political consensus, and the parameters of the peace process than I’ve been able to provide here – though I hope I’ve succeeded in identifying and demarcating many of the relevant issues and considerations.

[1] http://www.jiis.org.il/imageBank/File/shnaton_2006/shnaton_C1005_2005.pdf

[2] http://news.bbc.co.uk/2/shared/spl/hi/middle_east/03/v3_israel_palestinians/maps/html/1967_and_now.stm

[3] Israeli Ministry of Foreign Affairs – http://www.mfa.gov.il/MFA/MFAArchive/1990_1999/1999/3/The+Status+of+Jerusalem.htm at para. 26; Palestinian Authority Ministry of Information – http://web.archive.org/web/20060212195415/http://www.minfo.gov.ps/permenant/English/Jerusalem/Pal_Official.htm at item no. 2.

[4] http://www.cbs.gov.il/hodaot2006n/11_06_106b.pdf

[5] Beit Sourik Village Council v. The Government of Israel (2004) at para. 23; http://elyon1.court.gov.il/files_eng/04/560/020/a28/04020560.a28.pdf

[6] See for example Ruidi and Maches v. Military Court of Hebron, cited in The Jerusalem Question and its Resolution by Lapidoth and Hirsch (1994) at p. xxiv – http://books.google.com/books?id=e93JIwTBjHgC&q=supreme+court#v=snippet&q=supreme%20court&f=false

[7] http://www.mfa.gov.il/MFA/MFAArchive/1990_1999/1999/3/The+Status+of+Jerusalem.htm at IV(A)

[8] Lapidoth and Hirsch, supra note 6 at p. xxiv.

[9] Ibid.

[10] In 2000, Israel passed an amendment stipulating that the Basic Law applies to Jerusalem’s borders as expanded in 1967 (apparently excluding the subsequent expansions).

[11] http://news.xinhuanet.com/english2010/world/2010-03/25/c_13223561.htm

[12] http://www.highbeam.com/doc/1G1-19163708.html

[13] Henry Cattan, The Palestine Question (1988) at p. 87 – http://books.google.com/books?id=LQcOAAAAQAAJ&pg=PA87&lpg=PA87&dq=&source=web&ots=NVRHecD-kT&sig=6i2uStTtoN_HlM8Xa2IsaPB7is0&hl=en&sa=X&oi=book_result&resnum=4&ct=result#v=onepage&q=&f=false

[14] Julius Stone, “International Law and the Arab-Israeli Conflict” at p. 11 – http://www.aijac.org.au/resources/reports/international_law.pdf

[15] http://www.ir-amim.org.il/Eng/?CategoryID=289

[16] http://www.btselem.org/english/Jerusalem/Revocation_of_Residency.asp

[17] http://www.btselem.org/english/Jerusalem/Infrastructure_and_Services.asp

The success or failure of such a move largely hinges on the international community’s (and in particular, a few key players’) willingness to recognize Palestinian sovereignty against Israel’s wishes. To gain recognition as a member of the United Nations, it would require the support of at least 96 countries including all permanent members of the UN Security Council (UNSC).

A number of analysts have already noted similarities between the case of Palestine and that of Kosovo, which unilaterally declared its independence from Serbia two years ago next week. Though remaining nominally under UN administration under the terms of UNSC Resolution 1244, to date Kosovo’s independence has been recognized by 63 countries, including the United States and many European countries. Its status remains uncertain however, and due to opposition from Russia and China it has little hope of becoming a UN member-state.

In response to Kosovo’s declaration of independence, Serbia has called on the International Court of Justice (ICJ) to rule on the legality of this move. The effects of the ICJ’s advisory opinion, which is expected later this year, are not likely to change things on the ground; where it may have an effect is to influence the international community’s willingness to accept Kosovo’s sovereignty, potentially leading to greater legitimacy and UN membership.

Recognizing the implications of the decision, both sides have vested themselves seriously in the proceedings. Serbia has argued that Kosovo’s independence violates Serbia’s territorial integrity and the terms of Resolution 1244. Kosovo has argued, inter alia, that Resolution 1244 never envisioned a return to full Serbian sovereignty and that the history of violent persecution of Albanians by Serbs, which came to a horrific peak under Slobodan Milosevic, justifies its claim to self-determination on the grounds of protecting the human rights and civil rights of a minority group. This argument is somewhat tenuous, as it could potentially open the door to dozens of other separatist groups seeking independence and implicitly offer legal recognition to those who would seek to achieve nationalist goals by fostering ethnic violence. I would not venture to speculate yet as to the decision of the court, but as the first case of secession to be decided by the ICJ it is sure to have implications for other separatist groups, including the Palestinians.

If the ICJ determines Kosovo’s secession to be legal, it seems likely that a Palestinian declaration of independence will closely follow suit. The two cases bear many similarities: both have been marked by decades of ethnic conflict and persecution, both saw a disenfranchised ethnic group pushing for autonomy in a territory that historically was shared but where it currently constitutes a majority, both are areas of particular concern for the international community, both Serbia and Israel have symbolic nationalist reasons for wanting to hold onto their breakaway territories, and both conflicts have so far proven irresolvable without an imposed or unilateral solution.

Moreover, thanks to Fayyad and those who came before him, the Palestinians already have the benefit of numerous state or quasi-state institutions, and far broader international support than Kosovo does. When the PLO previously declared Palestinian statehood in 1988, the state of Palestine was recognized by close to 100 countries. Today, the number would be much higher, particularly as many European countries have recently expressed a readiness to accept a unilateral Palestinian declaration of independence. Moreover, unlike in 1988, today all major powers – including the United States – have expressed their commitment in principle to a Palestinian state.

Such a state is most probably going to emerge, one way or another. Regardless of the ICJ’s decision on Kosovo, it is unlikely that the Palestinians will wait forever for a peace agreement with Israel. Palestinian President Mahmoud Abbas and others have long been seeking a more prominent role for international institutions, and particularly the ICJ, in their standoff with Israel, and a favourable ruling in this case will certainly bolster their position.