Mr. Dundas, a writer on Middle East affairs, was a legal researcher at Al- Haq, the West Bank Affiliate of the International Commission of Jurists, Geneva.
Though there has been an increase in interest in the legal aspects of the Palestinian-Israeli conflict in recent years, debate is still overwhelmingly limited to a coterie of international lawyers and human rights activists. Rarely have Middle East analysts and pundits engaged in assessing the legal dimension of the conflict. As a result, the implications of the legal and administrative alterations made by the Occupying Power to the governance of the West Bank and the Gaza Strip are too often overlooked, and the legal responsibilities of third states rarely considered. Drawing on the said debate, this overview aims to contribute to the widespread adoption of a more legally informed approach to analyzing the Palesteinian-Israeli conflict.1
IN THE ABSENCE OF LAW
As the Middle East peace process collapsed amidst the rancor and bloodshed of the second Palestinian intifada, politicians and pundits alike presented a caricatured and misleading view of the causes of the imbroglio. Such explanations ranged from the overly personal, laying the blame for the current impasse on the foibles of aging leaders, principally the late Yasser
Arafat, who seemingly “never failed to miss an opportunity to miss an opportunity,” to sociological analyses, which stressed the inability or unwillingness of the respective leaderships to effectively confront domes- tic opponents of the peace process that invariably led them to depart from the “spirit of Oslo.”2 More recently, the victory of Hamas in the Palestinian Legis- lative Council elections in January 2006 has been held up by many commentators and governments as a further obstacle to any progress towards a Palestinian-Israeli rapprochement.
This paper presents an alternative view and argues that the root of recurring crises in Palestinian-Israeli peacemaking is due largely to the consequences of American and European Union acquiescence to an unregulated occupation. This acquiescence has amounted to turning a blind eye as successive Israeli governments established and then consolidated civilian settlement in occupied territory. While wishing to maximize their control over West Bank land, though loath to absorb the Palestinian population into the Israeli body politic, successive Israeli governments have sought solutions that would relieve them of their responsibility for the Palestinian population while not jeopardizing the settlements or their military control over the area. Granting the Palestinian population a form of limited self-government eventually became the preferred option to the predicament of wanting the land but not the people and formed the basis of what became known as the peace process. This paper focuses on Israel’s policies in the West Bank excluding occupied East Jerusalem. It does not deal with the Gaza Strip or the right of return.
INTERNATIONAL HUMANITARIAN LAW & OCCUPIED TERRITORY
As an Occupying Power3 in the West Bank, Israel’s conduct is regulated by Articles 42 to 56 of the annex to the Fourth Hague Convention Respecting the Laws and Customs of War on Land, commonly known as the Hague Regulations, and the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, especially Articles 27 to 34 and 47 to 78 (hereinafter the Convention).4 These articles form a key part of the corpus of law known as the “law of belligerent occupation.” This law aims to provide a civilian population under the occupation of a hostile foreign power a degree of human- rights protection. The civilian population regarded as “protected” is entitled to respect for their persons. To this end, an Occupying Power must actively safeguard the welfare of the population.5
The Convention also protects the status of the occupied territory by prohibiting the Occupying Power from settling its citizens in the area (Article 49) and from making alterations to the local law — in the case of the West Bank, Jordanian law6 — that are not necessitated by military requirements (Article 64).7 The Occupy- ing Power is also prohibited from confiscating private property under Article 46 of the Hague Regulations, though a said Power can make requisitions in kind as stipulated in Article 52 of the Hague Regulations and can make use of public property in accordance with the rules of usufruct,8 as noted in Article 55 of the said Regulations.
In sum, the law envisions occupation as a temporary state of affairs with limited legislative and executive powers in the occupied territory vested with the Occupying Power. The Occupying Power may take lawful measures to safeguard its own security but must administer the occupied territory in the broad interests of the local population. Any action taken by the Occupying Power that would deprive the occupied population of their rights under the Convention or lead the said Power to administer the occupied area as part of its own territory would be unlawful. One of the most salient aspects of the Convention is that it places an obligation on the High Contracting Parties (state parties to the Convention) to insure that all sides to a conflict abide by its provisions (Article 1). In the case of the Occupied Palestinian Territory, the High Contracting Parties are charged with the specific responsibility of upholding the integrity of the law and hence guaranteeing the protection of the civilian population.9
ANATOMY OF AN OCCUPATION 10
On June 7, 1967, the Israeli High Command issued three proclamations that established Israeli military rule in the West Bank. Proclamation No. 1 (Assumption of Control) announced the entrance of Israeli forces to the area; Proclamation No. 2 (Regulation of Administration and Law) vested in the military commander of the area all powers of government, legislation, appointment and administration; and Proclamation No. 3 (Concerning Security Regulations) established the military courts and laid out the scope of their jurisdiction. The most significant of these proclamations was No. 2, which granted the military commander responsible for the West Bank the powers of the previous Jordanian administration. Through the promulgation of a series of military orders, successive Israeli military commanders developed a legal framework that extended military jurisdiction over every facet of Palestinian life, including over the use of natural resources such as land.
Apart from East Jerusalem and its immediate environs, which were annexed and in which civilian settlement began in earnest under the then national-unity government headed by Levi Eshkol, the first Israeli settlements in the rest of the West Bank were on the whole established in areas of strategic significance such as the Jordan Valley. With the election victory of the Likud in May 1977, there was, however, a steady increase in the pace and scope of Israel’s settlement enterprise.
This was due to two key factors: the general ideological proclivity of the Likud to favor wholesale settlement in the West Bank, underpinned by a biblically inspired narrative of return and redemption; and, ironically enough, the Camp David peace process.11
Though the Camp David peace process was ostensibly a mechanism to achieve an Israeli-Egyptian peace treaty, the Framework for Peace in the Middle East (1978) contained provisions for an elected autonomous Palestinian administration in the Occupied Palestinian Territory. In 1978, Eliahu Ben Elissar, an adviser to Prime Minister Menachem Begin, outlined a plan that was intended to prevent any exercise of Palestinian autonomy from laying the groundwork for a Palestinian state. According to the plan, Israel was expected to continue its control over “state lands” and all water resources. Settlement would continue, as would the development of separate legal, administrative and judicial institutions for the Jewish settlers, which would be exempt from the autonomy framework. The military government would also remain the source of all author- ity.12 In November 1981, the Israeli military government created the Civil Administra- tion, which was to serve as the nucleus for Palestinian self-government as set out in the Camp David agreements. The adminis- tration saw to the civil affairs of the Palestinian population in areas such as education and health, but the military commander remained the source of all authority in the area.13
In March 1979, shortly before the signing of the peace treaty between Israel and Egypt, the military government issued Military Order 783 (Order Regarding the Administration of Regional Councils), which created regional councils in the West Bank. The regulations governing the powers of the regional councils were identical to Israeli legislation. Two years later, Military Order 892 (Order Regarding the Administration of Local Councils) created local councils for the administration of the urban settlements. The order was based on the Israeli municipal ordinance.
The area commander was empowered by the order to establish municipal courts and the councils were granted the right to levy taxes and pass bylaws. The councils were granted planning and building licensing powers and the settlements were declared planning areas. Additional areas expropriated from the Palestinian population were added to the jurisdiction of the councils.
Prior to 1979, most Palestinian land was expropriated under the rubric "for military purposes." While the land may have been initially used for the billeting of military units, in many cases the area was quickly turned over to civilian settlement. This method of land acquisition fell into abeyance following an Israeli High Court ruling prohibiting the seizure of land for military purposes when it was, in fact, intended for civilian settlement.14 Follow- ing the High Court ruling, the military government relied in part on Military Order 59 (Order Concerning Government Prop- erty) to declare unregistered land state property. As the military government had suspended the registration of land in 1968, it was relatively easy for the Israeli authorities to expropriate vast amounts of land under this procedure.
The settler population in the West Bank was also increasingly subjected to a succession of Israeli laws and regulations. The effect of this was to exempt the settlers from the local law and confer upon them the same rights they would have enjoyed if they were Jewish residents in Israel.15 The Palestinian population, in contrast, was subject to Jordanian law as amended by military orders. One example was the Jordanian Town, Village and Building Planning Law of 1966, which was stripped of any significance by Military Order 418 of 1971 (Order Concerning Town, Village and Building Planning). The Order reorganized planning in the area and placed Israeli officials on key planning committees while in effect reducing the role of the local population in the planning process. Following the Likud victory in 1977, increasingly severe restrictions were enforced on Palestinian planning. The key objective of the increasing restrictions was to constrain the development of Palestinian localities in order to facilitate Jewish settlement.16
Successive Israeli governments, both Likud and Labor, would build on these early efforts to settle the West Bank.
Settlements were expanded as were the thicket of Israeli laws and regulations that carved out for the Jewish settlers an extraterritorial enclave in the occupied territory.17 To give an indication of the sheer scale of the ongoing settlement enterprise, the Foundation for Middle East Peace reported that, from January 1998 to April 2005, 13,622 government tenders were issued for settlement construction,18 while the settler population in the West Bank, which stood at 111,600 in 1993, the year of the signing of the Declaration of Principles, rose to 234,487 in 2004.19
It is evident that such drastic alterations to the law and administration of the West Bank are a systematic violation of international humanitarian law, which, as noted earlier, protects the separate legal existence of the occupied territory, prohibits the expropriation of private land, prohibts the settling of citizens of an Occupying Power in occupied territory and breaches the cardinal principle of the law of occupation: that an Occupying Power administers the occupied area largely in the interests of the local population, taking into account, the security of its forces and administration.
THE OSLO CONSOLIDATION
It was the legal and administrative alterations surveyed above that Israel sought to safeguard once formal peace negotiations resumed in Madrid in October 1991 and that it achieved through the various agreements in the Oslo process.
On account of Oslo, a Palestinian National Authority was established that had circumscribed largely functional responsibilities over the day-to-day affairs of the Palestinian population. The future status of the settlements and their environs was among the issues that were to be subject to hard bargaining in the final-status negotiations. These were to commence no later than the beginning of the third year of the interim period but were instead conducted at the ill-fated Camp David summit in July 2000.
The Declaration of Principles on Interim Self-Government Arrangements of Septem- ber 13, 1993, provided for a phased, gradual- ist approach to peacemaking. The declaration outlined a framework for an incremental Israeli redeployment from West Bank and Gaza territory, the establishment of the Palestinian Authority and an interim agreement on the implementation of the Declaration of Principles, and laid down the issues to be resolved at the final status negotiations, including Jerusalem, the settlements and refugees. The Protocol on Economic Relations (the Paris Protocol) of April 29, 1994, sought to delineate the economic relationship between the Palestinian Authority and the State of Israel. The Gaza-Jericho Agreement of May 4, 1994, provided for the withdrawal of Israeli forces from Jericho and certain areas of the Gaza Strip and formally established the Palestinian Authority and its security apparatus.
On August 29, 1994, the Agreement on the Preparatory Transfer of Powers and Responsibilities provided for the transfer of six spheres of civil authority to the Palestinian Authority: education, culture, health, social welfare, tourism and direct taxation. Further civil responsibilities were transferred to the Palestinian Authority under the Protocol on Further Transfer of Powers and Responsibili- ties signed on August 27, 1995. The Interim Agreement on the West Bank and the Gaza Strip of September 28, 1995, provided for further Israeli military redeployments from other West Bank towns in several stages to “specified military locations” as well as the transfer of further powers and responsibilities to the Palestinian Authority.20 The agreement also specified extensive security arrangements in the West Bank. Israel remained the ultimate source of authority upon which the Palestinian Authority exercised its powers and responsibilities.
Moreover, Article 17 (Jurisdiction) of the Interim Agreement excluded from the jurisdiction of the Palestinian Authority areas of responsibility that were to be subject to negotiations during the final- status talks, including settlements, specified military locations, Israelis as well as powers and responsibilities not explicitly transferred to the Authority. As a result, whole swaths of West Bank land, including the settlers and the settlements, remained
under Israeli control. What is more, the raft of military legislation that had facilitated the settlement of occupied territory remained in effect.21
By ensuring that its legal and administrative arrangements were not included in the Interim Agreement, Israel had effectively turned Oslo into a process whereby the limited contours of Palestinian autonomy were the central concerns of the negotiations. As Israel sought to absolve itself of direct responsibility for the Palestinian population, the international donor community, particularly the European Union, assisted in the development of the Palestinian Authority. Ironically, third-party intervention had been harnessed not to protect the occupied population, but to serve a particular role in the construction of a new strategic reality dictated by the Occupying Power.
Successive Israeli governments were to subsequently use the Oslo period to expand and consolidate the settlement enterprise while fragmenting what few obligations they had undertaken towards the Palestine Liberation Organization (PLO) — through a series of minor agreements such as the Wye River Memorandum, Sharm el Sheikh Memorandum and the Road Map — that were never completely implemented but crucially bought Israel time to consolidate and present seemingly irreversible facts to the PLO and the international community alike. The relative success of this policy was clearly evident when President George W. Bush in his letter to Ariel Sharon on April 14, 2004, accepted and endorsed Israel’s unwillingness to return to the 1949 Armistice lines and, more significantly, recognized Israel’s “population centers” (in other words, major settlements) in the occupied territory.22
While the PLO achieved a key strategic goal in the Oslo process, namely to be a direct party to negotiations on the fate of the Palestinian people, there was a great disparity between the Israeli and Palestinian negotiating teams in terms of their respective knowledge of the existing legal framework and their ability to utilize that knowledge to achieve their ends. It is evident that the PLO leadership and its negotiators failed to develop a coherent strategy to undermine what was, in effect, the occupation. Yet the fact that the PLO was a willing accomplice to the Oslo agreements did not absolve third parties of their responsibility to actively promote the observance of international standards of protection enshrined in law.23
Like the preceding 26 years of occupa- tion, the Oslo period was marked by the absence of law. Israel was able to pursue its long-term strategic goals, which were facilitated by an agreement signed with the PLO and supported by key western states. The increase in settlement construction and the ongoing land confiscation led to re- peated crises during the Oslo period, which culminated in the outbreak of the latest intifada.
ROLE OF THIRD PARTIES
Appeals to the utility of the Convention as an instrument of protection for the Palestinian population under occupation have not been missing over the last 39 years.
What has been absent is the requisite political will, by key Western states in particular, to ensure Israel’s compliance with the Convention’s provisions. A steady stream of both UN Security Council and General Assembly resolutions has called on parties to the Arab-Israeli conflict to respect the Convention.24 The European Union has also repeatedly called on Israel to adhere to international law. Of particular note was the Dublin Declaration issued in June 1990 by the European Council calling on the High Contracting Parties to the Convention to ensure its respect in the Occupied Palestinian Territory.25 The Declaration, like numerous UN resolutions, also referred to Israeli settlements as both a growing obstacle to peace and illegal under international law.
Moreover, the Swiss government hosted two meetings of the High Contract- ing Parties to the Convention in July 1999 and December 2001 to examine ways of enforcing the Convention’s provisions in the Occupied Palestinian Territory. While the meetings fell short of expectations, the High Contracting Parties in attendance reaffirmed the Convention’s applicability to the situation prevailing in the Occupied Palestinian Territory and called on all parties to adhere to its provisions.26 Similarly, the International Court of Justice (ICJ) in its advisory opinion on the legal consequences of Israel’s Wall, delivered in July 2004, found that state parties to the Convention “…are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.”27 The Court also found that all states are obliged not to recognize the illegal situation and to cease any assistance or aid to Israel in maintaining it.
As noted, the obligation of parties to ensure respect for the Convention’s provisions rests on its Article 1, in which the High Contracting Parties undertake to “respect and to ensure respect for the present Convention in all circumstances.” This, in effect, creates a mandate for the High Contracting Parties to take whatever lawful action is necessary to ensure a state’s compliance with the Convention’s provisions. Such action could range from démarches to restrictive measures such as the severance of diplomatic ties and/or sanctions. Such action would not be a partisan intervention in the conflict but a legitimate attempt geared towards bringing a recalcitrant violator back into compliance with the Convention’s provisions. In the case of the occupied Palestinian territory, the clear pursuit of a set of measures by key Western states aimed at ensuring Israel’s compliance with the Convention could have limited the feasibility of Israel pursuing an annexationist agenda and could perhaps have facilitated the pursuit of policy options less injurious to a future settlement. By so doing, the enforcement of the law could have reduced the scope of Palestinian grievances against Israeli society and hence reduced popular support for illegitimate actions such as suicide bombings against Israeli civilians.28
Since the 1970s, the United States has consistently pursued a policy intended to ensure its centrality in Middle East peace making, a policy that has been successful due to its sheer weight in global affairs and the effective acquiescence of other key players such as the European Union. As well as posing as an “honest broker,” the United States, with Israeli support, has also sought to establish itself as the only power that can press Israel into “painful conces- sions.” From this central position, the United States has promoted a framework for peace that seemingly views interna- tional law, and the Convention in particular, as an impediment. This resulted in a peace process that effectively marginalized third parties and facilitated a series of bilateral agreements, the outcome of which was determined by raw power. A law-based process, in contrast, would have guaran- teed the integrity of the occupied territory during the interim period and limited Israel’s negotiating options to withdrawal, with perhaps agreed border adjustments.
With President Bush’s recognition of Israel’s “population centers” and the reluctance of the major powers to take their legal obligations towards the Palestin- ian population seriously, it is likely that Israel’s legal and administrative alterations to the governance of the occupied territory will determine the parameters of any future peace process. As Meron Benvenisti, a former deputy mayor of Jerusalem once remarked, “Misunderstanding the true significance of the situation could allow the development of a regime ominously similar to that of (Apartheid) South Africa.”29 It is to this “…true significance of the situa- tion…,” occasioned by the absence of law, that pundits and analysts alike should look for the causes of the missing peace.