“We know too well that our freedom is incomplete without the freedom of the Palestinians.” [1. Nelson Mandela, (1997) on the United Nations activism against the Apartheid]

The conflict which has raged between the Arab and the Jewish populations of Palestine and Israel can be traced back much farther that the creation of Israel in 1948. However, the beginning of the modern-day legal issues faced within the territory stem from UN Resolution 181 which established the state of Israel much to the anger of the Palestinian community. [2. Smith, Charles D. Palestine and the Arab Israeli Conflict. 7th edn, Palgrave McMillian 2009]

Chapter 1: Introduction

The state of Israel was established in the aftermath of World War 2 and the Holocaust as a result of Zionist ideology and legal influence from international law bodies, namely the United Nations. A huge misconception of the conflict is that it is based purely on a religious and ethnic between Palestinians (Arabs) and Israelis (Jews).

This is incorrect; the conflict today is particularly over legal claims over the territory in question. [3. Smith, Charles D. Palestine and the Arab Israeli Conflict. 7th edn, Palgrave McMillian 2009]. Many of the legal discrepancies resulted from UN Partition Plan for Palestine, which sought to address the conflict and provide a solution for both parties.

However, as will be discussed further throughout this dissertation, the UN and other international legal bodies have failed to implement any of their proposals or hold the new state of Israel to their legal obligations as an occupying power through international law. This has resulted in devastating effects for Palestinians, who face the effects of this every day.

Aims and Objectives

This dissertation had the main aim to critically evaluate the international involvement of governing bodies in relation to the Israeli-Palestine conflict, and the effectiveness of the international law response to protecting Palestine and its citizens. The following are the aims of my research:

• To understand how the conflict came about and the international legal influences in the creation of the issue.
• To define any legal complications in the plans proposed by the UN and discuss why these led to their failure.
• Why there are no legal sanctions for the current state of Israel and their administration; how are they allowed to discriminate against Palestinians so openly and break international laws and conventions.
• Consider the solutions and ways in which international legal bodies can respond to protect Palestine and its citizens

Chapter Outlines

Chapter One will provide a brief description of the wider context of the Israeli-Palestine conflict issue and outline the chapters of the dissertation. It will discuss the methodology used throughout and the limitations encountered.

Chapter Two will provide a history of the Israeli-Palestine conflict and the international involvement in the creation of the territory issues. It will analyse the relationship between itself and other legal influences, and how that reflected in the initial international law response.

Chapter Three will discuss the UN responses to reconcile the conflict and provide an analysis of the failed legal work in responses from the UN.

Chapter Four will provide a substantial analysis on the UN’s current legal position in regard to the conflict and discuss commentaries from legal professionals.

Chapter Five will discuss the current discriminatory laws in place against Palestinians by the Israeli government. A discussion will be made regarding the Israeli-Palestine conflict in terms of human rights, and the current international laws and conventions which the Israeli government are violating.

Chapter Six will discuss the future of the Israeli-Palestine conflict and provide a conclusion on the effectiveness of the international law response in protecting Palestine and its citizens.

Methodology

This dissertation involved a critical analysis and discussion of the Israeli-Palestine conflict and the international law involvement in both the creation of the issue and its resolution. Mainly qualitative research will be used to consider and discuss the effectiveness of international law involvement; commentaries from both sides of the conflict and from neutral parties to provide for a substantial analysis on the international legal involvement. The main source of research was through secondary sources such as books on the Israeli-Palestine conflict, academic journals, and legal commentaries on the legal issues in question.

A black-letter approach has been taken when discussing the current laws in place in the state of Israel by the Israeli government, and the prejudiced approach they have towards Palestinians. A huge amount of information was found in online international legal archives. The UN online Archives provided for not only an extensive description of their work, but an analytical viewpoint from external third parties which gave a broader perspective on the issue. The Israeli Ministry of Foreign Affairs will also be referenced; this body has an online archive of reports regarding current and past legal issues in Israel and Palestine.

Limitations

Several limitations arose throughout the course of completing this dissertation. The main difficulty which I encountered, due to the highly political and controversial nature of the topic of discussion, was to ensure the legal issues in question remained prevalent throughout and a political narrative did not overtake.

A further limitation which was struggled with was the sheer volume of international laws, conventions, commissions, or other legal directives from the UN which directly impacted the conflict. It would be impossible to provide an analysis of every single piece of legal aid which impacted the conflict, so only the most significant steps taken by international legal bodies were discussed; mainly those taken by the UN who have been tackling the issue at the forefront.

A further limitation was due to the international nature of this dissertation, many of the primary sources which relate directly to the Israeli or Palestinian government were written in either Hebrew or Arabic; having to rely on translated documents may provide some issues in ensuring the exact meaning is interpreted correctly. The limited time frame and word count available may also cause limitations in completing a final dissertation alongside the above.

Chapter 2: International Involvement in the Creation of the Israeli-Palestine Conflict

“In the occupied territories, what Israel is doing is much worse than Apartheid. The South African nationalists needed the black population. That was their workforce. The Israeli relationship to Palestinians in their occupied territories is totally different. They just don’t want them.” [4. Noam Chomsky, Democracy Now, Web Exclusive; ‘Noam Chomsky: Israel’s Actions in Palestine are “Much Worse Than Apartheid” in South Africa’, August 08, 2014, Retrieved from Internet 2.11.2023: https://www.democracynow.org/2014/8/8/noam_chomsky_what_israel_is_doing)

The area of land which is now Israel and Palestine is the territory between the Mediterranean Sea and the Jordan River in Western Asia. Advantageously located between three continents to provide an unbridled history as an assembly for politics, culture, commerce, and more famously, religion. [5. Michael Scott-Bauman, Palestinians and Israelis: A Short History of Conflict, 1st edn, The History Press 2021]

The ancient land of Palestine is the birthplace of both Judaism and Christianity. Palestine has always been under control of outside powers, including Ancient Egypt, the Persian Empire, the Roman Empire and in more modern times, the Ottoman Empire in the early 1900’s. [6. Michael Scott-Bauman, Palestinians and Israelis: A Short History of Conflict, 1st edn, The History Press 2021]

The Conflict

One of the biggest misperceptions of the Israeli-Palestine conflict is that it is a struggle based on religious and ethnic hatred between two groups of people. Despite religion having a role in the beginning of the conflict, over the past century it has escalated into a war over land, with many international laws and conventions being breached on both sides. [7. Martin Bunton, The Palestine-Israeli Conflict: A Very Short Introduction, 1st edn, OUP 2013]

Prior to World War 1, the land of Palestine formed part of the Turkish Empire and was governed under Ottoman rule [8. Krämer, A History of Palestine from the Ottoman Conquest to the Founding of the State of Israel, 2nd edn, PUP 2011]. During this time, the land of Palestine was a place with religious diversity with inhabitants mainly Muslim or Christian, along with a smaller number of Jews who largely lived in harmony. The country of ‘Palestine’ did not exist under the Ottoman rule, and the land simply fell under the governing rule of the Turks. [9. Krämer, A History of Palestine from the Ottoman Conquest to the Founding of the State of Israel, 2nd edn, PUP 2011]

The country of Palestine was not recognised, and therefore, ‘Palestinian people’ did not exist. These inhabitants of Palestine who were under Ottoman rule were simply known as Ottoman subjects, with no particular legal status, despite constituting a reasonable percentage of the larger Ottoman people. [10. Krämer, A History of Palestine from the Ottoman Conquest to the Founding of the State of Israel, 2nd edn, PUP 2011]

Zionism

Towards the end of the Ottoman empire, the movement of Zionism was gaining popularity in Europe and branching out across the world. Zionism, a Jewish nationalism movement founded in the late 1800’s, is the movement with the goal of creating and supporting a Jewish national state in Palestine, as it is the ancient homeland and birthplace of the Jewish faith. [11. Krämer, A History of Palestine from the Ottoman Conquest to the Founding of the State of Israel, 2nd edn, PUP 2011]

Prior to the establishment of Zionism, there is evidence of Jewish “messiahs” across the 16th and 17th centaury who attempted to encourage Jews to return to their religion’s birthplace in Palestine. [12. Ran Greenstein, Zionism and its Discontents: A Century of Radical Dissent in Israel/Palestine, 1st edn, Pluto Press 2014]

It wasn’t until the late 18th centaury where Zionism gained popularity and Zionists were advocating for Judaism to be recognised as not only a religion but a distinct national identity with their own state. [13. Martin Bunton, The Palestine-Israeli Conflict: A Very Short Introduction, 1st edn, OUP 2013]

The first Zionist Congress was held in Basel, Switzerland, by Theodor Herzl in 1987. As founder of Zionism in the modern world, Herzl encouraged for a Jewish state to be founded in Palestine at the Congress, and the foundation of a Zionist Organisation was achieved with Herzl elected as President of the organisation. [14. Kornberg, Theodore Herzl: A Re-evaluation [1980] The Journal of Modern History, Volume 52 (2)]

Following his success at the first Zionist Congress, Herzl made the following diary entry to sum up his success, “At Basel I founded the Jewish State. If I said this out loud today, I would be greeted by universal laughter. In five years perhaps, and certainly in fifty years, everyone will perceive it.” [15. Theodor Herzl, Diary Entry, September 1, 1897]

The Balfour Declaration

During the rising popularity of Zionism in mainland Europe, the British Government issued a public statement in 1917, supporting the establishment of a “national home for the Jewish people” in Palestine. [16. Balfour, The Balfour Declaration (Letter to Lord Rothschild) WWI D.A, 1917]. Known as the Balfour Declaration, it represented the first public expression by a major political power of support for Zionism. This was a legally binding document from the British government.

The terminology of both “national home”, which held no international legal precedent, and the rest of the declaration were imprecise as to whether a state for those of the Jewish faith was envisioned [17. Martin Bunton, The Palestine-Israeli Conflict: A Very Short Introduction, 1st edn, OUP 2013]. The declaration was vague in terms of the intended boundaries of this Jewish state, and where the border of Palestine would begin or end [18. Michael Makovsky, Churchill’s Promised Land: Zionism and Statecraft [1st edn, YUP 2007].

Later, the British Government established that despite the Balfour Declaration providing support for the “national home for Jewish people” to be “in Palestine”, they did not intend for this to mean all of the Palestinian land [19. Robert Lieshout, Britain and the Arab Middle East: World War I and its Aftermath, 1st edn, Bloomsbury Academics 2016].

Opposition to the Balfour Declaration claimed that the support of a Jewish national state on Palestinian land would produce prejudice against the occupant people of Palestine and encourage anti-Semitism by “stamping the Jews as strangers in their native lands.” [20. Robert Lieshout, Britain and the Arab Middle East: World War I and its Aftermath, 1st edn, Bloomsbury Academics 2016]

Anti-Semitism is hostility or prejudice to people on the basis of their Jewish faith. The Balfour Declaration acknowledged these claims, with the latter half of the statement recognising that safeguarding must be put in place for the civil and religious rights held by the Arabs who made up the almost entirety of the population of Palestine while also upholding the rights and political status that Jewish communities who live out of Palestine hold [21. Balfour, The Balfour Declaration (Letter to Lord Rothschild) WWI D.A, 1917].

The Balfour Declaration had an abundance of consequences which are still in effect today; the support for Zionism increased due to the sheer influence that Britain had at the time. The Balfour Declaration became one of the key elements of the British Mandate for Palestine and become the founding statement for the Mandatory Palestine document founded by the League of Nations in the early 1900’s [22. Isaiah Friedman, The Question of Palestine: British-Jewish-Arab Relations [1st edn, Routledge 1991].

Many consider the Balfour Declaration, despite being over 100 years old, to still be the main international legal source of the ongoing Israeli-Palestine conflict today. More recently, the British government acknowledged in 2017 that the original statement in the Balfour Declaration should have considered the local population of Palestine more fully, and the British government should have put more effort into the protection of the rights held by Palestinian Arabs at the time.

[23. The UNSC on Palestine recognised this fact in 1947 during the establishment of UN Resolution 181 noting: “With regard to the principle of self-determination … it may well be said that the Jewish National Home and the ‘sui generis’ Mandate for Palestine run counter to that principle.”]

[24. Lizzie Dearden, “UK refuses to apologise to Palestinians for Balfour Declaration and says it is ‘proud of role in creating Israel” (The Independent, 26 April 2017).]

Consequences of the Balfour Declaration

Following the Balfour Declaration, the support for Zionism continued to grow, with the population of Jews in Palestine greatly rising in a short number of years from 90,000 in 1914 to 238,000 in 1933 [25. Ran Greenstein, Zionism and its Discontents: A Century of Radical Dissent in Israel/Palestine, 1st edn, Pluto Press 2014].

This was after the Ottoman Empire collapsed, Britain gained control over the land of Palestine; at this time, it was known as the British Mandate for Palestine. The Arab population in Palestine deeply resisted the Zionist movement to create a Jewish state on their land, which led to the beginning of the century long conflict which is still to be reconciled today.

Chapter 3: United Nations and the Creation of Israel

“The Zionist argument to justify Israel’s present occupation of Arab Palestine has no intelligent or legal basis in history… not even in their own religion.” [26. Malcolm X, Zionist Logic, “The Egyptian Gazette,” Sept. 17, 1964]

United Nations & Bodies

The United Nations, founded in 1945, is an international organization for member states to discuss global problems shared between nations and find shared solutions with the goal to benefit humanity [27. United Nations, The United Nations Charter (full text), preamble].

Currently, as of the start of 2022, there are 193 Member States who make up the UN: a huge growth from the original 51 original Member States in 1945 [28. Sven Bernhard Gareis, The United Nations: An Introduction, 2nd edn, Palgrave MacMillan 2012]. The purposes and principles held by the organisation and its member states are held in the founding documents, The Charter of the United Nations [29. Sven Bernhard Gareis, The United Nations: An Introduction, 2nd edn, Palgrave MacMillan 2012].

The United Nations has a variety of bodies which are utilised for difference global issues, but all ultimately have the same goal and aim to achieve the principles laid out in the founding United Nations Charter. The main bodies of the United Nations are the General Assembly, the UN Security Council, the Economic and Social Council, the Trusteeship Council, the UN Secretariat, and the UN International Court of Justice [30. Sven Bernhard Gareis, The United Nations: An Introduction, 2nd edn, Palgrave MacMillan 2012].

The main bodies which are most pertinent to the attempts from the United Nations to resolve the Palestine-Israel Conflict is the United Nations General Assembly and the United Nations Security Council [31. Pitman B. Potter, The Palestine Problem Before the United Nations, 1st edn, CUP 2017].

The United Nations General Assembly is the main body of the organisation which is comprised of all 193 UN Member States who each have an equal vote when making decisions [32. Sven Bernhard Gareis, The United Nations: An Introduction [2nd edn, Palgrave MacMillan 2012]. The UN General Assembly is the main policy making body of the UN and provides a unique environment for joint discussion of a wide variety of international issues concerned by the Charter of the United Nations [33. Sven Bernhard Gareis, The United Nations: An Introduction, 2nd edn, Palgrave MacMillan 2012].

The second body which makes decisions that have a greater effect on the Israeli-Palestine conflict is the United Nations Security Council. According to the organisation, the UN Security Council has the primary responsibility for the maintenance of international peace and security [34. Sven Bernhard Gareis, The United Nations: An Introduction, 2nd edn, Palgrave MacMillan 2012].

The decisions made by the Security Council are voted on by 15 members who each hold one equal vote; all other Member States of the UN must comply with the decisions that the Security Council makes [35. Sven Bernhard Gareis, The United Nations: An Introduction, 2nd edn, Palgrave MacMillan 2012]. The Security Council decides on matters which can be deemed a threat upon peace or any other acts of aggression from a nation.

The Security Council holds the power to impose sanctions on nations and can authorize the use of force to maintain or restore international peace or security if less peaceful methods fail. In most cases however, the UN Security Council will call upon the parties to settle the dispute in a peaceful way and will vote to recommend a method of adjustment or another term for a settlement to be made [36. B O’Neill, Power and Satisfaction in the United Nations Security Council [Journal of Conflict Resolution, 40(2) 1996].

United Nations and the Conflict

Since the beginning of the conflict, the UN have utilised both the General Assembly and the Security Council in an attempt to aid the resolution of the conflict and have overseen a huge number of plans and conferences in regard to Israel and Palestine [37. Ardi Imseis, Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine, 1967–2020, European Journal of International Law, Volume 31(3) August 2020]. The issue of the conflict was first brought to the UN in 1947 by Britain before the General Assembly, and United Nations Resolution 181 was passed [38. A/RES/181(II) of 29 November 1947, United Nations General Assembly].

This resolution was the first significant piece of international law which recognised the growing scale of the conflict between Arabs and Jews over the land of Palestine. In short, the UN Resolution 181 called for the United Nations Partition Plan for Palestine. The plan recommended to divide the land of Palestine into two separate states: one for the Arab population and one for the Jewish population [39. Jeremy Pressman, History in conflict: Israeli–Palestinian speeches at the United Nations 1998 [Mediterranean Politics, Volume 25(4) 2020].

The plan also called for the city of Jerusalem to be corpus separatum, a separate entity and independent from both states [40. Corpus Separatum, Latin for ‘separated body] Jerusalem would be governed under a Special International Regime; this was due to the recognition of its special status as a place of shared religious importance to both communities [41. Martin Bunton, The Palestine-Israeli Conflict: A Very Short Introduction, 1st edn, OUP 2013].

Following the end of World War I, the League of Nations created a mandate for the legal status of certain nations and territories which were being transferred from the control of one country to another. The mandate also contained the legal instruments which contained the internationally agreed to terms for the administration of the territories on behalf of the League of Nations [42. John Quigley, The Statehood of Palestine: International Law in the Middle East Conflict, 1st ed, CUP 2010].

Under these terms, any of the territories under A-class mandates was to become a sovereign state at the end of the mandate. By the end of World War II, all of the territories in the League of Nations under this mandate had become their own sovereign state with the exception of Palestine [43. John Quigley, The Statehood of Palestine: International Law in the Middle East Conflict, 1st ed, CUP 2010].

In the beginning of 1947, Britain declared their intention to terminate the Mandate for Palestine and brought the issue forward to the United Nations. The initial hope from Britain was that a binational state would follow; both Palestine and Israel would be legally recognised as their own state as autonomous territories; meaning that both would be legally recognised as having the power of a self-government [44. John Quigley, The Statehood of Palestine: International Law in the Middle East Conflict, 1st ed, CUP 2010]. This hope never became a reality, and the failed attempt from the League of Nations fell back into the hands of the British.

The Referral of the Conflict to the UN

The issue of Palestine was recommended to the UN from the United Kingdom government under article 10 of the Charter of the United Nations, with concern over the “future government of Palestine.” [45. United Nations Archives, History of the Question of Palestine <https://www.un.org/unispal/history/> accessed 24th March 2022] Article 10 of the Charter of the United Nations concerns the functions and powers of nations, and states that:

“The General Assembly may discuss any questions or matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and … make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.” [46. United Nations Charter, Article 10]

For the UN to investigate an appropriate course of action, they formed the UN Special Committee on Palestine. This inquiry committee comprised of representatives from eleven countries: Australia, Canada, Czechoslovakia, Guatemala, India, Iran, the Netherlands, Peru, Sweden, Uruguay, and Yugoslavia. The committee was intentionally composed of members out with the permanent members of the Security Council, including the mandatory power, and those who could make impartial decisions from “neutral” countries [47. A/RES/106 (S-1) United Nations Special Committee on Palestine].

The members of UN Special Committee on Palestine were authorized to carry out investigations in Palestine itself if they deemed it appropriate and were given extensive powers to examine the issue and the facts of the issue to be able to make a suitable recommendation [48. H. Adelman, UNSCOP And the Partition Recommendation, Centre for Refugee Studies, York University 2009].

UN Special Committee on Palestine Investigation

The UN Special Committee on Palestine reported that the response they were met with was extremely different from both groups. The report stated that the Jewish community greatly welcomed the committee, with descriptions of cheering crowds and even welcoming flowers for the members [49. A/RES/106 (S-1) United Nations Special Committee on Palestine Report].

The Jewish Agency and the Jewish National council greatly cooperated with UN Special Committee on Palestine with their investigations; they more than willingly gave tours of a variety of institutions and presented the committee with reports on the Jewish industry and commerce, settlements, and agriculture; even presented translated into each members native language. The later prime Minster of Israel, Golda Meir, recognised that this reaction and cooperation fundamentally changed the UN support for a Jewish state and the creation of Israel [50. Eleanor Elfenbein, Grauel: An Autobiography as Told to Eleanor Elfenbein, 1st edn, Ivory House1983].

In contrast, areas concentrated with the Arab communities met the committee members with hostility. They were ignored by the community and the Arab population refused to cooperate and refused to answer any questions posed to them [51. A/RES/106 (S-1) United Nations Special Committee on Palestine]. The committee was accused of being Pro-Zionist by the Arab Higher Committee who refused to work with the members of UN Special Committee on Palestine and chose to ‘boycott’ the investigation by them.

Despite the boycott, certain Arab officials privately met with the committee members to advocate for a unilateral Arab state, with its own autonomous government without any Jewish input [52. D. Jason Slone, Two Nations, One Land: UNSCOP and the Question of Israel (1947), Philosophy and Religion Ancillary Materials, Georgia Southern University 2020] Despite little face-to-face interaction, the committee received an abundance of written advocacy for an Arab state.

Investigation Findings

British officials who aided the investigation mostly supported the solution for two separate autonomous territories, a Jewish and an Arab state but with British involvement in the management of state finances [53. A/RES/106 (S-1) United Nations Special Committee on Palestine].

This was argued due to the economic difficulties that would arise from the partition of the territories and would allow for Britain to maintain military presence in the land for the defence of the Middle East due to worsening relations between neighbouring countries [54. D. Jason Slone, Two Nations, One Land: UNSCOP and the Question of Israel (1947), Philosophy and Religion Ancillary Materials, Georgia Southern University 2020].

UN Special Committee on Palestine also took note of the intense laws that were governing Palestine at the time from their government, describing them as ‘draconian’; there were mostly unfavourable towards Jewish individuals [55. A/RES/106 (S-1) United Nations Special Committee on Palestine].

UN Partition Plan for Palestine and the Creation of Israel

Following the findings from the investigation, UN Special Committee on Palestine’s recommendations resulted in UN Resolution 181; a partition plan for the territory of Palestine into separate Jewish and Arab states with the international regime distinct to the city of Jerusalem which was to be held internationally as a corpus separatum [56. A/RES/181(II) of 29 November 1947, United Nations General Assembly].

The legal implications of this resolution meant that the Jewish Community could hold this as a legal basis for Israel to be established as its own state. The Arab community were outraged at this proposal, and violence ensued from both sides of the conflict. The legal problems which arose in Resolution 181, despite being passed in 1947, are still pertinent to the issue today as the consequences of the decision are still having a major impact on the two communities [57. Nabil Elaraby, Legal Implications of the 1947 Partition Resolution and the 1949 Armistice Agreements, Advisory Opinions, 1986].

This UN Resolution in particular has been the topic of many debates due to the clear disregard from the UN of the legal considerations, and the judicial aspects that Palestine would succumb to as a result. M Elarby, advisor to the UN stated that the fate of the future of Palestine was decided completely out with their control, by those who completely disregarded the rule of law to be detrimental to the Palestinian community.

It is clear to see that the law enshrined in the UN Charter was strayed from for the ‘convenience of political expediency.’ [58. Judge Elaraby, ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the OPT, United Nations Archives, I.C.J. Reports 1986]. It is clear to see the UN decided to implement Resolution 181 without regard to the fate of Palestinians and without respect for the basic rules of law or regard to the fundamental necessities of justice and international morality.

The legal nature of UN Resolution 181 had several impacts; the first being that Israel considered the GA Resolution as a lawful basis for the establishment of the state [59. Nabil Elaraby, Legal Implications of the 1947 Partition Resolution and the 1949 Armistice Agreements, Advisory Opinions, 1986]. Representatives of the Zionist Jewish community declared the following year that on the termination of the British Mandate, ‘by virtue of our natural and historic right’ strengthened by UN Resolution 181, that the state of Israel had been legally established [60. Laws of the State of Israel [1948] Vol. 1(3)].

The partition plan itself was only a recommendation by the UN, and not a legal establishment of Israel. It must be reiterated here that the recommendation was not accepted by the Arab population in Palestine who, at the time, made up the overwhelming majority of the population of Palestine [61. Nabil Elaraby, Legal Implications of the 1947 Partition Resolution and the 1949 Armistice Agreements, Advisory Opinions, 1986]. Therefore, it is clear to see that this is not a valid foundation from a legal standpoint on the creation of the state of Israel. A recommendation which was not accepted by the majority cannot be held to be lawfully correct.

Furthermore, any additional power or boundary which has been gained by Israel has been unlawfully accumulated through use of force which contradicts UN principles and the basic contemporary international laws. This again shows the lack of lawful basis that the state of Israel has been established on, which is an issue the UN have failed to intervene on.

The second notable impact of UN Resolution 181 was that it admitted the state of Israel as a member state of the UN, based upon following conditions laid out in the Resolution by the General Assembly [62. Nabil Elaraby, Legal Implications of the 1947 Partition Resolution and the 1949 Armistice Agreements, Advisory Opinions, 1986]. The resolution notes that the new state of Israel “unreservedly accepts the obligations of the United Nations Charter and undertakes to honour them from the day when it becomes a Member of the United Nations.” [63. G.A. Resolution 273, 3 U.N. GAOR, pt. II, Resolution 18, U.N. Doc. 900, 1949].

This again shows that the UN General Assembly strayed from the law found in the UN Charter by crediting legal effects to the partition plan which was simply meant as a recommendation. To worsen this consequence, the UN did not stand by these inter alia conditions; the state of Israel after its creation did not respect or abide by UN Resolutions and the legal obligations which derives from them.

The above clearly shows that the UN did not do enough to protect Palestine or its citizens since the very beginning of their involvement. The UN partition plan had a multitude of consequences which were not only legal; intense violence broke out amongst the Arab and Jewish population following the implementation of the partition plan. After the Israeli government took control one issue which remained at the top of the agenda for the UN was the worsening refugee crisis of the Palestinian population who fell victim to unlawful settlement.

A year after Resolution 181was passed the GA met again to discuss the ongoing issues in Palestine, which again, had no successful effect. The failure of any aid for the Palestinian population was clearly due to the lack of compliance from the new Israeli state, and the failure of the UN to push any legal sanctions or obligations on the issue.

Chapter 4: Analysis of the United Nations in Recent Years

“The United Nations must focus on delivery rather than process and on people rather than bureaucracy.” [64. United Nations Secretary-General António Guterres Opinion Piece, 2017].

The United Nations main legal doctrine of their ‘responsibility to protect’ is rooted from their political commitment to supress ‘the worst forms of violence and persecution’ internationally [65. United Nations, Office on Genocide Prevention and The Responsibility to Protect, <https://www.un.org/en/genocideprevention/about-responsibility-to-protect.shtml> accessed 7th April 2022].

The UN state that this doctrine has the purpose to bridge the Member States pre-existing legal obligations they have concerning international humanitarian law and human rights with the realities that populations face of the risk of war crimes, genocide, ethnic cleansing, and crimes against humanity [66. United Nations, Office on Genocide Prevention and The Responsibility to Protect, <https://www.un.org/en/genocideprevention/about-responsibility-to-protect.shtml> accessed 7th April 2022].

International Commission on Intervention and State Sovereignty (ICISS) Report

A 2001 investigation made by Special Advisors to the UN Secretary-General resulted in the landmark report names The Responsibility to Protect [67. The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, International Development Research Centre, 2001]. The investigation by the International Commission on Intervention and State Sovereignty had the line of argument that state sovereignty should be conditional; the condition being that they fulfill their obligations to protect human rights.

The ICISS report emphasizes the crucial responsibility that sovereign states have to protect their citizens from large scale loss of life or murder, rape or further atrocious crime; if the state is unable to do so the responsibility must be passed upon the international community and wider legal bodies to protect the citizens [68. The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, International Development Research Centre, 2001]

The study reaffirmed the widespread agreement among member nations that it was unacceptable to stand by and witness atrocities being broadcast throughout global media without taking any action [69. Abdelwahab El-Affendi, “Palestine and the UN’s ‘responsibility to protect’ doctrine” [Aljazeera, Opinions (2021)] <https://www.aljazeera.com/opinions/2021/6/1/the-uns-responsibility-to-protect-doctrine-in-palestine>accessed 12th April 2022].

The report advocated for the “Responsibility to Protect” doctrine from the UN and further affirmed for the obligation of the international community as a whole for taking “timely and decisive” action to safeguard civilians when their government is “manifestly failing” to do so [70. The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, International Development Research Centre, 2001]. The report concluded that as a last option, appropriate and proportional coercive measures, which have been duly authorised by the UN, can be implemented.

Responsibility to Protect Legality

The Responsibility to Protect doctrine was formally and therefore, legally adopted into the UN as an outcome of the World Summit in 2005 [71. A/RES/60/1 2005 World Summit Outcome]. Paragraphs 138 and 139 lay out the important new legal commitment from the member states; based on an underlying body of international legal obligations for States and are contained in international legal body instruments or are being developed through national State practice and therefore, the common law cases heard in front of international courts and tribunals.

The pre-existing legal obligations meant that states were required internationally to prevent and condemn genocide, war crimes, ethnic cleansing, and crimes against humanity [72. A/RES/60/1 2005 World Summit Outcome para 138-139]. The addition of the 2005 World Summit Outcome Document meant that ultimately, the UN had further responsibilities and new systematic opportunities created for the UN system to assist states in preventing the aforementioned crimes and violations and protecting affected populations through capacity building, early warning, and other preventive and protective measures, rather than simply responding if they fail.

In relation to the conflict in Palestine, this UN doctrine has been under intense criticism for its lack of implementation, with international law bodies providing reports on the failure of the UN to act in accordance with their doctrines. Professor El-Affendi of politics at the Doha Institute comments on the failures of the UN in fulfilling this doctrine in their response in protecting Palestine and its citizens, noting the ‘paradoxical levels of external complicity and indifference.’ [73. Abdelwahab El-Affendi, “Palestine and the UN’s ‘responsibility to protect’ doctrine” [Aljazeera, Opinions (2021)] <https://www.aljazeera.com/opinions/2021/6/1/the-uns-responsibility-to-protect-doctrine-in-palestine>accessed 12th April 2022].

It is clear that those who are occupying the land of Palestine have risen to that power through assistance from powerful international legal influences, who have failed to act or intervene in the mass crimes committed until the very last moment when lives are lost and citizens ‘turn up as refugees’ on their doorstep [74. Abdelwahab El-Affendi, “Palestine and the UN’s ‘responsibility to protect’ doctrine” [Aljazeera, Opinions (2021)] <https://www.aljazeera.com/opinions/2021/6/1/the-uns-responsibility-to-protect-doctrine-in-palestine>accessed 12th April 2022]. From the point of view of Palestine, it can be seen that very little action is taken in instances where atrocious crimes are committed to its citizens, however, when the Israeli forces power is threatened action is taken immediately.

Jerusalem’s Sheik Jarrah

Evidence to support this is the legal travesty of Jerusalem’s Sheik Jarrah. This long-running legal controversy regards the ownership of land, property, and housing units in the Eastern Jerusalem land of Sheik Jarrah [75. Emily White, Jerusalem, Sheikh Jarrah, Israel, Gaza, Jewish United Fund of Metropolitan Chicago, 2021].

To those who support the creation of Israel this legal issue is simply seen as a real estate dispute, whereas the consequences run much deeper than that for Palestinians and is actively contributing to their displacement due to the rare decisions which are in their favour [76. Abdelwahab El-Affendi, “Palestine and the UN’s ‘responsibility to protect’ doctrine” [Aljazeera, Opinions (2021)] <https://www.aljazeera.com/opinions/2021/6/1/the-uns-responsibility-to-protect-doctrine-in-palestine>accessed 12th April 2022].

The Israeli law which governs those in Eastern Jerusalem provides for members of the Jewish Community to file claims over land or property which they ‘owned’ prior to the creation of Israel in 1948 [77. Yitzhak Reiter and Lior Lehrs, The Sheikh Jarrah Affair: The Strategic Implications of Jewish Settlement in an Arab Neighborhood in East Jerusalem, The Jerusalem Institute for Israel Studies, 2021].

The law provides Jewish people with the opportunity to prove their ownership title and claim back property; however, a comparable law does not exist for Palestinians who may have been displaced due to previous war and conflict [78. United Nations Office for the Coordination of Humanitarian Affairs Report, Sheikh Jarrah, Fact Sheet August 2009]. Proof held by Palestinian citizens that they held ownership to land pre-1948 and the establishment of Israel would be rejected by the Israeli government [79. United Nations Office for the Coordination of Humanitarian Affairs Report, Sheikh Jarrah, Fact Sheet August 2009].

This is outright legal discrimination and has been described as part of a municipal strategy by the Israeli government to create “layers of Jews” throughout Jerusalem, a supposed joint land to be owned by both the Arab and Jewish population [80. Abdelwahab El-Affendi, “Palestine and the UN’s ‘responsibility to protect’ doctrine” [Aljazeera, Opinions (2021)] <https://www.aljazeera.com/opinions/2021/6/1/the-uns-responsibility-to-protect-doctrine-in-palestine>accessed 12th April 2022].

Both the fact that the laws which govern this particular legal issue are discriminatory towards Palestinians and the fact the legal process is highly unfavourable towards them has resulted in further displacement of Palestinian citizens or extensive, costly legal procedures to prove their ownership over their property.

The United Nations have condemned these laws and their consequences in public statements but have yet to take any legal practical action to stop the discrimination against Palestinians that is being carried out by the Israeli government [81. Magid, Jacob, “UN: Pending Israeli evictions in East Jerusalem could be a ‘war crime'”, The Times of Israel, 24 May 2021].

After the significant case of the al-Hanoun and al-Ghawi families, Robert Serry, the United Nations co-ordinator for the Middle East Peace Process states that the decision was the wrong one, and that “These actions heighten tensions and undermine international efforts to create conditions for fruitful negotiations to achieve peace.” [82. SC/10895 Robert Serry, Special Coordinator for Middle East Peace, Peace Process Between Israelis, Palestinians Entering Critical Period, Concerted Action to Salvage Two-State Solution, Top Envoy Tells Security Council].

The Israeli supreme court’s decision in this case was to evict Palestinian families from their homes due to ill-proof provided of the property being owned by Jews was a direct violation of the legal obligations held by Israel under the Road Map for Peace under the US State department [83. Quartet on the Middle East, Road Map for Peace 2002]. The road map for peace was again, another legal instrument used by international legal bodies alongside the UN to try and provide an independent Palestinian state existing peacefully alongside Israel but reached a ‘deadlock’ in later stages and was again, never implemented.

The case of al-Hanoun and al-Ghawi is still on-going today, providing these families alongside thousands of other Palestinians with little security or legal confidence in their own homes. Under Israeli law, these families alongside many others in places similar to Sheik Jarrah have no right to file for ownership of their homes, or if they lost ownership to the war have any legal right to repossess their homes owned prior to 1948.

International Law Context

In an international law context, the laws above which the Israeli government are enforcing are in clear breach of many international laws and conventions. The location of Sheik Jarrah is in the internationally owned Jerusalem and therefore, the Israeli government have no legal jurisdiction; under international law a judicial system has no authority over an occupied population [84. Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague Convention 1907, Article 42].

Furthermore, the Israeli governments legal actions constitute a war crime under the Rome Statute; it is a war crime to displace people in occupied territory [85. Rome Statute of the International Criminal Court, Article 8(2)(e)(viii)]. Again, the UN Human Rights Office have acknowledged that this is in clear breach of Palestinians human rights and have recognised that the legal actions of the Israeli government of confiscating private property and displacing those with discriminatory laws constitute war crimes under international humanitarian law [86. SC/10895 Robert Serry, Special Coordinator for Middle East Peace, Peace Process Between Israelis, Palestinians Entering Critical Period, Concerted Action to Salvage Two-State Solution, Top Envoy Tells Security Council].

Instances like the above are ignored by international legal bodies, despite the intense protests from Palestinian citizens and other pro-Palestine advocates from around the globe. The UN only took substantial action surrounding the above issue after Hamas, a Palestinian militant group, took violent action in response. The threat of the evictions of Palestinian families from their homes invoked one of the worst violent clashes between Israeli police and Palestinians in recent years in Jerusalem, resulting in an 11-day battle with Gaza in 2021 when the Islamist Hamas authorities fired rockets in the city in part retaliation to what they called Israeli “harassment” in Sheikh Jarrah [87. BBC, Hamas: The Palestinian militant group that rules Gaza July 2021 < https://www.bbc.co.uk/news/world-middle-east-13331522>accessed April 13th, 2022].

The UN response to this violence instead of intervening in the legal discrimination against Palestinians was to condemn their retaliation. UN human rights chief Michelle Bachelet addressed the airstrikes carried out by Hamas and took the time to remind the members of the UNSC that they resulted in ‘widespread destruction of civilian infrastructure’ and a high level of fatalities due to densely populated location [88. Michelle Bachelet, Occupied Palestinian Territory [United Nations High Commissioner for Human Rights at Human Rights Council 49th Session (25 March 2022)].

Bachelet stated that the “heavy rocket barrage towards Israel” constituted “a clear violation of international humanitarian law” [89. Michelle Bachelet, Occupied Palestinian Territory [United Nations High Commissioner for Human Rights at Human Rights Council 49th Session (25 March 2022)]. The clear attitude towards the Palestinian retaliation while little regard to the unlawful behaviour which was the reason behind the violence again shows that action taken by the UN occurs well after international laws and conventions have been broken.

United Nations

The above illustrates why the quote given by Professor El-Affendi is so fitting for the situation to describe the paradoxical nature of the UN and their doctrine of their ‘responsibility to protect.’ From an outside perspective it appears that despite being advocates for world peace and justice they only take action after the peace has been in broken by physical violence in retaliation to intense legal discrimination. Therefore, inadvertently aiding the perpetrators of the legal violence.

If the UN were to act in accordance with their legal duty of the Responsibility to Protect, Palestine could be a prime example of how this doctrine would be beneficial to all parties involved. There are several benefits if the doctrine of Responsibility to Protect was enforced in Palestine and Israel. The main issue with this is as Israel is a state which has been created and recognised by a UN resolution, the UN would be held responsible for the international laws and humanitarian laws which the Israeli government have breached [90. Nabil Elaraby, Legal Implications of the 1947 Partition Resolution and the 1949 Armistice Agreements, Advisory Opinions, 1986].

The refusal from the Israeli government to adhere to the terms laid out in UN Resolution 181, such as its legal duty as member state to have the responsibility to protect, undermines the Israeli governments own legitimacy as a state. The UN as its own body must hold some level of legal accountability in the part they played in the created of the suffering and displacement of millions of Palestinians.

The application of the Responsibility to Protect doctrines application, aside from the legal factors involved, should be preferred from the state of Israel from their own perspective. The entire argument for establishing a Jewish state was founded in their need to provide a place of safety and security for a group of people who have been victims of persecution and ill-treatment on the basis of their ethnicity or religion [91. Ran Greenstein, Zionism and its Discontents: A Century of Radical Dissent in Israel/Palestine [1st edn, Pluto Press 2014]. For the state of Israel to then subject another ethnic group to an abundance of legal and ethical atrocities would be morally perverse.

Comparative States

The state of Israel is acting unlawfully by breaking international laws and conventions which goes against the UN doctrines and principles. In other states where the government or authority has acted unlawfully or has contributed to mass atrocity crimes, the Responsibility to Protect doctrine has been exercised for the protection of the state’s people [92. A/RES/60/1 2005 World Summit Outcome Document].

The Responsibility to Protect doctrine has been invoked in more than 80 UNSC resolutions to prevent genocide, armed conflict and for the protection of citizens in countries throughout the world, such as the Central African Republic, Democratic Republic of the Congo, Libya, and Syria [93. A/RES/76/177 United Nations R2P: Democratic People’s Republic of Korea] [94. A/RES/76/228 United Nations R2P: Syria] [95. Global Centre for the Responsibility to Protect, What Is R2P? < https://www.globalr2p.org/what-is-r2p/>accessed March 27th, 2022].

In other crises of rising concern, the UN has invoked the Responsibility to Protect doctrine in over 50 HR Council resolutions and over 10 General Assembly Resolutions [96. Global Centre for the Responsibility to Protect, What Is R2P? < https://www.globalr2p.org/what-is-r2p/>accessed March 27th, 2022]. The enforcement of this doctrine in states where mass atrocity crimes have been or at risk of being committed have shown that the UN has the power to take collective action to protect populations who are at risk of these crimes.

The doctrine has been highly successful at bringing attention to issues concerning human rights to the UN for them to act upon, and yet it is clear to see when clear international humanitarian law is breached by the state of Israel, little action is taken by the UN to protect Palestine or its citizens.

Following the outbreak of violence due to the unlawful and discriminatory actions by the Israeli government in the al-Hanoun and al-Ghawi cases, the Special Rapporteur to the UN Council on human rights in occupied Palestinian territories called again for the Israeli government to be investigated by the International Criminal Court [97. Human Rights Council, Special Rapporteur on the situation of human rights in the Occupied Palestinian Territories OHCHR March 2022 < https://www.ohchr.org/en/press-releases/2022/03/special-rapporteur-situation-human-rights-occupied-palestinian-territories>accessed 31st March 2022]. This was the most significant address to the council since his last call in 2014.

Rome Statute

In 1998 when the Rome Statute was adopted into international law the International Criminal Court was established. The purpose of the ICC was to have a platform to prosecute internationally those who commit the worst level of crimes; genocide, crimes against humanity, and war crimes. The ICC has jurisdiction globally and can bring anyone before the court in the name of justice. The ICC is a last resort for court involvement in crimes and intervenes only when domestic or national courts cannot or will not [98. Rome Statute of the International Criminal Court 1998].

International Criminal Court and Palestine

Palestine was recognised as a member of the ICC after year’s long struggle to be involved. Israel, the United States, and few other countries seriously condemned the decision by the ICC’s decision to make Palestine a member in 2015 [99. Rebecca Nguyen, The International Criminal Court ruling on Israel-Palestine: an explainer [Amnesty International, 2021] < https://www.amnesty.org.uk/blogs/campaigns-blog/international-criminal-court-ruling-israel-palestine-explainer>accessed 28th March 2022].

Following their membership, Palestine officially requested for the ICC prosecutor to initiate a formal investigation into potential atrocious crimes committed by Israel on Palestinian territory; the following year the ICC prosecutor states that all requirements for initiating a formal inquiry into suspected Israeli and Palestinian war crimes had been satisfied [100. Rebecca Nguyen, The International Criminal Court ruling on Israel-Palestine: an explainer [Amnesty International, 2021] < https://www.amnesty.org.uk/blogs/campaigns-blog/international-criminal-court-ruling-israel-palestine-explainer>accessed 28th March 2022]. In 2021 the ICC announced that they had the jurisdiction over the West Bank, the Gaza Strip and also Eastern Jerusalem to investigate possible war crimes.

After advocating for the investigation for a number of years the UN Special Rapporteur stated that it was a momentous step in the right direction for accountability from the UN and Israel, and “offers profound hope to those who believe that consequences, not condonation, must be the answer to the commission of grave crimes.” [101. Human Rights Council, ICC ruling on jurisdiction in occupied Palestinian territory welcome step towards justice OHCHR February 2021 < https://www.ohchr.org/en/press-releases/2021/02/icc-ruling-jurisdiction-occupied-palestinian-territory-welcome-step-towards?LangID=E&NewsID=26732>accessed 31st March 2022]. As other international legal bodies such as the UN is unable to offer investigations independently with any credible domestic law, an investigation by the ICC may be the sole method for truth and justice on the Israel and Palestine conflict.

The ICC investigation based on crimes committed in the Occupied Palestinian Territory after June 2014 and would concern allegations made against Israel of war crimes such as unlawful settlement-related actions, crimes against humanity such as unlawful persecution, deportation, transfer, and even crime of apartheid against Palestinians who lived in the West Bank, with East Jerusalem included [102. Human Rights Council, ICC ruling on jurisdiction in occupied Palestinian territory welcome step towards justice OHCHR February 2021 < https://www.ohchr.org/en/press-releases/2021/02/icc-ruling-jurisdiction-occupied-palestinian-territory-welcome-step-towards?LangID=E&NewsID=26732>accessed 31st March 2022]

The response from Israel was instantaneous with the Israeli government accusing the ICCC of antisemitism through legal persecution and perversion of justice [103. BBC, “Israel ‘will not co-operate’ with ICC war crimes investigation” April 2021 < https://www.bbc.co.uk/news/world-middle-east-56687437>accessed 10th April 2022]. Furthermore, the US also conveyed “serious concerns” over the ICC’s decision to investigate Israel, arguing that as Israel is not a recognised member of the ICC they cannot consent to be under their jurisdiction [104. BBC, “Israel ‘will not co-operate’ with ICC war crimes investigation” April 2021 < https://www.bbc.co.uk/news/world-middle-east-56687437>accessed 10th April 2022].

Charities such as Amnesty International are encouraging all state governments to support the ICC in their investigation into the scrutiny of Israel, and to stand up against the perpetrators of atrocious crimes in the international community [105. Amnesty International, “Israel’s Apartheid Against Palestinians Cruel System of Domination and Crime Against Humanity” February 1, 2022, MDE 15/5141].

Chapter 5: The Current Discriminatory Law in Place by the Isaeli Government

“You cannot continue to victimize someone else just because you yourself were a victim once—there has to be a limit” [106. Edward Said, 1978]

 

Israeli Military Detention System

A report by Save the Children on the impact of the Israeli military detention system on young Palestinians highlights the brutal and appalling legal discrimination faced by citizens of current Palestine. The report found that almost all of the children who were subject to the Israeli military detention system had their rights that are enshrined in international law breached in one way or another [107. Claire Nicoll, “Defencelessness: The Impact of the Israeli military detentions system on Palestinian Children [Save The Children OPT Office 2020] <https://resource-centre-uploads.s3.amazonaws.com/uploads/defenceless_the_impact_of_israeli_military_detention_on_palestinian_children_0.pdf> accessed April 15th, 2022].

STC interviewed almost 500 young Palestinians who all echoed a similar story to each other and past reports by human rights organisations; most had been victim to stressful or violent arrests, with the majority occurring unexpectedly throughout the night, then interrogated in a coercive manner with a denial of legal services, resulting in inhumane physical and emotional abuse while in the detention system [108. Claire Nicoll, “Defencelessness: The Impact of the Israeli military detentions system on Palestinian Children [Save The Children OPT Office 2020] <https://resource-centre-uploads.s3.amazonaws.com/uploads/defenceless_the_impact_of_israeli_military_detention_on_palestinian_children_0.pdf> accessed April 15th, 2022].

It is clear to see that the Israeli military detention system is structured in every way to leave the young people of Palestine utterly defenceless, a clear and inexcusable breach of their basic human rights. The system has evolved over the 50 years of Israeli occupation of Palestinian territory who have had little respect for international humanitarian and human rights law, spurred on by the escalating hostility between the Israeli military forces and Palestinian armed forces. The Israeli military system affects between 500 and 700 Palestinian children each year either by arrest, detention, or some other form of legal action [109. DCIP, Military Detention <https://www.dci-palestine.org/military_detention>accessed April 14th, 2022].

There is not one report of an Israeli child coming into contact with the Israeli military detention system [110. Claire Nicoll, “Defencelessness: The Impact of the Israeli military detentions system on Palestinian Children [Save The Children OPT Office 2020] <https://resource-centre-uploads.s3.amazonaws.com/uploads/defenceless_the_impact_of_israeli_military_detention_on_palestinian_children_0.pdf> accessed April 15th, 2022].

Human rights analysts have come to the conclusion that the military courts in the OPT are not there to be a comprehensively functioning legal system but rather there as the “judicial arm” of the occupiers [111. S. Weil, International Review of the Red Cross, Volume 89(866) 2007]. This comes with a heavy prominence on the security of the occupying power rather than justice for the citizens [112. S. Weil, International Review of the Red Cross, Volume 89(866) 2007]. It is clear to see that the laws and policies in place from the Israeli government focus strictly on the detention and imprisonment of those found guilty, most often Palestinians, rather than other comprehensive legal systems which focus on alternative consequences such as deterrence or rehabilitation.

Under the military mandate’s orders, a child can be arrested without the requirement for a warrant if “there is cause to suspect that he or she has committed an offence.” [113. Order Regarding Security Provisions [Consolidated Version] (No 1651) 5770-2009 Section 31(a)(4)]. This power is applied to any police officer, security personal or soldier of the Israeli military. After the individual is arrested, there is no minimum requirement of evidence, and the detention process has no input or supervision of any party independent of the Israeli forces [114. Order Regarding Security Provisions [Consolidated Version] (No 1651) 5770-2009 Section 31(a)(4)]

The Israeli military detention system has the unconventional principle enforced on Palestinians that they are guilty until proven innocent. With this principle in place, STC reported that almost every time the child was imprisoned, even in cases with little or no evidence. In general terms, a report by the US State Department found that Israeli military courts held a conviction rate of Palestinians higher than 99% [115. The United States State Department Human Rights Report on Israel and the Middle East 2014].

Proportionality

The issue of proportionality can also clearly be seen in cases of Palestinian detention by the Israeli military forces. The STC report found of the cases they investigated, ‘stone throwing’ was the most common charge in cases of Palestinian children’s arrest [116. Claire Nicoll, “Defencelessness: The Impact of the Israeli military detentions system on Palestinian Children [Save The Children OPT Office 2020] <https://resource-centre-uploads.s3.amazonaws.com/uploads/defenceless_the_impact_of_israeli_military_detention_on_palestinian_children_0.pdf> accessed April 15th, 2022].

An independent study found that the threat of any physical injury as a result from a stone being thrown is extremely low; the study found that in the most recent 89 cases of a Palestinian child arrested for stone throwing, only one caused small physical injury to a person and three others to property damage. The punishment is completely out of proportion for such a small crime, with the maximum sentence being 20 years imprisonment [117. Military Order 1651, §212(3): “throwing an object including a stone at a moving vehicle, with the intent to harm it or the person travelling in it, carries a maximum penalty of 20 years imprisonment.”].  The issue of proportionality is not only raised when questioning the severity of punishment to the crime, but also the unlawful and atrocious treatment endured by Palestinian children throughout their detention.

Discrimination

Israel is the only state in the entire world to systematically prosecute children in military court settings; their reasoning being they pose security concerns. Official Israeli government documents even state that Palestinian children belong to an “indoctrinated and violent population”, which they use as a justification to deny them of basic human rights in relation to detention or systematic safeguards [118. B’Tselem: The Israeli Centre for Human Rights, 2018].

The UN Committee on the Rights of the Child state that the “conduct of criminal proceedings against children within the military justice system should be avoided” at all costs [119. United Nations Committee on the Rights of the Child, Concluding Observations s.30(g), June 2008].

The laws in place which provide Israeli officials with these unfair and unlawful powers over the Palestinian population also give rise to rights which can only be held by Israeli citizens. Even in situations where Israeli children unlawfully reside in OPT, they will be subject to the Israeli civil law, rather than the strict discriminatory law faced by Palestinians [120. United Nations Security Resolution 2334, 2016].

One example is that there is no legal requirement for a Palestinian child to have any access to legal counsel however, further laws in place give Israeli children right to access a lawyer within a certain timeframe spent in detention [121. Claire Nicoll, “Defencelessness: The Impact of the Israeli military detentions system on Palestinian Children [Save The Children OPT Office 2020] <https://resource-centre-uploads.s3.amazonaws.com/uploads/defenceless_the_impact_of_israeli_military_detention_on_palestinian_children_0.pdf> accessed April 15th, 2022].  Therefore, it is clear to see that Israel operates with two distinct separate legal systems in the single occupied territory; this is a clear violation of international law which dictates that no state power is entitled to discriminate between those over whom it exercises penal jurisdiction based on their race or nationality.

Breached Laws

More than just international law is breached by the Israeli military detention system, but international humanitarian conventions as well. Three out of five cases of Palestinian children who are detained by the Israel military are transferred from the West Bank to detention centres inside of the Israel border [122. Claire Nicoll, “Defencelessness: The Impact of the Israeli military detentions system on Palestinian Children [Save The Children OPT Office 2020] <https://resource-centre-uploads.s3.amazonaws.com/uploads/defenceless_the_impact_of_israeli_military_detention_on_palestinian_children_0.pdf> accessed April 15th, 2022].

This is a clear violation of the Geneva Convention. Article 76 of the Fourth Convention prohibits the forcible transfer of protected persons from an occupied territory and prohibits an occupying power from transferring members of the occupied civilian population, including detainees, outside of the occupied territory [123. Geneva Convention (IV) on Civilians in Time of War (1949) Article 76]. The consequence of this clear violation is that many of the Palestinian children who are detained have no access to visitation from their family members. This again adds to the horrific impact the experience has on the individuals mental and emotional well-being.

By furthering their sense of isolation and emotional distress, it will have a significant impact on the individuals current and future psychological wellbeing and mental/emotional health which undermines the key factor of legal protection found in the Fourth Geneva Convention [124. Geneva Convention (IV) on Civilians in Time of War (1949)]. From the Israeli government position, they have claimed repeatedly that their court system holds the safeguarding of minors rights of high importance and take positive action to protect those rights [125. B’Tselem: The Israeli Centre for Human Rights, 2018].

However, a 2013 report by UNICEF found that that ill-treatment was “widespread, systematic, and institutionalised throughout the process” of being in the Israeli military detention system [126. UNICEF, Children in Israeli Military Detention Observations and Recommendations, March 2013].

Following the publication of the UNICEF report, other human rights and legal organisations have provided additional evidence to support this claim up until recent years [127. This includes charities Defence for Children International, The Israeli Information Centre for Human Rights, and International Military Court Watch].  Young Palestinians who have been arrested or have been through the Israeli detention system report to these organisations that they have been victims of both physical and emotional abuse from the moment they have been arrested and throughout the entire process; from interrogation to their release.

A recent report from the UN by the Secretary General for Children and Armed Conflict reported that the “UN received affidavits from 166 children who reported ill-treatment and breaches of due process by Israeli forces, including physical violence and one threat of sexual violence” in the year of 2020 [128. Office of the Special Representative of the Secretary- General for Children and Armed Conflict, Annual Report [2020] < https://childrenandarmedconflict.un.org/document-type/annual-reports/>accessed 18th April 2022].

Law of Return

As aforementioned, the current Israeli government have enforced laws and regulations which are beyond discriminatory towards Palestinian People and other native Arabs. They are favourable towards the Jewish population and even give rise to rights for Israelis that should not be given [129. Martin Bunton, The Palestine-Israeli Conflict: A Very Short Introduction, 1st edn, OUP 2013].

The most infamous example of this is the Israeli law of the Law of Return. Passed in July 1950, this law gives any Jew the unqualified right to relocate to Israel and the right to an Israeli citizenship, regardless of their current citizenship status from another country [130. Israel Law no 5710, 1950 The Law of Return]. The Israeli Law of Return states that “every Jew has the right to come to this country as an oleh. ‘Oleh’ has the Hebrew meaning of an immigrant to the Jewish homeland of Israel.

The Law of Return gave rise to the Zionist movements beliefs to establish the country of Israel as a Jewish state. Following the passing of the law in 1950, in 1970 the Israeli government extended the scope of the right to entry and settlement to those who have one Jewish grandparent or those with a Jewish spouse. This gave rise to controversy as this would allow people who would not be considered Jewish under the Orthodox versions of Jewish law. From the perspective of a native Palestinian Arab, it must be difficult to see land which you should have rights to be taken away from you, and then given to other individuals who do not have a single claim over the land.

The Palestinian population and advocates for Palestine heavily criticize this law. it is clear to see that this law in particular, with the fact that no same law exists for Palestinians is an obvious attempt from the Israeli government to aid what could be seen as institutionalised ethnic cleansing from Israel and OPT, as it denies Palestinians their right to return and leaves them as refugees for other nations [131. Eyal Benvenisti, The Applicability of Human Rights Conventions to Israel and to the Occupied Territories, 1st edn, Cambridge 2014].

The UN criticised the Law of Return in the UN Economic and Social Commission for Western Asia, and stated that the ability for an individual to obtain Israeli citizenship regardless of their country of origin or whether they have connections to the Israel-Palestine territory “while withholding any comparable right from Palestinians, including those with documented ancestral homes in the country” is a policy of “demographic engineering” [132. Yabuda Savir, The Definition of a Jew under Israel’s Law of Return, [17 Sw L.J. 123] (1963)].

Meaning that the Israeli government is making a deliberate effort to change the ethnic demographic of the territory to uphold their states aim of a “Jewish State”. The UN’s criticism was later withdrawn due to controversy that followed, and no further criticism was published on the Law of Return [133. Toi Staff, “UN chief orders report accusing Israel of ‘apartheid’ pulled from web” The Times of Israel, 17th March 2017 < https://www.timesofisrael.com/un-chief-requests-report-accusing-israel-of-apartheid-be-pulled-from-web/>accessed 19th April 2022].

Israeli Laws in an International Law Context

Following the International Court of Justice precedent, the state of Israel must uphold all international human rights obligations for every member of the occupied population [134. International Court of Justice, Advisory Opinion on the Legal Consequences of Construction of a Wall in the Occupied Palestinian Territories [2004] para 101-113]. Therefore, this means that the Israeli government is legally obligated to provide Palestinians with the same basic rights provided to the Israeli population, such as the respect of right of life.

In 1991, the Israeli government ratified the UN Convention on the Rights of the Child. This meant that the state of Israel is legally obligated to enforce the entire range of rights and safeguards as laid out in the United Nations Convention on the Rights of the Child (UNCRC), in both the Israeli population and the children in the Occupied Palestinian Terratory [135. International Court of Justice Opinion, [2004] para 109-113]. However, the Israeli government denies that they do not hold the legal duty of enforcing these United Nations Convention on the Rights of the Child rights in Occupied Palestinian Terratory, and continuously deprives young Palestinians of their basic human rights.

One of the UN human rights treaty-based bodies, the Committee on the Rights of the Child has constantly provided reports and held the state of Israel to account for the unlawful treatment provided to Palestinians, and yet again, little action has been taken to actively stop the consistent breach of international law and humanitarian law.

The Save The Childen report found that in the events where a child liberty was deprived from them, multiple United Nations Convention on the Rights of the Child rights were breached. The United Nations Convention on the Rights of the Child provides the legal obligation for state parties to ensure that no child shall be subjected to torture or other cruel, inhumane or degrading treatment or punishment; no child shall be subject to an arrest, detention or imprisonment out with the conformity of the law as a last resort and should be held for the shortest appropriate period of time; no child should be deprived of maintaining contact with their family through correspondents or visits; all children should have the right to access legal counsel or other appropriate assistance; and no child should be unlawfully compelled to give testimony or to confess guilt [136. The UN Convention on the Rights of the Child, Article 37].

The UNCRC also provides that the state has a duty to provide non-penalising options where it is able to; and the duty to care for children who are convicted with dignity and with a clear where of rehabilitation where appropriate [137. The UN Convention on the Rights of the Child, Article 40].

The STC report provides the reader with experiences that children have faced when in the Israeli military detention system. It is clear to see that the investigation of nearly 500 children resulted in one unanimous testimony; every child had their rights unlawfully violated in one way or another [138. Claire Nicoll, “Defencelessness: The Impact of the Israeli military detentions system on Palestinian Children [Save The Children OPT Office 2020] <https://resource-centre-uploads.s3.amazonaws.com/uploads/defenceless_the_impact_of_israeli_military_detention_on_palestinian_children_0.pdf> accessed April 15th, 2022]. Nearly every report showed that the Palestinian children were subject to ill treatment, unlawful use of solitary confinement, abuse, and coercive interviews by the Israeli military forces.

Palestinian Experiences of the Israeli Military Detention System

Palestinian children are also denied their right to access legal counsel; a clear breach of their basic human rights confined in the European Convention of Human Rights, the United Nations Convention on the Rights of the Child and further international humanitarian laws. The Save The Children report found that an overwhelming majority of Palestinians they interviewed maintained that they were innocent, however, entered into a guilty plea after being given the information that their sentence would have been reduced [139. Committee on the Rights of the Child, The UN Convention on the Rights of the Child].

This coercive behaviour exhibited by the Israeli forces would in turn help the high conviction rate be raised even higher, again perpetrating the idea that Palestinian children were raised by an “indoctrinated and violent population” [140. B’Tselem: The Israeli Centre for Human Rights, 2018].

Israeli military reports of the convictions show that a huge majority of them were based upon statements the interrogation, which were most likely obtained by a means which violated the child’s basic rights [141. Military Court Watch, Access to Lawyers, 2021].  It is clear to see from the following data that the interrogations are completely unlawful and are only carried out with the aim to draw a confession from the Palestinian individual in detention; over half of the children interviewed by Save The Children reported that harm was threatened to their family if they refused to provide a confession or information on the crime; an astonishing 89% reported they were the victim of verbal abuse and a reported 81% were a victim of physical beatings [142. Claire Nicoll, “Defencelessness: The Impact of the Israeli military detentions system on Palestinian Children [Save The Children OPT Office 2020] <https://resource-centre-uploads.s3.amazonaws.com/uploads/defenceless_the_impact_of_israeli_military_detention_on_palestinian_children_0.pdf> accessed April 15th, 2022].

Most shockingly, the charity Defence for Children International found that of over 750 cases of interrogation, 96% of the children had no access to any family members and every single one had been denied access to legal counsel [143. Defence for Children International: Palestine, Military Detention [2022] < https://www.dci-palestine.org/military_detention>accessed 14th April ].This is a clear institutionalised denial of the child’s legal right and the denial of essential legal safeguards put in place by international humanitarian law [144. UN Convention on the Rights of the Child, Article 40(2)(b) (ii-iv); Convention on the Rights of the Child, General Comment No. 10 para 58; International Covenant on Civil and Political Rights, Article 14(3)(b)].

Under current Israeli military law, it is the legal requirement for the individual to be informed of his or her right to access to legal counsel upon arrival at the detention centre. But the Israeli military law provides for no timeframe upon which this information should be provided to the individual, and no information regarding when the legal consultation should take place. Furthermore, there is no legal obligation provided for under Israeli law to inform a minor of this information [145. Claire Nicoll, “Defencelessness: The Impact of the Israeli military detentions system on Palestinian Children [Save The Children OPT Office 2020] <https://resource-centre-uploads.s3.amazonaws.com/uploads/defenceless_the_impact_of_israeli_military_detention_on_palestinian_children_0.pdf> accessed April 15th, 2022].

In response to the obvious criticism on this data, Israeli courts have repeatedly advised that an individual should consult with their legal representation prior to the interrogation procedure, however, there are very rare cases where this happens in practice. This is clearly a direct result of the manner in which the arrests take place, often unexpectedly during the night.

Additionally, the interrogation processes of Palestinians are in general unrecorded and therefore, often when cases have no physical evidence the evidence is just the word of the accused against the interrogator. Despite this being a blatant violation of the accused rights, which is enshrined in a multitude of international norms and safeguards. Moreover, reports show that 73% of cases had the Palestinian individual sign and agree to documentation of their case which they did not comprehend as they were written in Hebrew and no Arabic translation was offered to them throughout the investigation [146. Defence for Children International: Palestine, Military Detention [2022] < https://www.dci-palestine.org/military_detention>accessed 14th April].

Despite Israel’s international law legal obligation to only arrest or place children in a detention centre as a last resort, the STC report found that of the near 500 Palestinian children they interviewed, a shocking 99% of them were imprisoned, while only 1% were sentenced to house arrest [147. Defence for Children International: Palestine, Military Detention [2022] < https://www.dci-palestine.org/military_detention>accessed 14th April].

The STC report also found that out of the total number interviewed, five of them were held unlawfully under ‘administrative detention’ for a period of time despite the Israeli forces bring no official legal charges against them [148. Claire Nicoll, “Defencelessness: The Impact of the Israeli military detentions system on Palestinian Children [Save The Children OPT Office 2020] <https://resource-centre-uploads.s3.amazonaws.com/uploads/defenceless_the_impact_of_israeli_military_detention_on_palestinian_children_0.pdf> accessed April 15th, 2022].

The Israeli law provides that it is lawful to detain an individual for up to one year before legal procedure must be completed against them, however, there are numerous reports that Palestinian individuals have been held over the given time period – the longest reported being that of a Palestinian child who was held for four years before the completion of their legal proceedings [149. Claire Nicoll, “Defencelessness: The Impact of the Israeli military detentions system on Palestinian Children [Save The Children OPT Office 2020] <https://resource-centre-uploads.s3.amazonaws.com/uploads/defenceless_the_impact_of_israeli_military_detention_on_palestinian_children_0.pdf> accessed April 15th, 2022]. This shows that not only is the Israeli military detention system violating their own laws but countless international norms and conventions.

Human Rights and Torture

Aside from the aforementioned violations of international law, the Israeli government are also in violation of numerous specific human rights laws; Israel is not a member of the ECHR but still has to provide legal obligations due to other UN resolutions and other international law that has been ratified by its government. The UN Resolution of the International Covenant on Civil and Political Rights, which Israel is a State party to, calls that no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment [150. GA/RES/2200A (XXI) International Covenant on Civil and Political Rights 1996].

Israel is also state party to the UN Convention against Torture, which provides that the state is prohibited from subjecting any individual to act by which severe pain or suffering, whether physical or mental, in intentionally inflicted on a person for such purposes as obtaining information or a confession, punishing him or her for an act he or she has committed or is suspected of having committed, or intimidating or coercing him or her [151. GA/RES/39/46 UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment 1984]. Israel has also signed the Universal Declaration of Human Rights in July 1990 and ratified it in August the following year. The UDHR provides the right to be free from torture, cruel, inhuman, or degrading treatment or punishment [152. Universal Declaration of Human Rights, Article 5].

The general international law of the prohibition of torture and cruel, inhuman, or degrading treatment has an established status of jus cogens, giving it the highest standing supremacy [153. M. Cherif Bassiouni, International Crimes: “Jus Cogens” and “Obligatio Erga Omnes [Law and Contemporary Problems Vol. 59(4) 1996].

Jus cogens translates to “compelling law”, stemming from the Roman idea that certain international laws are hierarchically superior, and cannot be deviated from [154. M. Cherif Bassiouni, International Crimes: “Jus Cogens” and “Obligatio Erga Omnes [Law and Contemporary Problems Vol. 59(4) 1996]. It is clear that recognised states have the legal obligation to not only prohibit the use or authorisation of torture or other mistreatment but must also positively act to prevent it from occurring under their power.

This above echoes the above conclusion that the Israeli government are consistently breaching international laws and conventions without any repercussion or sanctions due to the constant failures of international law bodies interjecting into the issue of the Israeli Palestine conflict. This means that the Israeli military forces are continuing to render the population of Palestine consistently defenceless in Occupied Palestinian Territory due to the blatant disregard of basic human rights by the occupying Israeli government.

Chapter 6: Conclusion

“How much longer is the world willing to endure this spectacle of wanton cruelty?” [155. Bertrand Russell, Message from the International Conference of Parliamentarian in Cairo, 1970]

Concluding Comments

It is clear to recognise that many international legal instruments have played a role in the creation and prolonging of the Israeli-Palestine conflict. From the influence of international government documents to direct impact from legal international bodies such as the UN; it is clear that the conflict has not been formed purely from disputes between the Arab population and the Jewish population. From either side of the conflict, it is clear to see that the United Nations have not fulfilled their role which they should have played in this conflict.

The countless Resolutions, meetings, General Assemblies or Councils by the United Nations have produced an abundance of proposals or recommendations which may very well fix the mess that they created, but as United Nations Secretary-General António Guterres said in 2017, “The United Nations must focus on delivery rather than process and on people rather than bureaucracy.” Namely, the people of Palestine who have been victim time and time again over the lack of successful work from international legal bodies which are there to protect them.

Even now in the current conflict, it must be noted that Israel, having invaded and later occupied Arab territory, is now attempting to solidify its latest illegitimate fait accompli [156. Fait accompli – Latin term for something that has already happened or been done and is irreversible]. Israel today is still using Occupied Palestinian Territory as leverage to extract concessions from the Palestinian people while masking it as being cooperative and in favour for Palestine.

One does not need to have extensive knowledge of either the United Nations or the conflict to have the clear understanding that one state having occupying power over territory owned by another state is completely contradictory to the principles of the United Nations; made worse by the fact the United Nations established the occupying power and had no legal consequences when they denied carrying out their conditional legal obligations. It seems that the only possibility if this continues to be the case is that the Israeli state is invalid and therefore, the United Nations must enforce their powers which they have held since its establishment.

Even without any extreme measures regarding the state, the UN must act to protect Palestinians from the atrocious discriminatory acts which are being carried out against them unlawfully. Save The Children writes that as a bare minimum, the UN must provide safeguards while young Palestinians are forced to experience the Israeli Military Detention System. The UN must act to ensure that basic due process rights are being followed and must ensure the prohibition of torture and ill-treatment while Palestinians continue to be arrested and prosecuted.

They must ensure that the procedure is in accordance with every international human right or humanitarian law specifically rights laid out in the U.N. Convention on the Rights of the Child and the Universal Declaration of Human Rights, such as the individual must not be subjected to physical or psychological violence; and they must have access to legal consultation prior to and during interrogations.

It seems imperative that the UN should act upon its Responsibility to protect doctrine and provide more support for Palestine and its citizens. Justice cannot be accomplished unless full respect for international law and conventions is fully maintained. If genuine peace in the Middle East is to be pursued, the critical measure clearly resides in the application of the rule of law and justice.

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Table of Abbreviations

AI – Amnesty International

CotUN – Charter of the United Nations

ECHR – European Convention of Human Rights

GA – General Assembly

HR – Human Rights

ICC – International Criminal Court

ICISS – International Commission on Intervention and State Sovereignty

OPT – Occupied Palestinian Territory

R2P – Responsibility to Protect

STC – Save The Children

UDHR – Universal Declaration of Human Rights

UN – United Nations

UNCRC – United Nations Convention on the Rights of the Child

UNESC – United Nations Economic and Social Council

UNICEF – United Nations International Children’s Emergency Fund

UNICoJ – United Nations International Court of Justice

UNSC – United Nations Security Council

UNSCOP – United Nations Special Committee on Palestine

USA – United States of America

WWI – World War I

WWII – World War II

LLB (Hons) Law Dissertation Session 2021/22

TITLE: A Critical Analysis of the Role of International Law in the Israeli-Palestine Conflict

AUTHOR: Amy McLean

Supervisor: Dr. Lorna Gillies

Declaration: I declare that the work undertaken for this LLB/BA LAW Dissertation has been undertaken by myself and the final Dissertation produced by me. The work has not been submitted in part or in whole in regard to any other academic qualification.

Date: ____22/04/2022____________________

Acknowledgements

I would like to express my gratitude to the entire law faculty of Edinburgh Napier University who have taught and supported me consistently throughout my degree. A special thanks to Dr. Lorna Gillies who has provided me with vital support throughout the writing of this dissertation.

I would like to additionally thank my family and friends, without whom this dissertation, and degree, would not have been possible. Their support and encouragement have been invaluable throughout the past four years, and I could not have done this without them.