“Many of the Europeans who want Israel to go away don’t even know why they do. Nearly a third of those interviewed concede they have no idea what the Israeli-Palestinian conflict is all about. It’s enough to know that Israelis are Jews”, remarked the famous journalist, Suzanne Fields. While Fields’ last remark is slightly inaccurate, it will be clear soon how much of the rhetoric and disagreement from both sides stems from a lack of understanding of international law. Instead of bickering and pointing fingers at one another, let us set the facts on the table and evaluate the subject within the realm of law and objectivity. What is the State of Israel? How did it come to be, and why? Under which legal claims do the Jewish people have a right to this land? Does Israel have the right to the current borders it occupies?
It is crucial to begin with a brief historical overview of how the State of Israel came to be. Beginning in the late 19th century; the Ottoman Empire ruled. The religions were diverse. Jews Christians and Jews alike lived together. Clashes between the groups were rare. However, due to rising anti-Semitism in Europe, Theodore Herzl formed the first Zionist Congress in 1897. Representing the mission for a return to a homeland of some sort, Herzl eventually found some luck. In 1917, the British Balfour declaration granted “the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.” Ambiguities in the declaration lead to later disputes that affect Israeli borders and jurisdiction.
The issue is that in 1916, they promised the French, in The British Dealings with France, that France would maintain control over what is now modern-day Lebanon and Syria, and the British would control what is today the Levant, Egypt, and Sudan. The British made a similar proposal to Meccan leader Sharif Hussein in 1915, promising him control over the Arabian Peninsula and the Levant, if he led a revolt over the Arab rule of his time. This ultimately led to the UN partition plan of 1947, otherwise known as GA resolution 181. The resolution called for 2 states; occupied by Jews and Arabs. There would also be international city zones for Jerusalem and Bethlehem. While leaders of the Zionist Organization, including its celebrated David Ben-Gurion, accepted the partition plan, and in light of it, declared independence on May 14th, 1948. The following day, Egypt, Syria, Jordan, and auxiliary forces from Iraq, invaded Palestine and the newly declared state. Basing themselves in local Arab neighborhoods, the coalition forces fought the Israelis for 10 months, interrupted by a few cease-fire periods. Eventually, an armistice agreement was made between Israel and its aggressors, and Israel retained the portions of land that the UN General Assembly Resolution 181 had originally proposed. Additionally, the maintained default control over much of what was partitioned in the GA resolution for the Arabs, including the Jaffa, much of the western shores, parts of the Negev, West Jerusalem, the majority of the Jordanian West Bank, and much of the northern Galilean region.
However, as an armistice agreement was made, Egypt maintained military control of the Gaza Strip, and Transjordan consequently took control of the remainder of the former British territories. This was also the cause of over 700,000 Palestinian Arabs to be sent into exile. As a result, tensions were never fully normalized and eventually erupted on June 5th, 1967, when Egyptian forces began to mobilize in what seemed to be a prepared attack on Israel. Israeli forces responded with a preemptive strike on the Egyptian aircraft base ready for deployment, and this triggered Syria, Jordan, Iraq, and Lebanon to form a coalition with Egypt against Israel. This became known as the Six Day War, unsurprisingly, because the war ended just six days later, on the eve of June 5th, 1967. Israel annexed the remainder of the Arab partitioned lands, as well as the Golan Heights from Syria, and the Sinai Peninsula from Egypt. That November, the UN formed SC resolution 242, which called for “Withdrawal of Israeli armed forces from territories occupied in the recent conflict” and “Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.” After a year of contemplation, UN Israeli Ambassador, Yosef Tekoah, formally stated the nation’s acceptance of the proposal, while the PLO and Arab states rejected the proposal. Nonetheless, resolution 242 eventually led to the Israel-Egypt Peace Treaty, in which Israel relinquished its military occupation of the Sinai Peninsula back to Egypt in exchange for peace. Likewise, Jordan signed a treaty of peace with Israel in 1994, relinquishing its claim to the West Bank, in exchange for peace. Syria has yet to negotiate an agreement with Israel and its occupation of the Golan Heights. Having discussed the basic history of Israel’s foundations and formation, the legal claims Jews have to the land should be clarified, and if these claims are valid, where are the legal borders of this land?
Much discussion took place with the General Assembly as to the official borders of Israel. Jerusalem and the West Bank had belonged to Jordan according to the 1948 partition plan, and Israel, having won it from the Jordanians in 1967, has given the West Bank to the Palestinians and the temple mount under Jordanian religious (but not jurisdictionally political) control.  The borders now are very different than the agreed upon borders by Britain, which gave almost 80 percent of the land to the Jews as by the agreement of the Balfour declaration in 1922. In 1947, Jewish portions of the territory were four-fifths of what was entitled to them through the Balfour declaration.
Jus ad bellum is derived from the United Nations’ Charter. In Article 2 it is declared that “all members shall refrain in their international relations from the threat or the use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”. In Article 51 it states that “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” Since the Geneva Conventions of 1949, Jus in Bello allows for the protection of non-combatants and POWs in wars between states. This works together with a war that is justified, a state has the right to respond with military intervention. Israel seems to be in a very peculiar position, one of a catch 22. On grounds for justified retaliation, Israel has had a series of killings by Palestinians and Hamas rockets. Nevertheless, even though it may be justified on the right of defending themselves, if the response is disproportionate it could turn the just war into it being unjustified. Even “proportionate actions in battle will be denounced if the war is deemed unjust.”  The claims that Israel has violated international law focus not on breaches of the right of defense, jus ad bellum, but on violations of international humanitarian law, jus in bello.  The expansion efforts engaged by Israel would call for possible jus ad bellum violations. Jus in bello, once a war has begun, is to regulate how people are treated after a war has started, despite the reasons for its inception. It relies on customary law, based on globally recognized practices of war and treaty laws, as set forth by the Hague Regulations of 1899 and 1907. These helped establish the rules for the conduct of use of force.
Under Hague Regulation 52, land requisition serves the needs of the occupying military. This has been interpreted by the Israeli Supreme Court as the High Court of Justice (HCJ) to serve the security needs within the State of Israel and disputed Palestinian territories.  Palestinian properties have been turned into Israeli settlements and operate according to the distinction of property and territory.  Another example of jus in bello, is a distinction between civilians who cannot be targeted versus individuals who may be seen as combatants and can be recognized as prisoners of war. The practice in the region, on both sides, that is, Israel and Hamas should be called into question by the ICC. This has been seen in Israel’s treatment of Hamas. Israel has stated that members of terrorist organizations were unprotected citizens and not combatants.  It could be argued that Israel’s targeted killing of members of terrorist organizations is a case for jus ad bellum since “legitimate military ends derive from political ends in ‘pure’ wars… then at the analytical level, legitimating the military means necessarily legitimates political ends.”  However, terrorism has never been thoroughly defined under international law.  An ambiguous definition allows the word terrorism to be taken any way it can to mobilize support for the “anti-terrorist” agenda. Though, the international community seems to agree that Hamas is a terrorist organization set on exterminating and or expelling all Jews from the land , similar and yet the adverse of Meir Kahana’s initiative to expel all Palestinians from the borders of the State of Israel, it must be made clear how exactly it truly fits the categorization of “terrorist organization.”
For many in the international stage, the root of the Israel-Palestine conflict is seen through Israel’s claims to territory as those areas in which its hegemony is exercised. From the perspective of international law today, much of the land that Israel controls are deemed to belong to the Palestinians under international law.  A large part of the discussion with Palestinians is that Palestinian territory is occupied by Israel, from which they want freedom and independence. However, the UN had originally recognized these territories as disputed territories. Also, in recognizing that the UN charter doesn’t allow for a member state to be attacked, Palestine, through the BDS campaign, has been allowed observational status. Though they are not an official member of the UN, it is closer to the reality of being recognized, and it wouldn’t suit well for the Israeli agenda. This begs the ultimate question: why is there a discrepancy in legal recognition of territorial jurisdiction between the ICJ, the GA, and the Israeli Supreme Court on one hand, and the Prime Minister’s office on the other hand?
Under the British Mandate, the British Parliament had set tenures for both Arab and Jewish residents of Palestine.  However, after the GA partition plan of 1948 was declined by the PA, Jordan annexed the West Bank. As stated above, this led to an Arab coalition to be formed to attack Israel in 1967, which led to Israel capturing the West Bank from Jordan during the Six Day War. Security Council Resolution 242 called for Israeli withdrawal, in the hopes that peace would be brought about. Since Israel has declined such proposals, Security Council Resolutions 446 and 484 have declared the West Bank to be occupied Palestinian territory.  Following in the footsteps of these UN Resolutions, the ICJ and Israeli Supreme Court has ruled “Israel holds the area in belligerent occupation (occupatio bellica).  On the defendant side, the Prime Minister’s Office has traditionally labeled the West Bank and the Golan as “disputed territories.” Their argument, famously presented by former Deputy Minister of Foreign Affairs, Danny Ayalon, is as follows.  From whom did Israel capture the West Bank? Palestine was not extent during the war of 67’, and while Resolution 242 did call for withdrawal from the West Bank after the war, it did not require an Israeli unilateral withdrawal. The Resolution itself called for negotiating a solution, leaving both parties with “secure and recognized boundaries.”
As stated above, Jordanian occupation of the West Bank was unjustified by international legal standards and remained unrecognized by the international community (save Pakistan and a few other Arab States). Consequently, this means that under Palestine’s last unanimously accepted mandate, the British Mandate, Palestine may be given to whomever the British relinquish its rights. In light of the Balfour Declaration’s approval by UN in Resolution 181, the GA proposed a bilateral acceptance of a two-state solution, which Israel approved of, but was rejected by Palestinians.  Because this was a non-binding proposal and was not accepted bilaterally, Resolution 181 remains null and void. Thus, as Justice Arthur Goldberg and Eugene V. Rostow note, as drafters of Security Council Resolution 242: “I helped to produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until ‘a just and lasting peace in the Middle East’ is achieved.’”  Professor Allen Dershowitz also notes  that the language of Resolution 242 does not specify exact borders to be relinquished for the sake of “peace”: “withdrawal of Israel armed forces from territories occupied in the recent conflict.”
At the end of the day, two strong legal claims lie at the heart of this conflict. While to the best of my knowledge, a formal judicial response has not yet been given in response to the legal claims of right to the territories that the Prime Minister’s office makes, it is quite noteworthy to see Israel’s most beloved ally, the United States, take the side of the international community.  The Court recognized the international consensus over that which Congress had deemed; that naturalized citizens born in Jerusalem may be listed as “born in Israel.” This conflict is far from solved; however, in the hopes of proper historical and legal analysis, some light may be shed to enlighten the world to a viable, peaceful, and eternal resolution for Palestinians and Israelis alike.
 This agreement was formally made in the Paris Agreement of 1919, known as the Faisal–Weizmann Agreement.
 Ulfstein, G., More Focus on Jus ad Bellum in Gaza, 2014, retrieved from: https://www.justsecurity.org/13978/focus-jus-ad-bellum-gaza/
 HCJ 606/78 Ayyub v. Minister of Defence, 1978.
 Kahn, P., Imagining Warfare, EJIL, 2013, (n 2) p. 208-09.
HCJ 769/02, The Public Committee Against Torture in Israel vs. The Government of Israel, 2006. Retrieved from: https://www.law.upenn.edu/institutes/cerl/conferences/targetedkilling/papers/IsraeliTargetedKillingCase.pdf
 Giladi, R., Reflections on Proportionality, Military Necessity and the Clausewitzian War, 2012, Israel, p. 334.
 Acharya, U. War on Terror or Terror Wars: The Problem in Defining Terrorism, 2009. Denver, pgs. 653, 656-57.
 Hamas Covenant of 1988, retrieved from: http://avalon.law.yale.edu/20th_century/hamas.as
 International Court of Justice, Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, retrieved from: http://www.refworld.org/docid/414ad9a719.html
 Gavish, Dov. The Survey of Palestine under the British Mandate: 1920–1948, British Mandate government printing office, Jerusalem 1946, vol. 1, chapter 8.
 GA Resolution 58/292 states further: “that the Palestinian people have the right to self-determination and to sovereignty over their territory and that Israel, the occupying Power, has only the duties and obligations of an occupying Power under the Geneva Convention relative to the Protection of Civilian Persons in Time of War.”
 Beit Sourik Village Council v. 1. The Government of Israel 2. Commander of the IDF Forces in the West Bank. Retrieved from: http://elyon1.court.gov.il/Files_ENG/04/560/020/A28/04020560.A28.HTM. These rules are established principally in Convention IV of The Hague: Regulations Concerning the Laws and Customs of War on Land.
 The following defense is made by the Israeli Ministry of Foreign Affairs. Retrieved from: http://mfa.gov.il/MFA/MFA-Archive/2003/Pages/DISPUTED%20TERRITORIES-%20Forgotten%20Facts%20About%20the%20We.aspx
 The clause in question states that the General Assembly “Recommends to the United Kingdom, as the mandatory Power for Palestine, and to all other Members of the United Nations the adoption and implementation, with regard to the future Government of Palestine.”
 Eugene V. Rostow, The Future of Palestine, Institute for National Strategic Studies, November 1993. Retrieved from: mercury.ethz.ch/serviceengine/Files/ISN/23476/…/mcnair24.pdf.
 Dershowitz, Alan. A Case for Israel. 2003, New Jersey. Chapter 14.
 Zivotofsky, By His Parents and Guardians, Zivotofsky et ux. v. Clinton, Secretary of State, 2002