US repudiation of international law concerning the Israeli-Palestinian conflict

NAJLA M. SHAHWAN
Published 23.12.2019 00:38

U.S. Secretary of State Mike Pompeo said last month that the Trump administration determined that Israel's West Bank settlements do not violate international law, a decision he said had "increased the likelihood" of a Middle East peace settlement. Through Pompeo's words, the U.S. administration has essentially repudiated international law as a relevant conceptual framework that should serve as a basis for resolving the Israeli-Palestinian conflict.

As the occupying power in the Occupied Palestinian Territories, Israel must abide by the norms of international humanitarian law (IHL) governing situations of belligerent occupation, particularly the 1907 Hague Regulations and Geneva Convention IV (GC IV). As part of its obligations, Israel is forbidden under article 49 GC IV from forcefully transferring or deporting the local population from the occupied territory, or from transferring or deporting its own population into the occupied territory. The establishment and development of Israeli settlements in the West Bank are thus in violation of IHL, and may amount to a war crime (CIHL Study, rule 156; ICC Statute, art. 8(2)(b)(viii)).

Such a prohibition has been restated by the International Court of Justice and the U.N. Security Council; it has also been the long-standing position of all U.S. administrations to uphold it.

Since the Israeli occupation of the Palestinian territories, the Carter administration, based on a 1978 State Department legal opinion, has outright declared settlements illegal and all administrations that followed have described them as an impediment to peace and have called for freezing settlement expansion and new construction.

As former Secretary of State John F. Kerry, explained in one of his speeches, the abstention, referred to "the proliferation of settlement outposts that are illegal under Israel's own laws."

A month before President Trump took office, Barack Obama — whose administration referred to settlements as "illegitimate" — became the first U.S. president to withhold a veto from one of countless U.N. resolutions that described them as illegal. In one of its final acts in office, that administration abstained from a U.N. vote that called settlements "a flagrant violation under international law," allowing it to pass.

Pompeo's remarks and Greenblatt's previous remarks at the U.N. that Israel "has already conceded 88% of territory" it captured in defensive war of 1967, and that U.S. plan won't be based on "fictions of international consensus" or on international law - should be read in conjunction with other alarming initiatives and statements by Trump's administration.

On Dec. 6, 2017, U.S. President Donald Trump became the first world leader to formally recognize Jerusalem as Israel's capital and in January 2019 he recognized Israel's sovereignty over the Golan Heights ‒ a Syrian territory occupied by Israel since 1967.

In his statement to the New York Times the U.S. ambassador to Israel, David M. Friedman, affirmed, "Israel has the right to retain some, but unlikely all, of the West Bank."

All these moves upend more than 40 years of U.S. policy that has declared Israeli expansion into territories occupied since the 1967 war a major obstacle to settling the Israeli-Palestinian conflict.

The two-state solution

For more than two decades, most Israelis and Palestinians have accepted the "two-state solution" for the Israeli-Palestinian conflict. This solution has been the official stance of the international community, including the United States. However, the situation has changed since the election of President Donald Trump.

Although Trump has previously said he favors the traditional two-state solution, his administration now avoids any specific mention of it. Instead, White House officials worked on a new peace proposal they call "the deal of the century" – which they claim will end the Israeli-Palestinian conflict.

However, the Palestinians rejected the deal before the Trump administration could even propose it as from a Palestinian perspective, the so-called deal of the century seems to both undermine the Palestinian right of return and change Jerusalem's status quo. If any new peace proposal does not consider Palestinians' sincere aspirations to establish an independent state, then it will immediately fail to gain any traction with the Palestinian people. Palestinians have great national pride, and they will not trade this for the promise of economic prosperity.

All the Trump Administration policies have led to undermining any chance of establishing a two states solution, an utterly biased position in favor of Israel, forsaking Palestinian aspirations to build a future state.

While the Israeli government fails to stop settlement expansion, the Israeli army continues to violate Palestinian sovereignty in "Area A," which the Oslo Accord states are under complete Palestinian control.

International law principles bring an element of objectivity and universality to a decades-old fueled conflict that has been predominantly informed by nationalistic and religious considerations.

Pompeo's words and the U.S. government's recent initiatives seem to support the nationalistic and religious claims of one party as absolute rights and dismiss the considerations of the other party's rights and mere aspirations.

Palestinians have made it clear they will not see the U.S. as having any role in brokering a peace deal, be it the so-called "Deal of the Century" or any other, as the U.S. works blindly for Israel's interest denying all international laws and decades of U.S. official positions.

The 'Deal of the Century'

A "Deal of the Century" that is based on such premises is most likely to end in a failure that will only prolong the ongoing suffering.

The longstanding position of the U.N. regarding Israeli settlements in Occupied Palestinian Territory – that they are in breach of international law – is unchanged.

In addition, it remains "committed to a two-State solution based on the relevant U.N. resolutions."

Earlier, at a press briefing in Geneva, Spokesperson for the Office of the High Commissioner of Human Rights (OHCHR), Rupert Colville, told reporters that a change in the policy position of one Member State does not modify existing international law, nor its interpretation by the International Court of Justice (ICJ) and the U.N. Security Council.

This resolution reaffirmed, in 2016, that Israel's establishment of settlements on Palestinian land occupied since 1967 has "no legal validity" and constitute a "flagrant violation under international law and a major obstacle to the vision of two States living side-by-side in peace and security, within internationally recognized borders."

* Palestinian author, researcher and freelance journalist; recipient of two prizes from the Palestinian Union of Writers

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