The legal qualification of the Israeli-Palestinian conflict

By Insaf Rezagui

The year 2023 is the deadliest year for Palestinians anywhere in Palestinian territory. According to the United Nations, since October 7, in the West Bank, 304 Palestinians, including 79 children, have been killed by Israeli armed forces and settlers. In the Gaza Strip, as of December 27, 21,100 Palestinians have been killed in Israeli bombings, 70% of whom are women and children. In recent days, the intensification of Israeli bombings has given the Palestinian population no respite. Nearly 200 Palestinians are killed daily in Gaza. 1.9 million Palestinians out of 2.3 million were forced to flee their homes, or 85% of the population. 142 United Nations personnel were killed.

Behind these dizzying figures, entire lives have been decimated. These massive attacks on the Gaza Strip, coupled with violence by the army and settlers in the West Bank, reflect a desperate situation and the failure of the international system. At the forefront of this system is the United Nations Security Council, which was content to adopt on December 22, 2023 a minimum resolution to promote the delivery of humanitarian aid, without calling for a cease. -immediate fire. In this context, international law could have served as a compass for international society. The legal framework inherent to this conflict is established and the applicable rules are clear. Legal mechanisms to put an end to impunity exist and have been mobilized for more than twenty years. Yet impunity persists, to the detriment of lives, and Palestine has become the tomb of international law.

In this context, Insaf Rezagui will offer you a series of five articles in order to understand the place of international law in the Israeli-Palestinian conflict: the legal qualification of the Israeli-Palestinian conflict and the legal status of the Palestinian territory (article 1); the right to wage war (jus ad bellum) and the law of war (jus in bello) (article 2); allegations of violations of the rules of war (article 3); the legal mechanisms mobilized to put an end to impunity, with the International Criminal Court (article 4) and the International Court of Justice (article 5).

Additional Protocol I to the 1977 Geneva Conventions states that “armed conflicts in which peoples struggle against colonial domination and foreign occupation” are international armed conflicts. This is the case of the Israeli-Palestinian conflict; Israel has militarily occupied Palestinian territory since 1967 and the Six-Day War. Resolution 242 adopted in November 1967 by the Security Council underlines "the inadmissibility of the acquisition of territory by war" and calls for the "withdrawal of the Israeli armed forces from the occupied territories", while specifying that the Palestinians have "the right to live in peace within secure and recognized borders, free from threats or acts of force.”

The Security Council will repeatedly reiterate its demand for an end to the Israeli occupation, notably in 1980 in its resolution 476 by reaffirming "the imperative need to put an end to the prolonged occupation of the Arab territories occupied by Israel since 1967, including including Jerusalem” and strongly deploring “the continued refusal of Israel, the occupying Power, to comply with the relevant resolutions of the Security Council and the General Assembly”. Security Council resolutions are legally binding, States must respect them.

Israel, occupying and colonial power facing the right to self-determination of the Palestinian people

The status of occupying power for Israel and the status of occupied territory for Palestine, including the West Bank, East Jerusalem, and the Gaza Strip, was recalled in 2016 by a new Security Council resolution. It was also reaffirmed by the General Assembly which votes each year on a resolution on the right to self-determination of the Palestinian people; by the International Court of Justice in its advisory opinion of July 9, 2004 and by the judges of Pre-Trial Chamber I of the International Criminal Court in their decision of February 5, 2021. In short, when the Israeli authorities assert that it is of disputed or administered territories, this goes against international law and the unanimous position of international society. Religious and political claims have no legal value to justify any military presence and the establishment of settlements.

The occupied Palestinian territory also includes the Gaza Strip, despite the withdrawal of the Israeli army and Israeli settlers in 2005 and the Hamas takeover a year later. Indeed, since its withdrawal, Israel has put in place overall indirect effective control of the Gaza Strip. To control a territory, the foreign power must have effective control of said territory (article 42 of the Hague Regulations of 1907). Article 42 does not mention indirect effective control, but the Criminal Tribunal for the Former Yugoslavia and the International Court of Justice interpret the direct criterion of Article 42 extensively. Indirect effective control then takes the form of global control by the foreign power over the local authorities of the occupied territory. With this indirect control, it is no longer necessary for foreign military forces - in this case Israeli forces - to be directly present in the occupied territory. Today, Israel operates indirect effective control of the Gaza Strip, through a total maritime, air and land blockade, control of the entry and exit of people and goods into the Gaza Strip and by regularly carrying out military operations, as has been the case since October 7, 2023.

This legal qualification is important because it echoes the fundamental principle of the Palestinian people's right to self-determination. The realization of this right is one of the purposes of the United Nations (article 4, paragraph 2 and article 55 of the UN Charter). Many other legal tools refer to the right to self-determination, including the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights of December 16, 1966, ratified by Israel, and by numerous resolutions of the General Assembly which affirms that by virtue of the right of peoples to self-determination, it is up to them to determine “freely their political status”.

The International Court of Justice recalls that this right is “one of the essential principles of contemporary international law” and that it is enforceable erga omnes, that is to say that the whole of international society must ensure it is respected. The right to self-determination is fully realized if one of the following 3 objectives is implemented: the non-self-governing territory has become an independent and sovereign state; the territory is freely associated with an independent state; the territory became part of an independent state. The Palestinians chose the first option, that of an independent and sovereign State of Palestine, even if today given the scale of Israeli occupation and colonization, the idea of a two-state solution seems unachievable.

In short, the right to self-determination is a cardinal principle of decolonization processes and has consequences in the event of continued military occupation, notably the fact that this territory cannot be annexed.

Despite recognizing the right of the Palestinian people to self-determination, Israel continues its policy of colonization of Palestinian territory, in violation of international law. As of January 2022, 491,923 Israeli settlers are established in the West Bank, and 220,000 in East Jerusalem, compared to 3,200,000 Palestinians. Israeli settlers represent 13.8% of the total population, an increase of 222% since 2000. The continuation of this colonization contravenes the rules of the Fourth Geneva Convention and its article 49: “The Occupying Power may not carry out deportation or transfer of part of its own civilian population into the territory occupied by it.”

The Security Council, in its resolution 465 of 1980, recalled that "all measures taken by Israel to modify the physical character, demographic composition, institutional structure or status of the Palestinian territories and other Arab territories occupied since 1967, including including Jerusalem (…) have no validity in law and that Israel's policy and practices of settling elements of its population and new immigrants in these territories constitute a flagrant violation of the Geneva Convention. Article 8 of the Rome Statute specifies that “the transfer, direct or indirect, by an occupying power of part of its civilian population, into the territory it occupies (…)” constitutes a war crime.

In its 2004 advisory opinion, the International Court of Justice recalls that the continuation of the Israeli occupation and its colonial policy hinders the right of the Palestinian people to self-determination. Consequently, Israel may incur international responsibility due to the commission of an internationally wrongful act. It is up to international society not to recognize this illicit situation and to force Israel to comply with the principles of international law.

This legal qualification allows the triggering of the application of numerous rules of international humanitarian law, also called the law of war, with a view to providing broad and significant protection to civilian populations.

Since the Hamas attacks on October 7, the legal classification of the conflict has not changed - it is still an international armed conflict - and the rules attached to it remain applicable. However, Israel attempts to justify its military operations in the Gaza Strip by using the same argument that it invokes in each operation: its natural right to defend itself against any armed aggression directed against its territory and/or against its citizens.

Source: French YAANI