Trump’s Middle East Peace Plan in Light of International Law

Abdullah Mohsin Commentary, Guest Columnists

Trump’s Middle East Peace Plan in Light of International Law

Donald Trump’s peace plan titled “Peace to Prosperity” in relation to the Israel-Palestine conflict is a one-sided attempt to resolve what is more than a seven-decade long Middle-Eastern conflict. The so-called “Deal of the Century” to resolve virtually an intractable issue has been concluded without any Palestinian input, which also accounts for its swift rejection by the same. However, the one-sided deal also clashes with the established precepts of international law.

Essentially, Trump’s plan creates a series of areas under Palestinian control, scattered along Israeli settlements. It seeks to validate the decades-long Israeli strategy of building settlements to create “facts on the ground”. Furthermore, the plan grants the Jordan Valley to Israel, which entails that in case the plan comes into fruition, the entire Palestinian state will be surrounded by Israel on all sides. The plan calls for demilitarization of the entire Palestine. Israel would control security at all international crossings into Palestine and continue to carry out surveillance of Palestinians within their own territory. Also, the plan refuses any right of return by, or absorption of, any Palestinian refugee into the State of Israel. It essentially means that the Palestinians are required to give up any claims to the land they were forced out of in 1948 and 1967. Furthermore, Jerusalem would remain under complete Israeli control. Additionally, in order for Palestine to be accepted as a state by Israel and the United States, it has to fulfill certain conditions with regard to good governance and strong financial institutions and whether it meets these requirements will be determined by the architects of this peace plan.[1]

The six-day Arab-Israel War in 1967 resulted in a convincing victory for the Israeli armed forces and the capture of vast spans of Arabian territory which included Sinai Peninsula, Gaza Strip, West Bank, Old City of Jerusalem and Golan Heights. Upon declaration of ceasefire, the United Nations (UN) Security Council passed Resolution 242 (1967) emphasizing the inadmissibility of the acquisition of territory by war. The Security Council also affirmed that in order to fulfill the principles of the UN Charter and establish long lasting peace in the Middle East, two prerequisites needed to be fulfilled:

  • Firstly, the Resolution required Israel to withdraw its armed forces from territories occupied in the 1967 War.
  • Secondly, it bound Israel to terminate all claims or states of belligerency and respect and acknowledge the sovereignty, territorial integrity and political independence of every state in the region as every state’s right to live in peace within secure and recognized boundaries free from threats or acts of force.[2]

What is significant to note in the Resolution 242 is its reiteration of the illegality of the use of force and inadmissibility of the acquisition of territory through war. Article 2(4) of the UN Charter provides an absolute prohibition on the “threat or use of force against the territorial integrity or political independence of any state”.

In addition, it was held by the International Court of Justice (ICJ) in its Advisory Opinion in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) that principles such as those regarding the non-use of force, non-intervention, respect for territorial integrity of states, etc. continued to be binding as part of customary international law, despite the operation of provisions of conventional law in which they had been incorporated.[3]

Consequently, acquisition of territory through the use of force also becomes illegal. Such proposition had been fortified by UN Security Council Resolution 446 (1979), which determined that the policy and practices of Israel in establishing settlements in Palestinian and other Arab territories occupied since 1967 had no legal validity. It further called upon Israel, as an occupying power, to abide strictly by the Fourth Geneva Convention, rescind its previous measures, desist from taking any action which would result in changing the legal status, geographical nature and “materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem” and most significantly “not to transfer parts of its own civilian population into the occupied Arab territories”.[4]

The ICJ in its Advisory Opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory recalled the customary principles laid out in Article 2(4) of the UN Charter and emphasized the illegality of acquisition of territory through the use of force. The Court observed that Israel had an obligation to put an end to the violation of its international obligations flowing from the construction of a wall in Occupied Palestinian Territory. It further observed that the obligation of a state responsible for an internationally wrongful act to put an end to that act had been well established in general international law.[5]

In view of the above authorities, Trump’s plan to legitimize Israel’s decades-long occupation and consequential settlements of Israeli population violates international law. Since Israel had acquired the Arab territory as a result of war, any attempt to create artificial Israeli settlements or annex the occupied territory would be in direct conflict with various Security Council Resolutions, judgments of the ICJ and the UN Charter.

It is pertinent to mention that international humanitarian law is also applicable to Israel and the Arab territories under its occupation. The ICJ in its Advisory Opinion in Construction of Wall deliberated upon the relevance of the Fourth Geneva Convention with regard to the said conflict. The Court reasoned that since “Israel and Jordon were parties to the said Convention when the 1967 armed conflict broke out”, the “Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories.” In addition, the Security Council affirmed that the Fourth Geneva Convention was applicable to the Arab territories occupied by Israel since 1967.

Furthermore, the creation of Israeli settlements in occupied areas violates international humanitarian law as well. Article 49 of the Fourth Geneva Convention affirms that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”[6]Additionally, Protocol I (1977) to the Geneva Convention deems “transfer by the Occupying Power of parts of its own civilian population into the territory it occupies” as a grave breach of the Conventions and the said Protocol.[7] Also, the Rome Statute of the International Criminal Court (ICC) 1998 defines the aforementioned act of population displacement as a war crime. The Article 8(2)(b)(viii) of the ICC Statute describes the following act as a serious violation of laws and customs applicable in international armed conflict:

“viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”[8]

It is also pertinent to mention that Israel’s refusal to become party to the ICC Statute will not prevent rules of customary international law from being applicable in relation to the displacement of civilian population in situations of armed conflict.

In view of the same, Article 20(c)(i) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind considers “transfer by the Occupying Power of parts of its own civilian population into the territory it occupies” as “a crime against the peace and security of mankind when committed in a systematic manner or on a large scale”.[9]

Consequently, Israel’s decades-long strategy to create “facts on the ground” through the occupation of Arab territory, creation of settlements with its own civilian population and displacement of Palestinian civilians through military and administrative actions are not mere violations of international law – these are blatant war crimes!

Moreover, the ICJ determined in the Construction of Wall that Israel was bound by the provisions of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and was under an obligation to not raise any obstacles to the exercise of such rights. It is imperative to note that both Covenants have a common Article 1 which recognizes every nation’s right to self determination by virtue of which all peoples are free to determine their political status and pursue their economic, social and cultural development.

More significantly, the UN Charter in Article 1 describes that one of the purposes of the UN is to “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…”[10] However, the obvious legal consequence of Trump’s plan is a violation of Palestine’s right to self determination. Provisions in the plan concerning annexation, settlements, Jerusalem, demilitarization of the entire Palestine, security and surveillance, and prerequisites for Palestinian statehood involving “good governance” and “strong financial institutions” essentially seal their fate without them being able to “freely determine their political status and freely pursue their economic, social, and cultural development.”[11][12]

Furthermore, the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) defines Palestinian refugees as “persons whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948, and who lost both home and means of livelihood as a result of the 1948 conflict.”[13] The 1948 Arab-Israel War created 700,000 Palestinian refugees – a refugee crisis yet to be resolved to this day. Today, there are more than five million Palestinian refugees who are eligible for UNRWA services,[13] and this number excludes those not covered by UNRWA. The entirety of the displaced Palestinian diaspora is estimated to be more than seven million.[14]

Nevertheless, the new peace plan refuses the Palestinian refugees the “right to return”. It has been argued that Israel cannot accept the right to return without abandoning its Jewish or democratic identity. Currently, Israel’s total population is 8 million, which includes 1.5 million Arabs. Inclusion of 7 million Palestinians will render Jews a minority. Yet, refusing displaced Palestinians their right to return to their homeland is an affront to their inherent dignity as human beings, as enshrined in the UN Declaration of Human Rights and the aforementioned human rights Conventions.

The “right to return” for refugees has been provided in the UN’s Universal Declaration of Human Rights. Article 13 of the said Declaration establishes for every individual “the right to freedom of movement and residence within the borders of each state” and “the right to leave any country, including his own, and to return to his country”.[15]

After 1948, it was resolved by the UN General Assembly that refugees wishing to return home and live in peace with their neighbors should be permitted to do so at the earliest practicable date.[16] In fact, Israel’s admission to the UN was made conditional on the implementation of the aforementioned 1948 Resolution.[17]Israel has disregarded this on the grounds that its compliance will compromise the Jewish character of the state.[18] In addition, the International Covenant on Civil and Political Rights prevents states from arbitrarily depriving anyone from his or her right to enter his or her own country (Article 12 (4)). The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) enjoins upon states “to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour or national or ethnic origin, to equality before the law, notably in the enjoyment of…The right to leave any country, including one’s own, and to return to one’s country…”[19] Accordingly, denying Palestinian refugees their right to return stands in stark violation of both international conventions and international customary law.

Effectively, Trump’s Middle East Peace Plan attempts to provide legal and political recognition to an illegal situation. Article 1 common to all four Geneva Conventions enjoins the contracting states to respect and ensure respect for the Conventions in all circumstances. The said Article by implication requires all states party to the Conventions to refrain from recognizing any situation that violates the Conventions, such as Israeli settlements in the West Bank. The ICJ in the Construction of Wall was of the opinion that all states were under an obligation to not recognize the illegal situation arising from construction of the wall in the occupied territory. The Court further maintained that all states were also under an obligation to “not render aid or assistance in maintaining the situation created by such construction.” In addition, while emphasizing the Palestinian people’s right to self determination, the Court held that it was for all states to see to it that any impediment, resulting from the construction of the wall, to the exercise by Palestinian people of their right to self determination, was brought to an end. In light of these authorities, it is argued that all states are under a legal obligation to neither recognize, nor legitimize, Donald Trump’s Peace Plan because it violates international law.

Lastly, Trump’s plan is an attempt to create a “new two-state solution” without respecting the Palestinian people’s right to self determination. It thwarts previous diplomatic arrangements with regard to finding lasting peace in the Middle East through the creation of two viable and independent states. The “bigger and better deal”, if executed, will legalize Israel’s occupation of Palestinian territory through the use of force. It will involve creating a Palestinian state which is non-contiguous and non-sovereign, in line with with Israel’s ambitions of creating a greater Israel with Jewish identity.

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References

  1. “PEACE TO PROSPERITY: A Vision to Improve the Lives of the Palestinian and Israeli People”—https://www.whitehouse.gov/wp-content/uploads/2020/01/Peace-to-Prosperity-0120.pdf
  2. United Nations Security Council Resolution 242 (1967) of 22 November 1967
  3. Case Concerning Military and Paramilitary Activities and Against Nicaragua (Niacragua v. USA). (International Court of Justice, November 26, 1984).
  4. United Nations Security Council Resolution 446 (1979) of 22 March 1979
  5. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. (International Court of Justice, July 9, 2004).
  6. Geneva Convention Relative to the Protection of Civilian Persons in the Time of War of 12 August 1949
  7. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts
  8. Rome Statute of the International Criminal Court, 1998
  9. Commission, International Law. “Draft Code of Crimes against the Peace and Secuirty of Mankind, with commentaries.” un.org. 1996. https://legal.un.org/ilc/texts/instruments/english/commentaries/7_4_1996.pdf
  10. United Nations Charter, 1945
  11. International Covenant on Civil and Political Rights, 1966
  12. International Covenant on Economic, Social and Cultural Rights, 1966
  13. (UNRWA), United Nations Relief and Works Agency for Palestine Refugees in the Near East. “UNRWA in figures .” org. 2018-2019. https://www.unrwa.org/sites/default/files/content/resources/unrwa_in_figures_2019_eng_sep_2019_final.pdf (accessed January 10, 2020).
  14. Ward, Alex. “Trump’s Israel-Palestine Peace Plan Explained.” com. January 28, 2020. https://www.vox.com/2020/1/28/21083615/trump-peace-plan-map-netanyahu-israel-palestine
  15. United Nations Declaration of Human Rights, 1948
  16. United Nations General Assembly Resolution 194 (III), 11 Dec 1948
  17. United Nations General Assembly Resolution 273 (III), “Admission of Israel to membership of the United Nations”
  18. Sayej, Loureen. “Palestinian Refugees and the Righ of Return in International Law.” Oxford Human Rights Hub: A global perspective on human rights. May 14, 2018. https://ohrh.law.ox.ac.uk/palestinian-refugees-and-the-right-of-return-in-international-law/
  19. International Convention on the Elimination of All Forms of Racial Discrimination, 1965
  20. CCross, International Committee of the Red. “Treaties, States Parties and Commentaries.” https://ihl-databases.icrc.org/ihl/WebART/470-750111 (accessed January 10, 2020).

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Abdullah Mohsin

Author: Abdullah Mohsin

The writer is a Pakistani lawyer and human rights advocate, currently serving as Of Counsel, Kilam Law (Barristers & Legal Consultants) and Partner and Director of Commercial and Corporate Practice at Sultan & Sultans Law Chambers in Lahore, Pakistan. He also teaches Public International Law as an adjunct faculty member at the University of Central Punjab and has founded the Research Centre for International Law and Human Rights. He holds an LL.M degree in Public International Law from Leiden University and an LL.B degree from the University of London. He writes about constitutional law, human rights and international law and can be reached at: [email protected] and [email protected]