The endorsement of Ariel Sharon’s unilateral plan of disengagement from the Gaza Strip and from parts of the West Bank by US President George W. Bush has angered many Palestinians and inflamed tensions throughout the Arab world. It has also surprised policy makers, diplomats and politicians from the European Union - including Britain, America’s closest ally - who have sought to distance themselves from Bush’s remarks. It prompted a rebuttal from French President Jacques Chirac in Algiers, who described it as a “dangerous and troubling precedent”.
Sharon’s unilateral disengagement will leave six large settlement blocks in the West Bank intact with 92,500 settlers (not including East Jerusalem). His statement that Palestinian refugees should only be settled in a Palestinian state, and not in Israel where many of them still have homes, will affect the lives of some 7 million Palestinian refugees and internally displaced persons. Yet despite the international outcry, it will not come as all that surprising to most people that follow US-Israeli relations closely. After all, this is Sharon’s ninth visit to the White House and 2004 is an election year in the US.
Yet despite this, Sharon’s plan to unilaterally disengage from only part of the West Bank and keep settlements there intact, while at the same time refusing to allow Palestinian refugees the right to return to their homes, departs from basic principles of international law. This is because it is the sources of international law found in international treaties, custom, and the generally recognized principles of law and not “unilateral declarations” that count. The occupied Palestinian territories are not pieces of real estate which Sharon and Bush can barter over.
In 1967 Israel overran the West Bank, Gaza Strip, Syria’s Golan Heights and Egypt’s Sinai Peninsula. Despite signing a peace treaty with Egypt in 1979 whereby the Sinai Peninsula was returned, Israel kept on to the remaining territories and has been a belligerent occupant for 37 years. For this reason the laws governing the resort to the use of armed force (jus in bello) which is sometimes referred to as international humanitarian law applicable in armed conflict, apply to Israel’s military occupation of the West Bank and Gaza Strip.
The jus in bello consists of numerous treaties, the two most important being The Hague Regulations and the Fourth Geneva Convention. For the last 37 years Israel has successfully manipulated the jus in bello by effectively annexing the West Bank and Gaza Strip, transferring settlers into strategic locations deep inside the West Bank whilst choosing to comply with the law by not granting Palestinians resident in the territories its citizenship. In effect Israel has perfected the “art” of occupation by taking the land without the people. Israel’s only mistake was to officially annex East Jerusalem in 1980, a move condemned by the UN Security Council.
Article 49 of the Fourth Geneva Convention prohibits Israel from transferring part of its population into the territory it occupies. By constructing a wall that will incorporate settlements inside the West Bank, Israel is effectively annexing territory - prohibited by the UN Charter - and interfering with the size of the unit in which the Palestinians seek to exercise their right to self-determination. It is for this reason that Bush is on shaky ground when he approved of Sharon’s plan to keep hold of settlements in the West Bank. Not only is it legally unsound, it makes a gross caricature of his vision of two states: Israel and Palestine living side by side in peace and security.
The Palestinians say the right of return is an inalienable right enshrined in international law. A brief look at treaties relating to the law of state succession before 1948 (Trianon, Versailles, St. Germaine and Lausanne) and more recently the International Law Commissions draft articles on nationality in relation to a succession of states would seem to confirm this. The treaties and the draft articles show that in matters of nationality the population follows the change of sovereignty. Palestinians who were habitually resident in Palestine in 1948 should have become either nationals of Israel or have been given a right to opt for the nationality they wanted.
Instead many of them were expelled or forced to flee their homes, and have been living for the most part in refugee camps in the Arab states surrounding Israel for 56 years so far. UN General Assembly resolution 194 (III) of 11 December 1948 provides that those refugees willing to live at peace with Israel have a right of return to their homes, whether their homes are in Israel, the West Bank or Gaza Strip. This resolution also confirms that the Palestinian refugees have a right to compensation under principles of international law or in equity. Resolution 194 has been reaffirmed annually in the General Assembly by an overwhelming majority of states.
In terms of international law, speeches in national parliaments, meetings of international organizations, historical facts, reports by UN mediators, decisions by states and international tribunals all count far more than a “unilateral declaration”. Therefore whilst this sudden reversal in US foreign policy is lamentable for Palestinian refugees, and will further enflame tensions in the Middle East and anger many people throughout the world, it also departs from elemental principles of international law.
Victor Kattan is a correspondent for Arab Media Watch who covered the oral pleadings which took place before the International Court of Justice in The Hague in February 2004. He is the author of “The Right of Return Revisited”, which will be published in a forthcoming edition of the Mediterranean Journal of Human Rights. This article first appeared in Arab Media Watch on 25 April 2004.