Parties often invoke international law when discussing violations of respective fundamental rights of their nationals. It is not our intention to analyze these violations, but rather to identify those elements of international law that could contribute to a possible resolution of the conflict. These two dimensions are nevertheless intimately linked. This can be explained by the “fait accompli” policy pursued on the ground by Israel, in violation of international law, with the precise aim of predetermining the outcome of negotiations on a permanent settlement to the conflict.

Palestine and international law

Resolution 273 of May 11, 1949, by which the General Assembly admitted the State of Israel to the UN, specifies that it “accepts without any reservation whatsoever the obligations arising from the Charter of the United Nations“, specifying that it “accepts without any reservation whatsoever the obligations arising from the Charter of the United Nations and undertakes to respect them from the day it becomes a member of the United Nations’’, starting with resolution 181 of November 29, 1947 on the partition plan for Palestine and resolution 194 on the right of return of refugees. These commitments will remain unfulfilled.

From June 1967 onwards, more than 60 General Assembly and Security Council resolutions called on Israel to respect the United Nations Charter, Universal Declaration of Human Rights and the 4th Geneva Convention. The colonization that followed the occupation of the Palestinian territories after the 1967 war is one of the most serious violations of international law.

The texts leave no room for doubt: the 1907 Hague Regulations and the 4th Geneva Convention of 1949 recognize Palestine as an occupied territory, and therefore prohibit settlement, economic exploitation and destruction of public or private property located in occupied territory, except for military necessities.

The Rome Statute establishing the International Criminal Court (ICC), adopted on July 17 1998, prohibits colonization. Article 8 considers that the direct or indirect transfer of population by the occupying power from the occupied territory constitutes a “war crime”. International law requires Israel to withdraw from the occupied territories.

International law authorizes and gives an occupied people the right to defend itself by all means. United Nations Resolution 2621 XXV of December 12, 1970 affirms: “…the inherent right of colonial peoples to struggle by all necessary means against colonial powers which repress their aspiration to freedom and independence“. 

This legitimization of the right to resistance is reinforced by article 1 §4 of the first Additional Protocol of June 8, 1977, according to which international armed conflicts include those: “…in which peoples are fighting against colonial domination and foreign occupation and against racist regimes in the exercise of the right of peoples to self-determination…’’

This is not “a conflict”, but a relationship between oppressor and oppressed, occupier and occupied.

The weakness of the legal track

Today, most efforts to dismantle Israel’s systems of apartheid and colonization of the Palestinian people seem to follow a legal perspective. However, the legal approach has several weaknesses: if it were to be pursued exclusively or presented as the main perspective of the struggle, it would be detrimental to the Palestinian cause. Firstly, the international legal system often fails to properly present state violence as a political issue. It treats it as an exclusively legal issue. 

As a result, it associates justice only with the punishment of individual perpetrators, and neither analyzes nor addresses the complex political structures, logic and dynamics that lie at the root of the problem. Secondly, international tribunals face significant restrictions – including on the perimeter of their jurisdiction – whenever they attempt to legally define and render a verdict on violence perpetrated by states that belong to the US power bloc (of which Israel is a part).

Thus, if a tribunal, such as the International Court of Justice (ICJ) or the International Criminal Court (ICC), dares to designate Israel as an apartheid state, it will be attacked by Israel’s powerful and influential allies. What’s more, their stance is unlikely to lead to any significant punitive action against Israel by the leaders of the international community, but to a watering down of the meaning of the terms used to define its violent actions.

Beyond these limitations, we must bear in mind that the international legal system was created by Western powers to protect their hegemony and serve their interests. Indeed, the legal structures on which the oppressed and marginalized are supposed to rely in the face of colonial violence, are themselves a crucial element of the political system that spawned this violence. They legitimize, maintain and actively justify colonial violence, including that of Israel against the Palestinians.

We must remember that the validity of the Palestinian cause does not depend on the recognition by judicial institutions that Israel’s violence against them is apartheid, settlement colonialism or anything else. The judicial institutions responsible for making such decisions are an integral part of the political order that paved the way for the establishment of the Israeli settlement. They are an integral part of the system that works to protect Israel and conceal its true nature and the brutality of its aggression and violence.

It is unlikely that any tribunal will accurately describe Israel’s violence and recommend meaningful reparations and sanctions to the international community any time soon. But even if Palestinians managed to maneuver through difficult political terrain and obtain a legal opinion recognizing Israel as an apartheid colonial state, this does not necessarily deliver justice. Of course, such an outcome would have a therapeutic effect on a socio-cultural level and give new impetus to the Palestinian struggle. 

However, it would not produce the desired results on the political front and would not lead to systemic change. Instead, the designations “apartheid” and “settlement” would probably be co-opted and watered down to keep Israel out of investigations, in the same way that concepts like “decolonization”, “anti-racism” or “diversity” have been watered down and emptied of substance in recent years.

For the international legal system to become a truly useful tool for the Palestinian cause, it must go through a process of radical decolonization. Palestinians can and must have a separate debate on what this process should look like, and on the strategies to achieve it. But they must never lose sight of what international law really is, and the limits of what it can do for them at present.

Justice for the Palestinian people

The Israeli occupation and colonization of Palestine are at the root of the tragedy we are observing today with great pain and sadness. One must strongly condemn all the war crimes and violence against civilians that have been perpetrated by both sides. Before being a regional conflict, or a simple war between Israel and Hamas, or a humanitarian crisis, this is the Palestinian people’s tireless quest for justice, dignity and freedom.

The UN has repeatedly recognized the injustices suffered by the Palestinian people, and international law prohibits collective punishment of any people. Alongside Nelson Mandela, who never accepted anything less than freedom and self-determination for his people, one must accept nothing less for the Palestinian people. And, echoing Mandela’s words, freedom is incomplete without that of the Palestinians. 

For every people, decolonization is the prerequisite for freedom, peace and dignity. One must raise one’s voice in favor of the decolonization of Palestine, and call for a peace based on respect for international law, justice and equality.

What international law says

Following its bloody, large-scale attack on Israeli territory, Hamas invoked the Palestinian people’s right to “resistance against illegal occupation”. Israel reacted by bombing targets linked to the Islamist movement and announcing a total blockade of the Gaza Strip, in the name of its right to defend itself.

Beyond the terrible armed confrontation, which has already claimed more than 17,000 lives on both sides and is the focus of observers’ attention at this stage, we are also witnessing the mobilization by both sides of legal arguments based both on their respective national laws and on their radically divergent interpretations of international law.

First of all, it should be remembered that international law is binding on the various players in the conflict. This international law clearly establishes that Gaza, the West Bank and East Jerusalem are occupied Palestinian territories, and that the Fourth Geneva Convention (relative to the protection of civilian persons in time of war) and the principles enshrined in the 1907 Hague Regulations, which establish what is known as the law of occupation, must be applied there.

This immediately raises the question of the compatibility with international law of a series of measures adopted by Israel in these territories. This question has long been the subject of fierce discussion and debate. The Israeli government strives to demonstrate that its management of these territories does not contravene international law. To do so, it traditionally puts forward security imperatives, to the detriment of the rights of Palestinian civilians, or historical arguments.

When decisions such as the establishment of settlements in these territories are taken, Israel claims that international law allows it to do so, relying in particular on its own interpretation of the provisions of the 4th Geneva Convention – interpretations that are regularly challenged by UN resolutions and the International Court of Justice (ICC), which make it clear that Israeli settlements are violations of international law.

Hamas invokes resistance to occupation. International law states that a people under occupation have the right to resist it. But this resistance must take place within the limits authorized by international law. And clearly, what Hamas did on October 7 was a flagrant violation of all the elementary rules of international law, which forbid in particular the direct targeting of civilians – and yet the Hamas operation mainly targeted civilians, whether by indiscriminate rocket fire on civilian localities, mass murder of civilians or hostage-taking. 

As for Israel, it naturally has the right to take the measures, including military measures, necessary to ensure the protection of its population, and thus to put an end to the Hamas attacks. This right is recognized by the law of occupation, which I mentioned earlier, and by the law of armed conflict. But, here too, its action must remain within the limits specified by international law, which proscribes strikes that target civilian targets and populations, or have disproportionate effects between the military benefits and the effects on civilians.

As far as the siege of the Gaza Strip is concerned, there is no specific rule in international law prohibiting sieges as such. But the effects of a siege can very quickly become illegal. When water and electricity supplies are cut off, as well as food and petrol, in addition to the military blockade that has already been in place for years, it can very quickly have deleterious effects that contravene humanitarian law and human rights.

The peace process

The process of negotiating an Israeli-Palestinian peace agreement has been more subject to political pressure than to the requirements of international law. Several resolutions submitted to the UN General Assembly in the early 1980s called for an international peace conference to be convened under UN auspices, but these were only supported by a minority of states. Gradually, however, more and more states, and in particular Western states (with the exception of the USA), began to change their position. By 1989, a large majority of UN members, including Canada and most Western countries, adopted a resolution calling for an international conference convened by the UN to resolve the conflict.

The protection of the rights of the Palestinian people was enshrined in the process, and these rights were the guiding principles of the resolution. These principles included the right of return of displaced Palestinians, the right to self-determination and the illegality of Israeli settlements in the territories occupied militarily in 1967.

This approach was abandoned in 1991, however, when the USSR and the United States convened a conference in Madrid, favoring negotiations between the two parties rather than an international conference. The disadvantage of this approach is that it has relegated the international community to the background, and that it was unable to ensure that the agreements reached respect the guidelines set by international standards.

As a result, at the Madrid talks, it was the balance of power between two parties of very unequal strength that was to be the determining factor in the outcome. The United States, which co-sponsored of the Madrid talks, insisted that the UN and the Security Council should stay out of the negotiations, even going so far as to demand that the UN refrain from adopting resolutions condemning Israel when the Hebrew state contravened international law through its policy of fait accompli on the ground.

John Quigley notes that the U.S. considered any resolution condemning Israel to be interference in the Madrid talks, while most UN members felt that Israel’s illegal actions were likely to influence the outcome of the negotiations and were therefore not constructive.

The Oslo process pushed this logic even further, leaving the balance of power between the two parties decisively determine the compromise solution, without regard to international law. This imbalance has been aggravated by the fact that the United States is both the “mediator” of the process and the most faithful “supporter” of Israeli demands. Therefore, the United Nations should therefore re-engage in the peace process to increase the chances of reaching a settlement based on international law.

Human rights violations

At present, relations between Israelis and Palestinians are extremely tense and accompanied by, serious human rights violations by all parties to the conflict. These violations are perpetrated by the occupying power (mainly against the civilian population under occupation and, to a much lesser extent, against the non-Jewish population of Israel), as well as by the Palestinian Authority (mainly against its own population) and by various non-state actors: settlers against the Palestinian population and radical Palestinian groups who have committed murderous attacks against Israeli civilians. 

Various international organizations have documented these violations. Human Rights Watch, Amnesty International and the International Federation of Journalists have published exhaustive and authoritative reports on this subject. 

Among local organizations, both Israeli and Palestinian groups have monitored the situation and published reports, sometimes under extremely difficult conditions. The aim here is not to list these violations, still less to analyze or identify who is doing what, and to measure the degree of reliability of these sources.

We note that the prevailing climate of violence further compromises any possibility of reasonable discussion of the issues at stake. We also note that the impact of these violations is not symmetrical. The violence affecting Israeli society has claimed many civilian victims and generated a permanent sense of fear and insecurity among the entire population. On the Palestinian side, the violence deployed to maintain the military occupation has resulted in a greater number of civilian casualties (three times as many in the last two years).

Furthermore, the policies of the occupation (which do not always take the form of physical violence), combined with the violence used to maintain the occupation, have strangled the Palestinian economy, destroyed part of the social and material infrastructure and blocked any prospect of social and economic development. The fundamental to self-determination is still denied. This is why it is imperative to seek ways of resolving the conflict that are as consistent as possible with the spirit and letter of international law.

The right to self-determination in international law

The right of peoples to self-determination is clearly recognized in international law in several instruments. Article 73 of the Charter of the United Nations states that: 

“Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:

a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;

b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;

c. to further international peace and security;

d. to promote constructive measures of development, to encourage research, and to cooperate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and

e. to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply.”

The right to self-determination has been asserted in two classic situations. The first scenario is that of a colony wishing to free itself from the tutelage of the colonial power. Article 73 of the UN Charter deals precisely with this situation. In the second case, it’s a minority (ethnic, religious or linguistic) within a state seeking to acquire a degree of autonomy from that state. In this scenario, the people who aspire to autonomy are citizens of the state, but they want a greater degree of power to administer their own affairs. Autonomy can take the form of self-government within the existing state (meaning that the people aspiring to self-determination is still part of the larger political entity that confers the rights associated with citizenship), or the form of a new, totally independent state.

Conclusion: the urgent necessity of mutual recognition

A rights-based approach would make the promotion of mutual recognition an essential condition for peace. While any viable solution will necessarily necessitate mutual recognition on the part of both states, it cannot be over-emphasized that a clear recognition by both parties to the conflict of the other’s right to an independent state would greatly facilitate the search for a solution. 

Both the Palestinian Authority and the Palestinian Legislative Council had recognized Israel’s right to exist, as have the vast majority of UN member states. However, on the part of the State of Israel, there is no recognition that the Palestinians have the right to exist and have the right to their own state. The Israeli cabinet reluctantly adopted a resolution to this effect in May 2003, but the Knesset has never approved such recognition.

Moreover, even the Israeli cabinet’s decision refers to a state that does not have all the attributes of state sovereignty. The right of Palestinians to have a state that enjoys attributes of state sovereignty must be part of any permanent solution.

A rights-based approach to conflict resolution must respect international law, and in particular the Fourth Geneva Convention, which protects the rights of civilian populations under military occupation by another state. A peace agreement that legalizes the presence of illegal settlements by transferring territory acquired by war to Israel would in itself be a violation of the norms underlying international law, and could only be applied against the will of the indigenous population, and only by coercive and punitive means.

A position based on international law should therefore call for the illegally annexed areas of the West Bank to be returned to the Palestinians, and that the principles put forward at the Taba meeting be applied to East Jerusalem. The Old City of Jerusalem should be the subject of a separately negotiated agreement, establishing its status and guaranteeing freedom of access to the Holy Places for believers in the three great monotheistic religions.

The refugee problem is probably the most difficult to solve, not because international law is unclear on the subject, but because the current balance of power does not allow for the imposition of a fair settlement. Such a settlement would raise the question of the nature of the Israeli state. The Israeli state: is it a state for all its citizens, or a Jewish state? A solution that is in line with international law could only call into question Israel’s “ethnico/religious” character and the fundamental distinction it makes between Jewish and non-Jewish citizens, who do not enjoy the same rights as Jewish citizens, either de jure or de facto.

It was resolution 194 (III) of the UN General Assembly, adopted on December 11, 1948, which recognized Palestinian refugees’ right of return. 

Paragraph 11 of the resolution states: “…refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or equity, should be made good by the Governments or authorities responsible.”

Since then, Resolution 194 has been reaffirmed many times by all or almost all member states – the only exception has always been Israel. The United States supported the resolution in 1948, and continued to support it in principle at least until the start of the Oslo process in 1993 but has since ceased to see it as an important part of the solution to the conflict. The right of return recognized in Resolution 194 is absent from the “roadmap” presented by the United States in May 2003.

Moreover, article 13 of the Universal Declaration of Human Rights stipulates that “everyone has the right […] to return to his country“:

1. Everyone has the right to freedom of movement and residence within the borders of each state.

2. Everyone has the right to leave any country, including his own, and to return to his country.

Security Council Resolution 242 also refers to the refugee question and affirms the need for “a just settlement of the refugee problem” (2(b)).