Through the Application of The Rule of Law For the past two decades virtually every proposal to resolve the Arab-Israeli conflict has been political,...

Through the Application of The Rule of Law

For the past two decades virtually every proposal to resolve the Arab-Israeli conflict has been political, in part recognizing that neither military force nor terrorism can, in the long run, bring about agreement between the contending forces on so many complex issues. In part, however, since the end of the Cold War, the political approach has basically recognized that only the United States, the world's sole superpower, has both the influence and power to impose upon the Israelis and Palestinians a compromise settlement. Over the past decade, the U.S. has declined to employ the necessary muscle to "persuade" both parties that they are required to find the common ground for a permanent agreement or forfeit the annual cash subsidies ($3 billion for Israel, $350 million for the Palestinians) upon which they have become so dependent, not to mention the military hardware and the technologically-advanced upgrade underpinning the uninterrupted superiority of Israel's military forces in the region.
During the final months of his second term, President Bill Clinton invested considerable energy and time, as well as political capital, in seeking a solution to the conflict, but he refused to use the trump card of annual economic aid as his "Big Stick," especially in respect to the Israelis.
Domestic electoral considerations no doubt influenced that decision, even more so when George W. Bush succeeded Clinton in 2001. Since then both ideology and electoral considerations have persuaded the Bush White House to ignore the crisis for more than a year. When events finally compelled Bush to insert himself in the effort to find a solution, he demanded the removal of Arafat as the Palestinian leader while basically approving, or at least generally accepting, most of Prime Minister Sharon's responses, even though they substantially deflected the process from pursuing a peaceful settlement.
It is less than likely that the Bush Administration, so long as its policies are determined by Messrs. Cheney and Rumsfeld, will undertake a serious initiative to resolve the conflict by maximizing pressure on both parties to compromise. That being the case, world federalists ought to accept the reality of this policy default by Bush and turn their attention to the body of world law which has been developed since the Balfour Declaration of 1919, wherein the British Government pledged its honor and good name to develop a nation home in Palestine for the world's Jews. Three years earlier in 1916, however, the British and France had secretly signed an agreement to divide between them the Arab lands of the Ottoman Empire after World War I. The colonial and strategic objectives of Britain in the Middle East were to clash formidably with Lord Balfour's pledge: Britain did not take long to conclude that its major interests lay with the Arabs, who were becoming implacably hostile to the notion of a Jewish state on Arab land, albeit one which had been ruled by Ottoman Turks for four centuries.
Thus, the British Colonial Office switched gears in 1920, declining to further any progress towards a national Jewish home in Palestine, while promising to protect the interests and eventually the right of self-determination of the "non-Jewish" (read Arab) Palestinian population.
Fortuitously for Britain (and for France as well), the champion of national self-determination - Woodrow Wilson - fell ill after the Versailles Treaty Conference, while encountering bitter and unrelenting Republican Congressional opposition to the Treaty and the League of Nations Covenant. The "safeguards" insisted upon by Wilson to assure self-determination were thus transformed by practice into mechanisms assuring the expansion of colonial rule by both the British and French in the Middle East and Africa.

The League of Nations and the Mandate "Laws"
Nevertheless, an important body of international law was created in the post-war period, starting with the League of Nations Covenant. Article 22 of the Covenant established the Mandate system, under which the British and French divided most of the colonial territories of the defeated German and Ottoman Empires, ostensibly on a temporary basis, in order to prepare the inhabitants of these territories (e.g. Togo, Cameroun, Lebanon, Syria, Palestine, Iraq and the Arabian Peninsula) for self-determination. The majority of the League's Members being of European heritage, it is not surprising that the verbiage inserted in the article is highly patronizing: the Mandate Powers were assigned "the sacred trust of civilization" to advance "the well-being and development of such peoples..."
Explaining why it regarded the assignment of Mandates to European colonial powers as the "best method" for achieving these goals, the Covenant declared that it could entrust only "the advanced nations who by reason of their resources, their experience and their geographical position can best undertake this responsibility on behalf of the League (My italics). Had the United States joined the League and maintained its leadership, then perhaps these Covenant phrases would have appeared less ludicrous and hypocritical than they came to sound. Nevertheless, the Mandate Powers were clearly acting under international law (the Covenant) on behalf of the entire membership of the League of Nations - the world community of the period - and had solemnly accepted the responsibility for leading the peoples of these Mandated territories towards self-determination. (By implication, the League Members and the League itself had accepted responsibility for some degree of oversight to ensure that the Covenant's provisions were being properly implemented by the Mandate Powers. Needless to say, nothing of the sort occurred during the remainder of the League's existence).

Article 22 and the Palestine Mandate
Article 22 of the Covenant specifically observed that "Certain communities formerly belonging to the Turkish empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandate until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the election of a Mandatory." (Under this provision Lebanon, Syria, Jordan, and the much of Arabia were eventually granted self- determination.) Because the British had decided to cast their future with the Arabs, they were reluctant to undertake any move which would enhance the possibility of a Jewish national home. Two years after Versailles, the British in 1921 unilaterally subdivided the Palestinian Mandate, assigning eighty percent of the territory - everything east of the Jordan River - to a new separate Arab entity, TransJordan. Neither the Zionists nor the Palestinians, both of whose future would be drastically altered by this move, were consulted. Nor was the League of Nations, which subsequently accepted the division the following year. On July 24, 1922, the Council of the League approved a document which added considerable weight to the body of international law governing the future of Palestine - the Palestine Mandate. In Article 2, the Britain pledge to "be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home... and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion." When the League's Council approved the Palestine Mandate, it in effect pledged the backing of the world community as it then existed to enable the Palestinian people to determine their own future. Without British help over the next two decades, the Zionist movement in the Diaspora undertook to generate resources and volunteers to bolster the Jewish presence in Palestine towards the creation of a homeland. As their numbers grew, they met with increasing violence from Arabs and resistance from the British rulers. Virtually nothing was done on behalf of the Palestinian Arab's political future when World War II intervened in 1939. After that war, Britain announced that it would unilaterally withdraw from the Palestine Mandate in 1948, meanwhile doing everything in its power to assuage the Arab cause while trying to interdict the migration of Jewish Holocaust survivors from Europe to Palestine.

United Nations Partition of Palestine
Three years earlier, in 1945 the victorious nation states met in San Francisco to adopt the Charter of the United Nations Organization. The war had destroyed the League. The colonial powers were exhausted from the struggle. The U.S. and the Soviet Union - the two dominant powers - were both anti-colonial in varying degrees. Thus, the U.N. Charter reiterated the goal of transforming subject peoples into self-determining nation states. Adding to the body of international law, the Charter established the Trusteeship Council, whose responsibility it was to transform the territories formerly under the League's Mandates into self-governing entities. Backed by the Security Council, the Trustee Powers fell under the steady and critical glare of the Trusteeship Council, which ensured the steady progress of every trust Territory towards self-determination, mostly as independent governments. That is, with one major exception - the territory which comprised the League's Palestine Mandate.
Driven by the horrors suffered by the Jews during the Holocaust and perhaps by the guilt of having failed to intervene, the world community as it then existed instructed the U.N. to devise a plan which would establish a Jewish state in part of Palestine and an Arab state in the remainder. The plan proposed by the U.N. (itself a major addition to the body of international law relating to Palestine) assigned 56 percent of what was left of the Mandate to the Jewish state and the remainder to the Arab state. It left the future of East Jerusalem to the dictates of the Trusteeship Council, which was instructed to create an open international city in which both Jews and Arabs, as well as Christians, could live and work side by side. The day after the General Assembly voted on Resolution 181 by a tally of 33 to 13, with ten abstentions, to create the two states, Arab armies from Egypt, Jordan and Syria invaded the new Jewish state. After initial setbacks, the new Jewish armed forces overcame the invading forces and forced their retreat, adding considerable territory and more defensible borders to the State of Israel. After more than a year of war, the U.N. succeeded in arranging a truce between the Arabs and Israel and recognized the new borders resulting from the hostilities. However, at this point Jordan had occupied the West Bank and East Jerusalem, and Egypt remained in Gaza and Sinai.

Intractable Issues: Millions of Refugees and the Fate of East Jerusalem
Some 750,000 Arabs fled from their homes or were driven from them during the struggle. They were to multiply three-fold over the next half century, mostly languishing in horrid refugee camps in Lebanon, Syria, Jordan and Egyptian Gaza. Another segment, today totalling one million Arabs, remained in Israel as citizens, though hardly first class. The final disposition of this issue, which the Arabs regard as at least a partial "right of return" and which the Israelis regard as at most a question of compensation, has been a major obstacle to any final settlement. The question of sharing Jerusalem has been another major obstacle. In August, 2002, Teddy Kollek, the former mayor of Jerusalem, urged Israel to turn over control of East Jerusalem (the Old City) to the Palestinians.
Since the 1949 truce Israel has been subjected to frequent attacks from its Arab neighbours, at times by small infiltrating units or by terrorists, and on at least two occasions by conventional invasions from Arab armies. Following the shattering Arab defeat resulting form the 1967 Six- Day War, Israel occupied East Jerusalem, the West Bank, Gaza, Sinai and Syria's Golan Heights, having been persuaded by the United States to halt its armies one day's march from Cairo, Amman and Damascus and spare the Soviet-supported armies of Egypt and Syria. During the ensuing three decades, the Israeli Government established over two hundred settlements comprising some 400,000 Israeli settlers in these occupied territories. The settlements contravene the Fourth Geneva Convention of 1949 and intrude critically upon any potentially sovereign Arab state. As such, they are also a major obstacle to an agreement.
It was not until 1979 that Egypt and Israel signed a peace treaty, after which Israel withdrew its forces from the Sinai in 1982. In 1991, the parties signed a bilateral agreement which ultimately produced the Oslo Agreement, leading to a nascent state, the Palestine Authority. In 1994 Jordan also signed a peace agreement with Israel, settling all of their outstanding disputes. The failure of Barak and Arafat to forge a final settlement in late 2000, under the committed guidance of President Clinton, led to a total breakdown in the talks, followed by the electoral defeat of the Barak Government, which was succeeded by a hard-line prime minister, Ariel Sharon. The Palestinian response was a second intafada, escalated by round after round of violent retaliation by each side.
With the toll of blood so high and the fortunes of both sides in utter shambles, there does not now appear to be a way out of this deadlocked conflict. No important political figure on either side is prepared to lead by breaking the cycle of violence and agree to negotiate terms of compromise which would almost certainly spell the political doom of the negotiators. There is no Pierre Mendes France who would sacrifice his own future for the benefit of his countrymen. That being the case, it may become possible to shift the process to the United Nations, which is the rightful executor of the body of international law that continues to relate to the future of an independent Palestine. In addition to the League of Nations Covenant, the Palestine Mandate, the U.N. Charter and its provisions governing the Trusteeship Council, and General Assembly Resolution 181 which created the Jewish and Arab states, much lip service has been paid to U.N. Resolution 242, which orders Israel to return to an approximation of its borders prior to 1967, to relinquish most of its settlements and to find a way to compensate Arab refugees with proven claims, while instructing the Palestinians to respect the security and integrity of the State of Israel. The "resort" to international law would be a positive act in and of itself, and it would help to build further respect for the establishment of global law, not to mention enhancing the authority of the United Nations. Even American political considerations could be ameliorated by such an act. The resort to international law and assigning the peace process to the United Nations would provide the perfect fig leaf for all those who recognize that the hostilities must be halted and the peace must be crafted, but nevertheless fear the political consequences of such acts. Indeed, "blaming" international law and the U.N. for the end to suicide bombings and the beginnings of peace is not too high a price to pay.
Should the "rule of law" route be pursued, the U.N. Security Council would be within existing international law if it created a Temporary Peacekeeping entity (similar to that which supervised the process in East Timor) or if it revived the Trusteeship Council to direct Palestine's passage to self-government. Either way the U.N. would be required to marshal the experts, technicians, funds, supplies and equipment to transform the Palestinian territories into a stand-alone state. However, all such measures would come to naught unless the Security Council instructs the Israeli armed forces to withdraw from the occupied territories and interposes sufficient military forces between the Israelis and Palestinians to ensure a peaceful transition and to protect the State of Israel from suicide bombers and other terrorist attacks.