International law and the Arab–Israeli conflict

[4] In accordance with article 13 of the UN Charter, the General Assembly is obligated to initiate studies and to make recommendations that encourage the progressive development of international law and its codification.

[5] Acting in that agreed-upon treaty capacity, the General Assembly affirmed the principles of international law that were recognized by the Charter of the Nuremberg Tribunal and directed that they should be codified.

[7] In 1993 the UN Security Council "acting under Chapter VII of the Charter on the United Nations" established an international tribunal and approved a Statute that had been recommended in a report submitted by the UN Secretary-General.

In 1890, the First International Conference of American States adopted a proscription against territorial conquest and agreed upon the non-recognition of all acquisitions made by force.

The Kellogg–Briand Pact of 1928, and the League of Nations approval of the Stimson Doctrine in 1931 were efforts designed to end the practice of coercive territorial revisionism through international law.

After World War II, the principles of international law that upheld the territorial integrity of states were incorporated in the Charter of the United Nations,[11] and subsequently reaffirmed in the Declaration on the Granting of Independence to Colonial Countries and Peoples, the Organization of African Unity charter respecting the integrity of inherited boundaries, and the 1975 CSCE Helsinki Final Act which contained a proscription that boundaries could only be altered by consent.

According to communis opinio the obligations imposed by those provisions of the Charter have become part of customary international law and are binding on all States, whether they are members of the United Nations or not.

For example, the International Court of Justice advisory opinion noted that access to the Christian, Jewish and Islamic Holy Places had been protected by various laws dating back to the early Ottoman Empire, with the latest provisions having been incorporated into the UN Partition Plan, article 13 of the League of Nations Mandate, and Article 62 of the Treaty of Berlin of 13 July 1878.

[16] The 1856 Treaty of Paris declared that the Sublime Porte, the government of the Ottoman Empire, had been admitted to participate in the Public Law and System (Concert) of Europe.

Montenegro, Serbia, and Romania were recognized as new independent states and granted specific territory on condition that religious, political, and property rights of minorities were guaranteed on a nondiscriminatory basis.

The recommendation was a partition plan that would result in an Arab and a Jewish state in the remaining mandate, and Jerusalem under UN rule, was approved by the General Assembly.

However, the resolution served partially as a basis for the Israeli Declaration of Independence[citation needed] to take effect when Great Britain's mandate expired.

Several events have affected the legal issues related to the conflict: Sovereign states have the right to defend themselves against overt external aggression, in the form of an invasion or other attack.

Security Council resolution 242, emphasized "the inadmissibility of the acquisition of territory by war," setting the stage for controversy on the legal status of areas captured in 1967, and in 1948.

[citation needed] Recognizing the controversial nature of sovereignty over Jerusalem, UNSCOP recommended the city be placed under United Nations administration in the partition plan.

This amendment was approved by the General Assembly in November 1947; consistent with the respective stance of both sides regarding the partition plan-it was accepted by the Israel and rejected by the Arab states.

During, the subsequent 1948 war, Israel captured and held a western portion of Jerusalem's city limits along much of the lands relegated to the proposed Arab state laid out in the partition plan.

On October 6, 2002, Yasser Arafat signed the Palestinian Legislative Council's law making Al Quds "the eternal capital of Palestine."

Consequently, countries have established embassies to Israel's government outside of Jerusalem,[23] or only with the western section of the city recognized as legal Israeli territory.

The United Nations General Assembly has voted on a resolution bearing on issues of international law as applied to the conflict every year since 1974.

[33] In December 2003, the United Nations General Assembly passed a resolution requesting the International Court of Justice (ICJ) to make a non-binding advisory opinion on the "legal consequences arising" from the construction of the barrier.

Israel also dispatched a 120-page document, elaborating on the security needs to build the "terror prevention fence" and purporting to demonstrate the atrocities committed by Palestinian terrorists.

The document also included a judicial part with legal accounts supporting Israel's claim that the issue of the barrier is political and not in the ICJ authority.

On July 9, 2004, the International Court of Justice issued its opinion against the barrier, calling for it to be removed and the Arab residents to be compensated for any damage done.

He stated that his dissenting opinion "should not be seen as reflecting my view that the construction of the wall by Israel on the Occupied Palestinian Territory does not raise serious questions as a matter of international law."

Moreover, given the demonstrable great hardship to which the affected Palestinian population is being subjected in and around the enclaves created by those segments of the wall, seriously doubt that the wall would here satisfy the proportionality requirement to qualify as a legitimate measure of self-defence.Judge Higgins, in her separate opinion to International Court of Justice, Advisory Opinion of 9 July 2004, stated: «I also find unpersuasive the Court's contention that, as the uses of force emanate from occupied territory, it is not an armed attack "by one State against another".

The opinion was accepted by the United Nations General Assembly,[34] on July 20, 2004, it passed a resolution demanding that Israel obey the ICJ ruling.

In early 2023, the ICJ accepted a request from the UN for an advisory opinion on the legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory including East Jerusalem.

[37] Israel should cease settlement activity in the West Bank and East Jerusalem and end its "illegal" occupation of these areas and the Gaza Strip as soon as possible.

[37] The court also said that Israeli restrictions on Palestinians in the occupied territories constituted "systemic discrimination based on, inter alia, race, religion or ethnic origin", finding that Israel was in breach of article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which says: “Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.”[38] The court identified the following breaches of international law:[38] Reparations to be made included restitution, compensation and/or satisfaction, with the former said to include "Israel’s obligation to return the land and other immovable property, as well as all assets seized from any natural or legal person since its occupation started in 1967, and all cultural property and assets taken from Palestinians and Palestinian institutions, including archives and documents".