International Court of Justice (ICJ) in The Hague, Netherlands, Aug. 28, 2013.
Peace Palace, seat of the International Court of Justice (ICJ) in The Hague, Netherlands, Aug. 28, 2013. Photo by AP
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“I was the minister of justice. I am a lawyer … But I am against law – international law in particular. Law in general.” This statement was made by Tzipi Livni during Israel’s negotiations with the Palestinians in 2007, as leaked in the documents that were obtained and publicized by Al Jazeera two years ago. Livni’s declaration – which came in wake of the Palestinians’ request that the negotiation documents include a reference to international law – illustrates the Israeli attitude regarding international law vis-a-vis the peace process: It would be best for it to just disappear.

International law can often be subject to different interpretations, be used to give a stamp of approval to various injustices, and be part of the problem rather than the solution. But the Palestinian request to stipulate that international law be one of the bases for negotiations was clearly motivated by the view that, in terms of the Israeli-Palestinian conflict, the standard interpretation of contemporary international law points mainly in one direction: It prohibits the acquisition of territory by force; recognizes the right of people living under foreign rule to self-determination; and prohibits an occupying country from settling its population in the occupied territory.

All of this seems to indicate that if international law were being followed, the Palestinians would have the right to freely determine their fate in “occupied Palestinian territory” (that is the official term used to describe the West Bank and the Gaza Strip), Israel would have no sovereign right in that territory, the and the settlements would be deemed illegal and could not serve as a “pretext” for the annexation of territory to Israel.

These are the legal positions the International Court of Justice in The Hague adopted when it discussed the issue of the separation barrier, and even though the committee headed by former Supreme Justice Edmond Levy (appointed by the Israeli government to explore the legalization of unauthorized outposts) adopted the opposite position in its findings in 2012, its stance is not accepted by most experts in international law.

However, the Israeli position, reflected in that quote from Livni, is not to conduct negotiations in accordance with international law. This might seem to be a reasonable, pragmatic approach that gives preference to discussion and compromise between the parties in order to attain good and viable solutions, without an obligation to adhere meticulously to legal principles. But in reality, in the Israeli-Palestinian context, this is not what abandoning international law really means: What it means is that negotiations shall be conducted in a framework in which there is an imbalance of power between the parties, in a way that affects the situation on the ground and theresults.

Thus, the Oslo Accords, for instance, left the power to decide about significant matters in the hands of Israel. They gave the Palestinians certain authorities, but not power. In various areas such as economics and jurisdiction, the accords further entrenched the inequality between occupier and occupied. Thus Israel maintained the authority to try Palestinians that harmed Israel or Israelis, but the Palestinians did not receive similar authority in relation to Israelis who harmed Palestinians.

Above all, the agreements did not expressly prohibit continued settlement activity. Moreover, because it was determined that the settlements would be one of the issues to be agreed upon in a final status accord, Israel was able to use that as an excuse when confronted with claims about the illegality of the settlements, as if the Palestinians’ consent to discuss them later effectively allowed their authorization in the meantime, and nullified the prohibition of such as stated in the Geneva Convention.

The same goes for the issue of the quarries in the territories: In 2011, when Israel’s High Court of Justice ruled on the issue of the quarries Israel had built, whose output is transported to Israel for construction purposes – it recognized that there are serious questions about whether construction of new quarries and their use by an occupier is legal. The High Court considered that this could constitute an infringement of the resources of the occupied territory, which the occupying country is prohibited from doing. However, the High Court did ultimately authorize the quarry operations, in part on the basis of the fact that, as set out in the Oslo Accords, the issue of the quarries’ future was to be discussed later by Israel and the Palestinians.

This conclusion failed to take into consideration interim agreements that said that authority over the quarries was to gradually be transferred to the Palestinians, and that in the absence of final status negotiations, the Oslo Accords were not to authorize permanent Israeli control of them. This instance illustrates how reliance – even if problematic, as in this case – on decisions in negotiations that are not based upon the principles of international law can lead to authorizing dispossession by the party that has the upper hand.

The story of the High Court ruling on the quarries illustrates how, under the cover of a temporary occupation regime operating in the shadow of negotiations, creeping annexation of the West Bank and its resources is occurring, and how the occupying country is exploiting the natural resources of the occupied population. In rejecting a request for a further hearing on this matter, the High Court stressed that “the fact that the activity of the quarries in Area C [under total Israeli control] was explicitly anchored in the interim agreement between Israel and the Palestinian Authority, and left to future negotiations between the parties on a final status agreement, was sufficient to issue a rejection of the petition to the High Court.”

This statement repeatedly ignored the fact that, according to the accords, authority over the quarries was supposed to be gradually transferred to the Palestinians, and that agreements between occupier and occupied cannot supplant international law. In fact, international law does not permit the rights of residents of the occupied territory to be reduced by agreements signed with the occupying country: The Geneva Convention stipulates that people cannot give up the rights it guarantees them even by means of agreements, with the understanding that such agreements between an occupying country and a local occupied population are created under conditions of inequality from the outset.

What can we learn from this about the relationship between the peace process and international law? It appears that without a commitment to those directives that are supposed to apply to the occupied territory – at the basis of which is the Palestinians’ right to self-determination, the illegality of the settlements and Israel’s lack of legitimate claim of sovereignty – peace negotiations become a place in which it possible, when they are dragged out for years, for facts (like the separation barrier, the settlements, the quarries, and more) to be established on the ground, while the negotiations themselves and the Oslo Accords serve as an excuse to avoid respecting Palestinian rights.

International law is not a panacea, but in the present situation, and considering the present balance of power, adherence to the Palestinians’ rights as derived from it as a basis for any agreement – which the Palestinians demanded and Livni refused – sounds much more reasonable. So, even if in theory, negotiations can lead to good practical agreements on both sides, without close adherence to the law (as in the case of territorial exchanges, for instance), in light of the context and after many years of experience – if we want to keep the “peace process” from once more becoming a cover for exploitation and dispossession, the rights granted to the Palestinians by international law should be immediately implemented, without being subordinated to negotiations colored by an imbalance of power.