There are various theories as to why Israel is claiming/reclaiming Palestinian territory. Apartheid, political rivalry, religion, ethnic cleansing, national security to name a few. For me, the Conflict is best analogized as a case of adverse possession or “dispossession”- competing claims of ownership that breaches international obligations and; to a larger extent, a struggle for statehood.
Facts
(you may skip this part)
Historic Palestine was initially inhabited by a Jewish minority and an Arab majority.
Tension started when the British (who then controlled Palestine) issued the Balfour Declaration in 1917 which eventually led to the establishment of “national home” in Palestine for Jewish people, including those fleeing persecution in Europe during the Holocaust. Naturally, Palestinian Arabs considered the whole of historic Palestine to belong exclusively belong to them.
In 1947, the United Nations voted for Palestine to split into separate Jewish and Arab states. That plan was accepted by the Jews but rejected by the Arabs and never implemented. In 1948, British rulers declared the creation of the state of Israel.
Palestinians objected to the declaration resulting in the Arab-Israeli war of 1948. Israeli forces defeated the Palestinian militias and Arab armies in a conflict that turned approximately 700,000 Palestinians into refugees. By the end of the war, Israel possessed 77% of Historic Palestine – except West Bank, Gaza strip and East Jerusalem.
In 1967, Israel annexed East Jerusalem. The Israel Law of Return grants every Jew an automatic right to immigrate to Israel. However, Palestinian families cannot reclaim land they once owned in Jerusalem or other parts of Israel. This Law is often criticized for being discriminatory.
Every year around Eid, Israelites would use force to “reclaim” East Jerusalem and evict Palestinian families from the area. This happened most recently in May 2021. In the case of Sheikh Jarrah, the evictions are largely based on the claim that the residents have not paid rent to the owner of the properties.
Issues
1) Whether the annexation of East Jerusalem by Israel in 1967 was legal.
2) The legal status of East Jerusalem.
3) Whether the Palestinians have a right to self-determination which allows them to live in East Jerusalem or even claim ownership of the same.
4) Whether the rights of Israelite landlords subsisted in the properties in dispute.
5) Whether the use of force by Israelites is compatible with international law.
Annexation of East Jerusalem
Annexation is the acquisition of territory through the use of force. Annexation is clearly prohibited under international law and violates Article 2(4) of the UN Charter. Thus, to effectively acquire territory in and around East Jerusalem, Israel sought to circumvent the prohibition on annexation by declaring that it was “applying Israeli law and administration” to the territory and made it part of an expanded Jerusalem municipality.
Changes to territory or title resulting from the annexation have no legal effect. Thus, when Israel enacted the Basic Law: Jerusalem – Capital of Israel to legitimize Jewish supremacy, UN Security Council through Resolution 478 denounced the measure and called on member states to withdraw their diplomatic missions from Jerusalem.
But if Israel’s annexation of East Jerusalem is void, what happens to Israeli Jewish-owned property that were acquired before the split?
In Malaysia, the law recognizes the concept of “indefeasibility of title” which means that if the title is registered under your name, then you are the rightful owner of the land. Bona Fide (innocent) purchasers are equally protected under the principle of indefeasability of title. Thus, who owns the land (and therefore can sue for eviction) depends on who holds title to the land – in most cases the Jewish claimants.
The position under Israeli law may be different. According to Israeli lawyer, Robbie Sabel, Palestinian Refugees are entitled to compensation for property that was left behind in what is now Israel and likewise, Israelites or Jewish will be entitled to their property in the West Bank which will need to be abandoned when there is a Palestinian state.
Generally speaking, Israeli courts have found that the evictions are consistent with Israeli law because “Palestinians who have not paid rent had lost their status as protected tenants” and can be “displaced” as a result. This is of course, a purely rhetorical exercise.
Most countries do not recognize Israel’s sovereignty in East Jerusalem and consider the evictions a violation of international law. The United Nations considers East Jerusalem to be part of Israeli-occupied territories.
Occupation of East Jerusalem
Does being an occupying power change anything in terms of land ownership? Not at all.
Article 42 of the 1907 Hague Regulations (HR) states that a “territory is considered occupied when it is actually placed under the authority of the hostile army.
As an occupying power, Israel is entitled certain rights under the HR and the Fourth Geneva Convention. This includes seizing any movable property belonging to the state for military operations (HR, art 53). However, an occupant does not acquire ownership of immovable public property in the occupied territory since it is only a temporary administration (HR, art 55),
Nevertheless, to claim that Israel is an occupying power can be a double-edged sword. This is because while occupying powers cannot own land that is occupied or any movables seized there, they could actually legitimize acts of eviction as “occupier rights”. Further, while occupiers cannot confiscate private property, what constitutes private and public property is debatable when there is no consensus as to the legal status of East Jerusalem.
The Struggle for Statehood
The fight for territory is not just a matter of land in a physical sense, territory is also a necessary ingredient for statehood. A status that Palestine has until today, yet to achieve.
Statehood is an important concept under international law because it accords a nation (or entity) international recognition – a membership into a club of sovereign states with financial and diplomatical benefits.
Much like setting up a company, an entity must meet certain requirements in order to be recognized as a state. Article 1 of the 1933 Montevideo Convention sets out the accepted criteria of statehood. A state must possess a) a permanent population b) a defined territory, c) a government, and d) the capacity to conduct international relations.
The concept is mutually exclusive. Thus, Israelite’s growing position in East Jerusalem challenges Palestinian progress to statehood, and vice versa.
Self-Determination
At the forefront of the Palestinian argument is the concept of self-determination. Self-determination is basically the right of a people to determine their political status, economic, social and cultural development (Article 3 of the Draft United Nations Declaration on the Rights of Indigenous Peoples). The principle is backed by Article 1 of the UN Charter and the Friendly Relations Declaration.
While not a criteria for statehood, the principle is important to Palestinians in two ways. One, it allows the people of Palestine to continue having power over managing its own economic, social and cultural affairs. Two, it helps in the Palestinian lobby for statehood.
Arguments on this aspect generally focus on whether the principle is binding and whether it should be recognized by the outside world. In other words, is it enough for Palestinians to challenge status quo (and thereby eviction) based on a right of self-determination? An Opinion from the Badinter Arbitration Committee considers that the right to self-determination is “a general principle…and must not involve changes to existing frontiers at the time of independence except where the states concerned agree otherwise”.
Failing which, the Palestinians is left with a “public policy” argument.
Use of Force
Article 2(4) of the UN Charter prohibits unlawful use of force. However, not every use of force is unlawful such as when self-defence is alleged. This would apply to both the Israelites and Palestinians.
What are the consequences of breach of international law? Unlike penalties in private law such as fine or imprisonment, penalties for breach of international law come in the form of non-recognition (or non-assistance) by Third States i.e. economic sanctions and diplomatic pressure by Third States.
According to Article 40 (2) of the ARSIWA 2001, in the event of a violation of international norm, Third States must cooperate to bring an end, through lawful means, the unlawful situation. This means that all states party to the Geneva Convention, whether or not party to the armed conflict in question, are legally required to end the illegal acts arising from the Israeli-Palestinian Conflict.
Conclusion
While the Israelites are pushing for a legal case for ownership of East Jerusalem, they are most definitely compromising various international laws in the process. Further, Third States have binding legal obligations to intervene in the matter. In theory then, international intervention is not an option. Personally, I hold the view that domestic, private law should never justify grave breaches of international law and public policy, especially when there are remedies such as damages or compensation available to landlords.
(Note: This is a personal digest of the annual Israeli-Palestine conflict, and in no manner represents gospel truth or advice.)