Reflections on international law, history and the future of Israeli-Palestinian negotiations

As a lawyer who is also trying his hand as a historian, I am aware that the truth can only be reached by going beyond accepted mythologies and confronting cultures of denial. This means weighing the claims of each side impartially – something that has been done all too rarely when it comes to Israel and Palestine, despite the wise words which Edward Said wrote in 1999:

“We need to think about two histories not separated ideologically, but together, contrapuntally. Neither Palestinian nor Israeli history at this point is a thing in itself, without the other. In doing so, we will necessarily come up against the basic irreconcilability between the Zionist claim and the Palestinian dispossession. The injustice done to the Palestinians is essential to these two histories, as is also the effect of Western anti-Semitism and the Holocaust.”

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Most countries have created an approved historical narrative for their nation. Avi Shlaim, one of the most distinguished historians of the Israel/Palestine tragedy, mischievously points out that Renan, the nineteenth century French religious and political thinker, maintained that “a nation is a group of people united by a mistaken view about the past and a hatred of their neighbours”.  Sadly, such versions of history are all too frequently the narratives taught in schools the world over. But historical fact cannot be denied for ever. As more and more evidence is unearthed the incontestable truth is slowly revealed. It may not be a case of a flash of light or a smoking gun that changes our perception. Instead, to borrow some imagery from al-Ghazali, the picture we have known all along can become gradually clearer, just as the features of a man whose silhouette could only be seen at dawn become visible as the light increases.

The contested historical narratives used in nation building have something in common with the rival claims in a law suit. If two paes (like Israel and Palestine) have a legal dispute, it is for each of them to make its case. They will bring whatever arguments they can use to support their position- based on both the facts of the case and relevant points of law – and oppose them to those of the other party. It will then be for the judge – and possibly a jury – to decide which narrative is the more plausible. Points of fact and law will be ironed out in legal argument until it becomes obvious that there are holes in the arguments of one party, and that the other party’s case must therefore prevail.

The territorial entitlement and demarcation of the borders of Israel and Palestine are unlikely to be settled in the court room or by arbitration. Nevertheless, during the negotiations needed to reach a settlement, the parties will marshal their factual (i.e. very often their historical) arguments and establish their legal rights in much the same way as they would if they were preparing a case for arbitration or a court. Gradually, the areas in dispute will be narrowed down. Once rights have been established, and therefore accepted, they may be traded. That is the only way a true peace can be negotiated.

The Israeli “New Historians” faced a great deal of opposition when they challenged aspects of the official Israeli view, and still do today. Yet outside Israel, despite the best efforts of Israeli public relations teams in the country’s embassies the world over, the “New History” has destroyed the old myth that the war which led to the establishment of Israel was a contest between an Israeli David and an Arab Goliath. The international community now sees the work of writers like Avi Shlaim and Benny Morris as the mainstream narrative. Significantly, this work presents a picture based on Israeli sources which accords with the Palestinian version of events as developed by historians such as Rashid Khalidi and which is bolstered by the oral memories of refugees who were victims of the Nakba. Recently, a third strand of historical evidence – the legal archives of Britain, the USA and the UN – has been shown broadly to reflect the same story.

Let us now turn from history to law. I see a parallel between the evolution of our knowledge of the history of the Israeli-Palestinian dispute and the on-going clarification of the legal issues involved in it. Although there have always been legal scholars who attempted to grapple with the issues – and some who used their talents to support the views of one side or the other – there seemed until quite recently to be a kind of unspoken understanding that the legal issues were unclear and hopelessly contested. The strong implication was that they were wrapped up in a fog and not even worth investigating.

This enabled scholars who were supportive of a Greater Israel to dream up bogus arguments to support Israeli annexation of East Jerusalem and other occupied territories. They even argued with a straight face that the occupied territories should be considered “the disputed territories”, implying that Israel had as much a right to them as the Palestinian People. The implication was that the land and its native people were not entitled to the protection of international humanitarian law – most notably, the Fourth Geneva Convention of 1949. Even if almost all the international community opposed Israeli settlements, Israel could still present itself as acting in good faith when it built them. After all, was not its opinion of what the law said as valid as that of any other state?

In discussing the treatment by legal scholars of the end of the Mandate, the creation of Israel and the fighting that took place in 1947 -9, Victor Kattan has observed that “it would seem some scholars prefer silence, rather than critical engagement” . He trawls through a selection of some of the most authoritative textbooks on international law in English, making a further observation as he does so: “it may also be the case that [legal] scholars fear the consequences for their reputations as academics by writing on the Arab-Israeli conflict. ” The silence of many legal scholars is particularly interesting as the partition of the Palestine Mandate and the creation of Israel raised major international law issues for which there was little precedent. One would have expected academic international lawyers to be attracted to it like bees to a honey pot, rather than carefully to avoid discussing it.

Yet, as with the assessment of the historical evidence by the New Historians, things have been changing on the international law front as well. A key event was the Advisory Opinion of the International Court of Justice on The Legal Consequences Of The Construction Of A Wall In The Occupied Palestinian Territory of 9 July 2004. Israel realised that this would lead to the clarification of a host of legal issues which it would rather were not clarified. It therefore vigorously petitioned the Court to use its inherent jurisdiction not to hear the case and put pressure on a host of Western states to do the same. Many, led by the USA and the UK, also submitted written statements to the Court supporting the same position. Yet the Court went ahead and issued its opinion. It clarified beyond any serious doubt that the Fourth Geneva Convention did apply to “The Occupied Palestinian Territory” and that they were not open to acquisition by Israel. It pointed out that the wall was illegal wherever it was built on occupied land, as were Israeli civilian settlements.

The clarifications of the law in the 2004 Advisory Opinion were essential background to the successful General Assembly vote on 29 November 2012 in which the UN recognised Palestine as a sovereign but non-member observer state. The same can be said of the clarification of the history of the dispute by writers such as Kattan, Khalidi, Morris and Shlaim. As the historical narratives of the parties have increasingly been listened to in counterpoint, and the law has become clearer, the possibilities for settling this long festering dispute have increased. But there needs to be a will, as well as a way.

*John McHugo is the author of A Concise History of the Arabs to be published by Saqi in April. He is the chair of the Liberal Democrat Friends of Palestine and a board member of CAABU, the Council for Arab-British Understanding.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.