International Law and the Palestinian Cause: Between Texts and Application

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Introduction: The Problematic of the Study
The Palestinian cause represents one of the most complex international issues legally, as it constitutes a unique case where historical, political, and legal dimensions intersect. Despite the passage of more than seven decades since the Palestinian Nakba in 1948, Palestine continues to witness an existential struggle between a people seeking their legitimate right to self-determination and an occupying state that continues its expansionist settlement policies.
In this context, international law emerges as a fundamental reference framework for assessing the legitimacy of various positions and actions. However, the implementation gap between legal texts and political reality remains wide and raises questions.
This study aims to analyze the international legal framework regulating the Palestinian cause and clarify the law’s position on Israeli practices in the occupied Palestinian territories.

Research Problem:
To what extent can international law serve as an effective tool in protecting Palestinian rights, given the absence of effective implementation mechanisms and the continued non-compliance by the occupying state?
Study Methodology:
The study relies on the critical analytical approach, supplemented by the comparative approach at certain stages, through analyzing international legal texts and their practical applications in the Palestinian cause.
Study Structure:
The study is divided into five main chapters, beginning with the historical and legal framework, then Palestine’s status in international law, followed by the issue of occupation and settlement, then international humanitarian law, and concluding with international accountability mechanisms.

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Chapter One: The Historical and Legal Framework of the Conflict
1.1 The Ottoman Era and the British Mandate
The Ottoman era formed the historical period immediately preceding the emergence of the conflict over Palestine. This period lasted for four full centuries, during which Palestine was an integral part of the Ottoman State, without any separate or distinct political entity.
With the collapse of the Ottoman Empire after World War I, Palestine transitioned to the British Mandate under the Mandate Charter of 1922, which confirmed the Balfour Declaration to establish a “national home for the Jewish people” in Palestine. This period witnessed the beginnings of a stark contradiction between British promises to the Zionist movement and the natural rights of the Palestinian people.
From a legal perspective, this period can be analyzed through the following axes:
First: The British Mandate Charter for Palestine

• The Mandate Charter was ratified by the League of Nations on July 24, 1922
• The Charter contained 28 articles, confirming the establishment of a national home for Jews
• The Charter ignored the political rights of the Palestinian people
• The Charter established a discriminatory system in land administration and immigration
  Second: The Evolution of the Legal System during the Mandate
• Continuation of some Ottoman laws
• Issuance of new British legislation
• Development of the judicial system in a varied manner
• Duality in law application between different communities
  Third: Major Legal Issues
• The issue of land ownership and property transfer
• The issue of organized Jewish immigration
• The issue of political and institutional representation
• The issue of unbalanced economic development

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1.2 Partition Resolution 181 and its Legal Analysis
On November 29, 1947, the United Nations General Assembly issued Resolution 181 calling for the partition of Palestine into a Jewish state and an Arab state. Although this resolution was not legally binding, it set an important precedent in the international handling of the Palestinian cause.
Legal Analysis of the Resolution:
First: Preliminary Procedures of the Resolution

• Formation of the UN Special Committee on Palestine (UNSCOP)
• Submission of the committee’s report on September 3, 1947
• Discussion of the report in the General Assembly
• Voting with the attendance of 56 member states
  Second: Main Components of the Resolution
• Termination of the British Mandate
• Division of Palestine into three entities
• Placing Jerusalem under a special international regime
• Establishment of an economic union between the two states
  Third: Geographical Distribution According to the Resolution
• Allocation of 55% of Palestine’s land to the Jewish state
• Allocation of 45% to the Arab state
• The Jewish state contained 498,000 Jews and 407,000 Arabs
• The Arab state contained 725,000 Arabs and 10,000 Jews
  Fourth: Legal Controversy Surrounding the Resolution
• Non-binding nature of General Assembly resolutions
• Violation of the Palestinian people’s right to self-determination
• Imbalance in land distribution
• Disregard for demographic rights of the Arab majority
  Fifth: Consequences of the Resolution
• Granted international legitimacy to the Zionist movement
• Set a precedent for accepting partition
• Led to the outbreak of war in 1948
• Was not fully implemented on the ground
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  1.3 Evolution of the Legal Status after the 1948 and 1967 Wars
  The 1948 war and the subsequent declaration of the establishment of the State of Israel represented a decisive turning point in the evolution of the legal status of the Palestinian cause. This war left profound legal, political, and demographic impacts that continue to this day.
  First: Immediate Legal Consequences of the 1948 War
• Israeli expansion to 78% of historic Palestine
• Displacement of more than 750,000 Palestinians
• Destruction of 531 Palestinian villages
• Division of Palestine into three entities: Israel, West Bank, Gaza Strip
  Second: UN Resolutions After the War
• General Assembly Resolution 194 (December 1948) concerning the right of return
• Admission of Israel to the UN with conditions (Resolution 273)
• Confirmation of non-applicability of Israeli sovereignty over occupied territories
• Confirmation of the status of Palestinian refugees
  Third: Legal Implications of the 1967 War
• Israeli occupation of the remainder of Palestine (West Bank, Gaza)
• Occupation of other Arab territories (Sinai, Golan)
• Issuance of UN Security Council Resolution 242
• Application of the Fourth Geneva Convention to occupied territories
  Fourth: Legal Status of Territories Occupied in 1967
• Considered “occupied territories” under international law
• Illegality of settlement therein
• Non-applicability of Israeli law to them
• Continued application of the Fourth Geneva Convention
  Fifth: Palestinian Constitutional Developments
• Establishment of the Palestine Liberation Organization 1964
• Declaration of Independence 1988
• Establishment of the Palestinian National Authority 1994
• Palestinian Basic Law 2002

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Chapter Two: Palestine’s Status in International Law
2.1 International Recognition of Palestine as a State
Recent years have witnessed a notable development in Palestine’s legal status on the international stage, as it has gained widespread recognition as a sovereign state, though some challenges remain in the practical implementation of this recognition.
First: Evolution of International Recognition

• 139 states recognized Palestine as a state by 2023
• Palestine accepted as UN non-member observer state in 2012
• Palestine’s accession to specialized international organizations
• Establishment of diplomatic relations with most world countries
  Second: State Criteria in International Law
• Permanent population: The Palestinian people
• Defined territory: West Bank and Gaza Strip
• Effective government: Palestinian National Authority
• Capacity to enter international relations: Diplomatic representation
  Third: Legal Challenges
• Lack of full control over borders
• Presence of Israeli occupation
• Internal Palestinian division
• Restrictions on exercising sovereignty
  Fourth: Accession to International Organizations
• UNESCO: Full membership 2011
• International Criminal Court: Accession 2015
• Accession to 50 international conventions
• Participation in international conferences
  Fifth: Legal Consequences of Recognition
• Right to file international lawsuits
• Participation in international decision-making
• Protection of diplomats
• International responsibility

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2.2 Accession to International Conventions and Organizations
Palestine’s accession to international conventions and organizations represents an important step in enhancing its international legal status, enabling it to use international mechanisms to protect its people’s rights.
First: International Conventions Joined by Palestine:

• Rome Statute of the International Criminal Court (2015)
• Four Geneva Conventions (2014)
• International Convention on the Elimination of Racial Discrimination (2014)
• Convention Against Torture (2014)
• Convention on Elimination of Discrimination Against Women (2014)
• Convention on the Rights of the Child (2014)
• Convention on the Rights of Persons with Disabilities (2014)
  Second: Specialized International Organizations:
• United Nations Educational, Scientific and Cultural Organization (UNESCO) 2011
• World Health Organization (Observer)
• Food and Agriculture Organization (Observer)
• International Atomic Energy Agency (Observer)
  Third: Legal Consequences of Accession:
• Acquisition of international legal personality
• Ability to file international complaints
• Commitment to implement international standards
• Accountability before international bodies
  Fourth: Practical Challenges:
• Limited implementation capacity due to occupation
• ICC’s inability to enforce its decisions
• Political obstacles in some organizations
• International pressures to withdraw from accessions
  Fifth: Achievements:
• Growing international recognition
• Documentation of Israeli violations
• Increased international awareness of the cause
• Building international alliances
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  2.3 Palestine’s Borders According to International Law
  International charters and resolutions clearly define Palestine’s borders, establishing a stable legal foundation for the Palestinian state, despite Israel’s ongoing attempts to alter these facts on the ground.
  First: Internationally Recognized Borders:
• Borders of the British Mandate for Palestine in 1922
• 1949 Armistice Line (Green Line)
• June 4, 1967 borders
• Partition Resolution 181 as a historical reference
  Second: Governing International Instruments:
• UN Security Council Resolution 242 (1967)
• UN Security Council Resolution 338 (1973)
• UN Security Council Resolution 478 (1980)
• International Court of Justice Advisory Opinion (2004)
  Third: Legal Status of Jerusalem:
• Special status according to Partition Resolution
• Security Council Resolution 478 regarding Jerusalem
• Non-recognition of Israel’s annexation of Jerusalem
• Consideration of settlements in Jerusalem as illegal
  Fourth: Pending Border Issues:
• Mediterranean Sea borders and Exclusive Economic Zone
• Gaza borders with Israel and Egypt
• Dead Sea borders
• Border crossings and border areas
  Fifth: Consequences of Border Violations:
• Illegality of the separation wall
• Invalidity of settlements in occupied territories
• Violation of Palestinian sovereignty
• Israel’s international responsibility
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  Chapter Three: Occupation and Settlement in the Legal Balance
  3.1 Status of the Occupied Palestinian Territories
  The Palestinian territories qualify as “Occupied Territories” according to definitions in international law, which entails a set of legal obligations for the occupying power and grants protected populations specific rights.
  First: Legal Definition of Occupation:
• Actual control over another state’s territory
• Lack of sovereignty over occupied territories
• Temporary nature of occupation
• Obligation to protect civilians
  Second: Governing International Conventions:
• Fourth Hague Convention (1907) particularly Articles 42-56
• Fourth Geneva Convention (1949) particularly Articles 47-78
• Additional Protocol I (1977)
• Hague Regulations concerning Laws of War
  Third: Duties of the Occupying Power:
• Maintenance of order and security
• Respect for civilian population rights
• Preservation of public property
• Provision of basic needs
  Fourth: Rights of Protected Persons:
• Protection from violence and torture
• Right to fair trial
• Right to healthcare
• Preservation of cultural identity
  Fifth: Violations by Israeli Occupation:
• Demographic changes
• Transfer of civilian population
• Illegal confiscation of lands
• Restrictions on population movement
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  3.2 Illegality of Israeli Settlements
  Israeli settlements in the occupied Palestinian territories constitute a blatant violation of international law, and their illegality has been confirmed through numerous international resolutions and positions.
  First: Legal Basis for Illegality:
• Article 49 of the Fourth Geneva Convention
• Article 55 of the Hague Regulations
• UN Security Council Resolution 2334 (2016)
• International Court of Justice Advisory Opinion (2004)
  Second: Settlement Statistics:
• Number of settlers: More than 700,000 settlers
• Number of settlements: 150 official settlements
• Area confiscated for settlements: 10% of the West Bank
• Annual growth rate of settlers: 3-5%
  Third: Consequences of Settlements:
• Fragmentation of Palestinian territories
• Drainage of Palestinian natural resources
• Violation of Palestinian economic rights
• Obstruction of Palestinian statehood
  Fourth: International Positions:
• Multiple Security Council resolutions
• Rejection by the European Union
• Consistent UN position
• Reports by human rights organizations
  Fifth: Legal Responsibilities:
• Israel’s international responsibility
• Individual responsibility of settlers
• Responsibility of supporting states
• Responsibility of companies operating in settlements
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  3.3 The Separation Wall and its International Legality
  The separation wall erected by Israel in the West Bank represents one of the most prominent manifestations of occupation, and has received significant international legal attention due to its profound impacts on Palestinian rights.
  First: Wall Specifications:
• Total length: 708 kilometers
• Height: Up to 8 meters in some areas
• Area of isolated lands: 10% of the West Bank
• Number of affected Palestinians: 875,000 citizens
  Second: Humanitarian Impacts:
• Isolation of 78 Palestinian communities
• Separation of farmers from their lands
• Isolation of Jerusalem from its Palestinian surroundings
• Restriction on movement of individuals and goods
  Third: International Legal Position:
• International Court of Justice Advisory Opinion (2004)
• UN General Assembly Resolution ES-10/15
• Reports by UN Special Rapporteurs
• Position of the International Committee of the Red Cross
  Fourth: Wall’s Violations of International Law:
• Violation of proportionality principle in humanitarian law
• Violation of right to self-determination
• Confiscation of Palestinian lands
• Obstruction of economic development
  Fifth: Required Legal Measures:
• Removal of the wall according to the advisory opinion
• Compensation for affected Palestinians
• Accountability for those responsible for its construction
• Implementation of UN resolutions
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  3.4 Natural Resources and Palestinian Sovereignty
  Palestine possesses significant natural resources, but the Israeli occupation prevents Palestinians from fully benefiting from them, constituting a violation of international law and rules of sovereignty.
  First: Water Resources:
• Israeli control over 85% of water sources
• Only 17% allocation to Palestinians from groundwater
• Per capita consumption difference: 300 liters/day for settlers vs. 73 liters/day for Palestinians
• Prevention of Palestinians from drilling new wells
  Second: Mineral Resources:
• Natural gas reserves in the Mediterranean Sea
• Oil reserves in the Dead Sea
• Minerals in Palestinian territories
• Precious stones and minerals
  Third: Agricultural Lands:
• Confiscation of 50% of Palestinian agricultural lands
• Destruction of 2.5 million trees since 1967
• Restriction of farmers’ access to their lands
• Land pollution from settlement industrial waste
  Fourth: Economic Impacts:
• Annual loss of $3.4 billion from resources
• Dependence of Palestinian economy on aid
• Unemployment reaching 27% in the West Bank
• Loss of sovereignty over exclusive economic zones
  Fifth: Legal Protection:
• Principle of permanent sovereignty over resources
• UN General Assembly resolutions
• UN Convention on the Law of the Sea (1982)
• Principles of international environmental law
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  Chapter Four: International Humanitarian Law and Human Rights
  4.1 Violations of International Humanitarian Law
  The United Nations and international organizations document repeated violations of international humanitarian law in the occupied Palestinian territories, constituting in their entirety systematic and organized violations of fundamental rights.
  First: Documented Violations:
• Attacks on civilians and collective punishment
• Unjustified destruction of homes and properties
• Administrative detention without trial
• Disproportionate use of lethal force
  Second: Statistics (since 2000):
• More than 10,000 Palestinian martyrs
• More than 100,000 Palestinians injured
• More than 10,000 homes destroyed
• More than 800,000 Palestinians arrested
  Third: Violations in Gaza Strip:
• Tightened siege since 2007
• Restriction on movement of individuals and goods
• Prevention of construction materials access
• Restriction of access to healthcare
  Fourth: Violations in West Bank:
• Daily arrests
• Continuous land confiscation
• House demolitions under various pretexts
• Restriction of movement between cities and villages
  Fifth: International Monitoring Mechanisms:
• Reports of UN Special Rapporteurs
• International Independent Commission of Inquiry
• International human rights organizations
• International Committee of the Red Cross
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  4.2 Apartheid System and Systematic Discrimination
  Increasing evidence indicates that Israeli policies and practices in the occupied Palestinian territories may amount to the crime of apartheid according to international legal definitions.
  First: Legal Definition of Apartheid:
• International Convention on the Suppression and Punishment of the Crime of Apartheid (1973)
• Rome Statute of the International Criminal Court (Article 7)
• Considered a crime against humanity
• Its systematic and institutional character
  Second: Manifestations of Apartheid:
• Two separate legal systems for two different groups
• Urban planning based on racial discrimination
• Unequal distribution of resources and services
• Restrictions on freedom of movement
  Third: Documented Evidence:
• Report of the UN Economic and Social Commission for Western Asia (2017)
• Amnesty International reports (2022)
• Human Rights Watch reports (2021)
• B’Tselem ongoing reports
  Fourth: Comparison with South Africa:
• Similar permit system
• Bantustans similar to settlements
• Discriminatory land ownership laws
• Suppression of peaceful resistance
  Fifth: Legal Consequences:
• Individual responsibility of political leaders
• International responsibility of Israel
• Duty of other states not to cooperate
• Jurisdiction of the International Criminal Court
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  4.3 Protection of Civilians in Armed Conflicts
  International humanitarian law guarantees special protection for civilians during armed conflicts, but this protection faces systematic violations in the occupied Palestinian territories.
  First: Basic Protection Principles:
• Principle of distinction between combatants and civilians
• Principle of proportionality in use of force
• Principle of advance warning before attacks
• Protection of civilian facilities like schools and hospitals
  Second: Documented Violations:
• Attacks on densely populated residential areas
• Use of internationally prohibited weapons
• Aerial bombardment of civilians and residential neighborhoods
• Use of civilians as human shields
  Third: Statistics (Major Military Operations):
• Operation Cast Lead (2008-2009): 1400 Palestinian martyrs
• Operation Pillar of Defense (2012): 167 Palestinian martyrs
• Operation Protective Edge (2014): 2251 Palestinian martyrs
• Operation Sword of Jerusalem (2021): 260 Palestinian martyrs
  Fourth: Special Protection for Vulnerable Groups:
• Children: More than 2200 child martyrs since 2000
• Women: More than 1800 women martyrs since 2000
• Elderly: Clear targeting during invasions
• Persons with disabilities: Difficulties in evacuation and survival
  Fifth: International Protection Mechanisms:
• UN Commission of Inquiry
• Special Rapporteur on human rights situation
• International Committee of the Red Cross
• Local and international human rights organizations
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  4.4 The Right to Resistance Between International Law and Reality
  The right to resistance represents one of the problematic aspects in international law, with differing interpretations about its legitimate forms and regulations in the context of the Palestinian cause.
  First: Legal Basis for the Right to Resistance:
• UN General Assembly Resolution 37/43 (1982)
• Article 1 of the Common Geneva Conventions
• Self-determination as a fundamental right
• Legitimacy of resisting occupation in international law
  Second: Legitimate Forms of Resistance:
• Popular peaceful resistance
• Armed resistance within international law constraints
• Economic and academic boycott
• Legal and diplomatic advocacy
  Third: Legal Regulations:
• Distinction between military and civilian targets
• Proportionality in use of force
• Prohibition of random attacks
• Ban on use of prohibited weapons
  Fourth: Debate Around Armed Resistance:
• Israeli position: Considering all resistance forms as “terrorism”
• Palestinian position: Legitimate right to resist occupation
• International community position: Varying stances
• International courts position: Unclear application
  Fifth: Popular Peaceful Resistance:
• BDS movement
• Peaceful marches at borders
• International legal activism
• Global media awareness
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  Chapter Five: International Accountability Mechanisms
  5.1 Role of the International Criminal Court
  The International Criminal Court began investigating crimes committed in Palestinian territories since 2015, and despite political and legal challenges, this investigation represents an important step toward accountability.
  First: Temporal and Territorial Jurisdiction:
• Jurisdiction over Palestinian territories since June 13, 2014
• Includes Gaza Strip, West Bank, and East Jerusalem
• Jurisdiction over crimes by Palestinians and Israelis
• No jurisdiction over crimes before accession date
  Second: Crimes Under Investigation:
• War crimes according to Article 8 of Rome Statute
• Crimes against humanity according to Article 7
• Crime of genocide according to Article 6
• Crime of aggression according to Article 8 bis
  Third: Legal Challenges:
• Israel’s objection to Court’s jurisdiction
• Debate about Palestine’s state status
• Political complexities of the case
• Difficulty in evidence collection and investigations
  Fourth: Major Developments:
• Prosecutor Fatou Bensouda’s decision to open investigation (2021)
• Determination of investigative priorities
• Requests for cooperation from concerned parties
• Issuance of arrest warrants against officials
  Fifth: Future Prospects:
• Potential issuance of arrest warrants
• Expanded field investigations
• Increased international pressure
• Strengthening international rule of law
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  5.2 United Nations Accountability Mechanisms
  The United Nations possesses a range of mechanisms and bodies that can be used to hold Israel accountable for violations of international law in the occupied Palestinian territories.
  First: Security Council:
• Primary responsibility for maintaining international peace and security
• Issuance of binding resolutions under Chapter VII
• Use of veto power by the United States
• 43 resolutions vetoed in favor of Israel since 1972
  Second: General Assembly:
• Issuance of resolutions and recommendations
• Convening special sessions
• Establishment of international commissions of inquiry
• Granting Palestine non-member observer state status
  Third: Human Rights Council:
• Universal Periodic Review mechanism
• Special Rapporteur on human rights situation
• International Independent Commission of Inquiry
• Fact-finding missions
  Fourth: International Court of Justice:
• Jurisdiction in disputes between states
• Advisory opinion on separation wall (2004)
• Adjudication of legal disputes
• Interpretation of international conventions
  Fifth: Specialized Bodies:
• International Labor Organization
• World Health Organization
• UNESCO
• International Atomic Energy Agency
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  5.3 International Responsibility and Sanctions
  International law provides a comprehensive system of international responsibility and sanctions applicable to states that violate their international obligations, including violations in the occupied Palestinian territories.
  First: Forms of International Responsibility:
• Responsibility for unlawful acts
• Responsibility for breach of obligations
• Contractual responsibility
• Tort responsibility
  Second: Types of International Sanctions:
• Political and diplomatic sanctions
• Economic and trade sanctions
• Military and security sanctions
• Judicial and legal sanctions
  Third: Mechanisms for Implementing Responsibility:
• Official apology and compensation
• Restoration of previous situation
• Guarantees of non-repetition
• International criminal prosecutions
  Fourth: Obstacles to Implementation:
• Absence of international enforcement power
• Imbalance of power
• Double standards in international relations
• Political and economic pressures
  Fifth: Ways to Enhance Accountability:
• Activation of universal jurisdiction
• Strengthening role of non-governmental organizations
• Utilizing regional mechanisms
• Building supportive international alliances
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  5.4 Role of Non-Governmental and Regional Organizations
  Non-governmental and regional organizations play a pivotal role in supporting the Palestinian cause at the international level, through documenting violations and pressing for accountability.
  First: International Non-Governmental Organizations:
• Human Rights Watch: Documenting violations and detailed reports
• Amnesty International: International campaigns and awareness raising
• International Committee of the Red Cross: Humanitarian work and legal protection
• B’Tselem organization: Systematic documentation of violations
  Second: Regional Organizations:
• Arab League: Coordinating positions and political support
• Organization of Islamic Cooperation: Collective diplomacy and international representation
• African Union: Continuous legal and political support
• European Union: Varying positions but support for international law
  Third: Working Mechanisms:
• Submitting reports to international bodies
• Filing complaints to courts
• Organizing media campaigns
• Pressuring governments
  Fourth: Challenges:
• Limited funding and resources
• Political pressures
• Restrictions on field work
• Counter-campaigns
  Fifth: Achievements:
• Increased global awareness of the cause
• Documentation of thousands of violation cases
• Support for international court files
• Exposure of international law violations
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  Conclusion and Recommendations
  Following this comprehensive analysis of the legal status of the Palestinian cause within the framework of international law, several conclusions and recommendations can be drawn that may contribute to enhancing the protection of Palestinian rights.
  First: Main Conclusions:

1. Existence of broad international legal cover for Palestinian rights
2. Continued implementation gap between texts and reality
3. Growing international recognition of Palestine as a state
4. Continued systematic violations of international law
5. Limited effectiveness of international implementation mechanisms
   Second: Legal Recommendations:
6. Activation of universal jurisdiction to prosecute war criminals
7. Increased use of international judicial mechanisms
8. Enhancing Palestine’s accession to international organizations
9. Systematic and continuous documentation of violations
10. Building Palestinian legal capacities
    Third: Political Recommendations:
11. Strengthening Palestinian national unity
12. Building supportive international alliances
13. Activating economic pressure tools
14. Developing diplomatic strategy
15. Enhancing regional coordination
    Fourth: Recommendations for International Community:
16. Ending double standards in law application
17. Supporting international accountability mechanisms
18. Imposing sanctions on violations
19. Supporting Palestinian state institutions
20. Fulfilling international legal obligations
    Fifth: Future Vision:

Achieving justice for the Palestinian people is not only a moral and legal duty, but an essential condition for regional stability and achieving just and lasting peace. Legal and diplomatic struggle must continue alongside political and popular struggle.

Mohammed Ahmed Abu Taha
Researcher in International Law and International Relations