International Law and the Palestinian Cause: Between Texts and Application

International Law and the Palestinian Cause:
Between Texts and Application

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:

• 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

• 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

• 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

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:

• 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

• 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

• 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

• 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

• 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

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.

• 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

• 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

• 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

• 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

• 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.

• 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

• 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

• Legal Challenges

  • Lack of full control over borders

  • Presence of Israeli occupation

  • Internal Palestinian division

  • Restrictions on exercising sovereignty

• Accession to International Organizations

  • UNESCO: Full membership 2011

  • International Criminal Court: Accession 2015

  • Accession to 50 international conventions

  • Participation in international conferences

• Legal Consequences of Recognition

  • Right to file international lawsuits

  • Participation in international decision-making

  • Protection of diplomats

  • International responsibility

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.

• 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)

• 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)

• Legal Consequences of Accession:

  • Acquisition of international legal personality

  • Ability to file international complaints

  • Commitment to implement international standards

  • Accountability before international bodies

• 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

• Achievements:

  • Growing international recognition

  • Documentation of Israeli violations

  • Increased international awareness of the cause

  • Building international alliances

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.

• 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

• 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)

• 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

• Pending Border Issues:

  • Mediterranean Sea borders and Exclusive Economic Zone

  • Gaza borders with Israel and Egypt

  • Dead Sea borders

  • Border crossings and border areas

• 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.

• 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

• 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

• Duties of the Occupying Power:

  • Maintenance of order and security

  • Respect for civilian population rights

  • Preservation of public property

  • Provision of basic needs

• Rights of Protected Persons:

  • Protection from violence and torture

  • Right to fair trial

  • Right to healthcare

  • Preservation of cultural identity

• Violations by Israeli Occupation:

  • Demographic changes

  • Transfer of civilian population

  • Illegal confiscation of lands

  • Restrictions on population movement

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.

• 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)

• 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%

• Consequences of Settlements:

  • Fragmentation of Palestinian territories

  • Drainage of Palestinian natural resources

  • Violation of Palestinian economic rights

  • Obstruction of Palestinian statehood

• International Positions:

  • Multiple Security Council resolutions

  • Rejection by the European Union

  • Consistent UN position

  • Reports by human rights organizations

• Legal Responsibilities:

  • Israel’s international responsibility

  • Individual responsibility of settlers

  • Responsibility of supporting states

  • Responsibility of companies operating in settlements

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.

• 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

• 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

• 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

• 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

• 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

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.

• 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

• Mineral Resources:

  • Natural gas reserves in the Mediterranean Sea

  • Oil reserves in the Dead Sea

  • Minerals in Palestinian territories

  • Precious stones and minerals

• 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

• 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

• 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.

• Documented Violations:

  • Attacks on civilians and collective punishment

  • Unjustified destruction of homes and properties

  • Administrative detention without trial

  • Disproportionate use of lethal force

• 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

• 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

• Violations in West Bank:

  • Daily arrests

  • Continuous land confiscation

  • House demolitions under various pretexts

  • Restriction of movement between cities and villages

• International Monitoring Mechanisms:

  • Reports of UN Special Rapporteurs

  • International Independent Commission of Inquiry

  • International human rights organizations

  • International Committee of the Red Cross

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.

• 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

• 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

• 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

• Comparison with South Africa:

  • Similar permit system

  • Bantustans similar to settlements

  • Discriminatory land ownership laws

  • Suppression of peaceful resistance

• Legal Consequences:

  • Individual responsibility of political leaders

  • International responsibility of Israel

  • Duty of other states not to cooperate

  • Jurisdiction of the International Criminal Court

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.

• 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

• 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

• 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

• 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

• 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

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.

• 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

• Legitimate Forms of Resistance:

  • Popular peaceful resistance

  • Armed resistance within international law constraints

  • Economic and academic boycott

  • Legal and diplomatic advocacy

• Legal Regulations:

  • Distinction between military and civilian targets

  • Proportionality in use of force

  • Prohibition of random attacks

  • Ban on use of prohibited weapons

• 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

• 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.

• 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

• 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

• 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

• 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

• Future Prospects:

  • Potential issuance of arrest warrants

  • Expanded field investigations

  • Increased international pressure

  • Strengthening international rule of law

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.

• 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

• General Assembly:

  • Issuance of resolutions and recommendations

  • Convening special sessions

  • Establishment of international commissions of inquiry

  • Granting Palestine non-member observer state status

• Human Rights Council:

  • Universal Periodic Review mechanism

  • Special Rapporteur on human rights situation

  • International Independent Commission of Inquiry

  • Fact-finding missions

• International Court of Justice:

  • Jurisdiction in disputes between states

  • Advisory opinion on separation wall (2004)

  • Adjudication of legal disputes

  • Interpretation of international conventions

• Specialized Bodies:

  • International Labor Organization

  • World Health Organization

  • UNESCO

  • International Atomic Energy Agency

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.

• Forms of International Responsibility:

  • Responsibility for unlawful acts

  • Responsibility for breach of obligations

  • Contractual responsibility

  • Tort responsibility

• Types of International Sanctions:

  • Political and diplomatic sanctions

  • Economic and trade sanctions

  • Military and security sanctions

  • Judicial and legal sanctions

• Mechanisms for Implementing
  Responsibility:

  • Official apology and compensation

  • Restoration of previous situation

  • Guarantees of non-repetition

  • International criminal prosecutions

• Obstacles to Implementation:

  • Absence of international enforcement power

  • Imbalance of power

  • Double standards in international relations

  • Political and economic pressures

• Ways to Enhance Accountability:

  • Activation of universal jurisdiction

  • Strengthening role of non-governmental organizations

  • Utilizing regional mechanisms

  • Building supportive international alliances

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.

• 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

• 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

• Working Mechanisms:

  • Submitting reports to international bodies

  • Filing complaints to courts

  • Organizing media campaigns

  • Pressuring governments

• Challenges:

  • Limited funding and resources

  • Political pressures

  • Restrictions on field work

  • Counter-campaigns

• 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.

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

Legal Recommendations:

1. Activation of universal jurisdiction to prosecute war criminals

2. Increased use of international judicial mechanisms

3. Enhancing Palestine’s accession to international organizations

4. Systematic and continuous documentation of violations

5. Building Palestinian legal capacities

Political Recommendations:

1. Strengthening Palestinian national unity

2. Building supportive international alliances

3. Activating economic pressure tools

4. Developing diplomatic strategy

5. Enhancing regional coordination

Recommendations for International Community:

1. Ending double standards in law application

2. Supporting international accountability mechanisms

3. Imposing sanctions on violations

4. Supporting Palestinian state institutions

5. Fulfilling international legal obligations

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.

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Mohammed Ahmed Abu Taha
Researcher in International Law and International Relations