For where no law is, there is no transgression.
Romans 4. 15
President Obama’s most immediate foreign policy challenge is to determine how to deal with the recent Israeli action in Gaza, and with the broader conflict between the Israelis and Palestinians. Israel’s partial-withdrawal from Gaza appears to have been timed to coincide with President Obama’s inauguration, rather than to answer any of Israel’s security concerns. Clear international standards for resolving intra-state group conflicts are required if the longest-standing problem in the Middle East is ever to be resolved.
While the application of international law is no panacea, nor an excuse for unlimited intrusion into a state’s sovereignty, what is beyond doubt is that the uncertain legal status of Palestinian residents makes continued violence in Gaza, the West Bank, and East Jerusalem likely. The Israeli attack on Gaza is an example of what happens in the absence of an international forum that can assist states to implement their human rights obligations.
The continued ethnic violence within Israeli jurisdiction begs the question: what exactly is the status of Palestinians who reside within so-called Occupied Palestinian Territories? Numerous international legal instruments have recognized the right of the Palestinians to self-determination. However, despite the publication of President Bush’s so-called Road Map for Peace, there remains ambiguity about the procedure by which Palestinians may obtain self-determination. The delay in implementing the Road Map has contributed to the cycle of Hamas-sponsored rocket attacks against Israel, and the retaliatory Israeli invasion of Gaza, which has produced yet another round of violence.
A brief review of history helps us to understand the confusing legal status of the Palestinians. Israel was established shortly after the end of the Second World War, with the support of the victorious Western Allies, as well as a majority the United Nations’ (UN) General Assembly, which in its Resolution 181 proposed a partition plan for the region. Currently, ‘the Quartet’ (Russia, the US, the European Union and the UN) plays an important mediating role for the area.
Early international efforts in the region proposed that Jews and Palestinians live together within a single state called Palestine. For example, the 1917 Declaration by the British Foreign Secretary and former Prime Minister Arthur Balfour, together with the Mandate for Palestine (24 July 1922), envisaged both groups being placed under the jurisdiction of a single state. It was not until 1937 that a British Royal Commission of Inquiry (the Peel Commission) concluded that it was necessary to sunder Jews and Palestinians into separate states. This was deemed necessary to prevent Palestinian opposition to the increasing Jewish migration from igniting inter-group violence. UN Resolution 181 (1947) authorized a partition of the region into separate Jewish (Israel) and Arab (Palestine) states.
Partition, or the so-called ‘two-state solution’, remains the goal of multiple UN Resolutions (181, 242, 338, & 3236), as well as the Camp David Accords (1978), the Oslo Accords (1993), and the current Roadmap for Peace.