The Arab – Israeli Peace Mirage:
Legal Perspectives
Talia Einhorn
This article was published in April 2002 ( Iyar
5762) as ACPR Policy Paper No. 138.
1. The Critical Link Between Law and Peace
The Oslo Agreements signed between Israel and the
Palestinian Authority in 1993 were made with a view to enhance “a just, lasting
and comprehensive peace”. Yet, since their coming into effect the Middle East
has witnessed not peace but violence of the worst kind in recent history. This
article focuses on the rule of law which must be observed within the legal
regime of parties to peace agreements, as a pre-condition to peaceful
co-existence among them. In the absence of the necessary legal framework all
efforts to achieve peace will, at best, buy a temporary armistice, but be
rendered futile in the long run.
This article will first analyze the Arab – Israeli
conflict from the international law perspective. It will be shown that public
international law does not, and indeed cannot, offer a solution. This does not
mean that there is no peaceful solution that both Israelis and Arabs would find
desirable. But such a solution requires political will as well as a serious law
reform, some main aspects of which are analyzed hereunder.
2. The International Law Perspective and the
Peace-less Process
When Israel will say, “That’s it, no more, we
refuse to talk about Jerusalem, we will not allow the refugees to return” –
we will return to violence. But by then we will have 30,000 armed
Palestinian soldiers in our cities, on land with a large measure of
freedom... (Palestinian Authority (PA) Official Nabil Sha’ath, January 1996)
This statement made by an Arab “moderate” leader
explains in a nutshell why the chances of attaining peace in the Middle East are
so slim. This is not only rhetoric!
During the last, failed, Camp David summit (Summer
2000), Prime Minister (PM) Ehud Barak went further than any other Israeli leader
in trying to bring the Israeli – Arab conflict to an end. He offered the
Palestinians almost all of the West Bank and the Gaza Strip. In return for some
5% of those territories that Israel wished to retain PM Barak was willing to
cede territories inside pre-1967 Israel. He was willing to cede the Jordan
valley with all its thriving Jewish villages and thereby compromise Israel’s
ability to create a barrier, should security considerations so require, between
Jordan and the new Palestinian state.
In addition, PM Barak offered to accept into tiny, pre-1967
Israel some 150,000 refugees whose families had fled Israel in 1948. He was even
willing to compromise Israel’s sovereignty over large parts of the Old City of
Jerusalem, a step that was harshly condemned even by great supporters of the
peace process, such as the late Mrs. Leah Rabin, the widow of the late,
assassinated, Israeli Prime Minister. She said that Yitzhak Rabin would never
have made such a concession.
These most far-reaching proposals were rejected out of hand
by Chairman Yasser Arafat. Instead, Chairman Arafat led and supported his people
to active confrontations, the Al-Aqsa Intifada or Oslo War. The motives for the
rejection become clear when one reads the statements made by Israel’s partners
to the so-called “peace process”. One wish is to regain full control over 100%
of the West Bank and the Gaza Strip. These territories should be made “Judenrein”
(clear of Jews), and all Jewish towns and villages must be dismantled. In
addition, Israel must open up its borders to millions of Arabs who can trace
their ancestry to Arabs who resided in the territory of pre-1967 Israel.
According to data provided by the Palestinian Authority, 1
there are more than 5 million such persons. Their admission would mean that
Israel, with its 6.4 million citizens (which include a substantial minority of
almost 19% of Israeli Arabs) would cease to be the state of the Jewish People.
Israel’s Jewish population got the message: If all
Arab demands are met two more Arab states will be created between the Jordan
River and the Mediterranean Sea. One should remember that the Arabs control 99.9
percent of the Middle East lands. Israel represents only 1/10 of 1% of the
lands. The State of Israel was established first and foremost to be a homeland
to the Jewish people. The right of the Jews to return to their ancient homeland,
from which they had been driven out by force 2,000 years ago, has been
recognized by the international community. Israel provides a safe harbor for
Jews worldwide, who wish to practice Judaism openly and undisturbed, living in a
state that, inter alia, celebrates the Sabbath, rather than Friday or
Sunday, as its day of rest, and where life is free of anti-Semitic attacks on
Jews.
3. The Merits of the Arab Demands
The claim that there is a legal right to a separate
Arab state to be established in all of the West Bank and the Gaza Strip and the
further claim that all Arabs who trace their origins to pre-1967 Israel have a
right to return to Israel have no basis in international law.
3.1 The Territorial Claim
Contrary to current popular thought, there was no
Arab “Palestinian” state prior to the establishment of the State of Israel. 2
After the Jewish people had lost their sovereignty over the territory of
Israel in 70 CE (Christian Era) the territory was governed by the Romans,
Byzantines, Arab Moslems, Christian Crusades, Mamluks and Ottomans.
In 1920 the San Remo Conference formally
conferred upon Britain a mandate, which included in its terms explicitly “the
establishment of the Jewish national home”. Arab pressure and riots in
Palestine had brought about the Churchill White Paper of 1922, which again
reiterated the right of the Jews to a Homeland in Palestine, but detached all
of the area east of the Jordan river from Palestine and gave it to the
Hashemite family as an independent Arab state before the approval of the
mandate by the League of Nations. The UN famous Partition Resolution of
November 29, 1947 (General Assembly Resolution 181 (II)) was accepted by
Israel’s Jewish population but rejected by all Arab states. The Arab national
movement, which has developed in Israel alongside the Jewish one, opposed any
sharing of the country. However, it was not a UN Resolution that established
the State of Israel. Under public international law such resolutions are
recommendations without binding effect. Had Israel not defeated all Arab
armies that invaded the newly born state upon termination of the British
Mandate Israel would not have come into being.
The 1949 Armistice Agreements signed between
Israel and its neighbors made it clear that the Armistice Demarcation Lines
should not be considered as final borders. The element of “defined territory”
as a condition for statehood has always been unclear in the case of Israel. 3
In 1967 the UN removed its peacekeeping force at
the behest of Egypt’s President Gamal Abdel Nasser, precisely at the time at
which it was supposed to prevent the escalation of hostilities into war.
President Nasser then poured seven divisions of the Egyptian army into the
Sinai Peninsula. Israel’s diplomatic efforts to stop the aggression and remove
the threat to its existence failed. After weeks of mobilization, which
paralyzed the Israeli economy, Israel was finally forced to take a preemptive
action against the Egyptian air force, destroying its aircraft on the ground.
Syria and Jordan, totally unprovoked, joined Egypt and attacked Israel on June
5, opening fire all along the armistice line. The war ended with Israel’s
victory. The Sinai Peninsula, the Golan Heights, the Gaza Strip, Judea and
Samaria, also known as the “West Bank”, and the Old City of Jerusalem came
under Israeli control.
UN Security Council Resolution 242 passed in the
wake of the Six Day War, was aimed at establishing the guidelines for a
“peaceful and accepted settlement” to be agreed by the parties. Accordingly,
it affirmed that the fulfillment of Charter principles requires the
establishment of a just and lasting peace in the Middle East which should
include the withdrawal of Israeli armed forces from territories (not
necessarily all territories) occupied in 1967 as well as the
termination of all claims or states of
belligerency and respect for and acknowledgement of the sovereignty,
territorial integrity and political independence of every State in the area
and their right to live in peace within secure and recognized boundaries
free from threats or acts of force.
UN Security Council Resolution 338 which dates to
the 1973 Yom Kippur War waged by Egypt and Syria on Israel without any
provocation, reiterates resolution 242 (1967) and declares that “immediately
and concurrently with the ceasefire, negotiations start between the
parties...aimed at establishing a just and durable peace in the Middle East.”
Under the Camp David Accords Egypt regained the
Sinai Peninsula and an international border was fixed by consent between
Israel and Egypt. The peace agreement with Jordan fixed the international
border between them.
The Gaza Strip formed part of the British Mandate
until 1948. It was then administered by Egypt from 1948 to 1967, and by Israel
from 1967 until 1994, when Gaza became part of the Palestinian Autonomy. Egypt
has never claimed title to the Gaza Strip.
Judea and Samaria (the West Bank) also formed
part of the Palestine Mandate territory. Jordan occupied this territory in
1948 and attempted to annex it in 1950. The annexation was not recognized
under public international law, Britain (with a reservation regarding East
Jerusalem) and Pakistan being the only states to recognize the annexation,
which was also vehemently opposed by the Arab states. 4
In 1988 King Hussein declared that Jordan severed its legal and administrative
ties with the West Bank. Israel has never formally incorporated Judea and
Samaria, to the exclusion of East Jerusalem. The Israeli annexation of East
Jerusalem has not been recognized under public international law.
The Golan Heights were Syrian territory until
1967, although here too there were no recognized borders with Israel. Their
annexation by Israel has not been recognized under public international law.
It is therefore up to Israel and to those of its
neighbors which have not yet concluded peace agreements to agree upon
international borders between them. In 1993 the PLO signed the Declaration of
Principles which states that Resolutions 242 and 338 should provide the basis
for negotiations with Israel. These resolutions do not mandate the
establishment of a separate Arab state in Judea, Samaria and the Gaza Strip.
Neither have the interim agreements entered between Israel and the PLO
determined the question of sovereignty over these territories.
3.2 The Palestinian Claim to “Return” to Pre-1967
Israel
As a result of the 1948 war Israel absorbed some
600,000 Jewish refugees from all over the Arab world, and about the same
number of Arabs left Israel. Every war in history has yielded its share of
refugees. The novel aspect of the Jewish – Arab conflict has been provided by
the Arab countries’ deliberate refusal to absorb and integrate their refugees,
despite their vast territories and their rich oil resources. Israel, on the
other hand, absorbed the Jewish refugees without receiving any compensation
for the property that they had left behind and without any help from
international organizations. Had the Arab countries only used the property
left behind by the Jews who had fled to Israel there would have been no
difficulty whatsoever to absorb the people whom they openly declare to be
their brothers. Indeed, there is no parallel in history to an everlasting
refugees’ problem, since in the normal course of events every state absorbs
the people who share the ethnic origin in common with its citizens.
UN Security Council Resolution 242 does not
mention the Palestinians. This was no omission. The Resolution calls for “a
just settlement of the refugee problem” in acknowledgment that both sides had
their share of refugees. Indeed, the fact that there were both Jewish and Arab
refugees cannot be ignored when a final and just settlement is contemplated.
In recent years one hears often the claim that
the Palestinians are a separate people and therefore no exchange of
populations could have taken place. However, there is no “Palestinian”
language and no distinct “Palestinian” culture. Palestinians are Arabs,
indistinguishable from Jordanians, Syrians, Lebanese, Iraqis, etc. The
statement made on September 29, 1947 by Mr. Husseini, Representative of the
Arab Higher Committee, to the Ad Hoc Committee on the Palestinian Question
makes this point clearly:
One other consideration
of fundamental importance to the Arab world was that of racial homogeneity.
The Arabs lived in a vast territory stretching from the Mediterranean to the
Indian Ocean, spoke one language, had the same history, tradition and
aspirations. Their unity was a solid foundation for peace in one of the most
central and sensitive areas of the world. It was illogical, therefore, that
the United Nations should associate itself with the introduction of an alien
body into that established homogeneity, a course which could only produce
new Balkans. 5
Before 1967 Palestinians living in the West Bank
did not demand a separate right of self-determination.
4. The Preconditions for Peace in the Middle East
The above legal arguments notwithstanding, the
Jewish population of Israel has at all times wished to make peace with their
neighbors, and whatever merit the demands from Israel may have had, they were
willing to compromise and share with their neighbors.
Since 1947, Israeli leaders have, one after
another, agreed to accept programs that would bring peace in the Middle East.
Israel has had an ever-growing peace camp. The late PM Menachem Begin ceded
Egyptian territories captured during the Six Day War, the whole of the Sinai
Peninsula, in return for a peace agreement, calling for “No more war. No more
bloodshed.” Upon signing the Declaration of Principles with the Palestinian
Liberation Organization (PLO), PM Yitzhak Rabin declared on the White House
lawn: “Enough of blood and tears. Enough.” Israeli children are brought up to
understand the viewpoint of the Arabs, a task hardly ever taken up by nations in
times of conflict. PM Barak attempted to go the extra mile towards a lasting
peace by dividing Jerusalem and giving up the Temple Mount, the heart and soul
of the Jewish people.
But whereas in Israel people were rallying and
demonstrating in their hundreds of thousands in support of the peace process,
the Arab-Palestinian perception of the so-called “Peace Process” turned out to
be a very different one. Indeed, the very term “Peace Process” is a
contradiction in terms unless and until the following, elementary pre-conditions
are met.
4.1 The Need for Mutual Respect in Law and in
Deed
Immediately after the UN had adopted its plan of
partition, Mr. Saul Malik, the Lebanese Delegate, declared “If I forget thee O
Jerusalem, let my right hand wither” to which Mr. Abba Eban, the Israeli
Delegate, responded, “If you keep saying this for two thousand years we shall
start believing it.” 6
No peace agreement can bring a lasting peace in
the absence of respect for the essential needs of the other party. The status
of Jerusalem is a case in point. Jews can trace their roots in Jerusalem back
to the days of Abraham. Jerusalem has been in the hearts and minds of Jews
throughout the history of the Jewish nation. Jews the world around turn to
Jerusalem when they pray. “If I forget thee Jerusalem shall my right hand
wither, Let my tongue cleave to the roof of my mouth.” (Psalms 137:5).
In contrast, for Moslems the importance of
Jerusalem is of a completely different kind. Whereas Mecca and Medina are
mentioned many times in the Koran Jerusalem is not mentioned even once. Even
when Moslems controlled the city they never turned it into their capital. When
Jerusalem was under Jordanian control from 1948 to 1967 no foreign Arab leader
came to pray in the Al-Aqsa Mosque on the Temple Mount. The Arab demand to
have full control over Jerusalem and the Temple Mount can only be interpreted
as a demand to humiliate the Zionist enemy rather than a confidence-building
block of a lasting peace.
Holy places ceded by Israel to the PA, such as
Joseph’s Tomb and the ancient “Shalom al Yisrael” Synagogue in Jericho have
been looted and torched. They are no longer accessible to Jews. Palestinian
commanders openly stated that no Israeli would set foot in Joseph’s Tomb.
Indeed, a Jew who apparently wanted to visit the site was brutally murdered
and a group of hikers (including women and children) “suspected” of coming too
near to the Tomb, were shot at, wounded and one was killed. 7
4.2 The PA Must Renounce and Outlaw Violence
Chairman Arafat, who was even awarded the Nobel
Peace Prize just for signing the Oslo Agreements, has not renounced violence
for a single day.
Upon return from signing the agreements on the
White House Lawn in Washington, Chairman Arafat was shown on television
presiding over his people in Gaza, vowing with Kalashnikov rifles in their
hands, “With blood and fire we shall redeem you, Palestine.” From there he
continued to Johannesburg where he delivered a speech in a mosque likening the
agreement he had just signed to the Treaty of Al-Hudaibiya signed by the
Prophet Muhammad and his Meccan enemies when they were stronger than him. As
soon as Muhammad was strong enough he renounced that Treaty unilaterally,
conquered the city and put to death many of his Meccan co-signatories.
Chairman Arafat used the occasion to call upon a “Jihad”, a religious
war.
Again this is not only rhetoric. The killing of
innocent Israeli citizens through harsh and gruesome, well planned attacks has
been part and parcel of the “peace process” since its inception. Television
channels worldwide have transmitted time and again the pictures of Israeli
buses exploding together with the innocent citizens. The Palestinian “police”
(in effect, Chairman Arafat’s regular army) established under the Oslo
agreements turned the guns provided by the Israeli government against the
Israel Defense Forces (IDF), and killed without hesitation their Israeli
comrades with whom they participated in joint patrols established under the
interim agreement supposedly to protect the peace process against the enemies
of the peace. The “peace process” has been accompanied by Palestinians
targeting ambulances and school buses, killing teachers and school children,
planting deadly explosives in residential areas in the heart of Jerusalem and
other Israeli cities, and lynching innocent people who have accidentally come
their way. Israelis have been traumatized by the scope of the violence and by
the depth of hatred displayed by their “peace” partners.
On October 12, 2000, Palestinian police
participated in the lynching of two Israeli reserve soldiers who, by accident,
entered Ramallah, a city under full PA control. The lynching was filmed by an
Italian journalist and broadcast worldwide, evoking shock and horror. In 2001
innocent Israeli civilians, mainly teenagers, were killed in cold blood after
being tortured, stoned, stabbed, and mutilated beyond recognition. Numerous
Israelis fell victim to Arab road ambushes and shooting attacks. Arab suicide
bombers killed and maimed civilians targeting them in shopping malls, bus
stops, schools and school buses, restaurants, hotels, and a discotheque.
Fortunately, many attacks have been successfully thwarted.
The suffering of Palestinians, especially the
deaths of the children sent to the front line, caused anguish and
soul-searching in Israel. From the Palestinian side, Chairman Arafat has
hardly sounded a word in English against the attacks on the Israeli civil
population. Even on those rare occasions all one could hear was “I am totally
against it,” without mentioning what it was that he was against and without
any expression of sorrow over the death of the innocent. In Arabic not a word
of condemnation was heard. The official Italian Television Corporation
representative in Israel and the PA areas, published an apology on the front
page of the Palestinian newspaper Al-Hayat Al-Jadidah, in which he
claimed that the lynching in Ramallah had in fact been filmed by a “private
rival Italian TV station and not by the official Italian TV corporation”.
There is no way that the official Italian TV station was involved in any way
in the filming of the attack, “due to the fact that we abide by the correct
media working procedures with the PA and we perform our work faithfully.” 8
4.3 Education to Peace and Relinquishing
Incitement
The most noble words used in peace accords will
achieve nothing if the public, especially the young generation, is not
educated towards peace and respect of the partners to the dialogue. Indeed, in
the Interim Agreement the parties committed themselves to foster mutual
understanding, abstain from incitement and prevent incitement by any
organizations, groups or individuals within their jurisdiction. The Peace
Monitoring Center directed by Professor Itamar Marcus has studied these
matters carefully in the past years and published a series of reports covering
TV broadcasts, schoolbooks and summer camps organized by the PA for the young
ones. These studies should make all peace-supporters shudder.
To begin with, there is total denial of Israel’s
right to exist. Israel has not appeared on a single map in any schoolbook, old
or new. Its place is marked as “Palestine”. The Palestinian Authority’s
television and press have never ceased to broadcast and publish incitement of
the most virulent kind. 9
The books and programs present the whole Jewish people, past and present, as
the source of evil. The classic anti-Semitic libel blaming all Jews for the
death of Jesus has been used to spread hatred. Children are made to explain in
a distorted and defamatory way why Jews were persecuted in Europe and hated
everywhere. Although it was an Australian non-Jew who set the Al Aqsa mosque
on fire in 1969 the PA teaches through its schoolbooks that Israeli senior
officials and rabbis made the preparations for this crime and the naive
Australian Rohan was just instigated to set fire without the slightest
understanding what he was doing.
The PA organizes summer camps for children 12-16
years old. There they train to use weapons and are incited to clash with
Israelis. The training includes even slashing throats of Israelis. 10
The studies cite a Member of the Palestinian Parliament, Jamilla Zidam,
explaining:
...[t]hese camps are a realization of our
determination to mention the “tragedy” [Israel’s creation] in light of our
right to return [to the land in Israel]...these camps come to emphasize our
determined position to continue in the paths of our fallen martyrs. 11
The worst of all is the cynical use made of
children in active warfare. Rather than protect them as the Israelis do,
Chairman Arafat and his people place them in the front line and encourage them
to throw stones and rocks and create a live shield behind which adults fire
with guns and rifles at Israeli positions. Daily television and newspapers
praise Jihad (holy war). Children are taught that to be a shahid
(martyr) who murders Jewish men, women and children indiscriminately is a
virtue. The newspapers bring the stories of young martyrs who, according to
the reports, responded to the call of Allah and achieved the Martyrdom that
they yearned for, so that it would clear the way for the liberation of Al
Aqsa and Palestine from the defilement of the occupation. Even second
grade children are encouraged to take part in the riots and become martyrs. It
should be recalled that the Protocols to the Geneva Convention of 1949 set the
age below which children may not be recruited into the armed forces at 15
years. Article 38 of the UN Convention on the Rights of the Child provides
that “State Parties shall take all feasible measures to ensure that persons
who have not attained the age of fifteen years do not take a direct part in
hostilities.”
4.4 The Need for Transparent and Accountable
Governance
in the PA
Chairman Arafat’s style of governance has been
characterized by lack of transparency and lack of accountability. According to
a report of the Budget Committee of the Palestinian Legislative Council (May
1997), funds from foreign donor states were channeled through personal
accounts of Palestinian officials. Members of the Palestinian Legislative
Council have reported waste and misuse of the budget for private purposes of
ministers and officials. 12
At the same time the standard of living of ordinary Palestinians has
substantially deteriorated since Chairman Arafat’s coming into power, that
despite 2.5 billions of dollars poured by the Donor States (mainly the EU, the
US and Japan) into the PA by June 1998. PA corruption has squandered and
mismanaged the funds.13
The “Peace Process” was expected to yield peace
dividends to the Arab population of the West Bank and Gaza. To help create
prosperity the Oslo Agreements established a Customs Union with Israel. 14
The objectives of the Customs Union have been frustrated at its inception.
Rather than encourage a functioning market, the PA set up more than 100
exclusive importing agencies, or monopolies controlled by persons with close
contacts to the Chairman Arafat, some of them serving simultaneously as PA
officials. Independent Palestinian entrepreneurs lost a substantial share of
their Palestinian market. The PA-controlled monopolies thus served to transfer
income from the poorer classes to a new economic class. According to an IMF
Report (February 1997), the PA had undertaken to dismantle the import
monopolies by the end of 1998, and to bring all revenues and expenditures,
including revenues from PA commercial activities (particularly import
monopolies) under the control of the Ministry of Finance by March 1, 1997.
This has not happened until now. According to that report about one-fourth of
domestic revenues were being diverted to accounts outside of the Ministry of
Finance.
4.5 The Role of Basic Human Rights
As a precondition to accountability, the legal
system must protect individual rights and subject its authorities to open
criticism. In the Interim Agreement the parties pledged to “exercise their
powers and responsibilities...with due regard to internationally-accepted
norms and principles of human rights and the rule of law”. Human Rights Watch
and Amnesty International have both been very critical of the PA’s approach to
human rights. Human Rights activists and journalists were arrested for
criticizing the PA. Dr. Iyad al-Sarraj, the Commissioner of Human Rights, and
Bassem Eid, head of the Jerusalem-based Palestinian Human Rights Monitoring
Group, have been arrested and threatened to cease their activities. Daoud
Kuttab, a well-known Palestinian journalist and broadcaster, winner of the
1996 International Press Freedom Award of the Committee to Protect
Journalists, was arrested for broadcasting sessions of the Palestinian
Legislative Council. The Palestinian Human Rights Monitoring Group further
charged that Chairman Arafat’s security forces systematically tortured and
mutilated detainees. 15
It has also been charged that the Chief of the Preventive Security Service has
exercised censorship over the Al-Quds newspaper through almost daily
contact with the managing editor, who seeks approval for all articles critical
of the PA. The series of public executions of people said to cooperate with
Israel (the peace partner, it will be remembered) have given the world a
thorny reminder of the kind of justice administered by the PA. It was even
sadder to watch Bassem Eid on TV arguing that all Palestinians support these
executions.
To be sure, Israel has been condemned by the same
international organizations for waging aggressive wars, for applying excessive
force, for destroying the homes of innocent citizens, for imprisoning people
without trial, for bombing civilian targets and for endless violations of
international law. Yet, it has correctly been pointed out that, “[b]y treating
Israel and its enemies comparably and ‘even-handedly’ the world fails to
recognize the important distinction between a flawed democracy and imperfect
dictatorships.” 16
The Israeli independent judicial system has
applied Israeli law (including due process, rigid rules of evidence, appellate
review of judgments, and sometimes even an additional hearing by an extended
panel of the Supreme Court) to Palestinian terrorists in the same way that
they apply Israeli law to Jews accused of committing serious crimes. In a
landmark decision the Israel Supreme Court outlawed the employment of physical
pressure by the General Security Service (GSS) during the interrogation of
suspected terrorists. 17
Presented with the heavy toll of dead and wounded civilians caused by Arab
terror, the Court acknowledged its awareness that this decision would hamper
the ability to properly deal with terrorists and terrorism. Yet, the Justices
considered that they must act according to their purest conscience when they
decide the law. GSS investigators faced with criminal charges over
interrogation methods may only avail themselves of the “necessity” defense if
there was clear, imminent danger and such measures were “necessary in an
immediate manner” for the preservation of human life. Although in practice
every civilized society would probably torture captured terrorists to prevent
a “ticking time bomb” from exploding, Israel has placed very serious and
effective restraints on the use of such powers.
Finally, Israel has free media with reporters who
are free to cover any subject and in fact report on a daily basis every breach
of human rights that they observe. The journalists who engage in these
activities are regarded highly for airing the problems they observe since
sunshine is considered the best disinfectant.
It is difficult for any democracy to cope with
terrorism and at the same time maintain strict observation of the rule of law.
It is submitted that Israel has compromised the rule of law to a lesser degree
than other democracies facing lesser dangers. It is further submitted that,
when and if the PA significantly raises its level of respect for human rights
there will again be ground for hope for peace in the Middle East.
5. Conclusions
The “peace of the brave” is an empty phrase. Its
author, Nobel Peace Prize Laureate Chairman Arafat, killed the “Peace Process”.
It did not die of “natural causes”. Its revival requires a change of heart of
the Palestinian leadership as well as a serious reform of the domestic legal
framework. Only when that leadership would create the legal framework within
which full respect will be accorded to the needs and basic rights of its own
people will peace prevail. Indeed, Immanuel Kant has drawn the connection
between the reign of law within the state and a state of peace among states.
Kant foresaw eternal peace only when the people themselves, rather than their
un-elected leaders, are those to decide the issue of waging war:
[T]he republican constitution also provides
for...perpetual peace, and the reason for this is as follows: If (as must
inevitably be the case, given this form of constitution) the consent of the
citizenry is required in order to determine whether or not there will be
war, it is natural that they consider all its calamities before committing
themselves to so risky a game. (Among these are doing the fighting
themselves, paying the costs of war from their own resources, having to
repair at great sacrifice the war’s devastation, and, finally, the ultimate
evil that would make peace itself better, never being able – because of new
and constant wars – to expunge the burden of debt.) By contrast, under a
non-republican constitution... the easiest thing in the world to do is to
declare war. Here the ruler is not a fellow citizen, but the nation’s owner,
and war does not affect his table, his hunt, his places of pleasure, his
court festivals, and so on. Thus, he can decide to go to war for the most
meaningless of reasons, as if it were a kind of pleasure party, and he can
blithely leave its justification (which decency requires) to his diplomatic
corps, who are always prepared for such exercises. 18
One must hope that the wish to have a thriving
Jewish state living at peace with its surrounding Arab neighbors be fulfilled
“very soon in our days. Amen!”
Endnotes
|
1 |
The data are taken from the website of the
Palestinian National Authority <www.palestinehistory.com/reftoday.htm>. |
|
2 |
On the historical development of the term
“Palestine” as synonymous to the Holy Land, or the Land of Israel (Eretz
Israel), see The History of Eretz Israel. Volume 9: The British
Mandate and the Jewish National Home, Y. Porath and Y. Shavit (eds.),
(Hebrew), pp. 263f. |
|
3 |
P. Malanczuk, “Israel: Status, Territory and
Occupied Territories”, Encyclopedia of Public International Law,
vol. 12, 1990, p. 149. |
|
4 |
Y.Z. Blum, “The Missing Reversioner:
Reflections on the Status of Judea and Samaria”, Israel Law Review,
vol. 3, 1968, pp. 279, 288. |
|
5 |
GAOR, 2nd Session, 1947, Ad Hoc Committee on
the Palestine Question, pp. 5-11, brought by R. Lapidoth and M. Hirsch
(eds.), The Jerusalem Question and its Resolution: Selected Documents,
Dordrecht: Martinus Nijhoff, 1994, p. 13. |
|
6 |
I confirmed this story with Mr. Abba Eban –
T.E. |
|
7 |
Israeli Government “White Paper” on the
PA/PLO non-compliance, released on November 21, 2000, <www.imra.org.il/whitepaper1.htm>. |
|
8 |
See the report of the incident by Ariel
Weiss, Ha’aretz, October 19, 2000. |
|
9 |
Cf. the studies carried out by I. Marcus,
Director of the Center for Monitoring the Impact of Peace (PMC), special
report #30 (September 11, 2000). Some of the studies can be seen at <www.edume.org>. |
|
10 |
A report on the summer camps prepared by
Hillary Anderson has been broadcast on BBC World. |
|
11 |
Published in the daily newspaper Al-Hayat
Al-Jadida and brought in the PMC Special Report #3. |
|
12 |
See also Edward W. Said, “Are There No Limits
to Corruption?”, The End of the Peace Process: Oslo and After, New
York: Pantheon, 2000, 177ff. |
|
13 |
Barry Rubin, “Arab State Support to the
Palestinian Authority: Unfulfilled Expectations”, The Washington Institute
for Near East Policy, Working Paper #181. <www.washingtoninstitute.org>;
D. Shueftan, Disengagement: Israel and the Palestinian Entity,
Tel-Aviv: Zmora-Bitan and Haifa University, 1999, (Hebrew), pp. 93ff. |
|
14 |
Talia Einhorn, “The Need for a Rule-Oriented
Israeli-Palestinian Customs Union: The Role of International Trade Law and
Domestic Law”, Netherlands International Law Review, vol. 44, 1997,
p. 315; Talia Einhorn, “The Customs Union Between Israel and the
Palestinian Authority: A Critical Analysis”, in: Arieh Stav (ed.),
Israel at the Crossroads: The Economic Aspects of the Peace Process,
Ariel Center for Policy Research, 1997, see also the author’s testimony
before the US Congress Joint Economic Committee, October 21, 1997, Hearing
on the Economic Relations between Israel and the Palestinian Authority: <http://www.house.gov/jec/hearings/israel/einhorn.htm>. |
|
15 |
Palestinian Human Rights Monitor, <www.phrmg.org>,
see especially the 1997, 1998 and 1999 Annual Reports, “Deaths in
Detention”, Report #5, 1997 and “Torture: A State’s Tyranny”, Report #6,
1998. |
|
16 |
Alan M. Dershowitz, “Israel: The Jew Among
Nations”, in: Israel Among the Nations: International and Comparative
Perspectives on Israel’s 50th Anniversary, A. Kellermann, K. Siehr and
T. Einhorn (eds.), The Hague: Kluwer Law International, 1998, pp. 129,
132. |
|
17 |
Judgment Concerning the Legality of the
General Security Service’s Interrogatory Methods (HC 5100/94), ILM
(International Legal Materials), vol. 38, 1999, p. 1471. |
|
18 |
Immanuel Kant, To Perpetual Peace
(1795), brought in: Perpetual Peace and Other Essays, trans. by Ted
Humphrey, Indianapolis, 1982, marginal number 351. |
|
