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The Israeli-Palestinian Conflict
in International Law

Elon Jarden
Policy Paper No. 86, from the book,
Israel and a Palestinian State: Zero Sum Game?, 2001


International Law as the Key to Peace

In the Western states as in Israel, there exists an inner need to act according to moral principles, or at least to be convinced that one is acting according to them. Under certain circumstances where we have to negotiate with an opponent, we feel compelled to see him as more moral than he really is, so as to justify the negotiations with him from a moral standpoint. This attitude, which is characteristic of most of the public in the Western societies, is rife with dangers in Middle Eastern politics, which is based on power and not on moral principles. Thus, any discussion of the subject of the Middle East must begin from the standpoint of a number of its basic assumptions; otherwise we are likely to be deceived, seduced by rhetoric that states one thing while meaning the opposite.

Ostensibly, as members of the United Nations, the Arab states are supposed to act in adherence to their obligations under the Charter; in reality, however, nothing contravenes their conceptions more than the principles of this organization. The Arab states, despite being members of the UN, negate the existence of international law, and not only in regard to Israel, but even in inter-Arab relations. Even though international law and its institutions provided the basis for the establishment of the Arab states, the Arabs have never recognized them because they stand in opposition to the Islamic conception of law.

International law, like constitutional law, is a European invention, for which no parallels exist in the non-European world. It is based on the idea of freedom: just as constitutional law recognizes the individual’s right to freedom, international law recognizes the rights of the various peoples to political independence, to “self-determination”, which is subject only to international law. The European conception of law is pluralist, and the recognition of the legitimacy of the existence of many states, side by side in a given region, is derived from it. This conception took shape within the unique circumstances of European history, and to a certain extent even contravened the monistic ideal of a united Christian community.

Islamic law is, conversely, monistic in essence, and only recognizes the legitimacy of a single all-embracing state – the caliphate – that is based on a single all-embracing religion – Islam. The caliphate is ruled by a single sovereign – the caliph – who is the leader of the Muslim community by right and by law. International relations, according to this conception, are not relations of equality, but of subjugation between the caliphate and all other entities, to which a certain degree of autonomy is permitted, but not sovereignty. Since Islam is universal in nature, there is no limit, at least in principle, to its extension. Such universalism is, however, the opposite of modern universalism, which is based on the notion of a network of sovereign states – large, medium-size, and small – that maintain relations on a basis of equality and not of subjugation.

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