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Articles by Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli appear in a new Palestine book

Dr. Orna Ben-Naftali is Professor of international law and jurisprudence at the Law School, The College of Management, Academic Studies in Israel. Aeyal Gross lectures at the Faculty of Law, Tel-Aviv University
Keren Michaeli is at St Anthony's College, Oxford

Reprints of anti-Israel articles do not represent the position of IAM, and they are being reproduced as a public service.


The two articles are:

The occupation is a form of tyranny. Recent scholarship by Israeli academics and human rights attorneys (see Ben-Naftali, Orna, Aeyal M. Gross and Keren Michaeli. Illegal occupation: framing the Occupied Palestinian Territory, 23 Berkeley J. Int'l L. 551-614 (2005)) have pointed to the unambiguous illegality of the occupation and to the fact that Palestinians have been essentially dehumanized and divested of their human and political rights by virtue of the Occupation. Palestinian aspirations to self-determination have never been considered in a serious manner (and I believe never will be) by Israel. The powers of the
Palestinian Authority are effectively reduced by Israel to nothing more than that of a local municipality. In short, the situation created by Israel is one of repression without representation. Throughout history similarly oppressed peoples have resisted such intolerable conditions.

Aeyal M Gross, ‘The Construction of a Wall between The
Hague and Jerusalem: The Enforcement and Limits of
Humanitarian Law and the Structure of Occupation’ (2006)
19 Leiden Journal of International Law, 393–440 833
The ICJ considered the Wall in terms of the structure of the Israeli occupation and the settlements, which is one of de facto annexation. By contrast, the Israeli HCJ uses proportionality to regulate within the occupation. This approach may be inherent in humanitarian law, but involves a misplaced transplantation of the proportionality doctrine and an imbalanced rights/security equation. Contrary to the HCJ's
determination, which attributes the different conclusions of the two courts to the different factual backgrounds available to them, this article argues that they reflect the courts' variant attitudes towards the barrier and its place within the broader context of the occupation and its structure. The looming shadow of the ICJ affected the HCJ's decision. On critical questions of international law, however, a wall separates international law as articulated in The Hague and the decisions issued in Jerusalem, pointing to the need for a new articulation of existing theories on transnational legal processes.

The new book:

    The Palestine Question in International Law (compiled and edited by
Victor Kattan)

The question of Palestine has been a pivotal one for international law ever since the foundation of the United Nations Organisation in 1945. It remains so today. On 9 July 2004, the International Court of Justice gave its advisory opinion on the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, where it ruled on some major international law questions concerning the applicability of the Geneva Civilians Convention of 1949 to prolonged occupations, as well as human rights law more generally. It confirmed the illegality of the Israeli civilian settlements established on occupied Palestinian territory and affirmed the continuing relevancy of the right of the Palestinian people to selfdetermination, which it considered an obligation erga omnes. The ICJ did not, however, rule on many of the international law questions pertaining to Final Status Issues which still need to be negotiated between the Israeli and Palestinian leadership if peace is to ever be accomplished in the Holy Land.

In this series of essays, with contributions from Michael Akehurst, Jean Allain, Pieter HF Bekker, Orna Ben-Naftali, Francis Boyle, Antonio Cassese, James Crawford, Omar M Dajani, Jamal L El-Hindi, Aeyal M Gross, Ardi Imseis, Michael Lynk, John McHugo, Keren Michaeli, Roger O'Keefe, John B Quigley, Martha Roadstrum Moffett, Adam Roberts, Iain Scobbie, Samira Shah and Lex Takkenberg, some of the most important questions relating to the Israel-Palestine conflict are addressed and reproduced in one complete volume to coincide with the 60th anniversary of the creation of Israel and the demise of the British mandate of Palestine.

'It is often suggested that a little goodwill and give and take could resolve the conflict between Israel and Palestine. This collection of some of the best legal analysis of the matter is a timely reminder that there are fundamental legal rights and duties at stake, and basic questions of the Rule of Law, which must be understood and addressed if a just and durable settlement of this desperately sad, and ultimately dehumanizing, situation is to be found' (Professor Vaughan Lowe QC, Chichele Professor of Public International Law, All Souls College, Oxford).

Table of Contents

Foreword by John Dugard

This book will be launched at the Institute on Wednesday 21 May 2008. Please click here for further details.



Victor Kattan
Victor Kattan is a Research Fellow at the British Institute of
International and Comparative Law on the Human Rights in International Law and Iran project. He holds an LLB (Hons) from Brunel University and an LLM from Leiden University. Victor is currently undertaking a three-year PhD on ‘The Partition of Territory: An International Law Analysis’ at the School of Oriental and African Studies, University of London, for which he has been awarded a full scholarship from the Arts & Humanities Research Council.      

 The Palestine Question in International Law Book Launch and Discussion
Wednesday 21 May 2008

John Dugard
The Palestine/Israel conflict is a dispute about land and people, about competing territorial claims and
about the rights and duties of peoples that live in the former mandated territory of Palestine. It is
primarily a political dispute but at the same time it is a legal dispute, a dispute whose principle features
are characterized by legal argument. To mention just some of the legal questions that arise: is the
1948/49 Armistice Line (the ‘Green Line’) the border between Israel and Palestine? Or is the border to
be fixed by the wall Israel is presently constructing in the West Bank? Do Palestinian refugees enjoy a
right of return to Israel? Does Gaza remain occupied territory following the withdrawal of Israeli settlers
and army in 2005? Are Israeli settlements in the West Bank and Jerusalem unlawful colonial
enterprises? Is Israel bound by international human rights conventions in the Occupied Palestinian
Territory? Is the Fourth Geneva Convention on civilians in armed conflict binding on Israel in the
Occupied Palestinian Territory? Do Palestinians have a right of
self-determination? Are the targeted
killing of Palestinian militants, the demolition of houses, sonic booms, the destruction of power plants,
the closure of schools and the obstruction of health care contrary to international humanitarian law?
Legal disputation is a regular feature of international discourse. The absence of a compulsory
system of adjudication in international law allows parties to debate competing claims without, in most
cases, fear of legal contradiction. But the Palestine/Israel debate is different. Although there is no
binding judicial decision on questions of the kind raised above, the international community has
spoken on many of these issues through authoritative organs charged with the task of interpreting and
pronouncing on international law. The International Court of Justice in its 2004 Advisory Opinion has
held the wall presently being built by Israel in Palestinian territory to be illegal, and given approval to
the Green Line as the lawful border. In its Opinion, it has also held the Fourth Geneva Convention and
international human rights conventions to be binding on Israel in the Occupied Palestinian Territory.
And it has unanimously held settlements to be illegal. The finding that the Fourth Geneva Convention
and international human rights conventions are applicable to the Occupied Palestinian Territory
provides answers to many of the questions concerning the violation of human rights and humanitarian
law. The Security Council has spoken on the illegality of settlements and the annexation of East
Jerusalem. And the International Committee of the Red Cross, the body charged with the task of
monitoring the Fourth Geneva Convention has likewise judged many of Israel’s actions in the
Palestinian Territory to be unlawful.
Although many of the legal questions surrounding the Palestinian issue have been
convincingly answered, important questions remain about the consequences of illegal situations and
actions. In addition there is need to portray the reasoning that leads to many conclusions and the
historical and political context in which the legal questions have arisen. Herein lies the value of the
present work edited by Victor Kattan. It places the Palestine/Israel conflict squarely in a legal context
and demonstrates how legal norms inform the debate on subjects such as the rights of refugees,
borders, the status of East Jerusalem, self-determination, access to water, the occupation of
Palestine, statehood, the construction of the wall in Palestine and the negotiations for a peaceful
settlement of the dispute. The essays selected provide clear evidence of the extent to which
international law itself has become a casualty of the Palestine/Israel conflict. Moreover, as scholarly
writings, they present this evidence in a reasoned and balanced manner. Despite the evidence of Israeli illegal actions, many governments and individuals prefer to
accept Israel’s expansive security justification for its actions or to ignore these illegal actions on the
ground that geo-political considerations override international law. This is a dangerous attitude as it
not only undermines respect for the rule of law in international relations but at the same time provides
a precedential shield for other international wrongdoers. This is evident in the decision-making of the
UN Human Rights Council where the failure of the West to take a firm line on Israeli violations of
international law has led to the refusal of the developing world to cooperate in the condemnation of
human rights violations by other states.
Clearly nothing will change until there is a change in public opinion. The present carefully
selected essays, which provide a broad overview of the legal issues surrounding the Palestine/Israel
conflict, will contribute to a greater awareness of the legal debate and, hopefully, to a change in public
opinion. They may—should—also make it clear that a negotiated settlement in the region that is not
premised on international law and ignores the normative dimension is destined to fail—as sadly
illustrated by the failure of the Oslo Accords of 1993/1994.

John Dugard v
List of Contributors xi
Introduction: Palestine and International Law: An Overview
Victor Kattan xix
Courtesy of the Palestinian Academic Society for the Study of
International Affairs (PASSIA) lvix
PART I International Law in the Middle East
1. Jean Allain, ‘Orientalism and International Law: the Middle
East as Underclass of the International Legal Order’ (2004)
17 Leiden Journal of International Law, 391–404 3
PART II Origins of the Arab–Israeli Conflict
2. Michael Akehurst, ‘The Arab–Israeli Conflict and International
Law’ (1973) 5 New Zealand Universities Law Review,
231–49 19
PART III Palestinian Refugees
3. John B Quigley, ‘Displaced Palestinians and a Right of Return’
(1998) 39 Harvard International Law Journal, 171–229 41
4. Iain Scobbie, ‘The Responsibility of Great Britain in Respect
of the Creation of the Palestine Refugee Question’
(2003–4) 11 Yearbook of Islamic and Middle Eastern Law,
39–58 101
5. Victor Kattan, ‘The Nationality of Denationalized Palestinians’ (2005) 74 Nordic Journal of International Law, 67–102 121
6. Michael Lynk, ‘The Right to Restitution and Compensation
in International Law and the Displaced Palestinians’
(2003) 21(2) Refuge 2 96–113 157
7. Lex Takkenberg, ‘The protection of Palestinian Refugees
in the Territories Occupied by Israel’ (1991) 3 International
Journal of Refugee Law 414–34 175
PART IV The Defence (Emergency) Regulations
8. Martha Roadstrum Moffett, ‘Perpetual Emergency: A Legal
Analysis of Israel’s Use of the British Defence (Emergency)
Regulations, 1945, in the Occupied Territories’ (1989) Al Haq 199
PART V The Legal Status of Jerusalem
9. Antonio Cassese, ‘Legal Considerations on the International
Status of Jerusalem’ (1986) 3 Palestine Yearbook of International
Law, 13–39 295
10. Ardi Imseis, ‘Facts on the Ground: An Examination of
Israeli Municipal Policy in East Jerusalem’ (2000) 15
American University International Law Review, 1039–69 323
PART VI UN Security Council Resolution 242
11. John McHugo, ‘Resolution 242: A Legal Reappraisal of the
Right-Wing Israeli interpretation of the Withdrawal phrase
with Reference to the Conflict between Israel and the
Palestinians’ (2002) 51 International & Comparative Law
Quarterly, 851–82 357
PART VII Self-Determination and Belligerent Occupation
12. Adam Roberts, ‘The Palestinians, the Uprising and International Law’ (1989) 2 Journal of Refugee Studies, 26–39 391
13. Jamal L El-Hindi, ‘The West Bank Aquifer and Conventions
regarding Laws of Belligerent Occupation’ (1989–90)
11 Michigan Journal of International Law, 1400–23 405
14. Samira Shah, ‘On the Road to Apartheid: The Bypass Road
Network in the West Bank’ (1997–8) 29 Columbia Human
Rights Law Review, 221–90 429
15. Ardi Imseis, ‘On the Fourth Geneva Convention and the
Occupied Palestinian Territory’ (2003) 44 Harvard
International Law Journal, 65–138 499
16. Orna Ben-Naftali, Aeyal M Gross, and Keren Michaeli,
‘Illegal Occupation: Framing the Occupied Palestinian
Territory’ (2005) 23 Berkeley Journal of International Law,
551–614 573
viii Contents
17. Iain Scobbie, ‘An Intimate Disengagement: Israel’s withdrawal
from Gaza, the Law of Occupation and of
Self-Determination’ (2004–5) 11 Yearbook of Islamic and
Middle Eastern Law, 3–41 637
PART VIII Palestinian Statehood
18. Francis Boyle, ‘The Creation of the State of Palestine’
(1990) 1 European Journal of International Law, 301–6 669
19. James Crawford, ‘The Creation of the State of Palestine: Too
much too soon?’ (1990) 1 European Journal of International
Law, 307–13 675
20. Omar M Dajani, ‘Stalled between Seasons: the International
Legal Status of Palestine during the Interim Period’ (1997)
26 Denver Journal of International Law & Policy, 27–92 683
PART IX The Wall
21. Roger O’Keefe, ‘Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory: A Commentary’
(2004) 37 Revue Belge De Droit International, 92–149. 751
22. Pieter HF Bekker, ‘The World Court’s Ruling Regarding
Israel’s West Bank Barrier and the Primacy of International
Law: An Insider’s Perspective’ (2005) 38 Cornell International
Law Journal, 553–68 817
23. Aeyal M Gross, ‘The Construction of a Wall between The
Hague and Jerusalem: The Enforcement and Limits of
Humanitarian Law and the Structure of Occupation’ (2006)
19 Leiden Journal of International Law, 393–440 833
24. Victor Kattan, ‘The Legality of the West Bank Wall: Israel’s High Court of Justice v. The International Court of Justice’,
Vanderbilt Journal of Transnational Law (2007) 40
1425–1521 881
Part X Palestinian–Israeli Negotiations
25. Omar M Dajani, ‘The Role of International Law in
Palestinian–Israeli Peace Talks’ (2007) 32 Yale Journal of
International Law 189–252 981
Contents ix




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