Reconsidering The Israeli-Palestinian Conflict – Analysis

The shifting sands of the Arab-Israeli conflict

The Arab-Israeli conflict is one of the most passionate and dramatic in the world, not only because of the many conflicting issues it brings together but also because of its structuring role in the power relations of the Near and Middle East. Due to its longevity and the many armed clashes to which it gave rise, this conflict which refers to both Israeli-Palestinian and Israeli-Lebanese conflict issues, also arouses strong pessimism. We have, in fact, the impression of an endless conflict, where confrontations follow one another without as much lead to any settlement of the conflict. This impression of endless repetition of conflict sequences which, despite the different theaters of operations, are more or less similar, suggests two things: 

• On the one hand, there are factors that structure the conflict over the long term; and
• On the other hand, we can note the undeniable similarities between the various conflict dynamics. 

However, the history of the various Arab- Israeli conflicts taken separately reveals their specificities and all their complexity. The actors change, some disappear, new ones appear; phases of ascent to extremes follow phases of relative calm, or even freezing of a front. The front lines tend to shift within the Levantine space itself.

The various armed confrontations that have punctuated the Arab-Israeli conflict demonstrate this alternation of “pauses” and climbs to the extremes. Throughout the conflict, a link seems to emerge between the various armed confrontations. The 1948 war between the newly formed Hebrew state forces and the coalition of Arab armies was followed by a new confrontation between the same actors in 1967; then another in 1973. With the exit of Egypt from the field of the confrontation and the freezing of the conflict with Jordan, the conflict moved towards Lebanon, where the Israeli forces had to fight as well. Then, the exit from the confrontation of the Palestinian forces, after their defeat in Lebanon, gave way to a confrontation between the Israeli forces, still supported by their allies in the Army of South Lebanon, and those of Hezbollah. Syria remained behind the scenes and was later joined by Iran. Along with the stagnation of the conflict in southern Lebanon, a new area of ​​confrontation has opened up in the Occupied Territories, pitting Israeli forces against the forces of the Palestinian Islamic Jihad and Hamas. Over time, new armed factions emerged within Fatah and joined the struggle of the Palestinian Islamists against the Israeli forces.

Recent history

The geopolitical map of the Middle East, as it was configured in the first decades of the twentieth century, is incomprehensible if one ignores the presence of a very dense mosaic of ethnic, religious and linguistic groups, mixed with dynastic interests, the geopolitical expansion of the European powers and the greed aroused by the oil resources of the region. With the dissolution of the Ottoman Empire, Franco-British rivalries led to the partition of the zones of influence between Syria and Iraq, with Damascus going to France and Baghdad to England. The tutelage of Christian communities against the Muslim majority explains the separation of Lebanon from Syria, Beirut given to the Christians, Damascus to the Muslims. Dynastic struggles led the Saudi family to impose itself in Mecca and in the Hedjaz with the constitution of Saudi Arabia, while the Hashemite ruling family received in compensation a territory further north, Transjordan, which later became Jordan. All this without forgetting the divisions between Shiite Muslims (Yemen, Persia, and part of Iraq) and Sunni Muslims in most other countries, the Kurdish and Druze ethnic groups without a homeland, and the promotion of the image of the Pirate Coast which, rich in oil, became the United Arab Emirates.

In 1922, in Palestine – that part of the territory bounded on the west by the Mediterranean and on the east by the Jordan River – a British Mandate was established. It was formally designed to facilitate the realization of the national home for the Jewish people announced in the Balfour Declaration of 1917 and, expressly, was not to cause any prejudice to the interests of the existing Arab populations or the Jewish diaspora communities. On November 29, 1947, after a quarter of a century of turmoil, the United Nations General Assembly voted to partition Palestine into an Arab state – with the Galilee in the north, the ridge of hills in the center, and the Gaza coast in the south – and a Jewish state, with the northern part of the Jordan Valley in the north, most of the coastal strip in the center, and the Negev desert in the south. The Jerusalem-Bethlehem area with its Jewish, Christian and Muslim holy places was to be a separate body administered by the UN.

On many occasions, political limits were drawn on a Middle Eastern territory that had been undivided until then, according to a logic that favored the partition of sovereignty along fundamentally identity-based lines : the geopolitical identities of the proxy powers or the ruling families, the ethnic and religious identities of the local populations, and the identities of the economic interests linked to the control of resources. One could even say that the raison d’être of almost all the states in the Middle East is precisely this inalienable presupposition of identity. From this point of view, the case of Israel and Palestine – with its tense relationship between politics, demography and ethnic and religious identities – is not the exception but part of the rule in the region.

At the time of partition in 1947, Palestine had a population of nearly 2 million in a territory of about 28,000 square kilometers. There were 630,000 Jews and 1,340,000 Arabs, more than half of whom lived within the boundaries established by the UN for the Jewish state in Palestine, which proclaimed itself independent on May 15, 1948 with the name of the State of Israel. The vast majority of the Arab population of Israel fled during the war immediately initiated by the neighboring Arab countries. In 1950, the Arab population of Israel numbered no more than 160,000 people. In 1950, another million Arabs, including many of these refugees, were in the territories originally planned for the Arab state in Palestine, occupied in 1948 by Egypt in the Gaza Strip and by Jordan in the West Bank. By 1950 the Jewish population in Israel had almost doubled to 1,100,000 after the large-scale immigration of fugitives, nearly half of whom came from Arab countries.

Legitimacy narrative

From the point of view of historical legitimacy, the equality of force of the arguments is even more abysmal. Long history against long history, land rights against land rights, memory against memory. The Palestinians have lived there for centuries; the Jews have all their original symbols there. The Palestinians were not a truly territorialized people until the British mandate, the Jews even less so. For the Palestinians, the gradual arrival of Jews from Europe from the 1930s onwards could only mean “Mars attacks”, a pure colonization movement with no rights other than money and force. For the Israelis, the Palestinians’ constant commitment to Pan-Arab nationalism could and still can only confirm their feeling that they have taken only a “tiny country” in the immensity of the Arab lands. In short, Palestinians and Jews are two peoples in the process of reciprocal constitution, and in such moments history has only ideological legitimacy – it serves first and foremost to wage war.

Finally, de facto legitimacy is both the most serious and the most intolerable. The most serious, first of all, because many legal theorists do not hesitate to place de facto law, that is to say customary law, at the source of all law: how else can it be understood in its positivity? Secondly, and above all, because it is the most humane form of legitimacy, if we admit that, after pure and simple extermination, deportations and displacements of populations are one of the worst crimes committed against them.

But, at the same time, it is also the most intolerable and immediately questionable legitimacy because it justifies in advance any policy of fait accompli: that of the Israeli colonization since 1967, accelerated even further with the Oslo Accords (no doubt more by perverse effects and bad faith than by deliberate will); that, as well, of the maintenance of the largely instrumental refugee camps in and around Palestine.

International law and the Middle East conflict

Too often, the present conflict is reduced to one of its multiple facets, all of them legitimate. It is indeed a conflict over land (“Who is the real owner?”), fueled by a religious conflict compounded by a conflict of identity and legitimacy (“I am within my rights”), linked to a conflict of narratives about the origin of the conflict in 1948 (“Where are we from?”) or, even more, its destination fueled by suspicion (“Where are we going?”).

While each of these facets reveals, almost in the sense of a photographic print, a particular aspect of the conflict and, as such, deserves attention, there is, however, one aspect that recapitulates and links them all. It is the omnipresent great discrepancy with the law, and in particular the law of occupation, defined as the effective control, exercised by use of force, over a territory and a population other than its own. With the prolongation of the Israeli occupation, supposedly temporary, the law has become the very object of the conflict, if not its major inspiration and its strongest expression. This is best illustrated by the rapid expansion of settlements, which is the matrix for most of the other deviations, such as land confiscations, population evictions, property demolitions and the multiplication of transport and security infrastructures serving Israeli citizens on Palestinian territory (more than half a million at this stage if East Jerusalem is included).

For its part, Hamas, which belongs to the Muslim Brotherhood, acts outside of all international legality, and also deliberately confuses and does not respect one of the cardinal principles that found the law of war, namely the principle of distinction between civilian and military objectives (Hague Conventions). Similarly, it hardly respects the human rights of its own population.

This makes it imperative to go back to the law to get out of the conflict. How, then, can we move from law as the source or at least the indicator of conflict, to law as an ingredient of peace? The “appeasement” of law clearly becomes an objective of peace. How can this be done?

What solution?

The law of war must take more into account the new forms taken by modern conflicts: The Balkans, Iraq, Afghanistan, Lebanon or the last four operations in Gaza (2008, 2012, 2014 and 2021) which do not escape the contradictions of these conflicts. These conflicts are meant to be technological: they take the form of wars on screen, with a minimum commitment of troops on the ground, to avoid the capture and loss of soldiers that are no longer tolerated, and without collateral damage to the civilian population. As if, locked up in the warmth of shelters during the hostilities, they were not part of the conflict. It is now necessary to define a much more restrictive law of conflict, by renewing the absolute need to respect and protect civilian populations, but also, more generally, to rethink the law of war in order to better integrate the complexity of modern wars caught between two major challenges: religious warfare on the one hand, and the age of technology on the other.

Like Tibet, Palestine is subject to an indefinitely prolonged occupation. There is currently no legal framework specific to situations of prolonged occupation, yet with the passage of time, the balance of rights and obligations of the occupying country is profoundly altered. In this case, the extension of the occupation and the continued expansion of the settlements are having an ever-deepening cumulative effect on the social fabric, economy, institutions and on the ability of Palestinians to exercise public authority, including the provision of social services, law and order and the rule of law. This poses an additional threat to the basic human rights of the occupied population, and has a lasting effect on the Palestinian people’s capacity for self-determination.

This threat, which is worsening over time, calls for a strengthened legal framework to further constrain the practices and methods of occupation. Such a framework should either set limits to the occupation, by defining a kind of inescapable end to which the occupier cannot escape, or, at the very least, define increased responsibilities for the occupier, in order to protect the individual and collective rights of the population concerned.

It may seem contradictory to the thesis of a dynamic of “small steps” in international law, to evoke now the imperative evolution of certain aspects of this same law in the light of the Israeli-Palestinian conflict. How can we reconcile the idea that law can serve as a basis for the dynamics of a solution while at the same time arguing that the very nature of the conflict, its violence and its longevity, can become sources of inspiration for the evolution of this same law?

The Oslo Accords: hope and failure

In the 1990s, the possibility of a two-state solution emerged in negotiations between Palestinians and Israelis. Four years after the start of the First Intifada (1987-1993), urged on by Washington, the Likud government of Yitzhak Shamir began talks with the Palestine Liberation Organization at the Madrid Conference (1991). The following year, Yitzhak Rabin (Labor Party) was elected head of the government. In 1993, he led a series of negotiations in Oslo, Norway, with PLO Chairman Yasser Arafat. At the end of the negotiations, the PLO recognized Israel for the first time and agreed to peace with the Jewish state in the context of a disengagement of Israeli forces to the 1967 borders. In exchange, the Israeli government recognized this organization as the representative of the Palestinian people. The agreements that proliferated in the following years allowed for the creation of the Palestinian Authority (PA) and divided the West Bank into three areas, A (administrative and security control by the PA), B (administrative control by the PA and security control by Israel), and C (62%, administrative and security control by Israel), with the goal of a gradual israeli withdrawal and the creation of a Palestinian state within 5 years. 

However, various events have put a stop to these objectives. First, the assassination of Prime Minister Yitzhak Rabin in November 1995 by Yigal Amir, an Israeli ultra-nationalist opposed to the Oslo agreements. This national tragedy brought to light the tensions created in Israeli society between those who agreed to “hand over the territories” and those who supported the “greater Israel”. The Oslo Accords were also undermined by the organization of attacks by Palestinian groups, including Hamas and the Palestinian Islamic Jihad Movement. The arrival of Benyamin Netanyahu as Prime Minister in 1996 (1996-1999) also dealt a heavy blow to the Oslo process. 

If there is one lesson to be learned from the Oslo fiasco, it is that gradualism leads to paralysis, because the parties do not simultaneously make the efforts that are required of them. Thus, Ariel Sharon managed to surreptitiously reintroduce the idea of conditionality, a guarantee of immobility, by indicating that Israel would not make any significant movement if the PA did not first dismantle the Palestinian armed groups. This stalemate could have been overcome with a sustained commitment from the Quartet (US, Russia, EU and UN) … but it never came.

Crisis in international negotiations

The great variety of semantics relating to the crisis of negotiations shows that it is also embodied in various ways. Indeed, one can speak of a crisis in negotiations when there is an absence of negotiations between the parties. The years 2003-2007 or those from the end of 2010 to mid-2013 mark two periods when international negotiations were not very active and did not manage to revive a global dynamic of cooperation between the parties in conflict. This state of affairs is reflected in the implementation of of unilateral policies on the ground. This was the case under the government of Ariel Sharon, the most symptomatic example of this unilateralism being certainly the withdrawal from the Gaza Strip, announced in November 2003 and carried out by the Israeli army from August 2005.

The crisis of negotiations can also be illustrated more brutally by the resumption of violence. As Yaacov Bar-Siman-Tov notes, “The transition from a process of conflict resolution to the renewal of violence is a crisis of severe magnitude […]. ” (1) International negotiations on the Israeli-Palestinian conflict have regularly been undermined by violence of various kinds : the second intifada from September 2000 onwards, recurrent Israeli military interventions in the Gaza Strip, the firing of rockets into Israeli territory from Gaza, etc.

But we can also talk about crises while negotiations are taking place. In this case, the question is whether the behaviour or positions adopted by the parties are harmful to the progress of the negotiations. For Daniel Druckman and Mara Olekalns, a crisis is thus to be understood as “an unexpected event that triggers a possible breakdown in the talks. ”  (2) We are finally in line with a classic definition of crisis, which includes “the idea of disturbance, of dysfunction in the routine functioning of a system or the unfolding of a process.“

Borders and territory exchange

The issue of the border between Israel and the future Palestinian state was discussed during the Annapolis process, which began in late 2007. These discussions remain the best basis, to date, for negotiating the future border between the two states. The Palestinians have proposed a land swap of about 2% of the West Bank. The Israelis have proposed an exchange of about six per cent.

In the early 20^th century, the British historian Charles Fawcett put forward four parameters to define the concept of a “good border.” (3)

1) its location and delineation must be clear and sharp;

2) it should be created as much as possible on an ethnic basis;

3) it should not separate interdependent populations; and

4) it should avoid crossing localities.

Applying Fawcett’s parameters to the current situation in the West Bank, several elements need to be considered more specifically: the demographic balance between Palestinians and Israelis; the extent of built-up areas in settlements and in Palestinian localities; the origin of landowners; the use of the road network by Israelis and Palestinians; and the existence of vital infrastructure.

The main shortcoming of the Palestinian proposal for a land swap of 2% of the West Bank is that it does not offer optimal ethnic separation. In other words, assuming the Israelis do not wish to remain under Palestinian sovereignty, Israel would have to transfer 194,000 nationals, or 38% of the Israeli population residing across the green line, and evacuate 105 settlements from a populated area covering 46,000 dunums. In addition, hundreds of kilometers of roads used by Israelis to cross the West Bank would be transferred to Palestinian control.

In contrast, the Israeli scenario of a 6% transfer of territory implies that Israel preserves 87% of the population residing beyond the Green Line in 61 settlements. This scenario has three major disadvantages:

1. The retention of 204,000 dunums of private Palestinian land under Israeli sovereignty; 
2. The preservation on the Israeli side of 70 kilometers of roads used by Palestinians; and 
3. The existence of two enclaves (Ariel and Kedumim) in the center of the Palestinian state, constituting an obstacle to territorial continuity.

A compromise solution could be proposed, which would consist of an exchange of territories equivalent to 4% of the West Bank. This solution leaves 78% of Israelis residing beyond the Green Line in 44 localities under Israeli sovereignty. It removes enclaves (Ariel and Kedumim) that destroy Palestinian territorial continuity, reduces by one-third the number of Israelis who will have to be evacuated, reduces by half the amount of Palestinian land that must remain under Israeli sovereignty, and reduces by almost half the number of kilometers of roads used by Palestinians.

The obstacles to the two-state solution

• Israeli settlements

Despite the Oslo Accords, over the past three decades the number of Israeli settlers in the Palestinian Territories has “exploded” (4) to 650,000 in 130 settlements in recent years.  In December 2016, the UN Security Council passed a resolution (5) calling on Israel to cease settlement activity in the Palestinian Territories “to preserve the two-state solution,”  (6) which is considered “in jeopardy.”  Israeli settlement expansion is a major obstacle to the formation of a Palestinian state. In the West Bank, including East Jerusalem, they are fragmenting the Palestinian Territories, undermining the creation of a continuous and viable state in the future.

• Jerusalem

During successive negotiations between Palestinians and Israelis, Jerusalem has been a central point of contention. The city is disputed by both peoples as the capital of the Israeli state and the capital of the future Palestinian state.Beyond the political dimension, the religious dimension fuels tensions, as Jerusalem is a holy city for both Jews – the location of the Second Temple in Jewish tradition – and Muslims – the Al-Aqsa Mosque, located on the Esplanade of the Mosques, (7) is the place from which the Prophet Mohamed is said to have ascended to heaven during the night journey in Muslim tradition – but also for Christians – the city contains the Holy Sepulchre, the supposed location of the tomb of Christ.

• The division between Gaza and the West Bank

The separation of Gaza from the West Bank also undermines the prospects for the creation of a unified Palestinian state with these two territories. In 2007, a year after Hamas won the legislative elections (the first time it had run), the Islamist party seized power in Gaza, (8) leading to “the breakup of the interim Palestinian Authority (PA) into two parts. (9)  Since then, with Hamas in Gaza and Fatah in the West Bank, the two territories have been divided, both in terms of internal affairs and external policy:

• First, in their relations with the Jewish state: in the West Bank, Mahmoud Abbas’ PA has developed active security cooperation while dealing with the expansion of Israeli settlements. On the other hand, the Gaza Strip has been free of settlements since 2005, but is still subject to a drastic Israeli-Egyptian blockade; and
• Second, in their relations with neighbouring countries: while the PA has placed its trust in Washington and Abdel Fatah al-Sissi’s Cairo, Hamas has developed relations with Qatar, with Mohamed Morsi’s Egypt when he was in power, and with Iran, reflecting a “resonance of conflicting Arab and international interests. “ (10)

The various reconciliation agreements signed between the two parties do not raise much hope: they have never been implemented.

• The lack of trust between Palestinians and Israelis

This is a key issue that hinders progress towards a two-state solution. In the 1990s, the Oslo Accords were pushed by the Israeli and Palestinian populations. At that time, both peoples had a fairly high level of trust in each other and were willing to make concessions to achieve peace. Today, however, that trust has eroded, mainly because of the violence on both sides during the second intifada.

• Lack of political will

Lack of political will is also blocking the implementation of a two-state solution. In addition to the immense difficulties posed by the inter-Palestinian division and Hamas’ opposition to a two-state solution, the Israeli government lacks considerable political will to allow the creation of a Palestinian state alongside Israel. Over the past decade, components of the far right have been integrated into the various Netanyahu governments. The ultra-nationalists of Israel Beitenu, or the religious Zionists represented by Naftali Bennet and Ayalet Shaked (New Right), and especially Rafi Peretz and Bezalel Smotrich (Jewish Home) are deeply opposed to the establishment of a Palestinian state. The government that has been in power in recent years, the most right-wing in Israel’s history, has undermined the chances of implementing the two-state solution. According to Israeli journalist Shaul Arieli, “despite the increase in settlement activity, it is still possible to separate two states. Such a solution would not be simple and would have a high cost, but it remains realistic. For him, “the main obstacle to the two-state solution is therefore not geographical but political. “ (11)

Talmudic way out

The vocabulary testifying to the crisis in international negotiations on the Israeli-Palestinian conflict is well known, since the need to “relaunch the peace process“, to “break the deadlock“, to “resume the peace talks” is regularly mentioned… All of these formulas evoke, in a way, the idea of a crisis of negotiations. But it is true that the term crisis is not used by the political leaders themselves. It is more commonly used – as was expressed at the UN during the debates following the end of John Kerry’s initiative – of stalemate, deadlock, suspension, interruption or stagnation of the negotiations, or even sometimes failure.

In the face of this apparent dilemma, a Talmudic notion comes to mind. In a passage dedicated to the memory of the war against the Romans and the destruction of the Temple (in the year 70), the sages of the Talmud deliberate on the proper way to transmit the memory of this violent tragedy. While many advocate the establishment of an ascetic norm (refusing to eat meat, bread, fruit or drink wine) that would evoke the visceral memory of the consequences of this merciless war, Rabbi Yoshuah refutes such an attitude by evoking the legal principle of the prohibition of imposing a decree on the community if the majority of the community is unable to comply with it. If this is the case, it is up to the community to modify the Law in order to make its application more in tune with the reality of the present situation.

The Talmudic proposal could be formulated as follows: when the Law becomes too far removed from the concrete reality of the field and the community, it is up to the community to contribute to the evolution of the Law so that it can once again become binding on the community. The foundations of a dynamic between the Law and the community are thus laid. The former is binding for the latter; the latter allows itself to modify and construct the former.

The tragic protagonists of violence also have the potential to become active and creative partners in the application as well as the evolution of this same law. This is not to suggest that international law can be malleable and adjustable at the whim of the protagonists, especially in the asymmetrical relationship that has been described. That said, the Talmudic reading to which we have just referred provides us with the key, the only key, capable of making law no longer the ultimate source and object of conflict, but the necessary ingredient for its resolution. Rather than considering law as the privileged way to inflame passions and aggravate tensions, through an approach based on the condemnation and rejection of the Other, it is a question of facilitating the emergence of a law, the same law in fact, with its same provisions and the required adaptations, but oriented differently. No longer based on the spirit of revenge and retaliation, but on its restorative and transformative function, the only one capable of giving a taste for writing peace.

Such an alternative is not abstract. It is even very contemporary. By way of illustration, it is the concrete alternative offered between the spirit and the method of the Treaty of Versailles of 1919, which concluded the First World War, and the method of the Treaty of Rome of 1959, which brought Europe out of the war. As a victim of the three ingredients of Versailles – humiliation, exclusion, exploitation – Germany was considered responsible for the totality of the damage and losses suffered. Based on the three opposite ingredients – inclusion, respect and solidarity – the Treaty of Rome reversed hatred and war, and opened up literally unimaginable prospects for the European continent.

It is exactly this reversal that the spirit of Jethro suggests to us. At the same time very ancient, but so modern, this spirit refutes forever the dogma of the absence of alternative to violence and the inaccessibility of peace. By broadening the field of possibilities, Jethro allows us to re-imagine the future by giving meaning to the courageous choices that peace requires. The latter is truly imposed on both sides because in a sense there will be no winners and no losers; indeed, as Simone Weil reminds us: “Everything that is subjected to the contact of force is debased, whatever the contact. To strike, or to be struck, is one and the same defilement.  ” (12)

You can follow Professor Mohamed Chtatou on Twitter: Ayurinu

Endnotes:

1.   Bar-Siman-Tov, Yaacov (ed.). The Israeli-Palestinian Conflict: From Conflict Resolution to Conflict Management. New York: Palgrave Macmillan, 2007, p.9.
2.  Druckman, Daniel & Olekalns, Mara. “Motivational Primes, Trust, and Negotiators’ Reaction to a Crisis, “Journal of Conflict Resolution, vol.57, no. 6, December 2013, p.967.
3.  Fawcett, Charles B. Frontiers: A Study in Political Geography. Oxford:  Clarendon Press, 1918.
4. https://info.arte.tv/fr/evolution-du-territoire-israelien-et-multiplication-des-colonies
5.  This resolution was voted because of the American abstention, while Barack Obama, in bad terms with Benyamin Netanyahu, was still president.
6. https://www.un.org/press/fr/2019/cs14026.doc.htm
7.  The Esplanade of the Mosques is located on the site of the Second Temple in the Jewish tradition.
8. https://www.lesclesdumoyenorient.com/Entretien-avec-Sebastien-Boussois-Quelle-reconciliation-entre-le-Fatah-et-le.html
9. https://orientxxi.info/magazine/le-leurre-de-la-reconciliation-entre-le-fatah-et-le-hamas,0628
10. https://orientxxi.info/magazine/le-leurre-de-la-reconciliation-entre-le-fatah-et-le-hamas,0628
11. https://www.cairn.info/revue-politique-etrangere-2014-3-page-79.htm
12. Weil, Simone. Écrits historiques et politiques. Paris : Gallimard, 1960. “Tout ce qui est soumis au contact de la force est avili, quelque soit le contact. Frapper ou être frappé, c’est une seule et même souillure.” Cf. Weil, Simone. Écrits historiques et politiques. Mill, Netherlands: NRF, 1960. https://citations.webescence.com/mots/souillure, https://citations.webescence.com/citations/simone-weil