It is axiomatic that States act out of their own self–interest, dictated by political, military and economic considerations. Furthermore, international law lacks the elements one normally associates with a legal system. There is no international sovereign; there is no international legislative body; there is, in most cases, no compulsory adjudication and no enforcement body. It could be argued that cynicism towards the importance of international law is all the more relevant in relation to the Arab-Israeli conflict where many of the States involved are totalitarian regimes that have little regard to legal norms. Violent non-State armed groups have been active participants in the fighting in Iraq and Syria. Clearly, ISIS, El Qaida, Hamas and Hezbollah have paid no attention to the humanitarian law applicable in armed conflict. Syria, a State member of the United Nations, has, under the leadership of Bashar al-Assad, flaunted all the basic norms of the laws of war. Even the Russian air force has apparently not been particular in applying the rules of distinction to its aerial attacks.
Nevertheless, international law has played a role in the Arab-Israel conflict. A particularly salient factor in establishing the relevance of international law has been the search by both parties to establish international legitimacy. Fisher writes, correctly I believe, “Legitimacy and lawful authority are key components of political power.”
World public opinion continues to address the dispute between Israel and the Palestinians in the terminology of international law. Many legal arguments addressed to the other side during negotiations, in conferences, or in political speeches, are often intended for third parties and for world public opinion. International law has become the lingua franca of international legitimacy. One explanation for this attention to international law is that a position that is seen to be in violation of international law will not obtain international support. This would explain why all sides invoke it. International law is a common language that everyone understands and invokes, usually, to criticise the other side.
Both the Zionist movement and, later, the Palestinian national movement made strenuous efforts to obtain international legitimacy based on international law. Since 1948, and particularly since 1967, the Palestinian national movement, regarding itself as the weaker partner in its dispute with Israel, has also sought to buttress its position by reliance on rights that it claims under international law. A feature of the Palestinian position is their demand that any future agreement between them and Israel must reflect “international legitimacy” as expressed in UN General Assembly resolutions. The counter Israeli view is that UN General Assembly resolutions do not create international law.
Legal precedents, although not binding, play a highly useful role in assisting the parties to reach agreement. The same is true for dispute settlement mechanisms of international law
Another factor lending to the relevance of international law is that the aim of all international negotiations is, normally, to reach an agreement that obligates the negotiators; in other words, to reach a binding international agreement or treaty. Henkin writes “All international relations and all foreign policies depend in particular on a legal instrument – the international agreement – and on a legal principle – that agreements must be carried out.” International agreements are a creature of international law and lawyers, based on international law, will examine their validity and context.
Although international law undoubtedly has a role to play in the Arab-Israel conflict, nevertheless one should always caution oneself with Brierly’s aphorism “the law of nations is neither a chimera nor a panacea.”
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