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Middle East Roundtable / Edition 4 Volume 1

Palestinian paradox and Israeli challenge

By Yossi Alpher

In recent years the interaction between the Israeli-Palestinian conflict and the rule of law has produced two phenomena that are central to any eventual peaceful resolution.

First is a Palestinian paradox. Here we have an increasingly lawless society that has largely failed to build and maintain functioning court and police systems. Its legally elected leader is seen as a Mafioso thug by the entire world, now including most Arab states. Its latest minister of justice, Nahed Al Reyes, just threatened to resign in protest at the legal situation.

Yet this failed regime in a failed proto-state is able to persuade the international community that international law is on its side.

Last month's International Court of Justice opinion on the fence and the United Nations General Assembly recommendation to embrace that opinion are the most recent examples. At a broader level, the international acceptance of one-sided Palestinian interpretations of UN General Assembly and Security Council resolutions such as 194 and 242 also bears witness to Palestinian and general Arab success in recruiting international law to the Palestinian cause.

One reason for this paradoxical Palestinian success is Israel's inclination to abdicate any role in arguing the legal aspects of the Palestinian case in international forums. Not only did Israel not present its case to the ICJ in The Hague, for decades it has allowed Palestinian interpretations of relevant UN resolutions to go practically unchallenged, to the point where they are generally accepted by the world. How many informed international observers know that a "right of return" is not even specifically mentioned in 194-which, incidentally, the entire Arab contingent to the UN voted against in 1949-or that 242 does not mention Palestinians and was not intended to deal with their conflict with Israel?

We in Israel are apparently so certain that the world is against us that we withdraw from the international legal arena even when we have a good case.

This brings us to the second phenomenon, an Israeli challenge regarding the rule of law. The issue is the settlements. The Israel High Court of Justice has acquiesced in the policy of a long series of Israeli governments regarding the exclusive use of public or crown lands in the West Bank and Gaza for Jewish settlement purposes rather than for the welfare of the Arab residents. This constitutes a blot on an otherwise exemplary court record of upholding the rule of law. Now we finally have a prime minister who appears to be determined to begin dismantling settlements-an absolute prerequisite to any attempt to implement a two state solution and thereby maintain Israel as a Jewish and a democratic state. Assuming he can create and maintain a governing coalition dedicated to disengagement, Israel faces the efforts of a determined minority, the religious-ideological settlers, to deter and intimidate the government and its security forces and prevent removal of the settlements-so! metimes using legal means, but in other cases resorting to violence. The settlers' behavior in confronting government attempts to remove outposts is a harbinger of things to come.

Like many countries, Israel has its problems with the rule of law. We have underworld bosses, trade in drugs and prostitutes, gangs in low income neighborhoods, wife-beaters, white collar crime, and not enough police. We also have very specific problems regarding the rule of law under conditions of occupation and warfare in the territories: as IDF Chief of Staff Moshe Yaalon notes, roadblocks and the destruction of houses "don't look good"; nor do accidental deaths of Palestinian civilians. Yet these are the inevitable wages of war; look at the US occupation of Iraq. Israel may have long ago lost the title of "enlightened occupier", but in military legal terms its behavior is no worse than that of other occupiers. The real problem is political and strategic-the occupation-and not the specific application or abuse by Israel of laws in the territories.

Except for the settlement issue. This is where international rule of law meets Israeli rule of law. True, the way things are going the state created on the land vacated by the settlers is liable to be a lawless Palestine. But a non-democratic Israel-incapable of disentangling itself from a huge Palestinian population yet denying the Palestinians basic rights-will by definition be a lawless Israel.

Yossi Alpher is coeditor of bitterlemons.org and bitterlemons-international.org. He is a former director of the Jaffee Center for Strategic Studies at Tel Aviv University and a former senior adviser to PM Ehud Barak.

Bitterlemons-international.org is an internet forum for an array of world perspectives on the Middle East and its specific concerns. It aspires to engender greater understanding about the Middle East region and open a new common space for world thinkers and political leaders to present their viewpoints and initiatives on the region. Editors Ghassan Khatib and Yossi Alpher can be reached at ghassan@bitterlemons-international.org and yossi@bitterlemons-international.org, respectively.

hagalil.com 11-08-2004



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