Peace between Israel and the Palestinians will only be reached when this essential truth is grasped

As the dust settles on the latest Israel/Palestinian conflict, and the blood of innocents and perpetrators dries indifferently, the great fear is that no lessons will be learned. Everything can go back to “normal”. Israel’s settlement and expropriation of the land it has occupied since 1967 will continue, and different legal regimes will still apply to Israeli citizens and to Palestinians deprived of statehood.

As both Boris Johnson’s tentative words and the clear and forceful language of a Human Rights Watch report demonstrate, referring to the current situation as “apartheid” is also becoming part of what is “normal”.

Once we have returned to “normality”, the world will wait for the next big flare-up. Following those of 2008, 2012, 2014 and 2017, this month’s means there have been five over the past 12 years. While we wait, there will be much talk. Expect renewed calls for a “peace process” and “negotiations” between Israel and the Palestinians. Who could possibly disagree with these noble sentiments, which are so obviously right? The only problem is – they have failed before.

Why? The reason is simple. No peace process and no negotiations can be successful unless they take as their starting point the legitimate rights and legal obligations of each side. This is the case for parties trying to reach any deal – think of such day-to-day matters as buying a house or settling a divorce. Peace will only be reached when this essential truth is grasped. The international community must be prepared to use its muscle to ensure that the parties proceed on the basis that each accepts the rights of the other.

Hitherto, recognising the international law rights of both parties has not been part of the terms of reference for the failed “peace processes”. In the face of Israeli opposition to making rights and obligations the bedrock on which negotiations will proceed, the international community has lacked the political will to insist otherwise. This has to change.

So what are the legal rights of both sides? In the case of Israel, they include the fact that it is a sovereign state and a member state of the UN. It is entitled to its territorial integrity and to live in peace within its legitimate borders. In the case of the Palestinians, they include the right to self-determination for the Palestinian people of the Occupied Palestinian Territory which Israel has administered since June 1967 – the West Bank (including East Jerusalem) and the Gaza Strip.

The Palestinians are entitled to the territorial integrity of these lands and to live in peace in their own sovereign state built on them. That state is already recognised by more than 130 member states of the UN, as well as the Vatican. The rights described in this paragraph are not seriously disputed by the overwhelming majority of legal scholars today.

This list of the rights of both sides is not exhaustive. There are others which concern, for instance, refugees and the treatment of private property that once belonged to Palestinians in what is now Israel or – albeit on a much smaller scale – to Israelis in what is now the West Bank (including East Jerusalem). The passage of time since the partition of the British Mandate for Palestine in 1948 may make it harder to reclaim these rights, but they must still be accepted.

The fundamental point is that legal rights must be acknowledged on a basis of equality. It is only when that is done that serious negotiations can begin. These may lead, for example, to land swaps or special arrangements for Holy Places reached by mutual agreement at arm’s length.

But they cannot be negotiated without a clear and firm foundation of international law as the basis for negotiations. If this is not provided, the weaker party (the Palestinians) will feel under pressure to compromise its claims. And it will know that, once such claims have been compromised, the stronger party (Israel) will consider them waived. This fear is one of the main reasons why a negotiated peace has been so elusive, and why the Palestinians have sometimes seemed reluctant to enter into negotiations with a partner evidently keen to annex Palestinian land occupied in 1967.

It is rare for there to be mechanisms to enforce the rights of a party under international law. Sovereign states maintain armies to give themselves the means to do so, since international law gives states a right of self-defence which they can use to enforce their rights. But what if the party with which you are in dispute refuses to recognise that you are a state or even entitled to establish one? That is the dilemma faced by the Palestinians, and why the international community must support their rights.

Consider Lithuania, Latvia and Estonia. Absorbed by Stalin’s USSR in 1939, Britain continued to recognise them until they re-emerged into full sovereignty when the Soviet Union disintegrated. Britain should recognise Palestine now.

John McHugo is a trustee of the Balfour Project, a charity set up in 2017 to raise awareness of Britain’s historic role in incubating the Israel/Palestinian conflict and to call for Britain to use its influence to press for peace based on justice and equality. In his legal career he worked on international boundary disputes in the Middle East. He now writes history books attempting to explain today’s Middle East to a Western audience

‘Israel/Palestine: in search of the rule of law’ takes place online on 25 and 26 May. Introduced by Baroness Hale, former president of the supreme court, it will feature speeches by Philippe Sands QC, Michael Lynk, the UN Human Rights rapporteur for the Occupied Palestinian Territory, and Palestinian and Israeli lawyers who have direct, practical experience on the ground. To reserve your place, visit balfourproject.org