II. Core Issues Between Israel–Palestine

The issues at the heart of the Israel–Palestine conflict remain unresolved in part because previous peace negotiations failed to adequately address their historical underpinnings. During the 1993–1995 Oslo Peace Process, “Both leaderships eschewed discussions of the past” and failed to critically engage with the history of the conflict and its ramifications.11 Additionally, there was no proposition of a transitional justice mechanism or the ways in which it could help remedy core issues between the parties. Israeli negotiator Uri Savir said, “never again would we argue about the past.”12 The Palestinian negotiator Ahmed Qurei said, “We focused our attention on the present and the future,” as they were “trying to gauge the extent to which we had a common ground.”13 Priority was given to the issues of “mutual recognition, the creation of a Palestinian authority, and a progressive withdrawal of Israeli occupying forces.”14 However, neither side was interested in “readdressing ancient wrongs.”15 Although the “final-status issues” including that of the Palestinian refugees were left to be addressed in 2000 at the Camp-David Summit, no resolution was reached.16

A. Palestinian Refugee Issue

In the war for independence that followed the creation of the State of Israel in 1948, about half the Arab population fled what was British-ruled Palestine.17 According to some estimates, 700,000 Palestinians “fled or were driven from their homes, ending up in Jordan, Lebanon and Syria as well as in Gaza, the West Bank and East Jerusalem.”18 According to the International Center for Transitional Justice, Palestinians make up the world’s largest displaced population.19 After two waves of displacement in Israel in 1948 and 1967, three generations of Palestinians have faced a refugee crisis. By 2012, approximately 70% of Palestinians had been displaced from their place of origin, with more than 6.6 million refugees and approximately 427,000 people displaced within Israel, the West Bank, and the Gaza Strip.20 Since October 7, 2023, around two million Palestinians have been displaced across the Gaza Strip.21

The Middle-East Peace Envoy at the Camp-David Summit wrote, “our parameter[s] acknowledge that the Palestinians needed the right [of return], but that Israel must have the sovereign right to determine who could be admitted to Israel.”22 At the Taba Summit in January 2001, Palestinians also “demanded a clear acknowledgment of Israel’s ‘moral and legal responsibility for the forced displacement and dispossession of the Palestinian civilian population during the 1948 war.’”23 However, although Israel agreed to “express its sorrow for the tragedy of Palestinian refugees” it would not “accept moral responsibility.”24 There have been various attempts since then to reach an agreement, but nearly twenty-four years later, the Palestinian refugee issue persists.

B. Territory Issue and the “Right of Return”

The Palestinian demand for a “right of return” has arguably been one of, if not the main reason Israel and Palestine have failed to reach a peace agreement. The Palestinian argument is that the original Palestinian refugees who were “dispossessed and expelled, or fled under threat of violence” from the decision in 1947 to end the British mandate, through Israel’s War of Independence from 1948–1949, have the right to return to those original homes.25 However, a dominant Israeli narrative is that “those who left in 1948 were largely manipulated by Arab armies, during a war that Israel did not start, then held in refugee camps for generations” in order to “be used as political pawns.”26 Thus, Israelis and Palestinians have completely opposite, seemingly irreconcilable viewpoints on this issue. Israel does not believe there is any “right of return” to areas of Israeli sovereignty-apart from considering a small number of refugees for the purpose of family reunification-and “denies responsibility for the creation of the refugee problem.”27

In addition to the impasse about the “right of return,” Israeli settlements in the West Bank have been a point of contention. In September 1993, Israeli Prime Minister Yitzhak Rabin and Palestine Liberation Organization Negotiator Mahmoud Abbas, signed the “Oslo Accord.”28 Both sides agreed to the establishment of a Palestinian Authority (PA) and that it would govern the West Bank and Gaza Strip over a five-year period.29 In 1995, the Taba Agreement (Oslo II) divided the West Bank into three areas: A (18%)—PA administers civil and security matters, B (22%)—PA administers civil matters and Israel maintains security and military responsibilities, and C (60%)—fully administered by Israel.30 However, by 2000, the agreement began to fall apart as violence ensued between Israel and Palestine, particularly with regard to the Israeli settlements in Area C.

The tension surrounding this territorial divide is a byproduct of the way the West Bank’s division “resulted in the creation of a large number of disconnected territorial nodes and exclaves.”31 Even though this agreement expanded Palestinian authority, the lack of “territorial contiguity” does not permit for the efficient functioning of a Palestinian administration.32 Travelling between towns under Palestinian control often requires travelling along the roads under Israeli control.33 Further, Israeli and Palestinian settlements throughout the West Bank are surrounded by territory which belongs to the other side.34 For example, according to some estimates, 30% of Area C is a “designated ‘firing zone’ for military training,” even though about thirty-eight Palestinian communities are located within that area.35 Thus, the line between Palestinian and Israeli territories is not clearly delineated so that each side feels it has sufficient autonomy over its own people.

C. Extremist Organizations Issue

The religious dimension of the Israel–Palestine conflict has in large part been manipulated to propagate the narrative of the extremist organizations. Hamas, Palestinian Islamic Jihad, Popular Front for the Liberation of Palestine, Hizballah, the Palestine Liberation Front, and Israel’s extreme religious Zionists have contributed to the delay of a peace agreement between Israel and Palestine. Israel’s extreme religious Zionists believe themselves to be “guardians and definers of how the Jewish state should be and are very stringent when it comes to any concessions to the Arabs.”36 Conversely, the extreme Islamist groups are proponents of “liberating the ‘holy’ territories and sites” and “preach violence and hatred against Israel and the Jewish people.”37 The tension between the extremists is further exacerbated by the media that fuels “rumors” essentially equating the “agendas” of the extremists to that of the average Palestinian and Israeli.38 For example, there have been claims that there is a “‘Jewish Plan’ to destroy al Aqsa mosque” and that “Muslims hold the annihilation of Jews at the core of their belief.”39

Hamas, an Islamic militant group born in late 1987 after the outbreak of the first intifada, has been a focal point of the Israel–Palestine conflict for decades. As a group whose charter calls for the destruction of Israel, it has through violent protest opposed the Oslo Accords and attempts at a two-state solution.40 Despite lacking in popularity among many Palestinians, Hamas has been the de facto authority in Gaza since 2006.41 Since then, the “Wars in Gaza” between Israel and Hamas have ensued.42 On October 7, 2023, Hamas launched a deadly attack on Israel and Israel has since responded with deadly “counteroffensive” attacks in an effort to “carry out a ‘complete siege’ of Gaza.”43

III. Transitional Justice Mechanism for Israel–Palestine

Each of the core issues previously discussed can be more effectively addressed through transitional justice than criminal justice. Israelis’ and Palestinians’ acknowledgment of each other’s right to live and occupy Israel and the West Bank would be the first step in the way of resolving the land conflict. A cease fire and agreement upon a two-state solution is very unlikely to happen until Israelis and Palestinians feel there has been a genuine understanding and acceptance of the other’s perspective. It has been argued that Palestinians feel that in 1948 “a country and its people disappeared from both maps and dictionaries.”44 Thus, if Israel would “agree to acknowledge the Palestinians’ right of return to their ‘homes,’” it would demonstrate Israel’s acknowledgment of the Palestinian people’s legitimacy.45

Additionally, in order for the sentiment around “right of return” to change, Israel would need to recognize that this demand is not “unique” to Palestinians nor “proof of Palestinians’ destructive intent.”46 Conversely, it is important that the Palestinian side acknowledge that the Jewish people have a connection to the land of Israel, because otherwise many Israelis see the “right of return for Palestinians is equivalent to the an elimination of the state of Israel as a shelter for Jews.”47 Additionally, to help change the narrative around the demand for “right of return,” it should be explicitly separate “from discussions about the final determination of Israel’s national identity.”48 Thus, for both groups to coexist peacefully, acknowledgement of the other’s perspective is imperative.

The establishment of a truth and reconciliation committee and an international refugee fund through a peace agreement between Israel and Palestine, would likely aid in remedying the misalignment of views between Israelis and Palestinians. There is a sentiment among Palestinians, particularly among the refugees, that their suffering has been largely sidelined for decades. Thus, a truth and reconciliation commission would provide a platform for thousands of Israeli and Palestinian victims to express their grievances and suffering after decades of war and turmoil and for perpetrators of crimes to take responsibility for their actions on a mass-scale. Additionally, creating an international fund would not only financially aid these refugees, but also symbolize the acknowledgment of their pain and suffering. However, the importance of the fund is that it is also officially supported by the Israeli government which would send a message to Palestinians that their suffering has been acknowledged.

The outstanding issue, and one for which the remedy is unclear, is that of the Israel–Hamas war and persistence of extremist groups. Peace will not be attainable so long as civilians are killed and any attempt at a peace agreement is violently protested. Hamas’s acts, particularly those since October 7, 2023, beg the question: How much authority does the PA yield to impose a cease fire and negotiate a peace agreement with Israel? There is uncertainty about whether the PA would hold sufficient authority and support among Palestinians were there to be renewed discussions around an Israel–Palestine peace agreement. Additionally, half of the Palestinians believe that the “interest of the Palestinian people lies in the dissolution or collapse of the PA” and 73% believe Hamas-run institutions in the Gaza Strip are corrupt.49 However, although there is not a clear cut solution, there is hope that through a commitment from Israel for a cease fire and acknowledgment of historical wrongdoing through truth and reconciliation commissions, any civilian support that exists for these extremists groups will begin to dissipate.

IV. Conclusion

Israel and Palestine’s war over independence has been driving the last eighty years of conflict. Decades of violence have resulted in the displacement of millions of people and as some may argue, the development of militant extremist groups. So long as war ensues between Israel and Palestine, the prospect of peace will only become a more distant and unattainable reality.

Prosecution for any crimes that may have been committed by both sides will not deliver justice to the victims nor resolve the core issues between Israel and Palestine. By attempting to assert blame on the wrongdoers, prosecution will only further polarize the groups, ingraining the opposing views which led to the current impasse. If there is a solution to the Israel–Palestine conflict, it lies in the application of transitional justice.

With both Israel and Palestine having largely youthful populations—thirty being the median age in Israel and twenty-one being the average age in Palestinian Territories—a peace agreement is vital to the prosperity of the coming generations.50 A truth and reconciliation commission, the establishment of an international refugee fund, and an acknowledgment of each side’s connection to the land of Israel and the West Bank, will hopefully lead to the establishment of a cease fire and permanent two-state solution.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Jeffry A. Frieden, The Root Causes of Enduring Conflict: Can Israel and Palestine Co-Exist?, in Israel and Palestine: Alternative Perspectives on Statehood (John Ehrenberg & Yoav Peled eds., Jul. 2016), paywall, earlier version available online. ↩

2. 2.

   Id. at 5. ↩

3. 3.

   Transitional Justice and Human Rights, OHCHR, available online (last visited Dec. 7, 2023). ↩

4. 4.

   Yoav Kapshuk, Transitional Justice in the Israeli–Palestinian Negotiations: What Can Be Learned from the Colombian Case?, 14 JPD 73, 76 (2019), available online, doi. ↩

5. 5.

   Id. ↩

6. 6.

   The Question of Palestine, UNISPAL, available online (last visited Dec. 6, 2023). ↩

7. 7.

   Id. ↩

8. 8.

   Id. ↩

9. 9.

   Id.; The Arab–Israeli War of 1948, U.S. Dept. of State: Office of the Historian, available online (last visited Dec. 8, 2023). ↩

10. 10.

    Kapshuk, supra note 4, at 75 citing Nadim N. Rouhana, Key Issues In Reconciliation: Challenging Traditional Assumptions on Conflict Resolution and Power Dynamics (2011), available online. ↩

11. 11.

    Nadim Khoury, Transitional Justice in Palestine/Israel: Whose Justice? Which Transition?, in Rethinking Statehood in Palestine: Self-Determination and Decolonization Beyond Partition 156 (Leila H. Farsakh ed., 2021), available online, doi, quoting Ron Dudai, A Model for Dealing with the Past in the Israeli–Palestinian Context, 1 IJTJ 249, 252 (Jul. 2007), paywall, doi. ↩

12. 12.

    Khoury, supra note 11, at 156, quoting Uri Savir, The Process 15 (1998), paywall. ↩

13. 13.

    Khoury, supra note 11, at 156, quoting Ahmed Qurei, From Oslo to Jerusalem: The Palestinian Story of the Secret Negotiations 58 (2006), available online. ↩

14. 14.

    Khoury, supra note 11, at 156. ↩

15. 15.

    Savir, supra note 12, at 156. ↩

16. 16.

    Id. ↩

17. 17.

    What’s the Israel–Palestinian Conflict About and How Did It Start?, Reuters, Oct. 11, 2023, available online. ↩

18. 18.

    Id. ↩

19. 19.

    Leila Hilal, ICTJ, Transitional Justice Responses to Palestinian Dispossession: Focus on Restitution 4 (Aug. 2012), available online. ↩

20. 20.

    Id.; Ingrid Jaradat Gassner ed., BADIL, Survey of Palestinian Refugees and Internally Displaced Persons 2008–2009 (2009), available online. ↩

21. 21.

    Almost 1.9M Palestinian Displaced Across Gaza Strip Since Oct. 7: UN, Anadolu Agency, Dec. 5, 2023, available online; Bassam Masoud, Gaza Families Flee Again to Shrinking, Overcrowded Pocket of Land, Reuters, Dec. 5, 2023, available online. ↩

22. 22.

    Kapshuk, supra note 4, at 75, quoting Dennis Ross, The Missing Peace: The Inside Story of the Fight for Middle East Peace (2005), paywall. ↩

23. 23.

    Kapshuk, supra note 4, at 75, quoting Taba Non-Papers, Palestinian Position Paper On Palestinian Refugees and the Israeli Response (2001), available online. ↩

24. 24.

    Kapshuk, supra note 4, at 75. ↩

25. 25.

    Dahlia Scheindlin, Neither Intractable Nor Unique: A Practical Solution for Palestinian Right of Return, The Century Foundation (Apr. 28, 2020), available online. ↩

26. 26.

    Id. ↩

27. 27.

    Id. ↩

28. 28.

    The Oslo Accords and the Arab–Israeli Peace Process, U.S. Dept. of State: Office of the Historian, available online (last visited Dec. 8, 2023). ↩

29. 29.

    Id. ↩

30. 30.

    Id.; Areas A, B, C, Visualizing Palestine 101, available online (last visited Dec. 10, 2023); What Are Area A, Area B, and Area C in the West Bank?, Anera, available online (last visited Dec. 10, 2023). ↩

31. 31.

    David Newman, Shared Spaces—Separate Spaces: The Israel–Palestine Peace Process, 39 GeoJournal 363, 365 (Aug. 1996), paywall, doi. ↩

32. 32.

    Id. ↩

33. 33.

    Id. ↩

34. 34.

    Id. ↩

35. 35.

    What Are Area A, Area B, and Area C in the West Bank?, supra note 30. ↩

36. 36.

    Mohamed Galal Mostafa, Religion and the Israel–Palestinian Conflict: Cause, Consequence, and Cure, Fikra Forum (May 31, 2018), available online. ↩

37. 37.

    Id. ↩

38. 38.

    Id. ↩

39. 39.

    Id. ↩

40. 40.

    The Covenant of the Islamic Resistance Movement (Aug. 18, 1988), available online (trans.); Kali Robinson, What Is Hamas?, Council on Foreign Rel. (Oct. 31, 2023), available online. ↩

41. 41.

    Robinson, supra note 40. ↩

42. 42.

    Nicole Narea, A Timeline of Israel and Palestine’s Complicated History, Vox, Oct. 19, 2023, available online. ↩

43. 43.

    Id. ↩

44. 44.

    Kapshuk, supra note 4, at 76 citing Elias Sanbar, Out of Place, Out of Time, 16 Mediterr. Hist. Rev. 87, 87 (2001), paywall, doi. ↩

45. 45.

    Id. ↩

46. 46.

    Scheindlin, supra note 25. ↩

47. 47.

    Kapshuk, supra note 4, at 76, citing Sammy Smooha, The Index of Arab–Jewish Relations In Israel 38 (2013), available online. ↩

48. 48.

    Scheindlin, supra note 25. ↩

49. 49.

    Palestinian Center for Policy and Survey Research, Public Opinion Poll No. 88 (Jun. 2023), available online. ↩

50. 50.

    Robert Barron, How Do Israeli and Palestinian Youth View the Prospects for Peace?, USIP (Jan. 31, 2023), available online. ↩