What follows are miscellaneous ideas. They reflect personal convictions based on dedicated and engaged observation of the events in Israel/Palestine since almost two decades. They do not reflect necessarily arguments that are sustained by facts and data but rather express opinions that may be subject to future revision and re-consideration. The objective of this contribution is not to accuse or to condemn but to analyze the peculiarity of the Israeli-Palestinian conflict and the complexity of the interests in stake.
First, Israel remains the occupying power in the Gaza Strip (GS) despite its claim that it is a ‘hostile territory.’

This is what was asserted by John Dugard, UN Special Rapporteur, during the Seventh Session of the Human Rights Council, on 21 January 2008. Earlier, when Israel withdrew from the GS (2005), an Israeli military commander declared that military governance in the GS has ended. Prime Minister Sharon told the General Assembly on 15 September 2005 that Israel’s withdrawal from GS meant the end of its responsibility for the area. For John Dugard, the withdrawal did not end the occupation of GS, since “the test for determining whether a territory is occupied under international law is effective control, and not the permanent physical presence of the occupying Power’s military forces in the territory in question.” He then added that Israel’s effective control there is demonstrated by many factors, including the substantial control of Gaza’s land crossings and the control of the Palestinian Population Registry. Being in control of occupied territory, Israel remains bound by international humanitarian law, especially by Fourth Geneva Convention applicable on civilians.
Second, many Israeli foreign policy decisions, especially with regard to Palestinians, depend largely on Israeli internal politics. The fact that the Israeli offensive on GS (December 2008) took place in that specific period of time (prior to Israeli elections) and the fact that it ended without necessarily realizing predetermined objectives, may lead to the same conclusion. The problem with this approach is that the Israeli system is blocked and with it the whole ‘peace process,’ having rendered it completely dependent on majority vote, of both Knesset and Israeli cabinet. I argue that this is one of the main factors why Israel is incapable, and to some extent, unwilling to commit itself to any peaceful settlement of the conflict with the Palestinians. Besides, such an approach is based on a fundamental error, having subordinated a right recognized as a jus cogens, i.e. the right to self-determination (of the Palestinian people) to the simple majority system (of the Israeli people). This is a misuse of democratic institutions and principles. Democracy does not contradict, but rather complement, the whole system of rights and freedoms that both international law and major state legal systems recognize as universal and binding rights. In that sense, even the Israeli High Court decisions respond largely to internal (Israeli) political challenges, having confined its power in many occasions, in order to avoid putting pressure on Israeli government to abide by its international obligations.
Third, during the last offensive on GS by the Israeli army, Egypt had rightly claimed that it has the sovereign power to regulate its borders. Egypt permitted crossings only for certain period of times and for certain categories of persons. I argue that this legitimate right of each state had one limitation: the non-refoulement, i.e. a principle consecrated by international customary law and by the Convention relating to the Status of Refugees. The same obligation exists for Israel for sure, added to its other obligations under international humanitarian law, as occupying authority. In other words, Egypt was right to say that it has sovereign power on its borders but was wrong in applying it in that specific period of time (during the Israeli operation, where thousands where killed and injured) when people where trying to cross borders, trying to escape for fear on their lives.
Fourth, since June 2007, Hamas is in complete control of Gaza Strip. They did that by an easy coup d’état, where resistance by Palestinian Authority (PA) security forces was almost non-existent. It is rather interesting to try to analyze why Hamas did so when, as a result of the 2006 elections, they had indeed the majority of seats in the Palestinian Legislative Council (PLC) and had formed a Hamas-led government. It is then legitimate to wonder why this happened. It is impossible to show the reasons in those few lines but one may consider certain facts: since 2006 elections, the international community, mainly the Quartet, and Israel, have boycotted a Hamas-lead Palestinian authority. At the same time, there were several indicators that there was an attempt to return back to the Palestine Liberation Organization (PLO)-where Hamas is not represented-for taking certain decisions, until then undertaken by the PA itself, and not by the PLO. Even PA President, Mahmoud Abbas, despite his personal, and, I believe, sincere will to include Hamas in the political system and his alleged will to peacefully transfer power to the new Hamas-led government, he contributed, maybe under internal and international pressure, to rendering Hamas-led government void of its prerogatives. Israel had contributed to the block of the PA system by imprisoning PLC Hamas members (around 40 members out of 132), thus rendering the PLC ineffective. Those actions were undertaken following the 2006 elections, considered by observers as being transparent and democratic. One may then understand (not justify) Hamas’ decision to have recourse on force to control Gaza. However, despite the above, I argue, it was a fatal error that Hamas did so. It rendered Palestinians legitimate claims for their national rights much more difficult to satisfy or realize.
Fifth, if the coup d’état undertaken by Hamas was the result of a predetermined and pre-meditated decision, and for that reason, an incorrect and dishonest action, towards both the Palestinian people and the Arab states that supported and hosted the Mecca Agreement some months earlier, what followed it, is not simply the result of only political decisions. Palestinian politics since then is moving towards the edge of no-where. Palestinian factions are, since then, in a limbo while Palestinian people are marginalized and their capacity to genuinely decide or judge is underestimated. For this reason, it is very common feeling, even between Palestinian academics and scholars, to feel completely disoriented and incapable of taking positions, suggesting solutions, or even simply having a vision for the future. The only loser of such limbo is the Palestinian nation as a whole, since the Palestinian cause itself is hijacked by those groups who excommunicate whoever adopts a different vision than theirs.
Sixth, there are increasing references to the need for Palestinians to reconcile. Many initiatives, talks and propositions have been put forward in that direction. Those are simply done to distract and to some extent absorb Palestinian population’s dissatisfaction. Both Hamas and Fatah are not serious about returning to the pre-June 2007, simply because the advantages of being separated are much more than the inconveniences. Since then, indeed, PA president had been able to form a government, led by Salam Fayyad. This move was welcomed by the international community which resumed funding PA budget without restrictions. PA could afford paying salaries for public servants, and projects could be realized. Even the political process and negotiation with Israel restarted. Hamas does not need anymore to compromise with anyone; the effective control over Gaza was sufficient to pretend, and maybe to acquire with time, a position as interlocutor. Hamas acquired indirectly the recognition by having the decision of cease-fire in their hand, at least with regards to Gaza Strip rockets and maybe by pretending to be talking in the name of ‘resistance’. I do not then see why both Hamas and Fatah, and even Israel and the international community, would encourage a return to the pre-June 2007 situation?
Seventh, Palestinians do not, and maybe could not, look in a neutral way to human rights. They, indeed, notice the way human rights developed since Second World War. They notice an increased codification process of both international human rights law and international humanitarian law. They notice the development of treaty and non-treaty based mechanisms aiming at enhancing respect of human rights. They even notice the development of the concept of criminal responsibility of states and state officials. In parallel, although in the opposite direction, they notice the partition of Palestine in 1947, the creation of the state of Israel which caused, inter alia, the displacement of half of the Palestinian population of the territories falling under the control of Zionist forces, forming the territory of the state of Israel. They notice the occupation of West Bank and Gaza Strip in 1967, the annexation of East Jerusalem, the confiscation of lands, the control of daily lives of Palestinians, their movement, commerce, education etc. They have witnessed massacres in Sabra and Shatila (1982), in Jenin (2002), and in Gaza (2008). They document violations of basic human rights. They even try international mechanisms and obtain an advisory opinion from the International Court of Justice. They have several UN resolutions supporting their claims. They remain, however, after decades, in point zero. This hypocrisy of the international community and the double standards in which rights are distributed between nations render it impossible for Palestinians to perceive human rights as neutral and objective. However, the main danger for Palestinians is not the violation of their basic rights, but the loss of their faith in human rights as best basis for claiming their legitimate national rights. In other words, it is catastrophic for Palestinians to slip in the other side’s shoes, committing serious violations of human rights in the name of right to self-determination. The right to resistance should be confined within the framework of international humanitarian law, regardless of and despite the fact that Israel is not respecting its provisions. Certain rules indeed apply erga omnes and do not need reciprocity.
Eighth, some claim the International Criminal Court (ICC) is legitimate to prosecute Israeli officers for their offensive in Gaza. The PA had even submitted a request to endorse the Rome Statute. The ICC may be the most adequate and legitimate institution to persecute war criminals. However, in the current state of affairs, the ICC is incapable to prosecute Israeli officers, for Israel did not endorse the Rome statute on the one side, and on the other, the PA and the occupied Palestinian territory are not states, and are thus incapable of endorsing international treaties and abide by them. Accordingly, the only way for the ICC to intervene is through the authorization of the UN Security Council; which is impossible to conceive in the current Security Council’s composition and rules of action. There are still ways in which Palestinians may consecrate time and efforts to render their rights justiciable. First, by national courts; this includes some European countries which recognize jurisdiction of their national courts on certain international crimes. Second, by having recourse to the high contracting parties of the Geneva Convention for serious violation of provisions of the Fourth Geneva Convention, endorsed by Israel. Third, by approaching the ICJ (through appropriate mechanisms) on the consequences of attacks conducted by Israeli forced on UN schools and agents. However, it may seem opportune to dedicate more efforts and time to study other options, including non-legal and non-judicial international instruments. Palestinians should not underestimate the role of civil society pressure especially the one exercised by mass-media.
Ninth, since September 11, and in Israel even earlier, there was confusion between the actions of terrorism and those who commit them. This confusion rendered it possible to extend the adjective ‘terrorism’ (without agreeing necessarily to its meaning, by the way) on all actions committed by certain individuals because they were tagged as ‘terrorists.’ By that same confusion, actions that are usually qualified as terrorism because they target civilians indiscriminately with the objective of terrorizing civil populations are not labeled so because they have been committed by the ‘good ones.’ This confusion makes it hard to combat terrorism and make it even harder to include certain groups of individuals who have committed specific actions possibly qualified as ‘terrorist’ to be included in any political process. There is a need to distinguish between the acts of terrorism that shall always be condemned and fought against, regardless of who is committing it (individuals, groups or even states) and acts of resistance that includes, inter alia, the possible recourse to arms from persons that could possibly be converted to political actors.