The Current Israeli-Palestinian War –  Aeronautical and Geo-Political Considerations

In cases where peaceful measures prove ineffective, the Security Council has the option to impose sanctions, such as economic embargoes or travel restrictions, on the parties involved in a dispute.

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This photo taken on Oct. 8, 2023 shows Israeli soldiers at the southern Israeli town of Ofakim. (Ilan Assayag/JINI via Xinhua)

It is forbidden to kill; therefore, all murderers are punished unless they kill in large numbers and to the sound of trumpets.” ― Voltaire

The War

Margeret Atwood once said: “War is what happens when language fails.”

On the 7th of October, a significant event unfolded as the Palestinian militant organization, Hamas, initiated an unprecedented assault on Israel during the early hours of that Saturday. This aggressive action involved Hamas fighters infiltrating communities near the Gaza Strip, resulting in the tragic loss of lives among the residents and the taking of hostages. In response to this attack, Israel swiftly declared a state of war.

Hamas is a Palestinian Islamist militant group that currently governs the Gaza Strip. This organization has long-standing and uncompromising intentions to bring about the destruction of Israel, and over the years, it has engaged in multiple armed conflicts with Israel since it assumed control of Gaza in 2007. It is important to note that in the periods between these wars, Hamas has either directly launched thousands of rockets at Israel or allowed other affiliated groups to do so, as well as conducting various other lethal attacks. Israel, in turn, has responded with repeated airstrikes against Hamas and, in collaboration with Egypt, imposed a blockade on the Gaza Strip since 2007, citing security concerns as their rationale.

Hamas also functions as a political entity, holding governance in Palestine for the past 17 years. This dual role complicates matters further, as it justifies Israel not only targeting military objectives in Gaza but also striking state institutions such as banks, police stations, and other government facilities. Unfortunately, this places the Palestinian population at considerable risk.

One additional pressing concern is the potential for this conflict to escalate beyond the borders of Israel and Hamas. If allies of Palestine become involved, it could provoke a response from Israel’s allies, leading to a broader and more devastating international conflict.

The Yom Kippur War

For 50 years, there has been no such massive, concentrated attack against Israel.  The Yom Kippur War, alternatively referred to as the October War or the 1973 Arab Israeli War, unfolded during the month of October in 1973. It stood as a momentous military clash pitting Israel against a coalition of Arab nations, principally led by Egypt and Syria. The war derives its name from the Jewish holy day of Yom Kippur, which coincided with the war’s commencement.

This conflict was initiated as a surprise offensive by Egypt and Syria, taking Israel by surprise. The Arab coalition launched their attack on October 6, 1973, with the objective of reclaiming territories lost to Israel during the Six-Day War of 1967. In the initial stages of the conflict, Egyptian and Syrian forces achieved notable territorial gains.

Nevertheless, Israel, with the backing of the United States, managed to orchestrate a counteroffensive, ultimately reversing the course of the war in their favor. Israeli forces crossed the Suez Canal into Egypt and pushed back Syrian forces in the Golan Heights. The war eventually concluded with a ceasefire on October 25, 1973.

Action by Airlines

In response to the current conflict, numerous airlines have opted to cease their flight operations to and from Israel. These airlines encompass American Airlines, KLM, Swiss Air, Austrian Airlines, Turkish Airlines, and Aegean Airlines. American Airlines emphasized its commitment to prioritizing safety and security while closely monitoring the situation, making operational adjustments as necessary.

Delta, in a similar vein, expressed its dedication to safely repatriate Delta employees to the United States and assist U.S. citizens who wish to return home, collaborating with the U.S. government as required.

Additional airlines such as Air France, Lufthansa, Emirates, Ryanair, and Aegean Airlines have also taken the step of canceling their flights. However, it’s worth noting that commercial air links with Eilat, Israel’s secondary international airport situated on the Red Sea and a popular tourist destination, have not been disrupted.

Lufthansa conveyed its decision to cancel all Tel Aviv flights through Monday due to the current security situation in Tel Aviv. The airline’s spokesperson emphasized that they were continuously monitoring Israel’s security situation. Brussels Airlines, a subsidiary of the Lufthansa Group, also followed suit in canceling its Tel Aviv flights.

Air France has  announced the suspension of its Tel Aviv flights until further notice and introduced commercial measures allowing customers to reschedule or cancel their trips without incurring charges. Transavia, the low-cost carrier within the Air France-KLM group, likewise canceled all flights from Paris and Lyon to Tel Aviv until Monday. Iberia, the Spanish airline, revealed that its budget subsidiary, Iberia Express, was scrapping its Tel Aviv flights.

ITA Airways, Italy’s flagship carrier, postponed its flights until at least Sunday morning, citing passenger and crew safety concerns. Furthermore, Polish carrier LOT canceled its flights departing from Warsaw on Saturday in response to the situation.

The Status of Palestine

The status of Palestine as a state presents a complex and contentious matter in international politics. While many nations and international organizations acknowledge Palestine as a sovereign state, its control over its territory and borders remains incomplete due to the ongoing Israeli-Palestinian conflict.

The Montevideo Convention on the Rights and Duties of States, adopted in 1933 defines a “State” as having the following characteristics: A Permanent Population: A state must have a stable and permanent population residing within defined territorial borders. This criterion implies that a state is not merely a government in exile or a transient entity; Defined Territory: A state must have a clearly defined territory with recognized borders. This territory should be under its control, and the state should exercise sovereignty over it; Government: A state must have a government that exercises effective control over its territory and population. This government should have the capacity to conduct international relations, make decisions, and enforce laws within its borders; Capacity to Enter into Relations with Other States: A state must possess the capacity to enter into diplomatic relations with other states. This implies that it can engage in treaties, negotiate agreements, and conduct foreign affairs independently.

In 1988, the Palestine Liberation Organization (PLO) declared the establishment of the State of Palestine, and this declaration received increasing recognition from numerous countries. In 2012, the United Nations General Assembly conferred non-member observer state status upon Palestine within the United Nations, further solidifying its statehood status in the eyes of a substantial portion of the international community.

Nevertheless, the situation on the ground is intricate, given that significant portions of Palestinian territories, including the West Bank and Gaza Strip, are subject to varying degrees of Israeli control. The ultimate status of these territories and the broader Israeli-Palestinian conflict remain unresolved and are subject to ongoing negotiations.

Thus, while Palestine enjoys recognition as a state by a considerable number of nations and international bodies, the practical exercise of full statehood, encompassing control over borders and territory, remains a subject of dispute and negotiation. The status of Palestine remains a central issue in the Israeli-Palestinian conflict and international diplomacy.

International Law

In ordinary parlance, what applies to the airlines operating international air services would be the Convention on International Civil Aviation (Chicago Convention).  However Article 89 of the Chicago Convention provides that in case of war, the provisions of the Convention must not affect the freedom of action of any of the contracting States whether as belligerents or as neutrals. The same principle applies in the case of any contracting State which declares a state of national emergency and notifies the fact to the Council.  It does not say that the Chicago Convention will not apply to a State involved in a war.  It merely says that freedom of action of that State pertaining to the war must not be affected by the Convention thus circumscribing action.  It is arguable therefore that the state of Israel can opt to close its skies for foreign aircraft (irrespective of article 15 of the Convention which says that every airport in a contracting State which is open to public use by its national aircraft must likewise be open under uniform conditions to the aircraft of all the other contracting States)) or invoke Article 9 of the Convention which says inter alia: ” Each contracting State may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory, provided that no distinction in this respect is made between the aircraft of the State whose territory is involved, engaged in international scheduled airline services, and the aircraft of the other contracting States likewise engage.”

Conclusion

At the time of writing, The United Nations Security Council was meeting, and it would be interesting to see the outcome. Firstly, it is noteworthy that although the Chicago Convention addresses “States” the United Nations, by virtue of its Charter concerns itself with “Nations” or “peoples of the world” which includes Palestine (The United Nations has active involvement in Palestine).  The Charter of the United Nations is thematically built on peace where its Preamble says: ” “We the peoples of the United Nations, determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.”

The Preamble outlines the fundamental principles and goals of the United Nations, including the prevention of war, the promotion of human rights, gender equality, and the pursuit of social progress and higher living standards for all.

Chapter VII of the United Nations Charter addresses the “Action Taken Regarding Threats to Peace, Breaches of the Peace, and Acts of Aggression.” This section delineates the powers and duties of the United Nations Security Council when confronted with situations that jeopardize global peace and security. Chapter VII confers significant authority upon the Security Council to take actions to confront threats to international peace and security. This includes determining the existence of such threats and deciding on appropriate courses of action. The Security Council is first encouraged to seek peaceful resolutions to conflicts. This might involve diplomatic negotiations, mediation, or other non-coercive methods of conflict resolution.

In cases where peaceful measures prove ineffective, the Security Council has the option to impose sanctions, such as economic embargoes or travel restrictions, on the parties involved in a dispute. When peaceful measures and sanctions fail to address a threat to peace adequately, the Security Council possesses the authority to employ military force to restore or uphold international peace and security. This includes authorizing the deployment of armed forces and the establishment of peacekeeping missions.

Chapter VII also acknowledges the inherent right of individual or collective self-defense in the event of an armed attack against a member state. However, member states must inform the Security Council of such actions, and the Security Council retains the power to take actions necessary to preserve or restore global peace and security. The chapter underscores that the decisions of the Security Council, when exercising its powers under Chapter VII, are binding upon all member states. Member states are obligated to comply with the determinations made by the Security Council.

Finally, Chapter VII plays a pivotal role within the United Nations Charter, offering the legal framework through which the Security Council can respond to international crises and conflicts, all with the aim of averting or mitigating threats to worldwide peace and security.

With this, one can only remain hopeful.

Ruwantissa Abeyratne

Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.

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