Status of territories captured by Israel

The United Nations Security Council and the International Court of Justice both describe the West Bank and Golan Heights as "occupied territory" under international law, Israel's government calls all of them "disputed" rather than "occupied",.^[1] Israel's government also argues that since the Gaza disengagement of 2005, it does not militarily occupy the Gaza strip, a statement rejected by the United Nations Human Rights Council and Human Rights Watch.^[2][3]

Occupied

In their decisions on the separation barrier, the International Court of Justice and Supreme Court of Israel have both ruled that the West Bank is occupied.^[3][4] The US State Department also considers the West Bank and Gaza Strip occupied.^[4]

The ICJ outlined the legal rationale for the supporters of this view in its advisory opinion of 9 July 2004. It noted:

...under customary international law as reflected (...) in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907 (hereinafter “the Hague Regulations of 1907”), territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised. The territories situated between the Green Line (see paragraph 72 above) and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories, as described in paragraphs 75 to 77 above, have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.

On the application of the fourth Geneva Convention, the Court noted:

...for the purpose of determining the scope of application of the Fourth Geneva Convention, it should be recalled that under common Article 2 of the four Conventions of 12 August 1949:

“In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."

(...) the Court notes that, according to the first paragraph of Article 2 of the Fourth Geneva Convention, that Convention is applicable when two conditions are fulfilled: that there exists an armed conflict (whether or not a state of war has been recognized); and that the conflict has arisen between two contracting parties. (...) The object of the second paragraph of Article 2 is not to restrict the scope of application of the Convention, as defined by the first paragraph, by excluding therefrom territories not falling under the sovereignty of one of the contracting parties. It is directed simply to making it clear that, even if occupation effected during the conflict met no armed resistance, the Convention is still applicable.

In its June 2005 ruling upholding the constitutionality of the Gaza disengagement, the Israeli High Court determined that "Judea and Samaria" [West Bank] and the Gaza area are lands seized during warfare, and are not part of Israel." ^[5]

Disputed

The Jerusalem Center for Public Affairs and Israeli government websites who support the view that the territories are not occupied argue that use of the term "occupied" in relation to Israel's control of the areas has no basis in international law or history,^[6][7] and that it prejudges the outcome of negotiations. They regard the territories as "disputed" based on the following legal arguments:

• No borders have been established or recognized by the parties. Armistice lines do not establish borders, and the 1949 Armistice Agreements in particular specifically stated (at Arab insistence) that they were not creating permanent or de jure borders.^[6]

• In line with the above idea, the Israeli government has officially stated that its position is that the territories cannot be called occupied, as no nation had clear rights to them, and there was no operative diplomatic arrangement, when Israel acquired them in June 1967.^[7]

• Territories are only "occupied" if they are captured in war from an established and recognized sovereign, but no state had a legitimate or recognized sovereignty over the West Bank, Gaza Strip or East Jerusalem prior to the Six-Day War.^[5]
• The Fourth Geneva Convention is not applicable to the West Bank and Gaza Strip, since, under its Article 2, it pertains only to "cases of…occupation of the territory of a High Contracting Party" by another High Contracting party. The West Bank and Gaza Strip have never been the legal territories of any High Contracting Party.^[6][7][8]
• Even if the Fourth Geneva Convention had applied at one point, they certainly did not apply once the Israel transferred governmental powers to the Palestinian Authority in accordance with the 1993 Oslo Accords, since Article 6 of the convention states that the Occupying Power would only be bound to its terms "to the extent that such Power exercises the functions of government in such territory....".^[9]
• Israel took control of the West Bank as a result of a defensive war. The language of "occupation" has allowed Palestinian spokesmen to obfuscate this history. By repeatedly pointing to "occupation," they manage to reverse the causality of the conflict, especially in front of Western audiences. Thus, the current territorial dispute is allegedly the result of an Israeli decision "to occupy," rather than a result of a war imposed on Israel by a coalition of Arab states in 1967. Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, wrote in 1970 regarding Israel's case: "Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title." [10]

Yoram Dinstein, has dismissed the position that they are not occupied as being “based on dubious legal grounds”.^[8] Many Israeli government websites do refer to the areas as being "occupied territories".^[9] According to the BBC, "Israel argues that the international conventions relating to occupied land do not apply to the Palestinian territories because they were not under the legitimate sovereignty of any state in the first place."^[10]

After 1967, a number of legal arguments were advanced which dismissed the right of Palestinians to self-determination and statehood. They generally proposed that Palestine was a land void of a legitimate sovereign and supported Israeli claims to the remaining territory of the Palestine Mandate.^[11][12] Historian and journalist, Gershom Gorenberg, says that outside of the pro-settlement community in Israel, these positions are considered quirky. He says that, while the Israeli government has used them for public relations purposes abroad, it takes entirely different positions when arguing real legal cases before the Israeli Supreme Court. In 2005 Israel decided to dismantle all Israeli settlements in the Gaza Strip and four in the northern West Bank. Gorenberg notes, the government's decision was challenged in the Supreme Court by settlers, and the government won the case by noting the settlements were in territory whose legal status was that of 'belligerent territory'. The government argued that the settlers should have known the settlements were only temporary.^[13]

Israeli judicial decisions

In two cases decided shortly after independence, in the Shimshon and Stampfer cases, the Supreme Court of Israel held that the fundamental rules of international law accepted as binding by all "civilized" nations were incorporated in the domestic legal system of Israel. The Nuremberg Military Tribunal determined that the articles annexed to the Hague IV Convention of 1907 were customary law that had been recognized by all civilized nations.^[14] In the past, the Supreme Court has argued that the Geneva Convention insofar it is not supported by domestic legislation "does not bind this Court, its enforcement being a matter for the states which are parties to the Convention". They ruled that "Conventional international law does not become part of Israeli law through automatic incorporation, but only if it is adopted or combined with Israeli law by enactment of primary or subsidiary legislation from which it derives its force". However, in the same decision the Court ruled that the Fourth Hague Convention rules governing belligerent occupation did apply, since those were recognized as customary international law.^[15]

The Israeli High Court of Justice determined in the 1979 Elon Moreh case that the area in question was under occupation and that accordingly only the military commander of the area may requisition land according to Article 52 of the Regulations annexed to the Hague IV Convention. Military necessity had been an after-thought in planning portions of the Elon Moreh settlement. That situation did not fulfill the precise strictures laid down in the articles of the Hague Convention, so the Court ruled the requisition order had been invalid and illegal.^[16] In recent decades, the government of Israel has argued before the Supreme Court of Israel that its authority in the territories is based on the international law of "belligerent occupation", in particular the Hague Conventions. The court has confirmed this interpretation many times, for example in its 2004 and 2005 rulings on the separation fence.^[17][18]

In its June 2005 ruling upholding the constitutionality of the Gaza disengagement, the Court determined that "Judea and Samaria" [West Bank] and the Gaza area are lands seized during warfare, and are not part of Israel:

The Judea and Samaria areas are held by the State of Israel in belligerent occupation. The long arm of the state in the area is the military commander. He is not the sovereign in the territory held in belligerent occupation (see The Beit Sourik Case, at p. 832). His power is granted him by public international law regarding belligerent occupation. The legal meaning of this view is twofold: first, Israeli law does not apply in these areas. They have not been "annexed" to Israel. Second, the legal regime which applies in these areas is determined by public international law regarding belligerent occupation (see HCJ 1661/05 The Gaza Coast Regional Council v. The Knesset et al. (yet unpublished, paragraph 3 of the opinion of the Court; hereinafter – The Gaza Coast Regional Council Case). In the center of this public international law stand the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations). These regulations are a reflection of customary international law. The law of belligerent occupation is also laid out in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention).^[19][20]

Range of Israeli legal and political views

Soon after the 1967 war, Israel issued a military order stating that the Geneva Conventions applied to the recently occupied territories,^[21] but this order was rescinded a few months later.^[22] For a number of years, Israel argued on various grounds that the Geneva Conventions do not apply. One is the Missing Reversioner theory^[23] which argued that the Geneva Conventions apply only to the sovereign territory of a High Contracting Party, and therefore do not apply since Jordan never exercised sovereignty over the region.^[24] However, that interpretation is not shared by the international community.^[25] The application of Geneva Convention to Occupied Palestinian Territories was further upheld by International Court of Justice, UN General Assembly, UN Security Council and the Israeli Supreme Court.^[25]

In cases before the Israeli High Court of Justice the government itself has agreed that the military commander’s authority is anchored in the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, and that the humanitarian rules of the Fourth Geneva Convention apply.^[26] The Israeli MFA says that the Supreme Court of Israel has ruled that the Fourth Geneva Convention and certain parts of Additional Protocol I reflect customary international law that is applicable in the occupied territories.^[27] Gershom Gorenberg has written that the Israeli government knew at the outset that it was violating the Geneva Convention by creating civilian settlements in the territories under IDF administration. He explained that as the legal counsel of the Foreign Ministry, Theodor Meron was the Israeli government's expert on international law. On September 16, 1967 Meron wrote a top secret memo to Mr. Adi Yafeh, Political Secretary of the Prime Minister regarding "Settlement in the Administered Territories" which said "My conclusion is that civilian settlement in the Administered territories contravenes the explicit provisions of the Fourth Geneva Convention." ^[28] Moshe Dayan authored a secret memo in 1968 proposing massive settlement in the territories which said “Settling Israelis in administered territory, as is known, contravenes international conventions, but there is nothing essentially new about that.”^[29]

See also

• International law and the Arab-Israeli conflict
• Israeli-occupied territories
• Palestinian territories
• Political status of the West Bank and Gaza Strip

References

1. ^ Disputed territories - Forgotten facts about the West Bank and Gaza strip, Israeli Ministry of Foreign Affairs, 1 Feb 2003. Retrieved 16 Feb 2009.
2. ^ Falk, Richard (2009-03-17). "HUMAN RIGHTS SITUATION IN PALESTINE AND OTHER OCCUPIED ARAB TERRITORIES". United Nations. http://unispal.un.org/UNISPAL.NSF/0/F0A9F3E9FAD114D38525757E00628B1E. Retrieved 2009-05-10. ""Israel officially contends that, after the implementation of its disengagement plan in 2005, it is no longer an occupying Power, and is therefore not responsible for observance of the obligations set forth in the Fourth Geneva Convention. That contention has been widely rejected by expert opinion, by the de facto realities of effective control and by official pronouncements by, for instance, the United Nations High Commissioner for Human Rights and the Secretary-General (A/HRC/8/17), the General Assembly in its resolutions 63/96 and 63/98, and the Security Council in its resolution 1860 (2009)."" 
3. ^ HRW: Israel: 'Disengagement' Will Not End Gaza Occupation, Human Rights Watch website.
4. ^ Israel and the occupied territories, Country Reports on Human Rights Practices - 2001, Bureau of Democracy, Human Rights, and Labor, U.S. State Dept., March 4, 2002.
5. ^ Chronological Review of Events Relating to the Question of Palestine, Division for Palestinian Rights, MONTHLY MEDIA MONITORING REVIEW.
6. ^ ^{a b} "Occupied Territories" to "Disputed Territories" by Dore Gold, Jerusalem Center for Public Affairs, January 16, 2002. Retrieved September 29, 2005.
7. ^ ^{a b} Israeli Settlements and International Law, Israel Foreign Ministry website, 5/4/01, accessed 12/18/07. (Scroll down to paragraph which begins "Politically, the West Bank and Gaza Strip is best regarded as..."
8. ^ see Yoram Dinstein, ‘The International Law of Belligerent Occupation and Human Rights’, 8 Israeli Yearbook on Human Rights 104, 107 (1978) and International law expert, Professor Yoram Dinstein, on the international ‘War on Terrorism’
9. ^ Public activities section of Ezer Weizman's Knesset profile
10. ^ "The Geneva Convention", Israel and the Palestinians, BBC News
11. ^ Yehuda Z. Blum, The Missing Reversioner: Reflections on the Status of Judea and Samaria, 3 ISR. L. REV. 279, 289–90 (1968)
12. ^ Eugene V. Rostow, “Palestinian Self-Determination”: Possible Futures for the Unallocated Territories of the Palestine Mandate, 5 YALE J. WORLD PUB. ORD. 147 (1980)
13. ^ See Gershom Gorenberg, The Accidental Empire: Israel and the Birth of the Settlements, 1967–1977, Macmillan, 2007, ISBN 0805082417, page 363 and South Jerusalem On Settlement Legality, 24 November 2008 [1]
14. ^ see the "Place of customary international law" on pages 5–6 of International Law in Domestic Courts: Israel, by Dr. David Kretzmer and Chapter 2 "Application of International Law", in The Occupation of Justice, by David Kretzmer
15. ^ HCJ 69/81
16. ^ see page 349 of Israel Yearbook on Human Rights Volume 9, 1979, By Yoram Dinstein
17. ^ 2004 Israeli Supreme Court ruling (RTF format)
18. ^ 2005 Israeli Supreme Court ruling
19. ^ see HCJ 7957/04 Mara’abe v. The Prime Minister of Israel
20. ^ Chronological Review of Events/June 2005
21. ^ http://www.israellawresourcecenter.org/cgi-bin/browse.py?sectionname=laws&action=view&item=1
22. ^ http://www.israellawresourcecenter.org/cgi-bin/browse.py?sectionname=laws&action=view&item=101
23. ^ see "The Missing Reversioner: Reflections on the Status of Judea and Samaria", by Dr. Yehuda Z. Blum, 3 Israel L. Rev. 279 (1968)
24. ^ [2]
25. ^ ^{a b} "The Geneva Convention". BBC. December 10, 2009. http://news.bbc.co.uk/2/hi/middle_east/1682640.stm. Retrieved 3 August 2010. 
26. ^ Israel: Supreme Court. "Beit Sourik Village Council v. The Government of Israel". UNHCR. p. 14. http://www.unhcr.org/refworld/docid/4374ac594.html. Retrieved 29 July 2010. 
27. ^ See Operation Gaza: factual and legal aspects
28. ^ See page 99 of Gorenberg, Gershom, "The accidental empire: Israel and the birth of the settlements, 1967-1977", Macmillan, 2006, ISBN 080507564X
29. ^ See Israeli State Archives 153.8/7920/7A, Document 60, dated October 15, 1968, cited on page 173 of Gorenberg's "The accidental empire"

1. ^ Disputed Territories: Forgotten Facts About the West Bank and Gaza Strip, Israeli Ministry of Foreign Affairs website, February 1, 2003. Retrieved September 28, 2005.
2. ^ International Law and the Arab-Israeli Conflict Extracts from "Israel and Palestine - Assault on the Law of Nations" by Julius Stone, Ed: Ian Lacey, Second edition, Australia/Israel & Jewish Affairs Council website, 2003. Retrieved September 29, 2005.
3. ^ Inaccurate Terms in Coverage of Bush Statement, Committee for Accuracy in Middle East Reporting in America website, April 18, 2004. Retrieved September 29, 2005.
4. ^ Jewish Settlements and the Media, Committee for Accuracy in Middle East Reporting in America website, October 5, 2001. Retrieved February 5, 2006.
5. ^ "Occupied Territories" to "Disputed Territories" by Dore Gold, Jerusalem Center for Public Affairs, January 16, 2002. Retrieved September 29, 2005.
6. ^ Forgotten Facts About the West Bank and Gaza Strip, Israeli Ministry of Foreign Affairs website, February 1, 2003. Retrieved September 28, 2005.