Status of territories captured by Israel
Encyclopedia
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",. 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.
, the International Court of Justice
and Supreme Court of Israel
have both ruled that the West Bank is occupied. The US State Department also considers the West Bank and Gaza Strip occupied.
The ICJ outlined the legal rationale for the supporters of this view in its advisory opinion
of 9 July 2004. It noted:
On the application of the fourth Geneva Convention, the Court noted:
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."
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, and that it prejudges the outcome of negotiations. They regard the territories as "disputed" based on the following legal arguments:
Yoram Dinstein
, has dismissed the position that they are not occupied as being “based on dubious legal grounds”. Many Israeli government websites do refer to the areas as being "occupied territories". 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."
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. 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.
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. 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.
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. 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
.
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:
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. 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. 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." 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.”
West Bank
The West Bank ) of the Jordan River is the landlocked geographical eastern part of the Palestinian territories located in Western Asia. To the west, north, and south, the West Bank shares borders with the state of Israel. To the east, across the Jordan River, lies the Hashemite Kingdom of Jordan...
and Golan Heights as "occupied territory" under international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, Israel's government calls all of them "disputed" rather than "occupied",. Israel's government also argues that since the Gaza disengagement of 2005
Israel's unilateral disengagement plan
Israel's unilateral disengagement plan , also known as the "Disengagement plan", "Gaza expulsion plan", and "Hitnatkut", was a proposal by Israeli Prime Minister Ariel Sharon, adopted by the government on June 6, 2004 and enacted in August 2005, to evict all Israelis from the Gaza Strip and from...
, it does not militarily occupy the Gaza strip
Gaza Strip
thumb|Gaza city skylineThe Gaza Strip lies on the Eastern coast of the Mediterranean Sea. The Strip borders Egypt on the southwest and Israel on the south, east and north. It is about long, and between 6 and 12 kilometres wide, with a total area of...
, a statement rejected by the United Nations Human Rights Council and Human Rights Watch.
Occupied
In their decisions on the separation barrierIsraeli West Bank barrier
The Israeli West Bank barrier is a separation barrier being constructed by the State of Israel along and within the West Bank. Upon completion, the barrier’s total length will be approximately...
, the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
and Supreme Court of Israel
Supreme Court of Israel
The Supreme Court is at the head of the court system and highest judicial instance in Israel. The Supreme Court sits in Jerusalem.The area of its jurisdiction is all of Israel and the Israeli-occupied territories. A ruling of the Supreme Court is binding upon every court, other than the Supreme...
have both ruled that the West Bank is occupied. The US State Department also considers the West Bank and Gaza Strip occupied.
The ICJ outlined the legal rationale for the supporters of this view in its advisory opinion
Advisory opinion
An advisory opinion is an opinion issued by a court that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Some countries have procedures by which the executive or legislative branches may certify important...
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."
Disputed
The Jerusalem Center for Public AffairsJerusalem Center for Public Affairs
The Jerusalem Center for Public Affairs is a public policy think tank devoted to research and analysis of critical issues facing the Middle East. The center is located in Jerusalem, Israel...
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
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
's control of the areas has no basis in international law or history, 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. ArmisticeArmisticeAn armistice is a situation in a war where the warring parties agree to stop fighting. It is not necessarily the end of a war, but may be just a cessation of hostilities while an attempt is made to negotiate a lasting peace...
lines do not establish borders, and the 1949 Armistice Agreements1949 Armistice AgreementsThe 1949 Armistice Agreements are a set of agreements signed during 1949 between Israel and neighboring Egypt, Lebanon, Jordan, and Syria. The agreements ended the official hostilities of the 1948 Arab-Israeli War, and established armistice lines between Israeli forces and the forces in...
in particular specifically stated (at Arab insistence) that they were not creating permanent or de jureDe jureDe jure is an expression that means "concerning law", as contrasted with de facto, which means "concerning fact".De jure = 'Legally', De facto = 'In fact'....
borders.
- 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.
- 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 WarSix-Day WarThe Six-Day War , also known as the June War, 1967 Arab-Israeli War, or Third Arab-Israeli War, was fought between June 5 and 10, 1967, by Israel and the neighboring states of Egypt , Jordan, and Syria...
. - 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.
- 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 AccordsOslo AccordsThe Oslo Accords, officially called the Declaration of Principles on Interim Self-Government Arrangements or Declaration of Principles , was an attempt to resolve the ongoing Palestinian-Israeli conflict...
, 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....". - 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." http://www.jcpa.org/jl/vp470.htm
Yoram Dinstein
Yoram Dinstein
Yoram Dinstein is an international law Professor Emeritus at Tel Aviv University and is a specialist on international law, and an authority on the laws of war.-Career:...
, has dismissed the position that they are not occupied as being “based on dubious legal grounds”. Many Israeli government websites do refer to the areas as being "occupied territories". 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."
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. Historian and journalist, Gershom Gorenberg
Gershom Gorenberg
Gershom Gorenberg is an American-born Israeli historian, journalist and blogger, specializing in Middle Eastern politics and the interaction of religion and politics. He is currently a senior correspondent for The American Prospect, a monthly American political magazine...
, 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
Public relations
Public relations is the actions of a corporation, store, government, individual, etc., in promoting goodwill between itself and the public, the community, employees, customers, etc....
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.
Israeli judicial decisions
In two cases decided shortly after independence, in the Shimshon and Stampfer cases, the Supreme Court of IsraelSupreme Court of Israel
The Supreme Court is at the head of the court system and highest judicial instance in Israel. The Supreme Court sits in Jerusalem.The area of its jurisdiction is all of Israel and the Israeli-occupied territories. A ruling of the Supreme Court is binding upon every court, other than the Supreme...
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. 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.
The Israeli High Court of Justice determined in the 1979 Elon Moreh
Elon Moreh
Elon Moreh is an Israeli settlement located in the Samarian hills of the West Bank northeast of Nablus on the slopes of the Mount Kabir ridge....
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. In recent decades, the government of Israel has argued before the Supreme Court of Israel
Supreme Court of Israel
The Supreme Court is at the head of the court system and highest judicial instance in Israel. The Supreme Court sits in Jerusalem.The area of its jurisdiction is all of Israel and the Israeli-occupied territories. A ruling of the Supreme Court is binding upon every court, other than the Supreme...
that its authority in the territories is based on the international law of "belligerent occupation", in particular the Hague Conventions
Hague Conventions (1899 and 1907)
The Hague Conventions were two international treaties negotiated at international peace conferences at The Hague in the Netherlands: The First Hague Conference in 1899 and the Second Hague Conference in 1907...
. The court has confirmed this interpretation many times, for example in its 2004 and 2005 rulings on the separation fence
Israeli West Bank barrier
The Israeli West Bank barrier is a separation barrier being constructed by the State of Israel along and within the West Bank. Upon completion, the barrier’s total length will be approximately...
.
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).
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, but this order was rescinded a few months later. For a number of years, Israel argued on various grounds that the Geneva Conventions do not apply. One is the Missing Reversioner theory 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. However, that interpretation is not shared by the international community. 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.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. 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. Gershom Gorenberg
Gershom Gorenberg
Gershom Gorenberg is an American-born Israeli historian, journalist and blogger, specializing in Middle Eastern politics and the interaction of religion and politics. He is currently a senior correspondent for The American Prospect, a monthly American political magazine...
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." 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.”
See also
- International law and the Arab-Israeli conflictInternational law and the Arab-Israeli conflictThere is a broad international consensus that the actions of the nations involved in the Arab-Israeli conflict violate prohibitions contained in international law. However, this legality is disputed by some of the nations involved...
- Israeli-occupied territoriesIsraeli-occupied territoriesThe Israeli-occupied territories are the territories which have been designated as occupied territory by the United Nations and other international organizations, governments and others to refer to the territory seized by Israel during the Six-Day War of 1967 from Egypt, Jordan, and Syria...
- Palestinian territoriesPalestinian territoriesThe Palestinian territories comprise the West Bank and the Gaza Strip. Since the Palestinian Declaration of Independence in 1988, the region is today recognized by three-quarters of the world's countries as the State of Palestine or simply Palestine, although this status is not recognized by the...
- Political status of the West Bank and Gaza StripPolitical status of the West Bank and Gaza StripThe political status of the West Bank and the Gaza Strip is one of the most violently disputed issues in the Arab-Israeli conflict. Various conferences and negotiations have been conducted to determine the status of the West Bank and the Gaza Strip .The Israel-PLO Declaration of Principles on...