The Israel lobby’s manuals advise Israel supporters to correct everyone that the West Bank is “disputed,” not “occupied.” Below I will show that the West Bank is occupied.
Where can we find international law?
Article 38 of the Statute of the International Court of Justice (ICJ) lists the main sources of law:
- international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
- international custom, as evidence of a general practice accepted as law;
- the general principles of law recognized by civilized nations;
- subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
So, let’s take a look at all these resources.
What is Military Occupation?
The occupation falls under a sub-area of international law called the law of war or humanitarian law.
The most important rules of warfare are contained in a number of treaties: the Hague Convention of 1907 and the four Geneva Conventions. The 4th Geneva Convention of 1949 (GC IV) deals with the protection of civilians in wartime and is important to us.
Article 42 of the Hague Regulations, which forms part of the Hague Convention of 1907 on the Laws and Customs of War on Land, establishes the criteria under which a territory is considered occupied. It states that a 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.
Can one only occupy the territory of another country?
Some Israel supporters argue that Israel did not occupy the West Bank because there was no Palestinian state. However, in modern international law, there are more types of occupation. In his article “What Is a Military Occupation?” Adam Roberts inventories 17 types of occupations. One of them is important to us: Occupation of territories whose status is uncertain or disputed.
Here we immediately see the fallacy of the Israel supporters: they correct you that the West Bank is not ‘occupied’ but ‘disputed’. However, a territory can be occupied and disputed at the same time. Many wars are over disputed territories that more countries (perhaps sincerely) claim to be the rightful owners. And in some cases, it’s even hard to establish the real owner.
However, the law of occupation (part of the laws of war) is mainly intended to protect civilians. If the law of occupation only applied to cases where it is 100% certain which land is the rightful owner, then the citizens would be unprotected in cases of disputed territories. Therefore, the rightful owner is irrelevant to the laws of war.
Thus, as soon as an enemy army has effective control over an area beyond the existing borders of a state, it is called occupation.
Some examples of occupied territories that have not been states
After World War I, the former German and Ottoman colonies became mandates of the League of Nations. The victors of the war would temporarily administer these territories until the colonies could stand on their own feet. This is how Great Britain administered Palestine.
Namibia
South Africa administered Namibia (under the name Southwest Africa). The UN terminated the mandate for Namibia, but South Africa refused to leave. The UN called this refusal an “illegal occupation.” (Occupation is usually legal and can become illegal).
The ICJ also issued an advisory opinion on the matter, declaring the situation an illegal occupation.
East Timor
After the revolution, Portugal abandoned its colony of East Timor. A civil war broke out here and the Fretilin organization unilaterally declared independence, but East Timor was not yet a state. Indonesia invaded and annexed East Timor. The world community also regarded this situation as a military occupation.
Western Sahara
Spain departed from her colony in the Western Sahara, leaving her under the shared administration of Morocco and Mauritania. Despite the fact that Western Sahara was not an independent state, the world community considers Western Sahara to be occupied.
The occupation of the West Bank
Palestine was a British mandate, after the invasion of 1917. GB allowed European migrants to establish colonies in Palestine. The percentage of settlers grew from around 10% in 1917 to 32% in 1948.
The Arabs never accepted the Palestine Mandate as legal and wanted to become an independent state. The conflict between Arabs and settlers and between settlers and GB grew day by day. GB threw in the towel and the UN passed Resolution 181 to divide the area into a Jewish and an Arab state.
The division would give the Jewish minority more than half and the best economic areas. Jerusalem would be under international administration.
The conflict degenerated into a civil war and the colonists declared independence. The Arabs wanted the ICJ to decide whether the mandate was legal and who had the right to Palestine, but the colonists didn’t think that was a good plan.1John Quigley. (2021). The Legality of a Jewish State: A Century of Debate over Rights in Palestine. Cambridge University Press
When the number of Palestinian refugees became large, after the declaration of independence, the armies of neighboring countries intervened in the conflict. Egypt occupied Gaza. Jordan occupied the West Bank, in accordance with the agreement with the settlers to divide the territory of the Palestinians among themselves. Israel conquered 78% of Palestine.
In 1967, Israel claimed that Egypt had attacked her and attacked Egypt. Jordan and Syria, which had a defense treaty with Egypt, like NATO, are coming to Egypt’s aid. Israel conquered Gaza, Sinai, the West Bank and the Golan Heights (from Syria).
Why is the West Bank occupied?
The Golan is obviously occupied, but Israel denies that the West Bank is occupied. How do we know it’s occupied?
The International Court of Justice
As in the case of Namibia and Western Sahara, the International Court of Justice issued an advisory opinion. The judges said that the West Bank is obviously occupied. The opinion is not binding, but it is an authoritative interpretation of international law, the best legal argument you can find.
Countries make international law in two ways: through treaties and through behavior (custom). Treaties are binding contracts. Customary law relies on repetition of behavior. The more countries ‘think’ that there is a rule in international law and they follow that rule, the stronger the rule becomes. When countries conclude a treaty en masse, this is proof of their behaviour, of their legal convictions (opinio juris). So, treaties can also be evidence of customary law.
For example, the ICJ declared that Article 42 of the Hague Regulations has become customary law. This article contains the definition of occupation: “territory is considered occupied when it is actually placed under the authority of the hostile army.” Israel captured the West Bank in 1967, so under customary law, the West Bank is occupied, including East Jerusalem.
The Fourth Geneva Convention (CG IV)
This treaty is about the protection of civilians during the war and during occupation. Article 2 begins:
“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.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”
Israel and the Israel supporters say that CG IV does not apply because the second paragraph speaks of the territory of another state, but Jordan (according to the Israel supporters) was itself an occupier, not a rightful owner.
However, the ICJ and the rest of the world invoke the first paragraph, which clearly states that countries must respect the treaty in any military conflict. The second paragraph only says that the treaty also applies when a country is occupied non-violently without resistance. This paragraph was added as an extra security, so that civilians are protected in all possible cases.
In fact, the ICJ says that Israel itself had admitted that GC IV applied when Israel took a military order immediately after the Six-Day War in which it stated: “the Military Court… must apply the provisions of the Geneva Convention dated 12 August 1949 relative to the Protection of Civilian Persons in Time of War with respect to judicial procedures. In case of conflict between this Order and the said Convention, the Convention shall prevail.”
Protocol I GC IV
Countries change treaties by adding protocols. Protocol I supplements the Geneva Conventions. Because Israel misinterprets GC IV, the countries have clarified the occupation even further in paragraph 4 of Article 1: the Geneva Conventions also apply during
“armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.”
This paragraph is intended to refute the Israeli interpretation. 174 other countries have ratified the protocol and 3 others have signed it (except Israel). The large number of countries indicates how states think about this. The Palestinians have the right to self-determination, so they too are referred to in this paragraph.
The Israeli Supreme Court
This court also declares that the West Bank is occupied (the judges call it Judea and Samaria). For example:
“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…. His power is granted him by public international law regarding belligerent occupation. The legal meaning of this view is twofold: first, Israel 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… 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… 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…”2Israel High Court HCJ 7957/04, Mara’abe v. The Prime Minister of Israël, 21 juni, 2005
And in the Beit Sourik case, the court said: “The military commander’s authority is also anchored in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949.” This is a sneaky admission that GC IV applies.
In fact, Israel itself has argued it before the Supreme Court. In 2005, Israel left Gaza and the settlers went to the Supreme Court. The Israeli government argued that Gaza was occupied, that the occupation was by definition temporary and therefore the settlements had to be evacuated.3David Kretzmer and Yaël Ronen. (2021) The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories. Oxford University Press. p. 60).
The funniest concession comes from the Israeli settlers. To prevent a quarry from being built near their settlement, they went to the Supreme Court. They also argued that the West Bank is occupied and that the occupying power is only a custodian of natural resources and should not touch them.4Kretzmer and Ronen. p. 218.
The Advocate General
In a legal opinion on behalf of Israeli Advocate General Meir Shamgar, who later became the president of the Supreme Court, it was stated that according to GC IV, one should not expel civilians to create training grounds for the Army (IDF):
“The civilian population may not be evicted from territories in order to create training areas for the IDF, both for political and humanitarian reasons and for reasons that violate international law. Article 49 of the Convention on the Protection of Civilian Persons by War, to which Israel is a party, expressly prohibits the forcible transfer of civilians in occupied territory, except where immediate combat needs require it. In our case, it cannot be said that combat needs necessitate the evacuation of the areas intended to be training areas, and therefore the forcible evacuation of the population from these areas would constitute a violation of the provisions of the aforementioned Convention.”
So in the corridors of the Israeli government they are convinced that the West Bank is occupied and that GC IV applies.
Israeli Behavior
The fact that a military authority rules the West Bank proves that it is occupied, after all, that is the definition of occupation. In fact, the right of occupation requires the occupying forces to preserve the already existing laws as far as possible. Israel applies to the Palestinians the laws of the Ottoman Empire, British laws since the Mandate, the laws of Jordan during the occupation and the former Egyptian laws in Gaza. So, the Israeli behavior proves that the West Bank is occupied.
The UN
There are many UN resolutions stating that the West Bank is occupied. Take, for example, the recent Security Council Resolution 2334 , voted 14-0 (the U.S. abstained). It says that the West Bank is occupied and therefore the settlements are illegal.
The Opinio Juris
All states have ratified the Geneva Conventions. They hold regular conferences and unanimously declare that the West Bank is occupied. This shows two things. First, the legal opinion of the states (and we have seen that states also make customary law through their opinion). Second, treaties are also interpreted by the conduct of the states after the fact. Thus, if states unanimously say afterwards that GC IV applies, then that is the correct interpretation of GC IV.
Legal scholars
Every textbook for students of international law states very firmly that the West Bank is occupied. Take any of the leading works of international law. The vast majority of the most respected jurists write as if the debate has long since been settled. Let me give you two examples.
James Crawford was one of the greatest jurists of the last 100 years and a judge at the ICJ. He wrote in an opinion for the British trade unions: “It is undeniable that Israel occupies the territory of the West Bank.” A lawyer of his stature only makes such firm statements if he knows that there are no relevant counter-arguments, because his image would be damaged. He appeared as a lawyer in 23 court cases before the ICJ and in a number of advisory opinions. Palestinians hired him for the advisory opinion on the Israeli wall. He has studied this matter very well. And the court has adopted his arguments, so he knows what he’s saying.
Theodor Meron is also one of the greatest jurists, who was a judge at several war crimes tribunals. He was the legal advisor to the Israeli government in 1967. In a secret memo a few months after the war, he wrote that the West Bank was occupied and that it would be forbidden to build settlements. In 2017, Meron wrote an article in American Journal of International Law that this debate should have been settled long ago. After all, there are overwhelming arguments in favour of orthodoxy: the Security Council has adopted resolutions on the subject; the Red Cross calls it occupation and this organization is a leading interpreter of the laws of war; the parties to the Geneva Conventions (i.e. all countries) agree that the West Bank is occupied; even Israel’s Supreme Court has admitted that the West Bank is occupied and that ideological settlements are illegal; the International Court of Justice confirmed this in its advisory opinion. So, Meron concludes, the truth is rock solid.
As the Harvard “Review of the Applicability of International Humanitarian Law to the Occupied Palestinian Territory” concluded:
“There seems to exist a very broad international consensus rejecting the Israeli argument and supporting the applicability of the Fourth Geneva Convention to the OPT. The position of all other State Parties to the Geneva Conventions, the various UN bodies (General Assembly, Security Council, Economic and Social Council, Commission on Human Rights), the International Committee of the Red Cross, as well as international Non-Governmental Organizations, is that the Geneva Conventions are applicable de jure to the OPT.”
Is it just as correct to say that the West Bank is disputed as occupied?
No. Even if the laws of war say nothing about who owns them, for areas that do not have an obvious owner, the local population under occupation has the right to self-determination and also the right to the territory. That includes the Palestinians.
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