To Be "Occupied Territory", It Must Have Been Part of a State

Are the so-called "Palestinian territories", that is Judea and Samaria, "occupied"?

Here is a section from Principles of International Law, by Hans Kelsen, 1952

The principle that enemy territory occupied by a belligerent in course of war remains the territory of the state against which the war is directed, can apply only as long as this community still exists as a state within the meaning of international law. This is hardly the case if, after occupation of the whole territory of an enemy state, its armed forces are completely defeated to that no further resistance is possible and its national government is abolished by the victorious state. Then the vanquished community is deprived of one of the essential elements of a state in the sense of international law: an effective and independent government, and hence has lost its character as a state. If the territory is not to be considered a stateless territory, it must be considered to be under the sovereignty of the occupant belligerent, which—in such a case—ceases to be restricted by the rules concerning belligerent occupation. This was the case with the territory of the German Reich occupied in the Second World War after the complete defeat and surrender of its armed forces. In view of the fact that the last national government of the German Reich was abolished, it may be assumed that this state ceased to exist as a subject of international law. If a belligerent state ceases legally to exist as an effect of the defeat, as, e.g., the Austro-Hungarian Monarchy in the First World War, or the German Reich in the Second World War, no peace treaty or any other treaty can be concluded with this state for the purpose of transferring the territory concerned, or parts of it, to the victorious or any other state.

On the territory of the abolished state a new state or some new states may be established. This was the case with the territory of the defeated Austro-Hungarian Monarchy, which was the territory of two united states. On this territory the Czechoslovakian and the Austrian Republics, and part of Poland have been established. This is also the case with the territory of the German Reich on which two new states came into existence; the western German state, called the Federal Republic of Germany; and the eastern German State, called the German Democrat. Republic. But the new state or the new states, which have not been at war with the victorious state, cannot conclude a peace treaty and are not entitled to dispose of other territory but their own. That the Austrian Republic was forced to conclude a peace treaty with the Allied and Associated Powers, although this new state was not at war with the states which by their victory brought the Austro-Hungarian Monarchy to dismemberment, and that the Austrian Republic was forced to dispose in this treaty of territory of the disappeared state which never was territory of the Austrian Republic, was based on the fiction that the Austrian Republic was identical with the Austrian Monarchy. In the case of the German Reich, the governments of the occupant powers maintained the fiction; that it continued to exist even after the abolishment of its last national government, and on the basis of this fiction it was assumed that the territory of the German Reich occupied by the four victorious powers was not under their sovereignty, but remained under the sovereignty of the German Reich. But the administration of the occupied territory was in no way in conformity with the rules concerning belligerent occupation. 

It sounds like Kelsen is arguing that Israel wouldn't have had any legal reason to follow the Geneva Conventions laws of occupation in the territories. They were not considered Jordanian or Egyptian territory and they certainly weren't "Palestinian". To apply the humanitarian components of Geneva is proper, of course, and Israel voluntarily did so. But this sounds to me that even if you hold that the prohibition of "transfer" of a population to the territory includes voluntary relocation, that this would not apply to the West Bank or Gaza after 1967.

There was a discussion in the UN's Law Commission  in relation to the Draft Declaration on Rights and Duties of States about the whether all conquest is forbidden or not. James Brierly, the great American authority on international law, suggested making clear that the ban on territorial acquisition only applied to illegal war, and the motion was adopted by the drafting committee. I Yearbook Int law commission 143 (1949)

Similarly, when there were quibbles about whether annexation is always banned, or whether there might be various exceptions, the Secretary observed: “It might be suggested that in order to constitute a crime under international law an annexation must be carried out through the use of armed force, with a view to destroying the territorial integrity of another State”  I Yearbook 137 (1950)

It is not surprising France and other major countries wanted to make clear that annexation and title by conquest were not ALWAYS forbidden: most European frontiers were substantially revised 1947-50 in favor of the victors/victims of WWII, and against the loosers/other victims.

I don’t think you will find any pre-’67 international law treatise that says that the laws of belligerent occupation apply to non-sovereign territory. The question had not been raised so it was probably not addressed in many treatises, but that’s because the answer was blindingly obvious and it was exactly the opposite of what everyone says about Israel today.

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'But Israel's Supreme Court Declared Israel A "Belligerent Occupier"'

We've heard that charge.

Naftali Bennet was subjected to it (and inadequately responded).

Me, too:

Before we start, let's not be afraid of words.

I am occupying my time writing this and you are occupying your time reading this.  Both of us are probably occupying a chair while reading this.  Your occupation maybe doctor, lawyer or bottle-washer.

First of all, actually there is nothing wrong or illegal in being a belligerent occupier. That's what America was after WW II. It simply means that one country who is administrating territory gained as a result of military action.  In itself, it is not a value judgment but simply a description.

Secondly, that military action of Israel was defensive. 

Thirdly, the territory held now by Israel was part of the original area set aside to become the "reconstituted Jewish national home".  The right of Jews to that territory is certainly no less than Arabs and I would add, more so.

Fourthly, the Arabs of the Mandate area rejected the partition options twice, in 1937 and again in 1947, and in the latter case actually violated UN resolutions to stop their aggression, so Israel is not obliged to respect those dead letters.

Fifth, no Arab state of Palestine ever existed.  No independent "Palestine" was conquered and occupied in 1967 (or in 1948 for that matter).

Sixth, even UN resolution 242 never mentions a "Palestinian people" or a state or whatever.

Seventh, the only reason no Jews resided in the presumed "occupied" territory of Judea, Samaria and formerly Gaza prior to 1967 was an ethnic cleansing campaign carried out violently by riots, pogroms, murders, rapes and other assorted means by local Arabs, many of whom emigrated to the area from other Middle Eastern countries (Jordan's Hashemite family only arrived in Transjordan, itself part of the original mandate area until 1922, from Saudi Arabia in November 1920), as well as Arab states during 1947-1949.

Eight, during 1948-67, the Arabs continued their terror campaign, first as fedayeen and then as the PLO, against Israel that did not possess Judea, Samaria and Gaza in acts of war and aggression thereby displaying a total inability to claim protection as a "conquered people".

Ninth, there are many more real illegal occupations existing that few pay attention to or treat with equal fervor or get that excited over as they do Israel's case.

Tenth, that ICJ judgment was not made on the issue of Israel's legality of possession but the justices simply accepted the presentation made to them.  It was never defended directly.  The "illegality" charge is baseless.

There are more points but ten is a nice figure and I'll stop here.

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Ban-Ki Moon - Is the UN Occupied?

as oppressed peoples have demonstrated throughout the ages, it is human nature to react to occupation

That was from the United Nations' Secretary-General's remarks to the Security Council on the Situation in the Middle East [as delivered], New York, 26 January 2016.

Are the "Palestinians" a "people"?

Are they "oppressed"?

Is there an "occupation"?

When there was Arab terror in 1920, 1921, 1929, 1936-1939 and when the local Arabs launched a war of aggression against a UN decision and then set up the fedayeen terror group in the mid-1950s and when they founded the PLO in 1964, was that in reaction to an "occupation"?

Or is Israel oppressed by the UN and is it illegally occupied by Arabs?

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UPDATE

Prime Minister Benjamin Netanyahu, today (Tuesday, 26 January 2016), responded to UN Secretary General Ban Ki-moon's remarks:

"The UN Secretary General's remarks give a tailwind to terrorism. There is no justification for terrorism. The Palestinian murderers do not want to build a state – they want to destroy a state and they say this openly. They want to murder Jews simply because they are Jews and they say this openly. They do not murder for peace and they do not murder for human rights. 
The UN lost its neutrality and moral force a long time ago and the Secretary General's remarks do not improve the situation."

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Giuditta Riva and International Law

I spotted this exchange in a recent Haaretz column of Liat Elkayam, 'Departures | Arrivals':

Giuditta [Riva]: It’s so easy to connect with Israelis. There are hardly any walls here between people, apart from the one in the territories…

 a 2008 snap

Do I detect a bit of political criticism here?I want to make it clear that I understand perfectly how easy it is for foreigners like me to come to Israel and be critical of the political situation. In Italy, no one has a reason to be afraid of taking a bus or going to church. It’s easy to be tolerant and respectful of human rights when your children aren’t risking their lives.

Are human rights a subject close to your heart?A week ago I completed my master’s degree in law, specializing in international law. When I was here last time, it was to write my thesis.

About Israel?The application of human rights in the occupied territories – a very complex subject.

Tell me about itOverall, I think there is a line that runs between good and bad, and sometimes that line snaps and it’s impossible to know who’s good and who’s bad. On paper, Israel is violating international law in a number of ways, but I understand why a state will do all it can to protect its citizens. My thesis is about international law, according to which – and this is the accepted belief in international courts – Palestine is occupied, and human rights and international law apply there. The Israeli opinion, which has no legal basis, is that the Geneva Convention is inapplicable in the territories, because Palestine is neither a state nor is it a territory under Israeli jurisdiction. But everyone has human rights, it’s not a matter of geographical boundaries.

Is there anyone on Israel’s side in this issue?The United States. In Guantanamo, the U.S. put forward exactly the same argument: that Guantanamo is extraterritorial and therefore the Geneva Convention does not apply.

How do we move ahead?There are many possibilities, but from a legal standpoint it’s first of all a theoretical question: Should humanitarian law and human rights be applied in Palestine?

What’s the answer?That Israel is not doing it, but should.

I think there are some basic errors in Ms. Riva's presentation.

First of all, the main reason why Israel rejects the full application of the Geneva Convention is that that treaty is between "High Contracting Parties".  The definition of high contracting parties is, simply, the representatives of states who have signed or ratified a treaty, and quite specifically states.

"Palestine", or the "Arab state" as originally envisioned by the UN's 1947 Partition Plan recommendation, never existed and certainly did not in 1967.  UN Resolution 242 refers to "member states" and "states in the area", which 'Palestine' was not.  There was no High Contracting Party that controlled those territories legally.

Second, Israel actually does apply humanitarian law to the administered territories of the Palestine Mandate not under Israeli sovereignty.  Here is an opponent of Israel admitting:

the Israeli government has consistently contested that the Fourth Geneva Convention is applicable de jure to the situation prevailing in the Occupied Palestinian Territory, it does nevertheless accept a de facto application of what it calls the ‘humanitarian provisions’ of the Convention. Moreover, the Israeli Supreme Court has clarified that certain provisions of the Convention as well as the rules of the 1907 Hague Regulations reflect customary IHL and are therefore binding on the authorities in the territories

Another formulation of Israel's position is here:

Israel ratified the Fourth Geneva Convention in 1951. In principle, Israel rejects the applicability of the Fourth Geneva Convention to the West Bank and the Gaza Strip as it considers those territories as captured in 1967 as the result of a defensive war against countries that had illegally occupied them in 1948...the governments of Israel had undertaken to act in accordance with the Fourth Geneva Convention, and the Israeli High Court of Justice considered that Israel holds the Palestinian territories by virtue of belligerent occupation.

In other words, there is an argument about the political aspects of the administration of Judea and Samaria but not as regards any and all strictly humanitarian responsibilities. And by 'political', it is taken to be the means to achieve an eventual resolution of the conflict and what that final resolution will reflect on Jewish rights, including the right of residence.  The counter-argument to Israel's position is expressed by the International Committee of the Red Cross, for example, is that the establishment of Jewish communities and villages and towns in Judea and Samaria, and in Gaza until 2005, is a policy that

amounts to a violation of IHL, in particular the provision of the Fourth Geneva Convention prohibiting the transfer of part of the population of the Occupying Power – in this case Israeli citizens – to the occupied territory.

That approach is ridiculous in that it ignores the provision of the League of Nations which guaranteed, in those very territories, the right of "close settlement on the land" or, as I noted, the right of Jewish residence.

As a less-than-sympathetic Israel scholar wrote

the chorus of recriminations against Israeli settlements disregards the (by no means trivial) segment of settlements in the West Bank, undertaken by Israeli nationals individually – at times, on private land owned by Jews since the days of the British Mandate...or on parcels of private land purchased for full market value from those having title to it – without any financial or other sponsorship from the Israeli Government (indeed, in not a few instances, against the official policy of the Government). When settlers act entirely on their own initiative, when they do not arrogate to themselves land belonging to others or expropriated from its rightful owners, and when they do not benefit from any overt or covert governmental inducement,

 Thirdly, in not seeking the full implementation of humanitarian law to Jews in those areas, the international community is derelict in its neutrality.  In the first place, Jordan's illegal occupation was ignored.  In the second place, other ongoing illegal occupations in Morocco, Tibet, Cyprus, etc. are ignored.  And in the third place, Jews lived in those territories for centuries and were ethnically cleansed, in many cases through extreme violence, pogroms and massacres, but the world that wages battle against Israel in forums using 'international law' are blind to those Jewish rights.

A fuller discussion of Israel's legal rights in Judea and Samaria I listed here.

If she wants to visit me, she's more than welcome.

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