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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Dopey Op-Doc at NYTimes

At the NYTimes, you can see an op-doc by Ra’anan Alexandrowicz, writer and director of “The Law in These Parts,” which is screening at the 2012 Sundance Film Festival. He lives in Jerusalem and teaches film at the Jerusalem Sam Spiegel Film and Television School and read this introduction:

Israel’s Supreme Court is the body that provides checks and balances to the country’s executive and legislative powers, upholding constitutional standards...

¶ In the four decades since the 1967 Six-Day War between Israel and its Arab neighbors, the court has become a stage for an escalating conflict between two very different world views.

¶ Israel is the only modern state that has held territories under military occupation for over four decades. It is also unusual for a nation to allow residents of territories under a military occupation to petition its Supreme Court and request intervention in acts of state.

¶ Since the early years of the occupation...[rather] than functioning as the bastion of human rights that it was established to be, it has instead become the entity responsible for balancing the needs of a state engaged in a prolonged occupation with basic principles of democracy.

¶ This Op-Doc expands on one of the themes explored in my new feature documentary, “The Law in These Parts,” and asks about the role of the Supreme Court in the legal underpinnings of the longest military occupation in modern times.

I left this comment there:

RA is being petulantly picayune writing: "Israel is the only modern state that has held territories under military occupation for over four decade". Really?

Consider:

Morocco’s occupation of Western Sahara has “only” lasted three plus decades. Turkey’s occupation of Northern Cyprus – a mere 37 years. But Russia’s occupation of the Kuril Islands began in August 1945…

And Tibet has been occupied by China since 1949.

And many consider Northern Ireland occupied, even after the 1998 arrangements of an Executive.

But I suggest the term is "belligerent occupation", resulting from an Arab war of aggression in 1967 and by acting in defense, not only does Israel have the right to retain all or most of the territories it now administers, but as Schweible, Rostow and other international law experts claim, Israel has a better right than anyone to remain there in Judea and Samaria based on, at the least, discussions, declarations and decisions of Balfour 1917, the Versailles Peace Conference of 1919, the San Remo Conference of 1920 and the League of Nations 1922.

And isn't it amazing that none of this legalese was ever voiced when those territories were invaded by, illegally occupied by and illegally annexed to Jordan all through 1948-1967?

I left out Kashmir.


UPDATE

It is up.

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Where Do 94.2% of Pal. Authority Arabs Live?

Well, Area C, where the Jews are allowed to live

...is home to only 5.8 percent of the West Bank Palestinian population -- excluding Israeli-annexed east Jerusalem...

So, that means that in Areas A & B live the other 94.2%.

Are they then an "occupied people"?

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What "Occupied" Territory?

I previously pointed out that the term "liberated" could, based on documents from World War I, be applied to the regions of Judea and Samaria and definitely not "occupied" although the term is actually neutral.

Well, Eli Hertz just brough to my attention this:

U.S. Definition of "Occupied Territory":

"Territory under the authority and effective control of a belligerent armed force. The term is not applicable to territory being administered pursuant to peace terms, treaty, or other agreement, express or implied, with the civil authority of the territory

According to the above definition and concurring international law, Judea and Samaria are in fact not Occupied Territories.

Is the U.S. Administration aware of their own policy?

See:  http://www.dtic.mil/doctrine/dod_dictionary/

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But The Int'l Court of Justice Decided

One of the claims the anti-Yesha crowd asserts in the field of international law is the use of the term "Occupied Palestinian Territory" by the International Court of Justice. For example, at para. 70-78:

At the close of its analysis, the Court notes that the territories situated between the Green Line 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, the Court observes, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories have done nothing to alter this situation. The Court concludes that all these territories (including East Jerusalem) remain occupied territories and that Israel has continued to have the status of occupying Power.

Well, this "occupation" actually is not illegal in and of itself. If Israel responded to aggression with defensive operations, especially since no Arab state and the terrorist groups they sponsored ever honored or respected that Green Line during the 19-year period prior to 1967, Israel's "occupation" could be just.

The Court's language, true, is a bit problematic here at para. 87:

The Court first recalls Article 2, paragraph 4, of the United Nations Charter, which provides that:

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations,”

and General Assembly resolution 2625 (XXV), entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States” (hereinafter “resolution 2625 (XXV)”), in which the Assembly emphasized that

“No territorial acquisition resulting from the threat or use of force shall be recognized as legal.”

...the same is true, it observes, of its corollary entailing the illegality of territorial acquisition resulting from the threat or use of force.

Who, then, was the aggressor in and prior to 1967, and can a state, in a defensive action, assert a territorial claim? And, I stress, we have not discussed Israel's rights to the territories of Judea and Samaria, as well as Gaza in principle, reflected in League of Nations Mandate decisions of 1922 and 1923, following the San Remo Conference decision of 1920 and the spirit of the deliberations of the 1919 Versailles Peace Conference.  As noted, "the ICJ says absolutely nothing about the fact that the League of Nations Mandate referred to 'the establishment in Palestine of a national home for the Jewish people' and that this injunction was understood at the time by the League of Nations and by the British Mandatory Power as applying to the whole of Palestine west of the River Jordan, that is, including the present-day West Bank".

More mix-up is in the decision textof the ICJ Opinion, at para. 101, where you can read:

The Court accordingly finds that that [the IVth] Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories.

But if there is no "precise prior status", perhaps the judges are wrong?

There is an inherent contradiction as welll as sever unclarity here.

Furthermore, Judge Pieter Kooijmans of The Netherlands, in a separate opinion, added at para. 30,

"The Court has refrained from taking a position with regard to territorial rights and the question of permanent status."

In addition, Israel assumed the administration over the territory after the Kingdom of Jordan, which had illegally annexed those territories in April 1950 following a military occupation, attacked Israel which led to the 1967 Six-Day War.  The region has been essentially disputed land with the claimants being Israel, Jordan, and Arabs referring to themeselves a "Palestinians". The final status and borders are final negotiations issues according to UN Security Council Resolutions 242 and 338 and the language of the Camp David Agreements and the Oslo Accords.

All this is ignored, which I would say is either bias or prejudice, political or judicial.

The court's "historical narrative" has as its chronology that the Armistice Agreement of 1949 is followed immediately at para. 73 by this formulation:

"In the 1967 armed conflict, Israeli forces occupied all the territories which had constituted Palestine under British Mandate (including those known as the West Bank, lying to the east of the Green Line)."

As I've emphasized, the years and character of Jordanian rule are not mentioned, nor is there any examination of Jordan's status in Judea and Samaria, the geographical terms, we should recall, employed by the United Nations in its November 29, 1947 partition recommendation. The historical narrative of the ICJ was critically flawed as pointed out in the separate opinions of the minority judges such as Judge Rosalyn Higgins of the United Kingdom, comments in her separate opinion at para. 16:

"I find the 'history' as recounted by the Court in paragraphs 71-76 neither balanced nor satisfactory."

Funnily enough, there was a Jordanian judge sitting, Judge Awn Shawkat Al-Khasawneh who, as expected, ignored any anti-Jordanian matters that could spoil the anti-Israel opinion.

In March 1994, U.S. Ambassador to the UN Madeleine Albright, stated as recorded in UN Security Council Official Records, 3351st Meeting, 18 March 1994, UN Doc. S/PV.335 p.12 (1994):

"We simply do not support the description of the territories occupied by Israel in the 1967 war as occupied Palestinian territory. In the view of my government, this language could be taken to indicate sovereignty, a matter which both Israel and the PLO have agreed must be decided in negotiations on the final status of the territories."

So, what about this "occupation" business?

As Robbie Sobel pinpoints:

"From 1948 till 1967 the West Bank had been under Jordanian rule and the Gaza Strip under Egyptian control. The UN General Assembly however refrained from designating these territories as occupied Jordanian or occupied Egyptian territory, presumably since the majority of states, including the Arab states, had not recognized the West Bank as Jordanian territory and Egypt had not even claimed sovereignty over the Gaza Strip.

From 1967 till 1976 the UN General Assembly resolved the dilemma by referring to occupied "Arab" territories and often simply as "occupied territories." From 1976 onward, the increased political clout of the PLO at the UN led to a change. A 1976 UN General Assembly resolution referred to "the right of the Arab states and peoples whose territories are under Israeli occupation". From 1977 the reference becomes "Palestinian and other Arab territories."

No justice.  Not legal analysis.  Political clout.  Ideology.

Other matters are what the Court did and did not say about the Green Line, Jerusalem and the status of the body known as the Palestinian Authority.

As I was informed, the ICJ did not provide a ruling on the status of the territory. The Court does apply the rules of belligerent occupation but without any rendering any opinion on the status of the territories. Yes, the court’s opinion that Israel has no claim to the land is stated far more directly in para.114-122. In any event, while the Court is rendering its opinion, it is not making a ruling on anything. Israel was not a party to the proceedings, which were, in any event, advisory, as the title to the case states. The Court gave its advice to the General Assembly on its opinion. It is entitled to its opinion, and Israel is entitled to its own opinion. As expressed to me - "Bottom line, the claim that the ICJ gave a ruling is flat out not true."

As Rothenberg and Bell have noted, “The UN General Assembly (GA) resolution asking the International Court of Justice (ICJ) for an advisory opinion is actually a request for an endorsement of an already-stated political opinion of the GA. The ICJ lacks jurisdiction over the case because the GA has dictated the desired result. The court is not authorized to make endorsements of the GA’s political opinions dressed in legal garb.” (See: Laurence E. Rothenberg and Abraham Bell, “Israel’s Anti-Terror Fence: The World Court Case” (2004) Jerusalem Viewpoints.

_____________

I was assisted by material in Jerusalem Viewpoints, No. 535 28 Elul 5765 / 2 October 2005, The ICJ Opinion on the Separation Barrier: Designating the Entire West Bank as "Palestinian Territory" by Robbie Sabel

and NGO-Monitor Analysis, October 4, 2003 as well as Gerald Steinberg's article.

So, They Are Really Disputed Territories, Not Occupied

Abbas said that the PA application to the UN calls for transforming the Palestinian territories from the status of disputed lands to a state under occupation.

That was Mahmoud Abbas, so-called head or president or whatever of the Palestinian Authority.

Thank you, Mr. Abbas.

Thanks you, Danny Ayalon.


(k/t=DF)

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Pal. NGOs Hit By Occupation Administration Body

Source:

Ref: 82/2011
Date: 16 August 2011
Time: 08:00 GMT

PCHR Is Shocked by Declaration of the Ministry of Interior in Gaza Regarding Travel of Representatives of Programs and Projects of NGOs and Institutions

The Palestinian Center for Human Rights (PCHR) is shocked and strongly denounces the declaration issued by the Ministry of Interior and National Security in Gaza regarding the travel of representatives of programs and projects of non-governmental organizations (NGOs) and institutions to the West Bank or abroad.  PCHR believes that this trend, as a part of a series of decisions recently taken by the government in Gaza, is an unprecedented and unacceptable intervention in NGOs work, which implies imposing restrictions on NGOs and activists and dealing with them on security basis. 

As a result, the foundations of the relationship between NGOs and the government, which is regulated by the Basic Law and all other laws in force, are threatened to be undermined.  PCHR calls upon Isma'il Haniya, the Prime Minister in Gaza, to immediately and personally intervene to ensure respect for the law, the relationship with NGOs and their role, and to ensure their independence. 

On 10 August 2011, the General Department of Public Affairs and NGOs in the Ministry of Interior and National Security in Gaza posted a declaration on its website regarding the travel of participants through NGOs' programs and activities:

"The General Department of Public Affairs and NGOs in the Ministry of Interior and National Security announces that each person of those wishing to travel through NGOs' programs or projects to the West Bank or abroad has to refer to the General Department of Public Affairs and NGOs not less than two weeks from the date of travel.  He/she also has to inform us of the following:-        
The destination-        
The period of travel-        
The purpose of travel, in addition to identifying the program-        
The target group (a list of names and data of all participants)-       
The hosting body

Oh, did I neglect to inform you that Israel is not involved?

And yes, Hamas occupies Gaza.


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BBC Reporting As Biased As Ever Or, Why Oh Why Wyre

The "facts" of Wyre Davies, BBC Middle East correspondent :-

After saying goodbye to Mr Nassar I made the short journey to a windy hilltop to the north and the settlement of Beit El.

Dotted around Ramallah are several neat, lush Jewish settlements, identifiable by their orderly streets and red-roofed houses.

There are more than 120 settlements of various sizes in the West Bank.

They are illegal under international law because they are built on occupied Palestinian territory.

To the 400,000 settlers who now live in the West Bank and Arab East Jerusalem, they are seen as pioneering communities on what is historically Jewish land.

I can think of a few reasons why certain people can claim that my village of Shiloh is "illegal" (and President Obama thinks they are "illegitimate") but "Palestinian territory"?

First of all, if "Palestinian", that certainly doesn't apply only to Arabs so there should be room for Jewish residents. Secondly, since no "Palestinian" geopolitical entity ever existed, exactly whose territory are we talking about?

Third, "Palestine" was called into being as a Mandate territory and the League of Nations decided that it would be predicated on the fact that it was done so as being:

in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights [not political!] of existing non-Jewish communities [and not specifically Arab!] in Palestine, or the rights and political status enjoyed by Jews in any other country; and [the]...recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country; and...The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home...The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power. The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes...nothing in this mandate shall be construed as conferring upon the Mandatory authority to interfere with the fabric or the management of purely Moslem sacred shrines, [and those that are shared, or joint, like the Temple Mount] the immunities of which are guaranteed...

Fourth, even if one claims that not all "Palestine" was intended to be all the above, and that the Jews were to merit but part of "Palestine", a year after the words above were agreed upon the territory of the Mandate was removed from the above framework and given to Emir Abdallah to become the Arab state ("In the territories lying between the Jordan and the eastern boundary of Palestine as ultimately determined, the Mandatory shall be entitled, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of this mandate as he may consider inapplicable to the existing local conditions").

Fifth, let's not forget that all this "occupation" claim is based on the Geneva Fourth Convention but since that was to be conducted between "High Contracting Parties", since no "Palestine" existed in 1949, never did and still doesn't, it can't be "occupied Palestinian territory".

Sixth, since we never heard any complaint about Jordan being the illegal occupier of the territory, why should a Jewish administration being discriminated against?

Seventh, since the Arabs refused to establish an Arab state as a result of the UN Partition recommendation and moreover, declared a war of extermination against the Jewish state that was to arise, they were forfeit any claim in the future especially as they contuned a terror was against Israel from 1949 to 1967.

Eight, since the 1967 war which facilitated Israel's current administration over the territory in dispute was defensive, the territory cannot be "illegally occupied".

Ninth, there is no international law that prohibits Jews from building in Judea and Samaria.

Oh, and there are 320,000 Jewish residents of Judea and Samaria and 200,000 in the new neighborhoods of Jerusalem.

There Goes the Sun

From the news:

The Spanish Government has disqualified the Israeli team from the bi-annual Solar Decathlon because the team is located in “occupied territory” - Samaria. Engineers, architects, solar experts and other visitors to the Solar Decathlon will thus be denied the opportunity to study and benefit from the solar-powered energy-economical “Stretch House” designed and built by students of the Ariel University Center of Samaria.

Wait! Will they try to stop the sun from shining over Ariel next? Shiloh?

Oh my gosh!

And to think, these guys kicked the Arabs out of "occupied territory" themselves.

We don't get the right to reconquista?

Hague, Geneva, Palestine, Occupation

From a communication with Howard Grief, author of The Legal Foundation and Borders of Israel Under International Law", commenting on some issues I raised:

Under the Hague Regulations of 1907, the definition of the juridical concept of “occupation” absolutely demands the existence of a previous or ousted sovereign from whom land was captured by a hostile state in war with it. If there was no such sovereign, then there cannot be by definition any belligerent occupation of land in accordance with Article 42 of the Hague Regulations. In such circumstances, neither the Hague Regulations nor the Fourth Geneva Convention would apply to the conquered land after the close of military operations...

In regard to Judea, Samaria and Gaza, their characterisation as Israeli “occupied territory” is wrong because these areas were specifically allotted to the Jewish People for the purpose of reconstituting the Jewish National Home and future Jewish State. This allocation was made under the Franco-British Boundary Convention of December 23, 1920. The provisions of this Convention were implicitly approved by the Council of the League of Nations when it confirmed the Mandate for Palestine on July 24, 1922. There was never any legal allocation of the territory to an Arab state or people. The U.N. Partition Resolution of November 29, 1947 which purported to make such an allocation was illegal in that it violated the then existing Article 5 of the Mandate for Palestine which prohibited the partition of the land. It was also illegal because the proposed partition plan violated Article 80 of the U.N. Charter, the purpose of which was to preserve the existing rights of the Jewish People to all of Palestine under the Mandate instrument, immune from any alteration until a trusteeship agreement could be concluded between the states directly concerned...Jewish rights to the whole country remain inviolable.

...after Israel liberated the territories of Judea, Samaria and Gaza from Jordanian and Egyptian occupation respectively in the Six-Day War, it decided for reasons of demography and future peace prospects not to assert its lawful rights to these lands by applying Israel law to them, but chose instead to apply the laws of war by issuing various military proclamations to that effect, which contravened the existing Israeli constitutional law applicable to Eretz-Israel. This in turn led the whole world to believe that Judea, Samaria and Gaza were indeed subject to the rules of belligerent occupation since that is the natural meaning of what was done by the Government of Israel...The application of the laws of war to the liberated Jewish territories, instead of Israeli law, was done on the egregious advice of then Military Advocate-General, Meir Shamgar...

It is certainly true...that the [Israeli] Supreme Court has ruled repeatedly that the IDF “held territories” of Judea, Samaria and Gaza are governed by the rules of belligerent occupation as set down in the Hague Regulations and Fourth Geneva Convention. However, this did not necessarily mean that the “held territories” were in fact “occupied territories” under international law embodied in the laws of war...Had the Government not voluntarily agreed to the applicability of the laws of war by deliberate choice rather than by strict law, the Court would have found it necessary to adjudicate the issue of the legal status of the “held territories” to determine if they were in fact and law territories under occupation. Alternatively, the Court may have requested the Government of Israel to provide it with a certificate on the legal status of these territories. This was never done. Therefore to this day and despite appearances to the contrary, the Court has never pronounced a definitive legal opinion on the legal status of Judea, Samaria and Gaza preferring to leave this question in limbo for the Government to ultimately decide.

Despite the Court’s reluctance to determine their legal status, the existing constitutional law of Israel, as embodied in the Area of Jurisdiction and Powers Ordinance and the proclamations validated under this law’s umbrella as well as Section 11B of the Law and Administration Ordinance, does assume that Judea, Samaria and Gaza, being indisputable areas of the Land of Israel, legally belong to the Jewish People and hence the State of Israel and thus should be governed by Israeli law rather than by the laws of belligerent occupation...

The International Committee of the Red Cross which argues that the Fourth Geneva Convention applies to Judea, Samaria and Gaza regardless of their legal status misrepresents or distorts the actual meaning of this Convention. As noted above, their stated position is true only while the war or military operations are still taking place. However, once the military phase of the war is terminated, the legal status of the conquered territory then becomes of crucial importance, for under Article 6 of the Fourth Geneva Convention, the latter only continues to apply one year after the general close of military operations in the case of occupied territory for the duration of the occupation. To determine if “occupation” exists to justify the continued application of the Fourth Geneva Convention, one must then know exactly what the legal status of the conquered territory is. Who in fact has the legal right to govern this territory? Is it Jordan, Egypt, the local Arabs of the land, or Israel?

In the particular case of Judea and Samaria, Israel did not occupy Jordanian sovereign territory, but restored that territory to the Jewish People (which includes the State of Israel), to whom it originally belonged as an integral part of the Jewish National Home. Jordan’s acquisition was based on its illegal aggression and conquest of this land in the 1948 War of Independence, which it then illegally annexed on April 24, 1950. On the other hand, Israel’s re-acquisition of the same territory was based on the title it had inherited from the Jewish People who acquired it under international law by virtue of the considered decision of the Principal Allied Powers, who defeated Ottoman Turkey in World War I. That decision was founded on the Allied recognition of the Jewish historical connection with Palestine in both the First and Second Temple periods. In consequence of that recognition, the Allied Powers adopted the Balfour Declaration as the basis for governing Palestine and transformed the Declaration into an act of international law by means of the San Remo Resolution that was then incorporated into the preamble of the Mandate for Palestine. The boundaries of Mandated Palestine included Judea and Samaria, as confirmed by the Franco-British Boundary Convention of December 23, 1920. No title to this land was ever bestowed on the local Arab inhabitants.

In the case of Gaza, this land was never under Egyptian sovereignty and therefore it too cannot be legally designated as “occupied territory”.

...when France regained possession of Alsace-Lorraine in 1918 in World War I from Germany which had earlier acquired it in a war of conquest in 1871 (the Franco-Prussian War), a war provoked by the Prussian Chancellor, Otto Von Bismark as part of his plan to create a united German Empire. When France reconquered Alsace-Lorraine, the territory was not called “occupied Germen territory” even though it had previously been annexed by Germany and remained under German sovereignty for several decades. In like manner, Judea, Samaria and Gaza which historically and legally belonged to the Jewish People both in ancient days and upon the disposition of the Supreme Council of the Principal Allied Powers, on April 24-25, 1920, at the San Remo Peace Conference, should never have been called “occupied Arab territory” or “enemy territory” but rather the liberated areas of the Jewish National Home returned to the bosom of the Jewish People and its assignee, the State of Israel.

The International Committee of the Red Cross has a self-serving interest in describing Judea, Samaria and Gaza as “occupied territories” since this allows it to assume the role of protector of the local Arab inhabitants in the Land of Israel and thus to massively intervene...

Inasmuch as Judea, Samaria and Gaza are not today nor have ever been Israeli occupied territories under international law, Israel is not debarred either by the Hague Regulations or by the Fourth Geneva Convention from sanctioning the building of Israeli settlements in the restored areas of the Jewish homeland. The contention...that Israel has no right to build these settlements is based on the flawed opinion of Theodor Meron that these lands were, for him, amazingly enough, “enemy territory”, rather than areas of the Jewish National Home, a mindset that originated not with Meron himself, but with Meir Shamgar, long before the Six-Day War erupted. This erroneous opinion of Meron was rejected by the Government of Israel at the time he gave it and he then emigrated to the United States. In establishing well over a hundred settlements in the restored areas of the Land of Israel, including the Golan Heights and at least half of Sinai, the Government thereby affirmed by that action alone that those areas could not be considered “occupied territory” but rather were sanctioned by Israel’s Law of Return which applies to the whole of the Land of Israel, not just the State itself...

Are You Occupied With "Occupation"?

Avinoam Sharon's Why Is Israel’s Presence in the Territories Still Called “Occupation”?

Executive Summary

* When an armed force holds territory beyond its own national borders, the term “occupation” readily comes to mind. However, not all the factual situations that we commonly think of as “occupation” fall within the limited scope of the term “occupation” as defined in international law. Not every situation we refer to as “occupation” is subject to the international legal regime that regulates occupation and imposes obligations upon the occupier.

* The term “occupation” is often employed politically, without regard for its general or legal meaning. The use of the term “occupation” in political rhetoric reduces complex situations of competing claims and rights to predefined categories of right and wrong. The term “occupation” is also employed in the context of the Israeli-Palestinian conflict to advance the argument that Israel bears ultimate responsibility for the welfare of the Palestinians, while limiting or denying Israel’s right to defend itself against Palestinian terror, and relieving the Palestinian side of responsibility for its own actions and their consequences. The term is also employed as part of a general assault upon Israel’s legitimacy, in the context of a geopolitical narrative that has little to do with Israel’s status as an occupier under international law.

* Iraq was occupied by the Coalition forces from the spring of 2003 until June 28, 2004, at which time authority was handed over to the Iraqi Interim Government. At that point, Coalition forces remained in Iraq, but Iraq was no longer deemed occupied. If handing over authority to a Coalition-appointed interim government ended the occupation of Iraq, would the same not hold true for the establishment of the Palestinian Authority and Israel?

* Under the Interim Agreement between Israel and the Palestine Liberation Organization of September 28, 1995, it would seem that at least those areas placed under the effective control of the Palestinian Authority, and from which Israel had actually withdrawn its military forces, could no longer be termed “occupied” by Israel. Moreover, since the continued presence of Israeli troops in the area was agreed to and regulated by the Agreement, that presence should no longer be viewed as an occupation.

* The withdrawal of all Israeli military personnel and any Israeli civilian presence in the Gaza Strip, and the subsequent ouster of the Palestinian Authority and the takeover of the area by a Hamas government, surely would constitute a clear end of the Israeli occupation of Gaza. Nevertheless, even though Gaza is no longer under the authority of a hostile army, and despite an absence of the effective control necessary for providing the governmental services required of an occupying power, it is nevertheless argued that Israel remains the occupying power in Gaza.

and here is the whole section to which many of my commentors relate:

The Israeli Occupation – 1967 22

Occupation in the Absence of Prior Sovereignty

In June 1967, in the aftermath of the Six-Day War, Israeli military forces held territories beyond its pre-war borders.23 These territories comprised the Sinai Peninsula, Gaza Strip, Golan Heights, and the West Bank. Under customary law, the Israeli military presence in the Sinai Peninsula and the Golan Heights clearly constituted occupation in the legal sense.24 The Sinai Peninsula had been under Egyptian sovereignty and the Golan Heights had been under Syrian sovereignty.25 The situation was not as clear in regard to the Gaza Strip, over which Egypt did not claim sovereignty and which it held under a military government,26 and the West Bank, over which the Jordanian assertion of sovereignty did not gain international recognition.27 The status of these two areas has been the source of much debate both in Israel and in the international community.

Upon the assumption of control of the territories, Israel had to make a decision as to the applicable law. There were several reasons for Israel not to wish to view the captured territories as occupied, and therefore subject to the provisions of the Fourth Geneva Convention. From a legal standpoint, Israel took the view that in the absence of a prior sovereign, Israel’s control of the West Bank and Gaza did not fall within the definition of “occupation” inasmuch as a fundamental premise of the law of occupation – a prior legitimate sovereign – was lacking.28

Israel’s argument concerning the de jure application of the law of occupation did not, however, deter it from declaring its intention to act in accordance with customary international law and the humanitarian provisions of the Fourth Geneva Convention, or from adhering to those rules in practice.29 This intention seems consistent with the view of Blum:

The conclusion to be drawn from all this is that whenever, for one reason or another, there is no concurrence of a normal “legitimate sovereign” with that of a “belligerent occupant” of the territory, only that part of the law of occupation applies which is intended to safeguard the humanitarian rights of the population.30

Under the circumstances, one might reasonably ask why Israel insisted upon making the distinction between the de jure force of the Fourth Geneva Convention and its de facto application. There would appear to have been a number of political considerations that argued in favor of making the distinction, and arguing against the automatic application of the Fourth Geneva Convention. First, as Shamgar points out:

[A]utomatic application of the Fourth Convention would create unintentionally a change in the political status quo by according to Egypt and Jordan, which had occupied the Gaza Strip and the West Bank respectively in consequence of the invasion of 1948, the standing of an ousted sovereign whose reversionary rights have to be respected and safeguarded. Since the whole idea of the restriction of powers of the military government by the Convention is based upon the assumption that there is a sovereign who was ousted and that he has been a legitimate sovereign, the automatic and unqualified application of the Convention could have enhanced the legal rights of Egypt and Jordan, and this, paradoxically, from the date of the termination of their military government.31

Second, saying that the territories were occupied by Israel “could conceivably be interpreted as a renunciation of sovereign rights by Israel to the areas. After all, one does not ‘occupy’ one’s own territory, and one most certainly is not bound therein by the International Law of Belligerent Occupation.”32 Third, in light of the above, saying the territories were occupied by Israel could be construed as acceptance of the 1949 ceasefire lines as international borders.

Thus, the primary difference of opinion between Israel and the International Committee of the Red Cross (ICRC) concerning the Fourth Geneva Convention centered on the question of formal applicability. Interestingly, the ICRC’s argument for the applicability of the Fourth Geneva Convention did not rely upon a rejection of Israel’s legal interpretation of the definition of “occupation” in customary law. Rather, the position of the ICRC focused entirely on the interpretation of Article 2, which reads:

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.

As Shamgar explains:

The Article apparently refers to three alternative situations: (a) Peacetime; (b) Cases of armed conflict; (c) Cases of occupation. The first question is whether the first and second paragraphs of Article 2 are concurrent and complimentary or disjunctive, namely, whether the first paragraph lays down the lex generalis in relation to the extent of the application, which impliedly refers not only to all possible forms of an armed conflict but also to all secondary results and developments and inter alia to military occupation, comprising ex abundante cautela the one described expressis verbis in the second paragraph; or whether, alternatively, there is no linkage between the two paragraphs and each has to be read and interpreted separately and independently, the first paragraph dealing with armed conflicts, except military occupation, and only the second paragraph referring to the occupation of territory.

If the paragraphs are independent and not of a cumulative effect, and only the second paragraph defines the extent of the application to occupied territory, the one and only conclusion arising is that the Convention applies merely to the occupation of the territory of a High Contracting Party and not generally to territories held under military occupation. It seems, as a prima facie corollary, that not each and every occupation of territory turns it into territory to which the Convention applies.33

In other words, it was and remains the view of the ICRC that the Fourth Geneva Convention applies to all forms of armed conflict, and the question of whether or not a particular territory is “occupied” in the legal sense is irrelevant to the question of the application of the Convention’s provisions.34

Indeed, there is much to be said in favor of the interpretation advanced by the ICRC. Primarily, the view that the Fourth Geneva Convention applies to all conflicts is consistent with the shift in focus from states to people. If the purpose of the Convention is to protect people, the legal status of the source of the threat to their safety and well-being should not make any difference.

Of course, that statement is far too broad, and it is unlikely that the community of nations would accept a statement of obligation that threatens so severe an infringement of sovereignty. While limiting that broad protection only to persons threatened by a conflict of an international character may appear to resolve the issue of a threat to sovereignty, Israel’s concerns in regard to the question of sovereignty over the West Bank and Gaza demonstrate that the issue is not so easily resolved. It is not, I think, easy to maintain the argument that a state will agree to the automatic assumption of the political obligations imposed under international law toward a belligerent party in a conflict over territory that the state claims as its sovereign territory.

Moreover, we must bear in mind that to the extent that we are not concerned with the application of customary law, but rather with the construction of a provision of conventional law, care must be taken to respect the intention of the parties. In regard to the second paragraph, the ICRC itself admits: “The wording of the paragraph is not very clear, the text adopted by the Government Experts being more explicit.”35 But more explicit language was not adopted. While the ICRC’s opinion may be persuasive, it is neither definitive nor constitutive. Ultimately, the parties to a convention cannot be expected to assume obligations beyond those originally contemplated by them. In ratifying a convention, a state does not relinquish its sovereign power to the ICRC. Moreover, in the absence of any example of a state actually acting in accordance with the interpretation of the ICRC in this regard, the ICRC’s view, however laudable in theory, is not the view accepted by the community of nations in practice.

A similar view to that of the ICRC is expressed by Bothe: “The unclear status of an occupied territory does not prevent the applicability of the rules of belligerent occupation. The application of humanitarian law cannot be made to depend on such legal niceties as the recognition of legal titles to territory.”36 As high sounding and convincing as these statements may appear at first glance, it is worrisome that anyone might think that a source of conflict, wars and bloodshed can be swept away as “legal niceties.” But even if we ignore the unfortunate choice of words, the statement remains problematic. Its acceptability is largely dependant upon what is meant by the notoriously slippery term “humanitarian law.” If the author’s intention is to say that the humanitarian provisions of the Fourth Geneva Convention should be applied to all conflicts, then the Israeli case provides a supporting precedent for this view. However, if by humanitarian law we mean something broader, e.g., the rules of international law deriving from the Hague and Geneva Conventions, or the international law of armed conflicts, or even the Fourth Geneva Convention in its entirety, then arguably, the “legal niceties” may present a serious stumbling block to the acceptance of a view that might impose international standards and political obligations upon what a state may deem as a purely internal matter.

As opposed to the approach that seeks to broaden the application of the Fourth Geneva Convention by extending it to all de facto situations of occupation, and on that basis argues for the de jure application of the Convention to the territories administered by Israel, others have challenged Israel’s de jure position that it is not an occupier. The basis of this approach is similar to that of the ICRC in that it focuses upon the issue of hostilities and deems the question of sovereignty to be irrelevant, but it differs in a fundamental way. While the view of the ICRC is that the question of sovereignty is irrelevant inasmuch as humanitarian concerns should not be contingent upon whether a situation constitutes an occupation, this approach argues that the question of sovereignty is not relevant to the definition of occupation. The problem with this approach is twofold: First, it seeks to define occupation without regard for its underlying premise. Second, it seeks to redefine a concept of customary law without regard for the actual customs and usages of nations.

Thus, although the commonly accepted view would seem to be that Israel became the belligerent occupant of the West Bank and Gaza in June 1967, maintaining that view seems to require redefining the customary concept of occupation without regard for custom.

As opposed to this, some authors refer to Israel’s presence in the territories as conferring upon Israel a status “no more than,” “no better than,” or “at the very least,”37 that of a belligerent occupant, or not conferring “any status beyond”38 that of a belligerent occupant. This approach is employed in the context of the question whether or not Israel is obligated to apply the Fourth Geneva Convention, and in refutation of a potential Israeli claim to sovereignty. In the former case, it is, in essence, a moral argument that the issue of prior sovereignty should not be relevant to the granting of humanitarian protection to the civilians affected by hostilities or under military rule, and is not unlike the ICRC’s argument. The latter case concerns the premise that sovereignty over territory cannot be acquired by force of arms, and concerns the issue of whether the non-existence of a prior lawful sovereign bestows upon a belligerent party any greater claim to sovereignty vis-à-vis the territory by virtue of the lack of a competing claim. Neither of these approaches concerns the question of whether or not Israel is an “occupier.”

When examined solely in terms of the meaning of the term “occupation” in international law, it would appear that Israel never occupied the West Bank or Gaza. It is another question entirely whether this means that the Fourth Geneva Convention does not automatically apply, or whether this consideration is irrelevant to the application of the Convention. Regardless of the answer to that question, it would appear that the West Bank and the Gaza Strip are erroneously referred to as “occupied territory” as a result of their capture in Six Day War, and their subsequent administration by Israel.

Notes:

22. This jump from 1949 to 1967 reflects an apparent lack of developments in the area of occupation during this period. This lack of development does not mean that there were no situations that might have warranted being termed “occupation.” In the context of this study, it is interesting in light of the Egyptian presence in Gaza and the Jordanian presence in the West Bank during this entire period. Indeed, these situations tend to receive little notice, if mentioned at all, in discussions of the subject of occupation, even in the context of the Arab-Israeli conflict. Thus, for example, in his discussion of Occupation after Armistice, Michel Bothe states: “Examples are the German occupation of parts of France after the armistices of 1871 and 1940, the Allied occupation of Italy after the armistice of 1943 and the occupation of Syrian (Golan Heights), Egyptian (Sinai Peninsula) and Jordanian/Palestinian (West Bank) territories by Israel after the ceasefire in 1967 and after the disengagement agreements following the Yom Kippur War in 1973.” Michael Bothe, Occupation after Armistice, in III Encyclopedia of Public International Law, 761 (1992). Indeed, although the Egyptian occupation of Gaza and the Jordanian occupation of the West Bank and East Jerusalem are mentioned (e.g., at p. 1483 and 1489) in Peter Malanczuk’s comprehensive article Israel: Status, Territory and Occupied Territories, we find statements like “The Gaza Strip, which had been administered by Egypt from 1948 to 1967 without raising any claim to title to the territory, has since remained under Israeli military occupation” (p. 1484) (emphasis added), and that the Al-Hammeh region was “then under Syrian administration and now under Israeli occupation” (p. 1485) (emphasis added). Peter Malanczuk, Israel: Status, Territory and Occupied Territories, in II Encyclopedia of Public International Law, 1468 (1992). While it would not seem that the author intends any legal implication by this choice of words, it does appear to reflect the legal community’s lack of interest in examining the legal nature of those “administrations.” The then nine-year-old Egyptian occupation of Gaza and Jordanian occupation of the West Bank also receive no mention in Glahn (1957).

23. I refer to “pre-war borders” bearing in mind that the borders between Israel and the adjacent Arab states did not have the status of recognized international borders, but rather constituted ceasefire lines established between Israel and her neighbors under the 1949 Armistice Agreements between Israel and Egypt, Transjordan, Syria and Lebanon.

24. Farhy, Current Trends in the Areas Administered by Israel, 113 Mil.L.Rev. 47, 50 (1986).

25. The questions related to the legal status of the extension of Israeli law to the Golan under the Golan Heights Law, 1981, and to the transfer of sovereignty over the Golan to Syria as a result of the Franco-British Convention on Certain Points Connected with the Mandates for Syria and the Lebanon, Palestine and Mesopotamia, 1920, go beyond the limited scope of this article. For a discussion of the historical background, see Y. Meron, The Golan Heights, in Meir Shamgar, ed., Military Government in the Territories Administered by Israel 1967-1980 (1982) 85.

26. See Carol Farhi, On the Legal Status of the Gaza Strip, in Shamgar, ibid., 61, 74 ff.

27. See, Malanczuk, supra n. 22, 1490; Blum, supra n. 16, 289-290.

28. Meir Shamgar, Legal Concepts and Problems of the Israeli Military Government – The Initial Stage, in Shamgar, supra note 25, 13, 31 ff.; Blum, supra note 15, 289 ff.

29. Shamgar, supra note 25, 32; Farhy, supra n. 23, 50; Yoram Dinstein, The International Legal Dimensions of the Arab-Israeli Conflict, in Kellerman, Siehr, Einhorn, eds., Israel Among the Nations, 137, 150-51(1998). For a review of the official Israeli position on the application of the Hague Regulations and the Fourth Geneva Convention and the position of the Israeli Supreme Court, see Nissim Bar-Yaakov, The Application of the Law of War to the Administered Territories, 18 Mishpatim 831 (1990) (the article is in Hebrew, however the statements of Israel’s official position are quoted in English).

30. Blum, supra n. 16, 294.

31. Shamgar, supra note 28, 37.

32. David Yahav, ed., Israel, the Intifada and the Rule of Law, (1993) 21.

33. Shamgar, supra note 28, 38.

34. See ICRC Commentary to Geneva Convention IV, 21-22 ; and see, Gerhad von Glahn, Law Among Nations, 7th ed. (1996) 667.

35. ICRC Commentary, 22.

36. Bothe, supra note 22, 764.

37. E.g., Blum, supra note 16, 294.

Occupation? You're Kidding, Right?

There is no occupation

by Efraim Karsh

Wednesday, Jun. 24, 2009 at 11:56 PM

Few subjects have been falsified so thoroughly as the recent history of the West Bank and Gaza. The history of Israel's so-called "occupation" of Palestinian lands and the ways in which Palestinians and Arabs have distorted Israeli actions in the West Bank and Gaza are discussed.

More Disputed Territories

No, I don't mean 'more on the disputed territories', the territories of Judea and Samaria that Israel administers.

No, I mean this:

UN to launch report on Iraq's disputed territories to avert clashes

The United Nations will hand to Iraq on Wednesday a report on disputed territories, including Kirkuk, that it hopes will avert war between Kurds and the Arab-led government in Baghdad, western officials said.

...Ending tensions in the north is also seen as crucial to lasting peace in Iraq, where many fear that six years of bloodshed between once dominant Sunni and majority Shi'ite Muslims could be followed by war between Arabs and Kurds.

While foreign officials speak of an auspicious moment for compromise between Kirkuk's rival ethnicities, it will be hard to unravel a conflict rooted deep in Iraqi history.

"The dispute over Kirkuk is connected to oil, ethnicity, identity, land -- everything," said Rakan al-Jubouri, an Arab who is deputy governor of Kirkuk province.

a. "disputed territories" and not occupied.

b. there are other deeply-rooted ethnic conflicts.