Questioning the Occupation

The double accusation that the West Bank is Palestinian territory and that Israel occupies it is supported by four major legal arguments.  Each of these can be legally dismissed as follows:

Argument ONE:  The Hague Regulations

The “Annex to the Hague Regulations Respecting the Laws and Customs of War on Land, 1907” has provided the international community with the basic definition of occupation.      

Territory is considered occupied when it is actually placed under the authority of the hostile army . . . (Article 42, emphasis added)

The authority of the legitimate power having in fact passed into the hands of the occupant . . . (Article 43, emphasis added)

For those who wish to find Israel guilty of ‘occupation’, the problem with this definition is that it fails to nail Israel.   This is because Israel captured the West Bank from Jordanian control during the 6-Day War of 1967, and Jordan never was the legitimate power.  Instead, it had illegally seized the territory during the illegal Arab invasion of Israel 1948-9.  

Therefore, as Israel did not seize the territory from a legitimate power (sovereign state), the Hague Regulations are not applicable.  Therefore, a second angle of approach is utilized to corner Israel.  

Argument TWO: The Fourth Geneva Convention

The Fourth Geneva Convention, 1949, develops the protection of civilian rights in war and occupation in greater detail than the Hague Regulations.  Like the Hague Regulations, its purpose is not to distinguish legal vs illegal occupations but to regulate the behavior of occupying powers. 

The applicability of the convention to Israel is said to be contained in Article 2, para 2: 

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party (added emphasis)

As both Israel and Jordan were High Contracting Parties to the convention it is claimed that this definition applies.  Yet, as with the Hague Regulations, the territory in question was not the territory of Jordan.  That is, it was not the territory of a High Contracting Party.   Therefore, Israel’s capture of the West Bank does not meet the convention’s requirement for definition as occupation.  

From the point of view of those who wish to condemn Israel, this means that the two most fundamental statements of international law on occupation cannot be relied on.   This has forced them to cast the net wider.   

Argument THREE:  The ICJ and ICRC

Consequently, the Advisory Opinions of the International Court of Justice in 2004 and 2024, and the legal commentaries of the International Committee of the Red Cross, have moved into a more nuanced interpretation of these conventions.  The newer interpretation is that controversies over the sovereign status of the West Bank are not what matters.   

In this view, what matters is that the territory was not the sovereign property of Israel.  Therefore, it is said that this justifies the characterization of Israel’s control as occupation. 

But to arrive at this conclusion, a fair-minded assessment from a fair-minded court would have undertaken a thorough analysis of the competing Palestinian and Israeli legal claims to the West Bank.  Instead, in its recent Advisory Opinion, the ICJ decided to completely ignore Israel’s legal claims. 

Yet Israel’s three main claims are not a secret.  They are as follows:

1. The Mandate for Palestine was established by the League of Nations to create a National Jewish Home. 
2. Article 80 of the UN Charter continues these obligations.
3. The customary international law of uti possidetis juris determines that, as with other new states, the borders of the Jewish state would be those of the previous administrative authority.  This would mean that the boundaries of Mandatory Palestine would be from-the-river-to-the- sea, and include Jerusalem. 

Clearly, given the hostility of Palestinians to Israel, implementation of these legalities is an enormous practical problem – hence the need to find a political solution.  In lieu of such a solution, the legal position is that there is no legal Palestinian claim that comes even close to the claims of Israel.  Perhaps this is why the ICJ felt bound to ignore Israel’s legal claims as the contrast would be too obvious?  

Argument FOUR:   Palestinian Self-Determination 

But there is another approach also used by Israel’s opponents.   This is really a two-in-one argument.  

Firstly, despite the reluctant view that the status of the West Bank was undecided or controversial prior to Israel’s capture of it, this has somehow morphed into a declaration that it is indeed Palestinian territory.  

To assert this, the ICJ is forced to ignore the number of times the Palestinians have rejected a state alongside Israel.  It also ignores the fact that when Israel captured the West Bank from Jordan in 1967, the Palestinians did not claim a West Bank-based state.  In fact, their Palestinian National Charter, 1964, (Article 24) specifically rejected Palestinian title to the West Bank.   

Further, the ICJ offered zero legal reasoning or facts for its declaration of Palestinian sovereignty.  As with the UN, it is straightforwardly a political policy and not a legal assessment.  

Secondly, the right to self-determination is said to be a peremptory right that overrides all others.  No it isn’t.  This is merely an assertion to allow its advocates a way of sliding round the legal obstacle that the unifying intention of the Palestinians is to destroy Israel.  

In other words, it enables the ICJ and UN to ignore the disastrous reality that a Palestinian state would violate the very first article of the UN Charter: 

To maintain international peace and security, and  . . .  take effective collective measures for the prevention and removal of threats to the peace, (Article 1, para 1)

The UN ability to draw unlikely/impossible conclusions is demonstrated by a recent GA Resolution which declares:

. . . the State of Palestine is fully qualified (emphasis added) for membership of the United Nations in accordance with Article 4 of the Charter of the United Nations  (ES-10/23, 10 May 2024)

Leaving aside that Palestine is not a state, the UN Charter actually says:

Membership of the United Nations is open to all other peace-loving states (added emphasis) which accept the obligations contained in the present Charter (Article 4)

On any objective basis, this would disqualify the Palestinians from membership.  Yet, such is the degeneration of the UN and lack of regard for its own laws in favor of political views masquerading as law, that neither the UN nor other advocates of Palestinian statehood can answer this simple question:  

How can the establishment of a state that intends to destroy another state  serve the interests of international law, or regional peace and security?

What is to be done?

Unfortunately, the non-legal views behind legal-sounding arguments from the ICJ carry credibility.  It’s as if its legal rulings were beyond reasonable doubt rather than determined by political opinion.  

Further, without any formal public and independent check on the decisions of the ICJ, there is no accountability, no oversight and no scrutiny – as if the judges were miraculously free from bias, self-interest, ignorance, inconsistency or stupidity.   Therefore, is it not a political necessity that Israel’s public diplomacy apparatus generates Israel’s own challenges?  

Yet where are the resolutions to the UN asking questions on these issues as a means of getting them to the international public?  Where are the questions that challenge those governments and international organizations promoting Palestinian statehood?  Where are the questions to show that they don’t abide by their own rules, lack credible understanding, cannot answer simple questions, and instead promote hopelessly unreal and dangerous policies?  

Repeated ALL THE TIME in interviews, press releases and articles in the foreign media, these issues can become public knowledge.    None of this will happen automatically – it has to be organized.  Otherwise, without public challenges, governments and international organizations will continue to avoid scrutiny.    

Jon Dyson
www.arguments4israel.com