The Blogs: The myth regarding the occupation of Palestine

The Situation

In May 2025, French President Emmanuel Macron announced that France is considering recognizing Palestine as a state during a UN conference in June, co-hosted with Saudi Arabia. This move is part of a broader effort to reinvigorate the two-state solution, with Macron advocating for mutual recognition between Israel and Palestine. Belgium has joined this endeavor; Prime Minister Bart De Wever has expressed his support for Macron’s initiative, emphasizing that “the suffering must stop” . These developments underscore the urgency of a sustainable resolution to the Israeli-Palestinian conflict.

For decades, the Middle East has been a powder keg whose fuse never seems to be extinguished. Time and again — you could almost set your watch to it — the situation escalates. Nearly every time, two main players appear between the Mediterranean Sea and the Jordan River: Israel and the Palestinian Arabs.

Everyone claims to know the reasons for the frequent unrest in the region. Israel is said to be illegally occupying Palestinian land, making the establishment of a Palestinian state de facto impossible. Israel, for its part, maintains that the West Bank actually belongs to them. East Jerusalem has already been annexed.

Many have formed opinions on this matter — sometimes based on facts, but often based on incorrect, incomplete, or even deliberately misleading information from various parties.

This article is not intended to present a moral judgment. However, it is crucial that a discussion exists on such matters. In fact, it is necessary. At the same time, it is essential that this discussion is based on accurate, objective, and historically and legally verifiable arguments.

This article will address two questions:

Who can claim the land between the Mediterranean and the Jordan on historical/legal grounds?
Can one speak of an occupation?

The answer, of course, is not black and white — but rather nuanced.

Claim to the Land

Both parties claim that the land belongs to them, invoking various international resolutions and provisions.

First, let us examine the claim of the Palestinian Arabs and the basis on which they support their position:

UN Resolutions

1947 Partition Plan
(Commons Wikimedia, Public domain)

Palestinian Arabs and proponents of a Palestinian state frequently refer to UN Resolution 181 — the so-called Partition Plan (to divide the mandate territory of Palestine into a Jewish and an Arab state) — as the legal foundation of their territorial claim. They also cite other resolutions, such as Security Council Resolution 242 (and several that followed it) to define the borders of this Palestinian state.

However, it must be emphasized that Resolution 181 was passed by the General Assembly of the UN. It was therefore advisory in nature and not binding. No resolution of the General Assembly is legally binding.

Second: this advice was not accepted by the Arab countries. At that time, “Palestine” was referred to only in terms of territory, not as a people. So the outcome of the negotiations — accepted by the Jewish representatives — was rejected by the opposing side. Since no agreement was reached, it seems difficult to use a non-existent agreement to justify a claim.

Thirdly, the Mandate-holder of Palestine — responsible for the territory on behalf of the UN — also did not vote in favor of the resolution. This further undermines its legitimacy.

As for the ‘borders’ of the Palestinian state, people point to Security Council Resolution 242. Unlike Resolution 181, which was passed by the General Assembly, Resolution 242 followed the Six-Day War and was reiterated in Resolution 338 after the Yom Kippur War. The content of this resolution states that Israel must withdraw from “territories occupied in the recent conflict.”

For the Palestinian Arabs, these territories represent the core of their state, and they try to use Resolution 242 to define its borders.

Green Line (green thin line) and demilitarized zones (green thick line/areas) (1949)
(Commons Wimimediam Public domain CC BY-SA 3.0)

However… there are several objections to this argument. First, the resolution does not mention “borders” in a state-legal sense or otherwise. It refers to an armistice line — the so-called Green Line. The resolution does not demand a return to the 1949 situation. Second, the resolution does not require Israel to withdraw from all territories. This is not a semantic debate. It is essential, since international law allows Israel to secure its borders, which the resolution also acknowledges. But most importantly, Resolution 242 was passed under Chapter VI of the UN Charter. Only resolutions passed under Chapter VII are binding and enforceable. This means that this resolution (like nearly all that followed) is also only advisory.

The issue of defined borders between Israel and an Arab state (without specifically mentioning the West Bank) is also addressed in Security Council Resolution 62 and in the much later Oslo Accords, which specified that any future borders would be determined through further negotiations.

Summary:

The Palestinian Arab claim is legally untenable, as none of the resolutions they refer to are legally binding or enforceable under international law. They are advisory. The main resolution, Resolution 181, was even fully rejected by the Arab parties themselves.

Israel’s Claim to the Land

The State of Israel, by contrast, bases its claim on several arguments.

The first argument is — at the very least — questionable: “we were here first.” On emotional grounds, one does not gain legal recognition. This is therefore clearly not a valid argument, even though the right of return is indeed guaranteed by the UN. This is certainly relevant given the current tensions in the West Bank.

Emir Feisal I (right) and Chaim Weizmann (also wearing Arab dress as a sign of friendship), 1918
(Commons Wikimedia, Public domain)

Another reference is the Balfour Declaration. Although Prince Faisal, as a representative of the Arab world, accepted this declaration in 1919, the declaration itself carries no legal force. It is neither binding nor enforceable and therefore not decisive in this context — were it not for the fact that it was fully incorporated in 1920 at the San Remo Conference, and especially in 1922 into the Mandate for Palestine, which was unanimously adopted by the League of Nations. Israel also bases its claim on this mandate.

Content-wise and legally, this document is very important. “The Palestine Mandate” is a valid, binding, and enforceable legal text that goes further than the Balfour Declaration. It states:

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.

Mandate of Palestine (including TransJordan)
(Commons Wimimediam Public domain CC BY-SA 3.0)

This right to settlement does not apply to the area east of the Jordan — which we know today as Jordan — but it does apply to the entire West Bank, including Jerusalem.

So what happened to the Mandate for Palestine? The League of Nations no longer exists, and there is no longer a Mandate territory in Palestine… or is there?

Let us start with the Mandate itself. As previously stated, it was unanimously approved by the League of Nations. In addition to the articles already quoted, there is a particularly important clause, namely Article 27:

The consent of the Council of the League of Nations is required for any modification of the terms of this mandate.

This has never been done — not by the League of Nations, nor by the United Nations.

One might argue that with the dissolution of the League of Nations, the text became obsolete. But this is incorrect. Article 80 of the Charter of the United Nations guarantees that existing agreements remain in force. This applies to the Mandate for Palestine as well.

There may be debate about the existence, transfer, or termination of the Mandate, were it not that the International Court of Justice (ICJ) has acknowledged multiple times that the Mandate survived the collapse of the League of Nations.

Another important aspect is that the United Kingdom never formally and properly returned its mandate to the United Nations, the successor to the League of Nations. While Article 28 states that the Mandate may be terminated, the aforementioned Article 27 stipulates that any amendment to the Mandate, including its termination, must be submitted to the Council of the League of Nations — not the General Assembly. This never occurred.

Furthermore, Resolution 181 is not binding, which means it holds no legal authority and certainly does not annul earlier provisions.

In concrete terms, this means that, technically, since the Mandate was never amended, never (properly) terminated, and since the ICJ has recognized that it was transferred to the UN, Palestine is still a Mandate territory.

A counterargument to this theory is, of course, that the de facto existence of the State of Israel — recognized by nearly the entire world — has effectively ended the Mandate.

However, the existence of this legal text and the definition of a “mandate territory” means that Israel’s claim to the entire area between the Mediterranean Sea and the Jordan River is in fact legitimate and valid.

Summary:

Israel claims its right to the land on the basis of the Mandate for Palestine, which designated the territory between the Mediterranean and the Jordan River as the homeland of the Jewish people. This text is valid and has never been revoked. It is the only legally binding and enforceable document in this matter. Although it is an old text, no other international legal text has overruled it.

Occupation or No Occupation… That’s the Question

In the media, one often hears about “occupied territories.” In the context of this article, this typically refers to the West Bank and the Golan Heights. As before, this is not just a semantic term. If these areas are indeed considered “occupied,” then numerous conventions come into play. The most relevant legal framework here is the Fourth Geneva Convention, which protects civilians during wartime, specifically in cases of occupation.

So the question is: can we speak of an occupation or not? Or more precisely: what is an occupation?

The internationally accepted definition of occupation comes from Professor Basdevant, who defines it as:

A term used to designate the presence of military forces of one state on the territory of another state, without that territory ceasing to be part of the latter.

One key word stands out here: “state.” So what is a state? Because, ultimately, that is the crucial criterion for determining whether we are dealing with an occupation.

The rule of thumb in international law is this: you are not a state because you are recognized — you are recognized because you are a state. And being a state requires meeting certain criteria under international law. These are laid out in the Montevideo Convention of 1933, and later reaffirmed during the Arbitration Commission of the Peace Conference on Yugoslavia, also known as the Badinter Committee, in 1991.

According to the Montevideo Convention, four criteria must be met to qualify as a sovereign state:

1. 1. A permanent population;
  2. A defined territory;
  3. An effective government;
  4. The capacity to enter into relations with other states.

Let us begin with the second criterion: a defined territory. On this point, “Palestine” as a state clearly falls short.

Many will point to the Green Line as the border of a future Palestinian state, but one must remember that this was merely an armistice line between two sovereign states: Israel on one side, and Transjordan on the other. It was never intended to function as a national border. This is also clearly evident in the Oslo Accords, where the PLO (at that time, the Palestinian Authority did not yet exist, but was established through these accords) and Israel agreed that the final borders would be determined through negotiation. To date, that has never happened. So there is clearly no defined territory.

Other criteria, such as an effective government, also raise questions — especially considering the division between Hamas and the Palestinian Authority. This internal split also affects the notion of a stable population, and there are many additional reasons why one cannot speak of a fully functioning state.

As mentioned earlier, being recognized is not sufficient when one does not meet the objective standards of international law.

Since the (possible future) State of Palestine does not meet the legal criteria of statehood, one cannot speak of a state — and therefore, by definition, one cannot speak of the occupation of a Palestinian state’s territory, at least if one respects the objective, internationally accepted definition of “occupation.”

Of course, one might invoke the so-called “right of peoples to self-determination,” as stated in UN Resolution 1514, to claim statehood for Palestine nonetheless.

However, it was none other than a senior PLO official, Zuhair Muhsin, who dismissed that right in an interview with the Dutch newspaper Trouw:

There are no differences between Jordanians, Palestinians, Syrians and Lebanese… We are one people. Only for political reasons do we carefully underline our Palestinian identity. For it is of national interest for the Arabs to encourage the existence of the Palestinians against Zionism. Yes, the existence of a separate Palestinian identity is there only for tactical reasons.
The establishment of a Palestinian state is a new expedient to continue the fight against Zionism and for Arab unity.

TROUW, Thursday 31 March 1977, p. 7 (own collection)

In other words: according to the same Mandate mentioned earlier, the Palestinian Arabs were given territory in what is now Jordan. And a high-ranking representative of the Palestinian Arabs openly acknowledged that they are not a distinct people, thereby disqualifying any invocation of the right to self-determination.

Conclusion

Two questions were posed:

First: Who has the historical/legal right to claim the land between the Mediterranean Sea and the Jordan River?

That would be the Jewish people, represented by the State of Israel, as they alone can present a legally binding and enforceable argument.

Second: Can we speak of “occupation”?

No. Since the internationally accepted definition of occupation cannot be met — because there are not two states involved, and in light of the legal framework of the Mandate — we cannot speak of “occupied territories.” This also means that the Fourth Geneva Convention, cited earlier, does not apply. This has a direct impact on the debate around Israel’s settlement policy.

In any case, this is a purely theoretical approach aimed at providing an objective framework without any moral judgement. The reality, however, is that the Gaza Strip does exist, that there is indeed an Arab population living in the West Bank, and that a solution must be found for this decades-old problem.

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