In What Sense is the West Bank Palestinian Territory?

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How the UN, EU, and others ‘misunderstand’
the Israeli-Palestinian Conflict

Summary

  • When Israel captured the West Bank in 1967, the Palestinians denied any claim to sovereignty over the territory.  Lacking subsequent agreement or legal ruling, the claim that the West Bank is (or was) sovereign Palestinian territory is unsustainable. 
  • This means that the claim that Israel occupies Palestinian territory cannot be legally upheld. 
  • Palestinian rejection of any Jewish sovereignty and a historical commitment to eliminating the Jewish state is demonstrated as the root cause of the conflict.  It is not a mere territorial dispute about how to share territory.  
  • Yet based on the twin assumptions that the conflict is a territorial dispute and that the Palestinians will accept a West Bank state, the two-state solution is erroneously advocated as a settlement of the conflict.   
  • Only Palestinian acceptance of the Jewish state and abandonment of eliminationist intentions can lead to a peaceful resolution.  To pursue this, international support for Israel is urged with measures to attain Palestinian acceptance of the Jewish state.

 

Introduction

1/   This article presents a novel line of legal thought that the West Bank is not sovereign Palestinian territory – and it never was.  Therefore, according to the laws of occupation, the West Bank cannot be considered occupied Palestinian territory.  Further, the UN and EU and others that state that Israel occupies sovereign Palestinian territory do so for misplaced political reasons.  This obscures the real nature of the conflict and produces ‘solutions’ that perpetuate the conflict rather than measures that can solve it.

2/   Britain abstained in the vote on the UNGA resolution 181 of 1947 which recommended the partition of the territory administered by Britain under the League of Nations Mandate for Palestine.  Subsequently, in May 1948, Britain unilaterally abandoned its Mandate.  Israel immediately declared independence and the armies of five Arab states invaded the next day.

3/   In the war that followed, the Jordanian army was easily the most successful Arab army, conquering the ‘West Bank’ (Jordanian terminology) and east Jerusalem.  Britain can claim considerable credit for this as it had financed the Jordanian army, trained it, equipped it, and led it in the invasion.  It is hard to ‘square’ this with the idea that Israel is a colonialist enterprise designed to crush the Arabs.

Sovereign Palestinian territory?

4/   Consequently, nineteen years later, when Israel captured the Jordanian-occupied and annexed West Bank in the 6-Day War, we can say that:

  • it was not Palestinian territory,
  • nor did the Palestinians claim it to be,
  • in fact, the Palestinians expressly disclaimed sovereignty over it (article 24 of the Palestinian National Charter, 1964) .

5/   Subsequently, following the 6-Day War, the PLO reversed its previous position disclaiming sovereignty over the West Bank.  This reversal was written into a second edition of the Palestinian National Charter in 1968.  It abandoned the disclaimer in article 24 of the previous charter, and the PLO committed itself to conquering all Israel and all the West Bank.

6/   For the claim of Palestinian sovereignty to have any legal validity, there are three possible routes to consider:

  1. that it was Palestinian territory when Israel captured it from Jordan in 1967, OR
  2. that it became Palestinian territory subsequently by means of an agreement with Israel, OR
  3. that a binding ruling to that effect had been issued by an authoritative legal body.

7/   To maintain the first of these is impossible for the reason given in paragraph 4 above.  The second is to invoke an agreement that does not exist.  The third invokes a binding legal ruling that also does not exist.  As a result, the claim to Palestinian sovereignty cannot be considered an established legal fact.  It is a claim only.

Occupied Palestinian territory?

8/   The term ‘occupation’ has a defined legal meaning.  Derived from the Hague Regulations, the traditional definition is that occupation occurs when the territory of a legitimate power is under the control of a hostile army (articles 42 and 43).  But what is a ‘legitimate power’?  It is a power, generally considered a state, that possesses sovereignty over a certain territory.  As shown above, the Palestinians have never enjoyed a state or sovereignty over any part of Mandatory Palestine. 

9/   Therefore, without a settled legal basis for the assertion of Palestinian sovereignty over the West Bank, there is no legal basis for the claim that Israel occupies Palestinian territory.  This means that the Palestinian-Israeli conflict is entirely different to the way it is usually portrayed.  Further, by obfuscating the issue of Palestinian sovereignty, presumably to suit geopolitical, economic, and internal pressures, the UN, EU, and others effectively disguise self-interest as legal certainties.  

10/   This is effectively proven by the way the so-called Israeli occupation of Palestinian territory is selected for unique treatment by these bodies.  In comparison, they ignore international legalities and do business with occupations such as Western Sahara occupied by Morocco, Northern Cyprus occupied by Turkey, Tibet occupied by China, and others.   This view is entirely a matter of political and economic choice, not legalities.  

11/   By promoting or pretending that the West Bank is Palestinian territory, the UN, EU, and others, display a preference for reducing the conflict to a mere dispute over territory, which can easily be resolved if Israel were to throw its security needs to the wind and accede to Palestinian state.  In this way, the real nature of the dispute is obscured. 

The real nature of the conflict

12/   The real cause of the conflict is twofold:

  1. the population of the West Bank consists of Arabs who do not want Israel to control it.
  2. in fact, they never wanted Israel at all and they adhere to a program, the Palestinian National Charter, 1968 that expressly aims for the elimination of the Jewish state.

13/   Without the latter, it would seem reasonable, logical, equitable and practical to divide the territory of Mandatory Palestine between the two communities.  This would be a win-win resolution of the conflict.  It seems so simple and morally justified that no further elaboration is required.  Consequently, the endless repetition of the two-state solution has become a mantra to which all right-thinking people are supposed to adhere.

14/   Unfortunately, those who share this perspective leave the Palestinian view unexamined.  The Palestinian claim to the whole territory of Israel – from the river to the sea – the ’48 territories (see the 2-State Solutions box) demonstrates that the conflict is about far more than the West Bank.  This wrecks the simplicity and moral clarity of the two-state advocates.  Yet instead of seeing this winner-takes-all view as an intractable problem, it is simply ignored by the UN, EU, and others.  Likewise, it is consistently obscured by the bulk of the international mass media.

15/   In this view, the practicality of a settlement based on the two-state solution rests on the twin assumptions that:

  • the conflict is a territorial dispute about how the territory can be shared,
  • the Palestinians will accept a West Bank based state.

By opposing these assertions, Israel is condemned as the cause of the continued conflict.

Sensational claims

16/   If it were indeed true that the Palestinians had dropped their claim to the whole territory of Israel and were willing to settle the conflict for a West Bank state, as seems to be the view of many advocates of the two-state solution, it would be an amazing turn-around.  It would mean that since the creation of Israel the Palestinians had made a succession of different policy claims to:

  1. all of Israel but not the West Bank (Palestinian National Charter, 1964),
  2. all of Israel and the West Bank (Palestinian National Charter, 1968),
  3. all the West Bank but not Israel (from Oslo 1993 to the present).

17/   If the latter were true and the Palestinians have accepted a state on the West Bank as an end to the conflict, it would mean that they had at last accepted the Jewish state and abandoned the previous aim of completely replacing it with their own.  If true, as we are asked to believe, this would be BIG news.  But if true, evidence for such a sensational transformation would presumably be easy to find.

18/   Alas, no-one has found such evidence.  The PA/PLO remains committed to the elimination of Israel and its replacement by a Palestinian state on ALL its territory.  They devote zero energy to the promotion of a two-state solution as an end to the conflict.  For Israel, the prospect of a so-called two-state solution with an eliminationist Palestinian state on the West Bank is not a sign of a peaceful solution to end the conflict but a precursor to ever greater escalation.

19/   The real nature of the conflict is not something that Israel can ignore.  The Palestinian intention to destroy Israel makes the conflict a war for its existence and not just a territorial dispute. For as long as the Palestinians adhere to the Palestinian National Charter and  have the aim of annihilating Israel, the dangers that such a state would pose are impossible for Israel to ignore.

Limited Palestinian self-rule

20/  Therefore, the best that the Palestinians can expect is the strictly limited degree of self-rule in Areas A and B on the West Bank rather than any full self-determination – especially an independent state.  Instructively, it’s amazing how those who decry the ‘injustice’ of limited Palestinian sovereignty seem quite happy with the thought of ending all Israeli sovereignty.

21/   Nevertheless, this is far from ideal as the conflict remains unsolved.  However, it continues at a lower level of intensity than war between two states.  This is why the ONLY way to end the conflict peacefully is for Palestinians to reconcile themselves at last to the Jewish state and abandon all ambitions to destroy it.  It is also why the international community should be committed to opposing eliminationist Palestinian ambitions. Instead they should do everything possible to help Palestinians reach a reconciliation with Israel.

22/   Finally, it’s easily forgotten that by the time Israel captured West Bank in the 6-Day War of 1967, the conflict had already existed for many years.  As Prime Minister Rabin said in 1976 to a joint session of the US Congress, to 1967 Israel did not hold an inch of Sinai, West Bank, Gaza, or Golan – yet we had no peace.

 

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