REFUTING the Charge of ‘Occupation’

1/ The widely held view that Israel occupies Palestinian territory conflates two distinct claims:

The West Bank is Palestinian territory,
Israel occupies the West Bank.

2/ Supported by four main arguments and repeated ad nauseam, these characterizations have acquired a status akin to laws of nature – so obvious as to be beyond dispute. Yet in all essentials each of the four arguments can be legally dismissed as follows:

Argument ONE: The Hague Regulations

3/ The basic internationally accepted definition of occupation is from the annex to the Hague Regulations regarding the ‘Laws and Customs of War on Land’, 1907. This states,

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

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

4/ For those who wish to find Israel guilty of occupying Palestinian territory, the problem with this definition is that it fails to nail Israel. This is because Israel captured the West Bank and the Gaza Strip from Jordan and Egypt respectively during the 6-Day War of 1967. Yet neither Jordan nor Egypt were ever the legitimate power in these territories. Instead, they had occupied them in the illegal Arab invasion of Israel 1948-9. Therefore, a second approach is utilized to corner Israel.

Argument TWO: The Fourth Geneva Convention, 1949

5/ As with the Hague Regulations, there is no definition or discussion of legal versus illegal occupation in the Fourth Geneva Convention. Its purpose was the protection of civilian rights in all cases of military occupation.

6/ 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 (emphasis added).

7/ As Israel, Jordan and Egypt were High Contracting Parties to the convention it is claimed that this makes the Convention applicable. Yet, as with the Hague Regulations, the West Bank and Gaza Strip were not the territories of either Jordan or Egypt as neither were the legitimate sovereign powers of those territories.

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

Argument THREE: The ICJ and ICRC

9/ 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 shifted to a more nuanced definition of occupation.

10/ This more nuanced interpretation is that the sovereign status of the West Bank and the Gaza Strip prior to their capture by Israel in 1967 is not the crucial issue. Instead, the crucial issue is that the territory was not the sovereign property of Israel. Therefore, for this reason, Israel is said to be occupying Palestinian territory.

11/ But to arrive at this conclusion, a fair-minded assessment by a fair-minded court would have undertaken a methodical analysis of the competing Palestinian and Israeli legal claims to the territories. Instead, in its Advisory Opinion of 2024, the ICJ completely ignored Israel’s legal claims (see Annexes 1 & 2 below).

12/ Yet Israel’s three main legal claims are not a secret. They are,

The Mandate for Palestine was established by the League of Nations to create a National Jewish Home in a small segment of the former Ottoman Empire as part of the First World War Settlement.
Article 80 of the UN Charter continues this objective.
As with other new states established by the break-up of empires, the customary international law of uti possidetis juris determines that the borders of the Jewish state would be those of the previous administrative authority. Therefore, Israel’s legal boundaries are those of Mandatory Palestine – inclusive of the West Bank, Jerusalem and the Gaza Strip.

13/ Consequently, those who accuse Israel of the ‘inadmissible acquisition of territory by war’ are mistaken. The territory was already legally part of Israel when Israel retrieved it from the ‘inadmissible acquisition of territory’ by Jordan and Egypt during their participation in the invasion of Israel by five Arab armies in 1948.

14/ However, legal facts are one thing, but the practical reality of the conflict with the Palestinians is another. This makes the exercise of Israeli sovereignty a huge problem. In lieu of a solution, the legal position is that there is no Palestinian legal argument that comes even close to that of Israel. As a result, neither the Advisory Opinions of the ICJ nor the analysis of the ICRC have been able to present legal arguments that demonstrate their claim.

Argument FOUR: Palestinian Self-Determination

15/ Despite these drawbacks, the UN, the EU, and many states maintain the claim that Israel occupies Palestinian territory. This claim also forces them to ignore the awkward fact that when Israel captured the West Bank and Gaza Strip in 1967, the Palestinians did not claim any part of either territory. In fact, article 24 of the Palestinian National Charter, 1964, specifically rejected any Palestinian claim to sovereignty over the West Bank and the Gaza Strip.

16/ That is, the UN, EU and others, declare the West Bank and Gaza to be sovereign Palestinian territory even as the Palestinians denied it! Also ignored is the number of times that they have rejected an Arab/Palestinian state alongside Israel (eg. 1937, 1947, 2000, 2008).

17/ Therefore, to buttress the case for Palestinian sovereignty, the right to self-determination is declared to be a peremptory right: a right that overrides all others. No supporting evidence is supplied for this unlikely assertion. Yet it allows advocates to proceed without a second’s thought for either the consequences or legality of the open and explicit Palestinian intention to destroy Israel (see Annex 3 below).

18/ The impact of this abstract assertion of self-determination is that 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)

19/ Doubling-down on this extraordinary neglect of core UN aspirations, the ability of the UN to draw 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)

20/ 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)

21/ 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 Charter, that neither the UN nor other advocates of Palestinian statehood can answer or even ask two simple questions:

How can the establishment of a state that intends to destroy another state serve the interests of international law, regional peace and security?
How can a Palestinian state intent on destroying the Jewish state possibly produce a peaceful and successful 2-State solution?

What is to be done?

22/ Sadly, political views disguised as legal determinations carry credibility. Consequently, advocacy of a Palestinian state by the UN, ICJ, EU, and others, evades even rudimentary due diligence to ascertain if Palestinian intentions align or not with legalities, the UN Charter, and visions of a peaceful solution to the conflict.

23/ 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 political bias, ideological bias, self-interest, ignorance, inconsistency or stupidity. Therefore, it would seem reasonable to expect that the public diplomacy apparatus of Israel should work in overdrive to challenge all this.

24/ Yet where are the resolutions at 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, cannot answer simple queries, but instead promote hopelessly unreal and dangerous policies?

25/ Yet to make these issues international public knowledge, they will need to be repeated ALL THE TIME in interviews, press releases and articles in the foreign media. Otherwise, without sufficient public awareness, governments and international organizations will continue to avoid scrutiny and make decisions against the interests of Israel.

(NOTE – an earlier version of this article appeared in the “Times of Israel”)

Annexes