Status of territories captured by Israel

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This article examines the legal dispute over whether the West Bank and Golan Heights should be deemed "occupied territory" under international law or as "disputed territory". Israel calls all of them "disputed" rather than "occupied", a distinction generally rejected by the international community[citation needed].

Contents

[edit] Occupied

Several organizations have stated that these areas are occupied and that the Fourth Geneva Convention provisions regarding occupied territories apply. These organizations include the United Nations Security Council (in Resolution 446, Resolution 465 and Resolution 484, among others), the High Contracting Parties to the Fourth Geneva Convention[1], and the International Committee of the Red Cross[2]. Also, in their decisions on the separation barrier, the International Court of Justice and Supreme Court of Israel have both ruled that the West Bank is occupied.[3][4] The US State Department also considers the West Bank and Gaza Strip occupied.[1]

The ICJ outlined the legal rationale for the supporters of this view in its advisory opinion of 9 July 2004. It noted:

...under customary international law as reflected (...) in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907 (hereinafter “the Hague Regulations of 1907”), territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised. The territories situated between the Green Line (see paragraph 72 above) 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, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories, as described in paragraphs 75 to 77 above, have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.

On the application of the fourth Geneva Convention, the Court noted:

...for the purpose of determining the scope of application of the Fourth Geneva Convention, it should be recalled that under common Article 2 of the four Conventions of 12 August 1949:

“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."

(...) the Court notes that, according to the first paragraph of Article 2 of the Fourth Geneva Convention, that Convention is applicable when two conditions are fulfilled: that there exists an armed conflict (whether or not a state of war has been recognized); and that the conflict has arisen between two contracting parties. (...) The object of the second paragraph of Article 2 is not to restrict the scope of application of the Convention, as defined by the first paragraph, by excluding therefrom territories not falling under the sovereignty of one of the contracting parties. It is directed simply to making it clear that, even if occupation effected during the conflict met no armed resistance, the Convention is still applicable.

[edit] Disputed

Supporters of the view that the territories are not occupied argue that use of the term "occupied" in relation to Israel's control of the areas has no basis in international law or history, and that it prejudges the outcome of negotiations. They regard the territories as "disputed" based on the following legal arguments:

  • No borders have been established or recognized by the parties. Armistice lines do not establish borders, and the 1949 Armistice Agreements in particular specifically stated (at Arab insistence) that they were not creating permanent or de jure borders.[5]
  • The United Nations uses the term "disputed" about all other contested areas in the world — even those for which a stronger case for "occupation" can be made. In particular, the West Bank, Gaza Strip, and East Jerusalem were not referred to as "occupied" during the 19 years that Jordan and Egypt controlled (and in the former case, annexed) them.[6]
  • Territories are only "occupied" if they are captured in war from an established and recognized sovereign, but no state had a legitimate or recognized sovereignty over the West Bank, Gaza Strip or East Jerusalem prior to the Six-Day War.[7]
  • The Fourth Geneva Convention is not applicable to the West Bank and Gaza Strip, since, under its Article 2, it pertains only to "cases of…occupation of the territory of a High Contracting Party" by another High Contracting party. The West Bank and Gaza Strip have never been the legal territories of any High Contracting Party.[8][9][10]
  • Even if the Fourth Geneva Convention had applied at one point, they certainly did not apply once the Israel transferred governmental powers to the Palestinian Authority in accordance with the 1993 Oslo Accords, since Article 6 of the convention states that the Occupying Power would only be bound to its terms "to the extent that such Power exercises the functions of government in such territory....".[11]
  • Israel took control of the West Bank as a result of a defensive war. The language of "occupation" has allowed Palestinian spokesmen to obfuscate this history. By repeatedly pointing to "occupation," they manage to reverse the causality of the conflict, especially in front of Western audiences. Thus, the current territorial dispute is allegedly the result of an Israeli decision "to occupy," rather than a result of a war imposed on Israel by a coalition of Arab states in 1967. Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, wrote in 1970 regarding Israel's case: "Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. [12]


Advocates of this argument also claim that historically, Jews have at least as strong of a claim to the West Bank and Gaza Strip as Palestinians do, possibly stronger - the Land of Israel plays a far more important role in Jewish history than in Palestinian or Arab history, and there has been a continuous Jewish presence there for at least three millennia.[13]

[edit] See also

[edit] References

  1. ^  Are the West Bank and Gaza "occupied territories" as Palestinian Arabs assert?, Palestine Facts website. Retrieved September 28, 2005.
  2. ^  DISPUTED TERRITORIES: Forgotten Facts About the West Bank and Gaza Strip, Israeli Ministry of Foreign Affairs website, February 1, 2003. Retrieved September 28, 2005.
  3. ^  International Law and the Arab-Israeli Conflict Extracts from "Israel and Palestine - Assault on the Law of Nations" by Julius Stone, Ed: Ian Lacey, Second edition, Australia/Israel & Jewish Affairs Council website, 2003. Retrieved September 29, 2005.
  4. ^  UPDATED CAMERA ALERT: Inaccurate Terms in Coverage of Bush Statement, Committee for Accuracy in Middle East Reporting in America website, April 18, 2004. Retrieved September 29, 2005.
  5. ^  BACKGROUNDER: Jewish Settlements and the Media, Committee for Accuracy in Middle East Reporting in America website, October 5, 2001. Retrieved February 5, 2006.
  6. ^  "Occupied Territories" to "Disputed Territories" by Dore Gold, Jerusalem Center for Public Affairs, January 16, 2002. Retrieved September 29, 2005.
  7. ^  DISPUTED TERRITORIES: Forgotten Facts About the West Bank and Gaza Strip, Israeli Ministry of Foreign Affairs website, February 1, 2003. Retrieved September 28, 2005.
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