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FROM "OCCUPIED TERRITORIES" TO "DISPUTED TERRITORIES"
Jerusalem Center for Public Affairs, Israel
Aug. 7, 2006
Dore Gold
"Occupation" as an Accusation / The Terminology of Other Territorial
Disputes / No Previously-Recognized Sovereignty in the Territories /
Aggression vs. Self-Defense / Israeli Rights in the Territories /
After Oslo, Can the Territories be Characterized as "Occupied"?
"Occupation" as an Accusation
At the heart of the Palestinian diplomatic struggle against Israel is
the repeated assertion that the Palestinians of the West Bank and Gaza
Strip are resisting "occupation." Speaking recently on CNN's Larry King
Weekend, Hanan Ashrawi hoped that the U.S. war on terrorism would lead
to new diplomatic initiatives to address its root "causes." She then
went on to specifically identify "the occupation which has gone on too
long" as an example of one of terrorism's sources.1 In other words,
according to Ashrawi, the violence of the intifada emanates from the
"occupation."
Mustafa Barghouti, president of the Palestinian Medical Relief
Committees and a frequent guest on CNN as well, similarly asserted
that: "the root of the problem is Israeli occupation."2 Writing in
the Washington Post on January 16, 2002, Marwan Barghouti, head of
Arafat's Fatah PLO faction in the West Bank, continued this theme with
an article entitled: "Want Security? End the Occupation." This has
become the most ubiquitous line of argument today among Palestinian
spokesmen, who have to contend with the growing international consensus
against terrorism as a political instrument.
This language and logic have also penetrated the diplomatic
struggles in the United Nations. During August 2001, a Palestinian
draft resolution at the UN Security Council repeated the commonly
used Palestinian reference to the West Bank and Gaza Strip as
"occupied Palestinian territories." References to Israel's "foreign
occupation" also appeared in the Durban Draft Declaration of the UN
World Conference Against Racism. The Libyan ambassador to the United
Nations, in the name of the Arab Group Caucus, reiterated on October 1,
2001, what Palestinian spokesmen had been saying on network television:
"The Arab Group stresses its determination to confront any attempt
to classify resistance to occupation as an act of terrorism."3
Three clear purposes seem to be served by the repeated references to
"occupation" or "occupied Palestinian territories." First, Palestinian
spokesmen hope to create a political context to explain and even
justify the Palestinians' adoption of violence and terrorism during
the current intifada. Second, the Palestinian demand of Israel to "end
the occupation" does not leave any room for territorial compromise in
the West Bank and Gaza Strip, as suggested by the original language
of UN Security Council Resolution 242 (see below).
Third, the use of "occupied Palestinian territories" denies any
Israeli claim to the land: had the more neutral language of "disputed
territories" been used, then the Palestinians and Israel would be on
an even playing field with equal rights. Additionally, by presenting
Israel as a "foreign occupier," advocates of the Palestinian cause
can delegitimize the Jewish historical attachment to Israel. This
has become a focal point of Palestinian diplomatic efforts since the
failed 2000 Camp David Summit, but particularly since the UN Durban
Conference in 2001. Indeed, at Durban, the delegitimization campaign
against Israel exploited the language of "occupation" in order to
invoke the memories of Nazi-occupied Europe during the Second World War
and link them to Israeli practices in the West Bank and Gaza Strip.4
The Terminology of Other Territorial Disputes The politically-loaded
term "occupied territories" or "occupation" seems to apply only
to Israel and is hardly ever used when other territorial disputes
are discussed, especially by interested third parties. For example,
the U.S. Department of State refers to Kashmir as "disputed areas."5
Similarly in its Country Reports on Human Rights Practices, the State
Department describes the patch of Azerbaijan claimed as an independent
republic by indigenous Armenian separatists as "the disputed area
of Nagorno-Karabakh."6
Despite the 1975 advisory opinion of the International Court of
Justice establishing that Western Sahara was not under Moroccan
territorial sovereignty, it is not commonly accepted to describe the
Moroccan military incursion in the former Spanish colony as an act of
"occupation." In a more recent decision of the International Court
of Justice from March 2001, the Persian Gulf island of Zubarah,
claimed by both Qatar and Bahrain, was described by the Court as
"disputed territory," until it was finally allocated to Qatar.7
Of course each situation has its own unique history, but in a variety
of other territorial disputes from northern Cyprus, to the Kurile
Islands, to Abu Musa in the Persian Gulf -- which have involved some
degree of armed conflict -- the term "occupied territories" is not
commonly used in international discourse.8
Thus, the case of the West Bank and Gaza Strip appears to be a special
exception in recent history, for in many other territorial disputes
since the Second World War, in which the land in question was under the
previous sovereignty of another state, the term "occupied territory"
has not been applied to the territory that had come under one side's
military control as a result of armed conflict.
No Previously-Recognized Sovereignty in the Territories Israel entered
the West Bank and Gaza Strip in the 1967 Six-Day War. Israeli legal
experts traditionally resisted efforts to define the West Bank and
Gaza Strip as "occupied" or falling under the main international
treaties dealing with military occupation. Former Chief Justice of
the Supreme Court Meir Shamgar wrote in the 1970s that there is no
de jure applicability of the 1949 Fourth Geneva Convention regarding
occupied territories to the case of the West Bank and Gaza Strip
since the Convention "is based on the assumption that there had been a
sovereign who was ousted and that he had been a legitimate sovereign."
In fact, prior to 1967, Jordan had occupied the West Bank and Egypt
had occupied the Gaza Strip; their presence in those territories
was the result of their illegal invasion in 1948, in defiance of
the UN Security Council. Jordan's 1950 annexation of the West Bank
was recognized only by Great Britain (excluding the annexation of
Jerusalem) and Pakistan, and rejected by the vast majority of the
international community, including the Arab states.
At Jordan's insistence, the 1949 Armistice Line, that constituted
the Israeli-Jordanian boundary until 1967, was not a recognized
international border but only a line separating armies. The Armistice
Agreement specifically stated: "no provision of this Agreement shall
in any way prejudice the rights, claims, and positions of either
Party hereto in the peaceful settlement of the Palestine questions,
the provisions of this Agreement being dictated exclusively by military
considerations" (emphasis added) (Article II.2).
As noted above, in many other cases in recent history in which
recognized international borders were crossed in armed conflicts and
sovereign territory seized, the language of "occupation" was not used
-- even in clear-cut cases of aggression. Yet in the case of the
West Bank and Gaza, where no internationally recognized sovereign
control previously existed, the stigma of Israel as an "occupier"
has gained currency.
Aggression vs. Self-Defense International jurists generally draw
a distinction between situations of "aggressive conquest" and
territorial disputes that arise after a war of self-defense. 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."9
Here the historical sequence of events on June 5, 1967, is critical,
for Israel only entered the West Bank after repeated Jordanian
artillery fire and ground movements across the previous armistice
lines. Jordanian attacks began at 10:00 a.m.; an Israeli warning to
Jordan was passed through the UN at 11:00 a.m.; Jordanian attacks
nonetheless persisted, so that Israeli military action only began at
12:45 p.m. Additionally, Iraqi forces had crossed Jordanian territory
and were poised to enter the West Bank. Under such circumstances,
the temporary armistice boundaries of 1949 lost all validity the
moment Jordanian forces revoked the armistice and attacked. Israel
thus 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.
Israeli Rights in the Territories Under UN Security Council Resolution
242 from November 22, 1967 -- that has served as the basis of the 1991
Madrid Conference and the 1993 Declaration of Principles -- Israel is
only expected to withdraw "from territories" to "secure and recognized
boundaries" and not from "the territories" or "all the territories"
captured in the Six-Day War. This deliberate language resulted
from months of painstaking diplomacy. For example, the Soviet Union
attempted to introduce the word "all" before the word "territories"
in the British draft resolution that became Resolution 242. Lord
Caradon, the British UN ambassador, resisted these efforts.10 Since
the Soviets tried to add the language of full withdrawal but failed,
there is no ambiguity about the meaning of the withdrawal clause
contained in Resolution 242, which was unanimously adopted by the UN
Security Council.
Thus, the UN Security Council recognized that Israel was entitled
to part of these territories for new defensible borders. Britain's
foreign secretary in 1967, George Brown, stated three years
later that the meaning of Resolution 242 was "that Israel will not
withdraw from all the territories."11 Taken together with UN Security
Council Resolution 338, it became clear that only negotiations would
determine which portion of these territories would eventually become
"Israeli territories" or territories to be retained by Israel's
Arab counterpart.
Actually, the last international legal allocation of territory that
includes what is today the West Bank and Gaza Strip occurred with the
1922 League of Nations Mandate for Palestine, which recognized Jewish
national rights in the whole of the Mandated territory: "recognition
has been given to the historical connection of the Jewish people with
Palestine and to the grounds for reconstituting their national home
in that country." The members of the League of Nations did not create
the rights of the Jewish people, but rather recognized a pre-existing
right, that had been expressed by the 2,000-year-old quest of the
Jewish people to re-establish their homeland.
Moreover, Israel's rights were preserved under the United Nations
as well, according to Article 80 of the UN Charter, despite the
termination of the League of Nations in 1946. Article 80 established
that nothing in the UN Charter should be "construed to alter in
any manner the rights whatsoever of any states or any peoples or
the terms of existing international instruments." These rights were
unaffected by UN General Assembly Resolution 181 of November 1947 --
the Partition Plan -- which was a non-binding recommendation that
was rejected, in any case, by the Palestinians and the Arab states.
Given these fundamental sources of international legality, Israel
possesses legal rights with respect to the West Bank and Gaza Strip
that appear to be ignored by those international observers who repeat
the term "occupied territories" without any awareness of Israeli
territorial claims. Even if Israel only seeks "secure boundaries"
that cover part of the West Bank and the Gaza Strip, there is a world
of difference between a situation in which Israel approaches the
international community as a "foreign occupier" with no territorial
rights, and one in which Israel has strong historical rights to the
land that were recognized by the main bodies serving as the source
of international legitimacy in the previous century.
After Oslo, Can the Territories be Classified as "Occupied"? In the
1980s, President Carter's State Department legal advisor, Herbert
Hansell, sought to shift the argument over occupation from the land to
the Palestinians who live there. He determined that the 1949 Fourth
Geneva Convention governing military occupation applied to the West
Bank and Gaza Strip since its paramount purpose was "protecting
the civilian population of an occupied territory."12 Hansell's
legal analysis was dropped by the Reagan and Bush administrations;
nonetheless, he had somewhat shifted the focus from the territory
to its populace. Yet here, too, the standard definitions of what
constitutes an occupied population do not easily fit, especially
since the implementation of the 1993 Oslo Agreements.
Under Oslo, Israel transferred specific powers from its military
government in the West Bank and Gaza to the newly created Palestinian
Authority. Already in 1994, the legal advisor to the International Red
Cross, Dr. Hans-Peter Gasser, concluded that his organization had no
reason to monitor Israeli compliance with the Fourth Geneva Convention
in the Gaza Strip and Jericho area, since the Convention no longer
applied with the advent of Palestinian administration in those areas.13
Upon concluding the Oslo II Interim Agreement in September 1995,
which extended Palestinian administration to the rest of the West Bank
cities, Foreign Minister Shimon Peres declared: "once the agreement
will be implemented, no longer will the Palestinians reside under
our domination. They will gain self-rule and we shall return to
our heritage."14
Since that time, 98 percent of the Palestinian population in the West
Bank and Gaza Strip has come under Palestinian jurisdiction.15 Israel
transferred 40 spheres of civilian authority, as well as responsibility
for security and public order, to the Palestinian Authority, while
retaining powers for Israel's external security and the security of
Israeli citizens.
The 1949 Fourth Geneva Convention (Article 6) 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."
Under the earlier 1907 Hague Regulations, as well, a territory can
only be considered occupied when it is under the effective and actual
control of the occupier. Thus, according to the main international
agreements dealing with military occupation, Israel's transfer of
powers to the Palestinian Authority under the Oslo Agreements has
made it difficult to continue to characterize the West Bank and Gaza
as occupied territories.
Israel has been forced to exercise its residual powers in recent
months only in response to the escalation of violence and armed
attacks instigated by the Palestinian Authority.16 Thus, any increase
in defensive Israeli military deployments today around Palestinian
cities is the direct consequence of a Palestinian decision to escalate
the military confrontation against Israel, and not an expression of
a continuing Israeli occupation, as the Palestinians contend. For
once the Palestinian leadership takes the strategic decision to put
an end to the current wave of violence, there is no reason why the
Israeli military presence in the West Bank and Gaza cannot return
to its pre-September 2000 deployment, which minimally affected the
Palestinians.
Describing the territories as "Palestinian" may serve the political
agenda of one side in the dispute, but it prejudges the outcome of
future territorial negotiations that were envisioned under UN Security
Council Resolution 242. It also represents a total denial of Israel's
fundamental rights. Furthermore, reference to "resisting occupation"
has simply become a ploy advanced by Palestinian and Arab spokesmen
to justify an ongoing terrorist campaign against Israel, despite the
new global consensus against terrorism that has been formed since
September 11, 2001.
It would be far more accurate to describe the West Bank and Gaza Strip
as "disputed territories" to which both Israelis and Palestinians have
claims. As U.S. Ambassador to the UN Madeleine Albright stated in March
1994: "We simply do not support the description of the territories
occupied by Israel in the 1967 War as occupied Palestinian territory."
* * *
Notes 1. CNN Larry King Weekend, "America Recovers: Can the Fight
Against Terrorism be Won?," November 10, 2001 (CNN.com/transcripts).
2. Mustafa Barghouti, "Occupation is the Problem," Al-Ahram Weekly
Outline, December 6-12, 2001.
3. Anne F. Bayefsky, "Terrorism and Racism: The Aftermath of Durban,"
Jerusalem Viewpoints, no. 468, December 16, 2001.
4. See Bayefsky, op. cit. U.S. and European officials may use the
term "occupation" out of a concern for the humanitarian needs of the
Palestinians, without identifying with the PLO political agenda at
Durban or at the UN.
5. U.S. Department of State, Consular Information Sheet: India
(http://travel.state.gov/india.html) November 23, 2001.
6. 1999 Country Reports on Human Rights Practices: Azerbaijan, Bureau
of Democracy, Human Rights and Labor, U.S. Department of State,
February 25, 2000.
7. Case Concerning Maritime Delimitation and Territorial Questions
between Qatar and Bahrain, March 15, 2001, Judgment on the Merits,
International Court of Justice, March 16, 2000, paragraph 100.
8. The Japanese Foreign Ministry does not use the language
of "ending the Russian occupation of the Kurile Islands,"
but rather resolving "the Northern Territory Issue."
(www.mofa.go.jp/region/europe/russia/ territory). U.S. Department of
State "Background Notes" describe the Turkish Republic of Northern
Cyprus as the island's "northern part [which is] under an autonomous
Turkish-Cypriot administration supported by the presence of Turkish
troops" -- not under Turkish occupation.
9. Stephen Schwebel, "What Weight to Conquest," American Journal of
International Law, 64 (1970):345-347.
10. Vernon Turner, "The Intent of UNSC 242 -- The View of Regional
Actors," in UN Security Council Resolution 242: The Building Block of
Peacemaking (Washington: Washington Institute for Near East Policy,
1993), p. 27.
11. Meir Rosenne, "Legal Interpretations of UNSC242," in UN Security
Council Resolution 242: The Building Block of Peacemaking, op. cit.,
p. 31.
12. Under the Carter administration, Hansell's distinction led,
for the first time, to a U.S. determination that Israeli settlement
activity was illegal since it purportedly contravened Article 49 of
the Fourth Geneva Convention which stated that "the Occupying Power
shall not deport or transfer parts of its own civilian population
into the territory it is occupying." Subsequently, the Reagan and Bush
administrations altered the legal determination of the Carter period,
changed the U.S. voting pattern at the UN, and refused to describe
Israeli settlements as illegal, even if American political objections
to settlement activity continued to be expressed. One reason was
that the Fourth Geneva Convention applied to situations like that of
Nazi-occupied Europe, which involved "forcible transfer, deportation
or resettlement of large numbers of people." This view was formally
stated by the U.S. Ambassador to the UN in Geneva, Morris Abram, on
February 1, 1990, who had served on the U.S. staff at the Nuremberg
trials and, hence, was familiar with the legal intent behind the 1949
Fourth Geneva Convention.
13. Dr. Hans-Peter Gasser, Legal Adviser, International Committee of
the Red Cross, "On the Applicability of the Fourth Geneva Convention
After the Declaration of Principles and the Cairo Agreement,"
paper presented at the International Colloquium on Human Rights,
Gaza, September 10-12, 1994. Gasser did not state that in his view
the territories were no longer "occupied," but he did point out the
legal complexities that had arisen with Oslo's implementation.
14. Foreign Minister Shimon Peres's Address at the Israeli-Palestinian
Interim Agreement Signing Ceremony, Washington, D.C., September
28, 1995.
15. Ehud Barak, "Israel Needs a True Partner for Peace," New York
Times, July 30, 2001.
16. The present intifada violence resulted from a strategic decision
taken by Yasser Arafat, as admitted by numerous Palestinian spokesmen:
"Whoever thinks the intifada broke out because of the despised Sharon's
visit to the Al-Aqsa Mosque is wrong....This intifada was planned in
advance, ever since President Arafat's return from the Camp David
Negotiations," admitted Palestinian Communications Minister 'Imad
Al-Faluji (Al-Safir, March 3, 2001, trans. MEMRI). Even earlier,
Al-Faluji had explained that the intifada was initiated as the result
of a strategic decision made by the Palestinians (Al-Ayyam, December
6, 2000).
Arafat began to call for a new intifada in the first few months of
the year 2000. Speaking before Fatah youth in Ramallah, Arafat "hinted
that the Palestinian people are likely to turn to the intifada option"
(Al-Mujahid, April 3, 2000).
Marwan Barghouti, the head of Fatah in the West Bank, explained in
early March 2000: "We must wage a battle in the field alongside of the
negotiating battle...I mean confrontation" (Ahbar Al-Halil, March 8,
2000). During the summer of 2000, Fatah trained Palestinian youths
for the upcoming violence in 40 training camps.
The July 2000 edition of Al-Shuhada monthly, distributed among the
Palestinian Security Services, states: "From the negotiating delegation
led by the commander and symbol, Abu Amar (Yasser Arafat) to the brave
Palestinian people, be ready. The Battle for Jerusalem has begun." One
month later, the commander of the Palestinian police told the official
Palestinian newspaper Al-Hayat Al-Jadida: "The Palestinian police
will lead together with the noble sons of the Palestinian people,
when the hour of confrontation arrives." Freih Abu Middein, the PA
Justice Minister, warned that same month: "Violence is near and the
Palestinian people are willing to sacrifice even 5,000 casualties"
(Al-Hayut al-Jadida, August 24, 2000 -- MEMRI).
Another official publication of the Palestinian Authority, Al-Sabah,
dated September 11, 2000 -- more than two weeks before the Sharon
visit -- declared: "We will advance and declare a general intifada
for Jerusalem. The time for the intifada has arrived, the time for
intifada has arrived, the time for Jihad has arrived."
Arafat advisor Mamduh Nufal told the French Nouvel Observateur
(March 1, 2001): "A few days before the Sharon visit to the Mosque,
when Arafat requested that we be ready to initiate a clash, I supported
mass demonstrations and opposed the use of firearms." Of course, Arafat
ultimately adopted the use of firearms and bomb attacks against Israeli
civilians and military personnel. On September 30, 2001, Nufal detailed
in al-Ayyam that Arafat actually issued orders to field commanders
for violent confrontations with Israel on September 28, 2000.
* * *
Dore Gold is President of the Jerusalem Center for Public Affairs.
Previously, he served as Israel's Ambassador to the United Nations
(1997-1999). This Jerusalem Viewpoints is based on an earlier Jerusalem
Issue Brief on this subject.
http://www.jcpa.org/jl/vp470.htm
From: Emil Lazarian | Ararat NewsPress
Jerusalem Center for Public Affairs, Israel
Aug. 7, 2006
Dore Gold
"Occupation" as an Accusation / The Terminology of Other Territorial
Disputes / No Previously-Recognized Sovereignty in the Territories /
Aggression vs. Self-Defense / Israeli Rights in the Territories /
After Oslo, Can the Territories be Characterized as "Occupied"?
"Occupation" as an Accusation
At the heart of the Palestinian diplomatic struggle against Israel is
the repeated assertion that the Palestinians of the West Bank and Gaza
Strip are resisting "occupation." Speaking recently on CNN's Larry King
Weekend, Hanan Ashrawi hoped that the U.S. war on terrorism would lead
to new diplomatic initiatives to address its root "causes." She then
went on to specifically identify "the occupation which has gone on too
long" as an example of one of terrorism's sources.1 In other words,
according to Ashrawi, the violence of the intifada emanates from the
"occupation."
Mustafa Barghouti, president of the Palestinian Medical Relief
Committees and a frequent guest on CNN as well, similarly asserted
that: "the root of the problem is Israeli occupation."2 Writing in
the Washington Post on January 16, 2002, Marwan Barghouti, head of
Arafat's Fatah PLO faction in the West Bank, continued this theme with
an article entitled: "Want Security? End the Occupation." This has
become the most ubiquitous line of argument today among Palestinian
spokesmen, who have to contend with the growing international consensus
against terrorism as a political instrument.
This language and logic have also penetrated the diplomatic
struggles in the United Nations. During August 2001, a Palestinian
draft resolution at the UN Security Council repeated the commonly
used Palestinian reference to the West Bank and Gaza Strip as
"occupied Palestinian territories." References to Israel's "foreign
occupation" also appeared in the Durban Draft Declaration of the UN
World Conference Against Racism. The Libyan ambassador to the United
Nations, in the name of the Arab Group Caucus, reiterated on October 1,
2001, what Palestinian spokesmen had been saying on network television:
"The Arab Group stresses its determination to confront any attempt
to classify resistance to occupation as an act of terrorism."3
Three clear purposes seem to be served by the repeated references to
"occupation" or "occupied Palestinian territories." First, Palestinian
spokesmen hope to create a political context to explain and even
justify the Palestinians' adoption of violence and terrorism during
the current intifada. Second, the Palestinian demand of Israel to "end
the occupation" does not leave any room for territorial compromise in
the West Bank and Gaza Strip, as suggested by the original language
of UN Security Council Resolution 242 (see below).
Third, the use of "occupied Palestinian territories" denies any
Israeli claim to the land: had the more neutral language of "disputed
territories" been used, then the Palestinians and Israel would be on
an even playing field with equal rights. Additionally, by presenting
Israel as a "foreign occupier," advocates of the Palestinian cause
can delegitimize the Jewish historical attachment to Israel. This
has become a focal point of Palestinian diplomatic efforts since the
failed 2000 Camp David Summit, but particularly since the UN Durban
Conference in 2001. Indeed, at Durban, the delegitimization campaign
against Israel exploited the language of "occupation" in order to
invoke the memories of Nazi-occupied Europe during the Second World War
and link them to Israeli practices in the West Bank and Gaza Strip.4
The Terminology of Other Territorial Disputes The politically-loaded
term "occupied territories" or "occupation" seems to apply only
to Israel and is hardly ever used when other territorial disputes
are discussed, especially by interested third parties. For example,
the U.S. Department of State refers to Kashmir as "disputed areas."5
Similarly in its Country Reports on Human Rights Practices, the State
Department describes the patch of Azerbaijan claimed as an independent
republic by indigenous Armenian separatists as "the disputed area
of Nagorno-Karabakh."6
Despite the 1975 advisory opinion of the International Court of
Justice establishing that Western Sahara was not under Moroccan
territorial sovereignty, it is not commonly accepted to describe the
Moroccan military incursion in the former Spanish colony as an act of
"occupation." In a more recent decision of the International Court
of Justice from March 2001, the Persian Gulf island of Zubarah,
claimed by both Qatar and Bahrain, was described by the Court as
"disputed territory," until it was finally allocated to Qatar.7
Of course each situation has its own unique history, but in a variety
of other territorial disputes from northern Cyprus, to the Kurile
Islands, to Abu Musa in the Persian Gulf -- which have involved some
degree of armed conflict -- the term "occupied territories" is not
commonly used in international discourse.8
Thus, the case of the West Bank and Gaza Strip appears to be a special
exception in recent history, for in many other territorial disputes
since the Second World War, in which the land in question was under the
previous sovereignty of another state, the term "occupied territory"
has not been applied to the territory that had come under one side's
military control as a result of armed conflict.
No Previously-Recognized Sovereignty in the Territories Israel entered
the West Bank and Gaza Strip in the 1967 Six-Day War. Israeli legal
experts traditionally resisted efforts to define the West Bank and
Gaza Strip as "occupied" or falling under the main international
treaties dealing with military occupation. Former Chief Justice of
the Supreme Court Meir Shamgar wrote in the 1970s that there is no
de jure applicability of the 1949 Fourth Geneva Convention regarding
occupied territories to the case of the West Bank and Gaza Strip
since the Convention "is based on the assumption that there had been a
sovereign who was ousted and that he had been a legitimate sovereign."
In fact, prior to 1967, Jordan had occupied the West Bank and Egypt
had occupied the Gaza Strip; their presence in those territories
was the result of their illegal invasion in 1948, in defiance of
the UN Security Council. Jordan's 1950 annexation of the West Bank
was recognized only by Great Britain (excluding the annexation of
Jerusalem) and Pakistan, and rejected by the vast majority of the
international community, including the Arab states.
At Jordan's insistence, the 1949 Armistice Line, that constituted
the Israeli-Jordanian boundary until 1967, was not a recognized
international border but only a line separating armies. The Armistice
Agreement specifically stated: "no provision of this Agreement shall
in any way prejudice the rights, claims, and positions of either
Party hereto in the peaceful settlement of the Palestine questions,
the provisions of this Agreement being dictated exclusively by military
considerations" (emphasis added) (Article II.2).
As noted above, in many other cases in recent history in which
recognized international borders were crossed in armed conflicts and
sovereign territory seized, the language of "occupation" was not used
-- even in clear-cut cases of aggression. Yet in the case of the
West Bank and Gaza, where no internationally recognized sovereign
control previously existed, the stigma of Israel as an "occupier"
has gained currency.
Aggression vs. Self-Defense International jurists generally draw
a distinction between situations of "aggressive conquest" and
territorial disputes that arise after a war of self-defense. 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."9
Here the historical sequence of events on June 5, 1967, is critical,
for Israel only entered the West Bank after repeated Jordanian
artillery fire and ground movements across the previous armistice
lines. Jordanian attacks began at 10:00 a.m.; an Israeli warning to
Jordan was passed through the UN at 11:00 a.m.; Jordanian attacks
nonetheless persisted, so that Israeli military action only began at
12:45 p.m. Additionally, Iraqi forces had crossed Jordanian territory
and were poised to enter the West Bank. Under such circumstances,
the temporary armistice boundaries of 1949 lost all validity the
moment Jordanian forces revoked the armistice and attacked. Israel
thus 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.
Israeli Rights in the Territories Under UN Security Council Resolution
242 from November 22, 1967 -- that has served as the basis of the 1991
Madrid Conference and the 1993 Declaration of Principles -- Israel is
only expected to withdraw "from territories" to "secure and recognized
boundaries" and not from "the territories" or "all the territories"
captured in the Six-Day War. This deliberate language resulted
from months of painstaking diplomacy. For example, the Soviet Union
attempted to introduce the word "all" before the word "territories"
in the British draft resolution that became Resolution 242. Lord
Caradon, the British UN ambassador, resisted these efforts.10 Since
the Soviets tried to add the language of full withdrawal but failed,
there is no ambiguity about the meaning of the withdrawal clause
contained in Resolution 242, which was unanimously adopted by the UN
Security Council.
Thus, the UN Security Council recognized that Israel was entitled
to part of these territories for new defensible borders. Britain's
foreign secretary in 1967, George Brown, stated three years
later that the meaning of Resolution 242 was "that Israel will not
withdraw from all the territories."11 Taken together with UN Security
Council Resolution 338, it became clear that only negotiations would
determine which portion of these territories would eventually become
"Israeli territories" or territories to be retained by Israel's
Arab counterpart.
Actually, the last international legal allocation of territory that
includes what is today the West Bank and Gaza Strip occurred with the
1922 League of Nations Mandate for Palestine, which recognized Jewish
national rights in the whole of the Mandated territory: "recognition
has been given to the historical connection of the Jewish people with
Palestine and to the grounds for reconstituting their national home
in that country." The members of the League of Nations did not create
the rights of the Jewish people, but rather recognized a pre-existing
right, that had been expressed by the 2,000-year-old quest of the
Jewish people to re-establish their homeland.
Moreover, Israel's rights were preserved under the United Nations
as well, according to Article 80 of the UN Charter, despite the
termination of the League of Nations in 1946. Article 80 established
that nothing in the UN Charter should be "construed to alter in
any manner the rights whatsoever of any states or any peoples or
the terms of existing international instruments." These rights were
unaffected by UN General Assembly Resolution 181 of November 1947 --
the Partition Plan -- which was a non-binding recommendation that
was rejected, in any case, by the Palestinians and the Arab states.
Given these fundamental sources of international legality, Israel
possesses legal rights with respect to the West Bank and Gaza Strip
that appear to be ignored by those international observers who repeat
the term "occupied territories" without any awareness of Israeli
territorial claims. Even if Israel only seeks "secure boundaries"
that cover part of the West Bank and the Gaza Strip, there is a world
of difference between a situation in which Israel approaches the
international community as a "foreign occupier" with no territorial
rights, and one in which Israel has strong historical rights to the
land that were recognized by the main bodies serving as the source
of international legitimacy in the previous century.
After Oslo, Can the Territories be Classified as "Occupied"? In the
1980s, President Carter's State Department legal advisor, Herbert
Hansell, sought to shift the argument over occupation from the land to
the Palestinians who live there. He determined that the 1949 Fourth
Geneva Convention governing military occupation applied to the West
Bank and Gaza Strip since its paramount purpose was "protecting
the civilian population of an occupied territory."12 Hansell's
legal analysis was dropped by the Reagan and Bush administrations;
nonetheless, he had somewhat shifted the focus from the territory
to its populace. Yet here, too, the standard definitions of what
constitutes an occupied population do not easily fit, especially
since the implementation of the 1993 Oslo Agreements.
Under Oslo, Israel transferred specific powers from its military
government in the West Bank and Gaza to the newly created Palestinian
Authority. Already in 1994, the legal advisor to the International Red
Cross, Dr. Hans-Peter Gasser, concluded that his organization had no
reason to monitor Israeli compliance with the Fourth Geneva Convention
in the Gaza Strip and Jericho area, since the Convention no longer
applied with the advent of Palestinian administration in those areas.13
Upon concluding the Oslo II Interim Agreement in September 1995,
which extended Palestinian administration to the rest of the West Bank
cities, Foreign Minister Shimon Peres declared: "once the agreement
will be implemented, no longer will the Palestinians reside under
our domination. They will gain self-rule and we shall return to
our heritage."14
Since that time, 98 percent of the Palestinian population in the West
Bank and Gaza Strip has come under Palestinian jurisdiction.15 Israel
transferred 40 spheres of civilian authority, as well as responsibility
for security and public order, to the Palestinian Authority, while
retaining powers for Israel's external security and the security of
Israeli citizens.
The 1949 Fourth Geneva Convention (Article 6) 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."
Under the earlier 1907 Hague Regulations, as well, a territory can
only be considered occupied when it is under the effective and actual
control of the occupier. Thus, according to the main international
agreements dealing with military occupation, Israel's transfer of
powers to the Palestinian Authority under the Oslo Agreements has
made it difficult to continue to characterize the West Bank and Gaza
as occupied territories.
Israel has been forced to exercise its residual powers in recent
months only in response to the escalation of violence and armed
attacks instigated by the Palestinian Authority.16 Thus, any increase
in defensive Israeli military deployments today around Palestinian
cities is the direct consequence of a Palestinian decision to escalate
the military confrontation against Israel, and not an expression of
a continuing Israeli occupation, as the Palestinians contend. For
once the Palestinian leadership takes the strategic decision to put
an end to the current wave of violence, there is no reason why the
Israeli military presence in the West Bank and Gaza cannot return
to its pre-September 2000 deployment, which minimally affected the
Palestinians.
Describing the territories as "Palestinian" may serve the political
agenda of one side in the dispute, but it prejudges the outcome of
future territorial negotiations that were envisioned under UN Security
Council Resolution 242. It also represents a total denial of Israel's
fundamental rights. Furthermore, reference to "resisting occupation"
has simply become a ploy advanced by Palestinian and Arab spokesmen
to justify an ongoing terrorist campaign against Israel, despite the
new global consensus against terrorism that has been formed since
September 11, 2001.
It would be far more accurate to describe the West Bank and Gaza Strip
as "disputed territories" to which both Israelis and Palestinians have
claims. As U.S. Ambassador to the UN Madeleine Albright stated in March
1994: "We simply do not support the description of the territories
occupied by Israel in the 1967 War as occupied Palestinian territory."
* * *
Notes 1. CNN Larry King Weekend, "America Recovers: Can the Fight
Against Terrorism be Won?," November 10, 2001 (CNN.com/transcripts).
2. Mustafa Barghouti, "Occupation is the Problem," Al-Ahram Weekly
Outline, December 6-12, 2001.
3. Anne F. Bayefsky, "Terrorism and Racism: The Aftermath of Durban,"
Jerusalem Viewpoints, no. 468, December 16, 2001.
4. See Bayefsky, op. cit. U.S. and European officials may use the
term "occupation" out of a concern for the humanitarian needs of the
Palestinians, without identifying with the PLO political agenda at
Durban or at the UN.
5. U.S. Department of State, Consular Information Sheet: India
(http://travel.state.gov/india.html) November 23, 2001.
6. 1999 Country Reports on Human Rights Practices: Azerbaijan, Bureau
of Democracy, Human Rights and Labor, U.S. Department of State,
February 25, 2000.
7. Case Concerning Maritime Delimitation and Territorial Questions
between Qatar and Bahrain, March 15, 2001, Judgment on the Merits,
International Court of Justice, March 16, 2000, paragraph 100.
8. The Japanese Foreign Ministry does not use the language
of "ending the Russian occupation of the Kurile Islands,"
but rather resolving "the Northern Territory Issue."
(www.mofa.go.jp/region/europe/russia/ territory). U.S. Department of
State "Background Notes" describe the Turkish Republic of Northern
Cyprus as the island's "northern part [which is] under an autonomous
Turkish-Cypriot administration supported by the presence of Turkish
troops" -- not under Turkish occupation.
9. Stephen Schwebel, "What Weight to Conquest," American Journal of
International Law, 64 (1970):345-347.
10. Vernon Turner, "The Intent of UNSC 242 -- The View of Regional
Actors," in UN Security Council Resolution 242: The Building Block of
Peacemaking (Washington: Washington Institute for Near East Policy,
1993), p. 27.
11. Meir Rosenne, "Legal Interpretations of UNSC242," in UN Security
Council Resolution 242: The Building Block of Peacemaking, op. cit.,
p. 31.
12. Under the Carter administration, Hansell's distinction led,
for the first time, to a U.S. determination that Israeli settlement
activity was illegal since it purportedly contravened Article 49 of
the Fourth Geneva Convention which stated that "the Occupying Power
shall not deport or transfer parts of its own civilian population
into the territory it is occupying." Subsequently, the Reagan and Bush
administrations altered the legal determination of the Carter period,
changed the U.S. voting pattern at the UN, and refused to describe
Israeli settlements as illegal, even if American political objections
to settlement activity continued to be expressed. One reason was
that the Fourth Geneva Convention applied to situations like that of
Nazi-occupied Europe, which involved "forcible transfer, deportation
or resettlement of large numbers of people." This view was formally
stated by the U.S. Ambassador to the UN in Geneva, Morris Abram, on
February 1, 1990, who had served on the U.S. staff at the Nuremberg
trials and, hence, was familiar with the legal intent behind the 1949
Fourth Geneva Convention.
13. Dr. Hans-Peter Gasser, Legal Adviser, International Committee of
the Red Cross, "On the Applicability of the Fourth Geneva Convention
After the Declaration of Principles and the Cairo Agreement,"
paper presented at the International Colloquium on Human Rights,
Gaza, September 10-12, 1994. Gasser did not state that in his view
the territories were no longer "occupied," but he did point out the
legal complexities that had arisen with Oslo's implementation.
14. Foreign Minister Shimon Peres's Address at the Israeli-Palestinian
Interim Agreement Signing Ceremony, Washington, D.C., September
28, 1995.
15. Ehud Barak, "Israel Needs a True Partner for Peace," New York
Times, July 30, 2001.
16. The present intifada violence resulted from a strategic decision
taken by Yasser Arafat, as admitted by numerous Palestinian spokesmen:
"Whoever thinks the intifada broke out because of the despised Sharon's
visit to the Al-Aqsa Mosque is wrong....This intifada was planned in
advance, ever since President Arafat's return from the Camp David
Negotiations," admitted Palestinian Communications Minister 'Imad
Al-Faluji (Al-Safir, March 3, 2001, trans. MEMRI). Even earlier,
Al-Faluji had explained that the intifada was initiated as the result
of a strategic decision made by the Palestinians (Al-Ayyam, December
6, 2000).
Arafat began to call for a new intifada in the first few months of
the year 2000. Speaking before Fatah youth in Ramallah, Arafat "hinted
that the Palestinian people are likely to turn to the intifada option"
(Al-Mujahid, April 3, 2000).
Marwan Barghouti, the head of Fatah in the West Bank, explained in
early March 2000: "We must wage a battle in the field alongside of the
negotiating battle...I mean confrontation" (Ahbar Al-Halil, March 8,
2000). During the summer of 2000, Fatah trained Palestinian youths
for the upcoming violence in 40 training camps.
The July 2000 edition of Al-Shuhada monthly, distributed among the
Palestinian Security Services, states: "From the negotiating delegation
led by the commander and symbol, Abu Amar (Yasser Arafat) to the brave
Palestinian people, be ready. The Battle for Jerusalem has begun." One
month later, the commander of the Palestinian police told the official
Palestinian newspaper Al-Hayat Al-Jadida: "The Palestinian police
will lead together with the noble sons of the Palestinian people,
when the hour of confrontation arrives." Freih Abu Middein, the PA
Justice Minister, warned that same month: "Violence is near and the
Palestinian people are willing to sacrifice even 5,000 casualties"
(Al-Hayut al-Jadida, August 24, 2000 -- MEMRI).
Another official publication of the Palestinian Authority, Al-Sabah,
dated September 11, 2000 -- more than two weeks before the Sharon
visit -- declared: "We will advance and declare a general intifada
for Jerusalem. The time for the intifada has arrived, the time for
intifada has arrived, the time for Jihad has arrived."
Arafat advisor Mamduh Nufal told the French Nouvel Observateur
(March 1, 2001): "A few days before the Sharon visit to the Mosque,
when Arafat requested that we be ready to initiate a clash, I supported
mass demonstrations and opposed the use of firearms." Of course, Arafat
ultimately adopted the use of firearms and bomb attacks against Israeli
civilians and military personnel. On September 30, 2001, Nufal detailed
in al-Ayyam that Arafat actually issued orders to field commanders
for violent confrontations with Israel on September 28, 2000.
* * *
Dore Gold is President of the Jerusalem Center for Public Affairs.
Previously, he served as Israel's Ambassador to the United Nations
(1997-1999). This Jerusalem Viewpoints is based on an earlier Jerusalem
Issue Brief on this subject.
http://www.jcpa.org/jl/vp470.htm
From: Emil Lazarian | Ararat NewsPress