Astounding Facts Most People Don’t Know About Israel 30
The charge that Israel “illegally occupies Palestinian territory” has no basis in international law
When it comes to international law, the key principle for Israel’s critics seems to be – to paraphrase Louis XIV – “It is illegal because I wish it.” Why is the endlessly recurring charge of “illegal occupation” so significant?
Multiple Arab states didn’t merely unleash their military might against Israel on the day of her birth in May 1948; in parallel, they initiated a propaganda war that continues to this day. Nothing unusual in that, it happens in all conflicts. But here’s a strange thing about this disinformation campaign: few, beyond the direct participants, are aware of its existence. Instead, large swathes of the world have swallowed the malign accusations hurled at Israel as though they were gospel truth.
An example is the phrase “Occupied Palestinian Territories” – a politicised statement with no basis in reality [blog 29]. Its purpose is to disadvantage Israel diplomatically by nullifying any Israeli claim to even a centimetre of the disputed territories thus pre-empting the negotiations that the UK and many other countries keep reminding us, without irony, must take place.
But Israel’s enemies have been disappointed by the impact of their cynical efforts to rewrite history. It hasn’t been as profound as they’d hoped. While many observers have been taken in by the lies and Israel’s reputation has been smeared, the country still exists, indeed is thriving.
So the critics have gone further and deployed a new argument – that Israel’s “occupation of Palestinian land” is not merely wrong but illegal. They claim that her current (and therefore future) presence there is an unequivocal violation of international law. While calling the disputed land “Occupied Palestinian Territories” puts Israel on the defensive in any negotiations, defining them as “illegally occupied” renders negotiations redundant. It brands Israel a criminal state and no civilised country negotiates with criminals. And it effectively endorses the Palestinian rejection of territorial compromise or peace negotiations. If unchallenged, the current impasse would become permanent and any hope for peace would evaporate.
So much for the motivation underlying the charge of illegality. But is there any juridical validity to it?
To answer that question requires us to dig deeper into the position of international law regarding occupation and how they relate to Israel’s entry into and administration of the territories.
Robbie Sabel, an international law professor at the Hebrew University in Jerusalem, [1] writes: “The West Bank has not been incorporated into Israel, and therefore those areas of the West Bank not part of the Palestinian Authority are administered by Israel in accordance with the international rules on administering occupied territory. This is a crucial point: though the term has negative connotations, occupation is legal in times of armed conflict. There’s even a technical term for it – belligerent occupancy – that incurs responsibilities on the occupying power.”
According to legal scholar Eyal Benvenisti [2], “The regime known as belligerent occupation refers to a situation where the forces of one or more States exercise effective control over a territory of another State without the latter State’s volition.” Because the disputed territories were void of sovereignty, Israel has rejected the term on de jure grounds since these territories were never part of another state, and in any case “effective control” over most of their residents was ceded to the Palestinian Authority in 1995. Nevertheless, Israel has always accepted her de facto responsibilities as an occupier under international humanitarian law. That position has, of course, failed to satisfy her adversaries.
The International Court of Justice, in its advisory opinion (not a judgement) in 2004 on the Legal Consequences of “The Wall,” refrained from characterizing the Israeli occupation as illegal. And former ICJ President, Rosalyn Higgins [3], has stated that “there is nothing in either the [UN] Charter or general international law which leads one to suppose that military occupation pending a peace treaty is illegal.”
The United Nations is frequently cited as the final arbiter of international law and the repository of all moral authority in international affairs. This view is based on a profound misunderstanding of the nature of the organisation (as opposed to its Charter).
The UN General Assembly is a political tool of its constituent members. It has been implacably hostile to Israel for decades and is in thrall to the wishes of the Arab League that bullies and cajoles member states with economic and political threats and inducements. It has often issued hate-filled, irrational statements (such as ‘Zionism is a form of racism’ from 1975 to 1991). But pronouncements of the UN General Assembly neither constitute international law, nor acquire the force of international law by constant repetition.
As for the Security Council, only Chapter VII resolutions are legally binding – and the SC had never passed one in relation to Israel. With rare exceptions, it has relied on one key resolution to try to end the conflict, namely the famous resolution 242 of 1967 that Israel accepted and the entire Arab world rejected [blog 28].
International law is determined, first and foremost, by mutually agreed undertakings incorporated into multinational treaties and conventions. Two groups of 20th century treaties are especially relevant to the status of the disputed territories.
First, the 1919 Paris peace conference (and related summits) established, in a series of declarations, the right of Jews to revive their national home under the terms of the Palestine Mandate that included (even in its truncated form after the creation of Transjordan in 1922 under article 25) all of the territory west of the Jordan River, including what is today often designated ‘the West Bank’ and ‘East Jerusalem.’
International lawyer Cynthia Day Wallace [4] summarised the legal position thus: “The primary foundations in international law for the claim based on “historic rights” or “historic title” of the Jewish people in respect of Palestine are the San Remo decisions of April 1920, the Mandate for Palestine of July 1922, approved by the Council of the League of Nations and bearing the signatures of that international treaty by the Principal Allied Powers in July 1922, and the Covenant of the League of Nations itself (Art. 22). The rights thereby granted to the Jewish people (with the exception of the provisions of Article 25 of the Mandate, relating to Transjordan) were aimed at the establishment of a Jewish national home throughout Palestine. These rights have never been rescinded.”
Second, the 1993-95 Oslo Accords (that are conceptually linked to UNSC Resolution 242 ) have the status of an international treaty that is legally binding on all the participants. The Declaration of Principles described the Israeli-Palestinian consensus, backed by the international community, on the nature of the new arrangements. These included the establishment of the Palestinian Authority in Area A (parts of the West Bank and all of Gaza), bringing 98% of the Palestinian population under PA control, and Area C where around 80% of Judea and Samaria’s Israeli citizens live. The term “occupation” – legal or otherwise – is nowhere to be found in those agreements.
The Oslo Accords created a post-occupation reality that was accepted by the parties as a transitional stage towards a final status agreement that would end the conflict. In other words, following Oslo the state of belligerent occupancy – such as it was – came to an end. That status was affirmed in 2013, in a case brought by the PLO against a company connected to the light railway in Jerusalem. The French Court of Appeal in Versailles [5] ruled that the “occupation was not illegal.”
"Pro-Palestinian" activists, including those associated with the politicidal BDS (boycott, divestment and sanctions) movement, who weaponise international law to attack Israel, claim they are simply seeking to uphold the law. We know this to be disingenuous for two reasons.
First, in international law, as in all law, there are always two sides to a question. If this were not the case, there would be little need for legal solutions. The arguments concerning the disputed territories are complex and primarily political in nature; international law cannot be invoked to resolve them with finality.
Second, anti-Israel lawfare is overwhelmingly focused on alleged Israeli lawbreaking rather than with the numerous other territorial disputes, many of which are on a far larger scale than the Israeli-Palestinian one [6]. The obsessive, strident and discriminatory condemnations of Israel’s putative criminality tell us far more about the accusers rather than the defendant.
Louis XIV was a controversial monarch but he left us a few memorable aphorisms. My personal favourite is: “Do not assess the justice of a claim by the vigour with which it is pressed.”
Next time someone buttonholes you with dogmatic claims of Israel’s “illegal occupation,” you might wish to recall the Sun King’s wise advice.
1. Sabel R. International Legal Issues of the Arab-Israeli Conflict: An Israeli Lawyer’s Position. Journal of East Asia and International Law 2010, 3(2):8-8: 10.14330/jeail.2010.3.2.08
2. Benvenisti E. Occupation, belligerent. Oxford Public International Law. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e35
3. Higgins R. The Place of International Law in the Settlement of Disputes by the Security Council. American Journal of International Law 1970, vol. 64, 1-15.
4. Wallace CD (2011). Foundations of the International Legal Rights of the Jewish People and the State of Israel: Implications for the Current Debate: Executive Summary. European Coalition for Israel. https://www.ec4i.org/book-by-dr-cynthia-day-wallace/
5. Jean-Patrick Grumberg J-P (2017). Israel is the legal occupant of the West Bank, says the Court of Appeal of Versailles. Dreuz. Info. https://www.dreuz.info/2017/01/israel-is-the-legal-occupant-of-the-west-bank-says-the-court-of-appeal-of-versailles-france-124054.html
6. Kontorovich E (2017). Unsettled: a global study of settlements in occupied territories.
https://academic.oup.com/jla/article/9/2/285/4716923
