Following a spate of recent media inaccuracies concerning the legal status of the Arab territories occupied by Israel since 1967, and to coincide with the 40th anniversary of their capture, that of the West Bank is clarified by Arab Media Watch chairman Sharif Hikmat Nashashibi, director Dr Judith Brown and adviser Victor Kattan, research fellow at the British Institute of International and Comparative Law.
30 May 2007
In 1967, Israel captured the West Bank, among other Arab territories, in an armed conflict. The laws of war apply equally to all armed conflicts. Israel may not claim the territory as its own because conquest is prohibited by international law, a principle which was considered so important that it was enshrined in Article 2 (4) of the UN Charter.[1] Israel therefore has no sovereignty over the Occupied Territories.
Some in the media believe that the status of those territories as occupied is a matter of (mainly Palestinian) opinion, not legal fact. This is factually inaccurate and misleading. The entire world, including Israel, considers the territories occupied.[2] Israel's High Court of Justice, acting as a Supreme Court, has reached the same conclusion on several occasions.[3]
The Roadmap of the Quartet (the US, UN, Russia and EU) that was launched in April 2003 refers to its goal as "a permanent status agreement that ends the occupation that began in 1967." The UK Foreign and Commonwealth Office consistently uses the term "Occupied Territories" on its website.
In a statement made on 26 May 2003, then-Israeli Prime Minister Ariel Sharon stated: "I think the idea that it is possible to continue keeping 3.5 million Palestinians under occupation - yes, it is occupation, you might not like the word but what is happening is occupation - is bad for Israel, bad for the Palestinians and for the economy of Israel."
Levi Eshkol, Israel's prime minister at the time of the 1967 war, issued a statement after the war that Israel had no territorial designs on the territories gained, and that they would be regarded as a "deposit" to be held until the Arab countries agreed to enter peace negotiations with Israel; in the meantime, Israel would have to organise and impose a "liberal occupation."
On 9 July 2004, all 15 judges of the International Court of Justice, the principal judicial organ of the UN, ruled unanimously on the question of the applicability of the Geneva Civilians Convention, which presupposes that the territories are occupied in the first place.[4] Moreover, in its written statement to the ICJ, the Israeli government did not dispute this point, refusing to enter a claim on the merits of the case.[5]
The ICJ ruling was entitled "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory," the wall in question being constructed in the West Bank. The document states: "The construction of the wall being built by Israel the occupying power in the Occupied Palestinian Territory including in and around East Jerusalem, and its associated regime, is contrary to international law."
Palestinian lands were referred to as "occupied by Israel" throughout the ICJ document. For example, it stated: "All these territories remain occupied territories and Israel has continued to have the status of occupying Power."
Its ruling was passed by a majority of 14 votes to 1, and describes the Occupied Territories as "those Palestinian territories which before the armed conflict of 1967 lay to the East of the 1949 Armistice demarcation line [or "Green Line"] and were occupied by Israel during that conflict."
Nine days before the ICJ rendered its advisory opinion, Israel's Supreme Court - in an important case called Beit Sourik Village Council v. the Government of Israel - held that Israel is holding "Judea and Samaria" (the biblical name for the West Bank) under "belligerent occupation," and has been doing so since 1967.
As long ago as 1979, Israel's Supreme Court in the Beth El case held that Israel has been holding these territories under a belligerent occupation. Another, more recent case (Regional Council of Gaza Beach v. Knesset) reiterated this view.
Not one of the 192 members of the UN questioned the ICJ's finding of law on this issue.[6] Furthermore, the territories captured by Israel in 1967 are acknowledged as occupied, and explicitly described as such, by numerous UN Security Council resolutions, which consistently describe Israel as the "Occupying Power," call on Israel to end its occupation, and highlight the "inadmissibility of the acquisition of territory by war." Extracts are at:
http://www.arabmediawatch.com/amw/CountryBackgrounds/Palestine/UNresolutions/Occupation/tabid/205/Default.aspx
Consequently, there is no justification for saying that it is only the Palestinians who consider the territories as occupied, when the entire international community considers them to be so. In Israel there is no higher legal authority than its Supreme Court, and internationally there is no higher Court of Appeal than the ICJ.
One must therefore logically conclude that if all the major actors in the Israeli-Palestinian conflict (i.e. the Quartet of the UN, US, EU and Russia) agree that the territory in question is occupied, as do Israel's Supreme Court and the ICJ, then it must be occupied.
As long as the Israeli army maintains effective control over the West Bank, it will be considered to be occupied territory. In UN parlance, the politically correct terminology to refer to those territories is "Occupied Palestinian Territories."
For example, however, although this is acknowledged by the BBC's editorial guidelines, their correspondents at times still fall foul of this. The guidelines state that the phrase "Palestinian land" has "become more widely used by politicians and broadcasters to refer to the Occupied Territories," which the BBC says refers to East Jerusalem, the West Bank and the Gaza Strip, as well as Syria's Golan Heights.
The guidelines continue: "The BBC Governors considered this issue in a complaint which was referred to in the programme complaints bulletin of July 2004. Their decision was that, although the complainant objected to references to 'Palestinian land' and 'Arab land', these terms 'appropriately reflected the language of UN resolutions'."
http://news.bbc.co.uk/newswatch/ukfs/hi/newsid_6040000/newsid_6044000/6044090.stm
[1] See Article 2 (4) of the UN Charter, XV United Nations Conference on International Organisation, p. 335. Article 2 (4) provides: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations."
[2] The number of UN resolutions on this question is so voluminous that it is not possible to cite them all here.
[3] See e.g. the recent decisions on the legality of the "wall," in Mara'abe v. The Prime Minister of Israel, H.C.J. 7957/04 (2005), translated in 45 INT’L LEGAL MATERIALS, pp. 202-245 (2006) and in Beit Sourik Village Council v. the Government of Israel, HCJ 2056/04 (2004) translated in 43 INT’L LEGAL MATERIALS pp. 1099-1128 (2004).
[4] See Advisory Opinion on the construction of a Wall in the Occupied Palestinian Territory, 43 INT’L LEGAL MATERIALS (2004), pp. 1009-1098. Although Judge Buergenthal submitted a Declaration, he agreed with his colleagues regarding the applicability of the Geneva Civilians Conventions to the Occupied Territories.
[5] See the Written Statement of the Government of Israel on Jurisdiction and Propriety, 30 January 2004, which is available on the website of the ICJ at www.icj-cij.org.
[6] Although a number of countries expressed reservations with the Advisory Opinion's paragraph on the question of self-defence, they did not question the Court's other findings of law. See UN Doc. A/ES-10/PV.25, Official Records, 16 July, 2004.