The Palestinian Territories are not Occupied, they are Disputed
Despite the clarity of the International Court of Justice’s opinion on the status of occupied Palestinian territory and the applicability of the Fourth Geneva Convention to that territory, many journalists continue to erroneously report that East Jerusalem, the West Bank and Gaza Strip are not occupied but disputed – though this is not entirely their fault, especially since Israel’s Ministry of Foreign Affairs, and institutions such as the Jerusalem Centre for Public Affairs, continue to propagate this myth.
In the words of Article 42 of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land:
“Territory is considered occupied when it is actually placed under the authority of the hostile army.”
The Palestinian territories are occupied because they have been placed under the authority of the Israeli army.
According to Hans-Peter Gasser, senior legal advisor to the International Committee of the Red Cross from 1983-1995:
“…since a territory is no longer under the control of its own authorities but under that of a hostile force, that body of international law (referring to Art. 42 Hague Convention) is applicable to the situation which deals specifically with occupied territories and protects their inhabitants against abuse of power by those temporarily in control. Nothing is said about the status of the territory in international law, about possible legal claims to it or about the legality of the foreign power’s presence. Such issues are irrelevant to the question of whether international humanitarian law is applicable or not …”
Moreover, 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.
In fact, 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. One therefore wonders why journalists continue to persist in the fantasy that the territory in question is not occupied. It would also be helpful if journalists emphasised that this is a belligerent (hostile), as opposed to a pacific (peaceful), occupation.
The argument that Israel is not an occupying power because some of its forces withdrew from occupied territory (Area A) during the ‘Oslo Peace Process’ in the 1990s (which it has since reoccupied) is also untenable. This is because the test for the application of the laws of occupation are not whether the occupying power fails to exercise effective control over the territory, but whether it has the ability to exercise such power.
This principle was affirmed by the United States Military Tribunal at Nuremberg in In re List and others (The Hostages Case) in 1948, and subsequently clarified in the American and British Military Manuals on the Laws of War.
The Oslo Accords left Israel with ultimate legal responsibility over the occupied Palestinian territories, and just because Israel chose not to exercise such responsibility, when it could have done so, did not relieve it of its obligations as an occupying power. Moreover, since 2000 Israel has reoccupied substantial parts of the West Bank.
The status of the Gaza Strip is no different. As a policy brief on Israel’s redeployment plan, prepared by the Harvard Program on Humanitarian Policy and Conflict Research (part of the International Humanitarian Law Initiative), notes on page 6:
“The test is not per se the military presence of the occupying forces in all areas of the territory, but the extent to which the Occupying Power, through its military presence, is exerting effective control over the territory and limiting the right of self-determination of the occupied population.”
The reality is that Israel continues to exercise effective control in Gaza, even though its troops have redeployed to the perimeter (which is already surrounded by a barrier). These soldiers can re-enter the Strip at will, and they control movement and access into and out of Gaza, including from the air and sea.
Furthermore, Israel continues to exert control over the Palestinian economy, including fiscal policy, and trade. The New Israeli Shekel remains legal tender, and foreign employment, migration, and access to specialised health care are controlled by Israel.
In Israel there is no higher legal authority than its Supreme Court, and internationally there is no higher Court of Appeal than the IC. 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; and if the Supreme Court agrees that it is so; and the ICJ confirms the applicability of the Fourth Geneva Convention to occupied territory; then it must be occupied.
Journalists should therefore use the correct terminology - the occupied Palestinian territories - when referring to East Jerusalem, the West Bank and Gaza Strip.
For further reading:
Statement by the International Committee of the Red Cross, New York, 13 November 1997
Hans-Peter Gasser, “The Geneva Conventions and the Autonomous Territories in the Middle East,” in Stephen Bowen (ed.), Human Rights, Self-Determination and Political Change in the Occupied Palestinian Territories, published by Martinus Nijhoff publishers 1997 at pp. 291 - 300.
See paragraph 23, HCJ 2056/04, Beit Sourik Village Council v. the Government of Israel and the Commander of the IDF Forces in the West Bank, 30 June 2004.
Adam Roberts, “Prolonged Military Occupation: The Israeli-Occupied Territories 1967 – 1988,” in Emma Playfair (ed.), International Law and the Administration of Occupied Territories (Oxford: Clarendon Press 1992) pp. 25 – 85.
See the Disengagement Plan on the website of the Israeli Prime Minister’s Office here
See “Legal Aspects of Israel's Disengagement Plan under International Humanitarian Law,” a Policy Brief by the Harvard Program on Humanitarian Policy and Conflict Research, at pp. 6