Why does this question matter? It matters because the Arab-Israeli conflict is typically presented through headlines and snippets of information. Attempting to answer this question is only one part of a multilayered story. What I hope to have you see is that the question of Palestinian and Israeli sovereignty does not exist in a vacuum of violence. The legal history of this particular border dispute is quite vast and more complex than commonly understood. What should be known is the degree to which international law has shaped the course of events surrounding the most contentious question: what are the legal conditions that must be met in order for Palestine to be an independent nation-state?

BACKGROUND

Israel acquired the West Bank after the June 1967 Six Day War by defeating the combined military forces of Egypt, Syria, and Jordan. The de facto annexation of the West Bank from Jordan (who originally annexed the West Bank in the aftermath of Israel’s War of Independence in 1948) resulted in the current Israeli occupation of Palestinian territories. The nature of the war is heavily disputed as to if it was a premeditated strike by the Israeli army or a more strategically defensive assault against Arab forces. The Israeli victory and achievements in the June 1967 War provided it with strategic security while making it into a major power in the Middle East. [1] Israeli’s geostrategic gains allowed it to better securitize its borders and gave it more political leverage when confronted by Arab opposition forces. However, these achievements were the results of grave mistakes on the Arab side, combined with Israeli military effectiveness, with luck also playing a role. [2]

While many Israelis assumed that the overwhelming nature of their victory would shock the Arab world into coming to terms with their legitimacy and making peace, they would soon be disabused of this belief. [3] At the end of August 1967, the heads of eight countries, including Egypt, Syria, and Jordan (all of which lost land as the result of their failed policy of confrontation with Israel), met at a summit in Khartoum, Sudan, and agreed to three principles that were to guide the Arab world’s post-war strategy: no peace with Israel, no recognition of Israel, and no negotiations with Israel. [4] In addition, the policy response of building Israeli settlements in the newly obtained land of the West Bank ushered in an era of serious setbacks to any efforts in stabilizing the ongoing regional turmoil. These decisions resulted in too many Jewish settlements in Judea and Samaria to make withdrawal in a “peace for land” deal easy, and too few settlements to change demographic realities and integrate large parts of the West Bank into Israel. [5] Although the war was seen as a victory by Israel, the mismanagement of government policies catalyzed political challenges toward establishing a peaceful resolution to the status of the West Bank.

Before 1967 support for partition among Palestinian Arabs as a solution to the Arab-Israeli conflict was limited to the Communist party, which followed Soviet policy by accepting the idea of an Israeli state in part of Palestine alongside an independent Palestinian Arab state. [6] After the June war of 1967, groups of notables and intellectuals within the West Bank and Gaza Strip became convinced that a Palestinian state in these areas, including East Jerusalem as its capital, could be a viable solution to the Palestinian problem. [7] Thus, the idea of “territory for peace” became a popular formula for initiating a pragmatic deal between the Arabs and Israelis.

UN Security Council Resolution 242 defined how much land Israel should give up (West Bank and Gaza) in order to mitigate any future disputes on state boundary lines and to create respect for the sovereignty of all parties involved in the conflict. Jordan, Egypt, Syria, and Palestinian leaders in the West Bank all agreed to the principles set out within the resolution but also portrayed extreme caution when declaring their commitments to a final settlement on the partition of land. When it came to the extent of allowable territorial concessions, however, Israeli public opinion and Israeli political leaders were extraordinarily divided. [8] Israel did accept the conditions set out within Resolution 242 but became politically deadlocked in how to return captured lands because of the ideological intransigence of more right-wing coalitions controlling the government.

After the 1967 war, the acquisition of land as a bargaining chip ceased to be a reliable strategic goal and became more of a security issue than ever imagined. Mixed with undertones of theological legitimization for the potential resurrection of the biblical Jewish homeland, the political culture within Israel was becoming more hostile to the idea of Palestinian independence. The insecurity felt by both the perception and reality of a hostile enemy allowed for the perpetuation of Israeli control over the West Bank despite the presence of UN resolutions calling for withdrawal. There are differing legal opinions that attempt to dissect the true nature of the problem and how the occupation should be defined in terms of the laws of war and peace and international precedent.

LEGAL PERSPECTIVES ON WEST BANK OCCUPATION

From 1949 to 1967, Jordan’s control over the West Bank was never thoroughly questioned by the Palestinian Arab population residing in the area. By 1988, Jordan disavowed any claim to the West Bank due to a campaign of civil unrest aimed at toppling King Hussein’s regime, which was initiated by the Palestinian Liberation Organization. The status of sovereign authority over the West Bank was left open to the only organized force which could undertake the responsibility of providing supervision to the newly unregulated territory: Israel. The legal vacuum in which Israel operated in the West Bank after 1967 was exacerbated by Jordan’s subsequent stubborn refusal to engage in talks about the future of these territories. [9] Thus, if the charge that Israel’s hold on the territories is illegal based on the charge of theft from its previous owners, Jordan’s own illegitimacy on matter of legal title and its subsequent withdrawal from the fray makes that legal case a losing one. [10] In this point of view, Israel’s control over the West Bank is legitimate because of the history of authority within that territory and the proceeding relinquishment of Jordanian claims to sovereignty. Eugene Rostow, who is the former dean of Yale Law School and undersecretary of state for political affairs in 1967 during the Six Day War, argued that the West Bank should be considered “unallocated territory,” once part of the Ottoman Empire. [11] Since the political entity of the Ottoman Empire ceased to exist after World War I, many legal scholars look to the status of the British Mandate of 1923 under the now defunct League of Nations to understand the sovereign status of the West Bank.

What other documents and treaties can we look at which can potentially dispute the claim mentioned above? There is the 1907 Hague Regulations, whose provisions are primarily designed to protect the interests of a temporarily ousted sovereign in the context of a short-term occupation. [12] The regulations are transparently geared toward short-term occupations during which a peace treaty is negotiated between the victorious and defeated nations. [13] Because of the relative distrust and recalcitrant attitudes of both the Arabs and Israelis, negotiations have not been able to warrant any type of reasonable solution and are seen as a political tool for prolonging the conflict. Thus, under Israeli law (which applies the Hague Regulations as customary international law) the inability to come to a final solution that would equally take into account the concerns of both Israel and the Palestinians allows de facto military administration over the West Bank. For example, consistent with Article 43 of the Regulations, which call on the occupant to “respect…unless absolutely prevented, the laws in force in the country,” Israel has for the most part continued to follow Jordanian law in the West Bank, despite its position that Jordan itself had illegally occupied it. [14] Israeli law concludes,

• Since the Kingdom of Jordan never had the status of a legitimate sovereign over Judea and Samaria (West Bank), the rules of international law limiting the occupant’s rights with a view to safeguarding the reversionary rights of the legitimate sovereign have no application as against Israel with regard to these territories. This proceeds, of course, on the assumption that Israeli control of these territories is not unlawful. [15]
• Even if it were assumed that Israel is merely a “belligerent occupant” subject to the reversionary rights of some legitimate sovereign in respect of Judea and Samaria, she would still be entitled to promulgate Order No. 145, the aim of which was to restore “public order” and to provide the necessary legal assistance to the local population. [16]

CHANGING PERCEPTIONS OF THE LEGALITY OF WEST BANK OCCUPATION

Over time Israel administered a policy of economic integration of the West Bank. This made it more difficult to legally define the jurisdictional sovereignty Palestinians had over the land they wish to formally integrate into a Palestinian state. Under Israeli law, the borderline partitioning Israel proper from “the territories,” theoretically subject to military government under the international laws of war, has in time become more and more blurred. [17] One treaty which has the potential to prove the occupation as illegal is the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War. Israel ratified this treaty in 1951 but has not demonstrated dedication to the principles set out within the treaty. It states that the territories should be considered foreign territory outside the jurisdiction of the Israel sovereign. [18] It is unclear whether the land gained through war (as the West Bank was after 1967) invalidated the terms of the Fourth Geneva Convention, but it is clear that a certain section of the convention was repealed by the Israeli government and replaced with wording that was more favorable to government policy. Thus, the conventions were quietly annulled. Nevertheless, the Knesset set in motion legislation that would further erode the any legal justification Israel had over administering military “governance” over the West Bank. For example, immediately after the Supreme Court ordered the evacuation of the Elon Moreh settlement, the Government put into effect a new policy of accelerated settlement of Jews in areas densely populated with Arabs. [19] The decision to start using “state lands”—that is, lands owned by the Jordanian Crown — for building Jewish settlements and suburbs was a political decision that was not given any legislative sanction or expression. [20]

By 1977, with the Likud party as governing power, the semantics of West Bank occupation were changed to correlate with a more political rather than legal interpretation of military administration. The term “administered territories” was done away with in order for the Israeli government to have more control over how much international law can delegate the future status of the West Bank. This complemented Israel’s position of overturning the provisions set out within the Geneva Convention without declaring a full-fledged rebuke of its responsibility to follow the conditions set out within international law. Israel’s State Attorney has gone as far to declare that international conventions are not binding upon the Government in terms of Israel’s internal, or “municipal law”, unless they are incorporated through Knesset legislation. [21] A distinction is made between customary international law (that is sometimes embodied in a convention) and conventional international law. This means that the Geneva Conventions as new international law needed to be formally integrated into Israeli law in order have full power over Israeli actions concerning the West Bank. In the case of Naser Aziz Afu v. Commander of Judea and Samaria (which dealt with the validity of deportation from the territories) the Supreme Court decided not to incorporate the Conventions into Israeli law. [22] This legal contention has been implicitly used as a tool to reform the status of Israeli jurisdiction over the West Bank.

STATUS OF UN SECURITY COUNCIL RESOLUTION 242

Resolution 242 was drafted by the British Ambassador, Lord Caradon, and adopted by the Security Council with the stated goal of “achieving a peaceful and accepted settlement in accordance with the provisions of this resolution” five and a half months after the outbreak of the 1967 War. [23] Although this resolution has been quoted numerous times as the foundation for Palestinian sovereignty and as the legal justification for Israeli withdrawal from the West Bank, there are many who interpret it as only calling for a negotiation between all parties involved in the border dispute. It anticipates that Israel will withdraw to secure borders (not specified in the resolutions) in exchange for peace guarantees from the Arab parties. [24] How “secure borders” was to be defined was left up to the creation of treaties enforced through negotiations between the Palestinian and Israelis. Since this is currently an unresolved issue, the formal status of the legality of West Bank occupation is masked with opaque diplomatic language and differing opinions on the reach of international law. There is no legally binding resolution which can force Israel to go back to pre-1967 borders, nor is there a strong precedent in customary international law which can override a sovereign’s (in this case Israel’s) legal justification for continuing military oversight of the West Bank. Resolution 242 was not based on Chapter VII of the Charter dealing with actions or enforcement measures with respect to threats to the peace, breaches of the peace and acts of aggression, as laid down in Articles 41 and 42 of the Charter. [25] Though the legal basis of Resolution 242 is not actually specified in the resolutions itself, it can be deduced from its terms and language to be a non-obligatory recommendation and from the fact that it does not make any prior determination of the existence of any threat to the peace, breach of the peace or act of aggression, as required by Article 39 of the Charter. [26]

Alternatively, there are prevailing views that correlate Israel’s continued occupation of the West Bank to the colonization of land that has been rightfully “owned” by the Palestinian Arab population starting from the biblical times of Canaan. Many scholars interpret Palestinian sovereignty as originating with the Arab settlement of what is now Israel and rationalize this thinking with the passage of international treaties dealing with the partition of land in the Middle East under the auspices of European powers, such as the Sykes-Picot Agreement of 1916 and the British Mandate of 1923, issued through the League of Nations and the United Nations. The concept of sovereignty has always been a subject of contention as there are differing views on who or what entity has the power to define the borders of other nation-states. Even so, the resounding opinion within world political bodies, such as the UN General Assembly, define Israeli presence within the captured territories of 1967 as “having no legal validity and constituting a serious obstruction to Middle East peace efforts.” [27] In this sense, popular conceptualization on the status of the West Bank is one of justice and not necessarily one of law.

Under Israeli law the status of occupation is legal up until a treaty is established between the Arab and Israeli parties which concretely defines “secure borders” and the precise measures that need to be taken in order for those borders to become binding under the domestic law of Palestinians and Israelis. The precedent established under international law, both treaty and customary, is quite inconclusive on whether the Israeli occupation is undoubtedly illegal. The conclusion that you make on the relative illegality of the occupation (unfortunately) will depend on how the issue is politically defined by the people involved in formulating a solution to the conflict. The historical complexity of the issue adds to the difficulty in declaring a black and white label to the status of sovereignty over the West Bank.

[1] Haim Gordon, Looking Back at the June 1967 War [Westport: Praeger Publishers, 1999].

[2] Ibid., 46.

[3] David M. Phillips, “Are Settlements Illegal?”, 18 Dec 2009, available from http://aijac.org.au/news/article/essay-are-settlements-illegal  [4 Nov 2011].

[4] Ibid., 1

[5] Haim Gordon, Looking Back at the June 1967 War [Westport: Praeger Publishers, 1999].

[6] Ian S. Lustick, Unsettled States Disputed Lands: Britain and Ireland, France and Algeria, Israel and the West Bank-Gaza [Ithaca: Cornell University Press, 1993].

[7] Ibid., 9

[8] Ibid., 363.

[9] David M. Phillips, “Are Settlements Illegal?”, 18 Dec 2009, available from http://aijac.org.au/news/article/essay-are-settlements-illegal   [4 Nov 2011].

[10] Ibid., 1

[11] Ibid., 1

[12] Ibid., 1

[13] Ibid., 1

[14] Ibid., 1

[15] Ian S. Lustick, Arab-Israeli Relations: Economic, Legal, and Demographic Dimensions of Arab-Israeli Relations [New York & London: Garland Publishing, Inc., 1994].

[16] Ibid., 49.

[17] Ibid., 267.

[18] Ibid., 267.

[19] Ibid., 268.

[20] Ibid., 268.

[21] Ibid., 273.

[22] Ibid., 275.

[23] Howard Grief, “Security Council Resolution 242: A Violation of Law and a Pathway to Disaster,” Nov 2007, available from http://www.acpr.org.il/pp/pp173-grief-E.pdf , archived at Ariel Center for Policy Research No. 173; [4 Nov 2011].

[24] Palestine Facts, “United Nations Security Council Resolution 242,” available from http://www.palestinefacts.org/pf_1948to1967_un_242.php , [4 Nov 2011].

[25] Howard Grief, “Security Council Resolution 242.”

[26] Ibid., 2.

[27] Seth Tillman, “The West Bank Hearings: Israel’s Colonization of Occupied Territory.” Journal of Palestine Studies, Vol. 7, No. 2 [1978]: 71-87.

                                                             WORKS CITED

Curtis, Michael 1991. “International Law and the Territories,” Harvard International Law Journal, Vol. 32, No. 2, pp. 457- 495

Division for Palestinian Rights 1982. United Nations, New York, viewed 4 Nov 2011, <http://unispal.un.org/UNISPAL.NSF/0/9614F8FC82DCA5DF852575D80069E0C0 >

Gordon, Haim 1999. Looking Back at the June 1967 War, Westport, Praeger Publishers.

Grief, Howard 2007. Ariel Center for Policy Research, Jerusalem, viewed 4 Nov 2011, <http://www.acpr.org.il/pp/pp173-grief-E.pdf>

Lustick, Ian S. 1994. Arab-Israeli Relations: Economic, Legal, and Demographic Dimensions of Arab-Israeli Relations, New York & London, Garland Publishing, Inc.

Lustick, Ian S. 1993. Unsettled States, Disputed Lands: Britain and Ireland, France and Algeria, Israel and the West Bank-Gaza, Ithaca, Cornell University Press.

Palestine Facts 2011. Palestine Facts, viewed 4 Nov 2011, <http://www.palestinefacts.org/pf_1948to1967_un_242.php>

Phillips, David M. 2009. Australia/Israel & Jewish Affairs Council, South Melbourne, viewed 4 Nov 2011,< http://aijac.org.au/news/article/essay-are-settlements-illegal>

Rosenne, Meir. “Understanding UN Security Council Resolution 242 of November 22, 1967, on the Middle East,” Defensible Borders for a Lasting Peace, pp. 45-53.

Sabel, Robbie 2010. “International Legal Issues of the Arab-Israeli Conflict An Israeli Lawyer’s Position,” Journal of East Asia & International Law, pp. 407-422

Smith, C.G 1968. “Israel After the June War,” Geography, Vol. 53, No. 3, pp. 315-319

Tillman, Seth 1978. “The West Bank Hearings: Israel’s Colonization of Occupied Territory,” Journal of Palestine Studies, Vol. 7, No. 2, pp. 71-87