Israeli-occupied territories

The Israeli-occupied territories are the territories which have been designated as occupied territory by many international organisations, governments and others to refer to the territory captured by Israel from Egypt, Jordan, and Syria during the Six-Day War of 1967. They consist of the West Bank, the Gaza Strip and much of the Golan Heights and, until 1982, the Sinai Peninsula. The West Bank and Gaza Strip are also referred to as Palestinian territories or Occupied Palestinian Territory. Palestinian Authority and numerous international bodies^[who?] consider East Jerusalem to be part of the West Bank, a position disputed by Israel.

Israel prefers the term "Disputed Territories" in the case of West Bank ^[1][2]

The first use of the term was in United Nations Security Council Resolution 242 following the Six Day War in 1967, which called for "the establishment of a just and lasting peace in the Middle East" to be achieved by "the application of both the following principles: ... Withdrawal of Israeli armed forces from territories occupied in the recent conflict ... Termination of all claims or states of belligerency" and respect for the right of every state in the area to live in peace within secure and recognized boundaries. However, withdrawal from the territories was conditional on a negotiated peace, rejected by the Arab states following the Khartoum Resolution.

Following Israeli withdrawal from the Sinai Peninsula in 1982, as part of the 1979 Israel–Egypt Peace Treaty, that territory ceased to be considered occupied territory. Although Israel unilaterally disengaged from Gaza in September 2005, it continues to be designated the occupying power in the Gaza Strip by the United Nations, the United States, the United Kingdom and various human rights organizations.^[3][4][5] Israel disputes it is the occupying power in the Gaza Strip. Israel's annexation of East Jerusalem in 1980^[6] and the Golan Heights in 1981^[7] has not been recognised by any other country.^[8]

Contents 1 Overview 2 The Sinai Peninsula 3 The Golan Heights 4 Palestinian territories 4.1 West Bank 4.2 Gaza Strip 4.3 East Jerusalem 5 Applicability of the term "occupied" 5.1 Israeli judicial decisions 5.2 Israeli legal and political views 5.3 International views 6 War crimes allegations 7 See also 8 References 9 External links

[edit] Overview

The significance of the designation of these territories as occupied territory is that certain legal obligations fall on the occupying power under international law. Under international law there are certain laws of war governing military occupation, including the Hague Conventions of 1899 and 1907 and the Fourth Geneva Convention.^[9]. One of those obligations is to maintain the status quo until the signing of a peace treaty, the resolution of specific conditions outlined in a peace treaty, or the formation of a new civilian government.^[10]

There is a dispute as to whether, and if so to what extent, Israel is an occupying power in relation to the Palestinian territories.

On the basis that the Palestinian territories are occupied territory, Israeli settlements in these territories are in breach of Israel's obligations as an occupying power and constitute a grave breach of the Geneva Conventions and that the settlements constitute war crimes.^[11][12]

[edit] The Sinai Peninsula

Israel captured the Sinai Peninsula from Egypt in the 1967 Six Day War. It established settlements along the Gulf of Aqaba and in the northeast portion, just below the Gaza Strip. It had plans to expand the settlement of Yamit into a city with a population of 200,000,^[13] though the actual population of Yamit did not exceeded 3,000.^[14] The Sinai Peninsula was returned to Egypt in stages beginning in 1979 as part of the Israel–Egypt Peace Treaty. As required by the treaty, Israel had to evacuate Israeli military installations and civilian settlements. Israel dismantled eighteen settlements, two air force bases, a naval base, and other installations by 1982, including the only oil resources under Israeli control. The evacuation of the civilian population, which took place in 1982, was done forcefully in some instances, such as the evacuation of Yamit. The settlements were demolished, as it was feared that settlers might try to return to their homes after the evacuation^{[citation needed]}.

Since 1982, the Sinai Peninsula has not been regarded as occupied territory.

[edit] The Golan Heights

Israel captured the Golan Heights from Syria in the 1967 Six Day War. A ceasefire was signed on 11 June 1967 and the Golan Heights came under Israeli military administration.^[15] Syria rejected UNSC Resolution 242 of 22 November 1967, which called for the return of Israeli-occupied territories in exchange for peaceful relations. Instead, Syria joined the other Arab League countries in adopting the Khartoum Resolution of August 1967, which became known as the "Three 'No's": "no peace with Israel, no recognition of Israel, no negotiations with it",^[16] and insisting that withdrawals by Israel were a pre-condition for any talks with it. Israel had accepted Resolution 242 in a speech to the Security Council on 1 May 1968. In March 1972, Syria "conditionally" accepted Resolution 242.

In the Yom Kippur War of 1973, Syria attempted to retake the territory militarily, but the attempt was unsuccessful. Israel and Syria signed a ceasefire agreement in 1974 that left almost all the Heights in Israeli hands, while returning a narrow demilitarized zone to Syrian control. A United Nations observation force was established in 1974 as a buffer between the sides.^[17] By Syrian formal acceptance of UN Security Council Resolution 338,^[18] which set out the cease-fire at the end of the Yom Kippur War, Syria also accepted Resolution 242.^[19]

On 14 December 1981, Israel passed the Golan Heights Law, extending Israeli administration and law to the territory. Israel has expressly avoided using the term "annexation" to describe the change of status. However, the UN Security Council has rejected the de facto annexation in a non-binding UNSC Resolution 497, which declared it as "null and void and without international legal effect",^[20] and consequently continuing to regard the Golan Heights as an Israeli-occupied territory. The measure has also been criticized by other countries, either as illegal or as not being helpful to the Middle East peace process.^{[citation needed]}

Syria wants the return of the Golan Heights, while Israel has maintained a policy of "land for peace" based on Resolution 242. The first high-level public talks aimed at a resolution of the Syria-Israel conflict were held at and after the mulitlateral Madrid Conference of 1991. Throughout the 1990s several Israeli governments negotiated with Syria's president Hafez Al-Assad. While serious progress was made, they were unsuccessful.

In 2004, there were 34 settlements in the Golan Heights, populated by around 18,000 people.^[21] Today, an estimated 20,000 Israeli settlers and 20,000 Syrians live in the territory. All inhabitants are entitled to Israeli citizenship, which would entitle them to an Israeli driver's license and enable them to travel freely in Israel,^[17] but most non-Jewish residents of the territory have declined citizenship.

[edit] Palestinian territories

The West Bank and Gaza Strip are often jointly referred to as the Palestinian territories. Both of these territories were part of Mandate Palestine, and both have populations consisting primarily of Arab Palestinians, including significant numbers of refugees who fled from territory that became Israel after the 1948 Arab–Israeli War.

[edit] West Bank

The West Bank was allotted to the Arab state under United Nations Partition Plan of 1947, but the West Bank was occupied by Jordan after the 1948 war. In 1950, Jordan annexed the West Bank, but this was recognized only by the United Kingdom. (see 1949 Armistice Agreements, Green Line)

In 1967 the West Bank came under Israeli military administration. Israel retained the mukhtar (mayoral) system of government inherited from Jordan, and subsequent governments began developing infrastructure in Arab villages under its control. (see Palestinians and Israeli law, International legal issues of the conflict, Palestinian economy)

Since the Israel–Palestine Liberation Organization letters of recognition of 1993, most of the Palestinian population and cities came under the jurisdiction of the Palestinian Authority, and only partial Israeli military control, although Israel has frequently redeployed its troops and reinstated full military administration in various parts of the two territories. On July 31, 1988, King Hussein surrendered all Jordanian claims to the West Bank to the PLO.^[22]

In 2000 the Israeli government started to construct the Israeli West Bank barrier, separating Israel and several of its settlements, as well as a significant number of Palestinians, from the remainder of the West Bank. In 2004, the International Court of Justice issued an advisory opinion stating that the barrier violates international law.^[23] In a related case the Israeli Supreme Court, sitting as the High Court of Justice, stated that Israel has been holding the areas of Judea and Samaria in belligerent occupation, since 1967. The court also held that the normative provisions of public international law regarding belligerent occupation are applicable. The Regulations Concerning the Laws and Customs of War on Land, The Hague of 1907 and the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 were both cited.^[24]

About 300,000 Israeli settlers live in the West Bank (and a further 200,000 live in East Jerusalem and 50,000 in the former Israeli–Jordanian no-man's land).

[edit] Gaza Strip

Gaza Strip was allotted to the Arab state under United Nations Partition Plan of 1947, but Gaza Strip was occupied by Egypt after the 1948 war.

Between 1967 and 1993, the Gaza Strip was under Israeli military administration.

In March 1979, Egypt renounced all claims to the Gaza Strip in the Egypt–Israel Peace Treaty.

Since the Israel–Palestine Liberation Organization letters of recognition of 1993, the Gaza Strip came under the jurisdiction of the Palestinian Authority.

In February 2005, the Israeli government voted to implement a unilateral disengagement plan from the Gaza Strip. The plan began to be implemented on 15 August 2005, and was completed on 12 September 2005. Under the plan, all Israeli settlements in the Gaza Strip (and four in the West Bank) and the joint Israeli-Palestinian Erez Industrial Zone were dismantled with the removal of all 9,000 Israeli settlers (most of them in the Gush Katif settlement area in the Strip's southwest) and military bases. Some settlers resisted the order, and were forcibly removed by the IDF. On 12 September 2005 the Israeli cabinet formally declared an end to Israeli military occupation of the Gaza Strip. To avoid allegations that it was still in occupation of any part of the Gaza Strip, Israel also withdrew from the Philadelphi Route, which is a narrow strip adjacent to the Strip's border with Egypt, after Egypt's agreement to secure its side of the border. Under the Oslo Accords the Philadelphi Route was to remain under Israeli control to prevent the smuggling of materials (such as ammunition) and people across the border with Egypt. With Egypt agreeing to patrol its side of the border, it was hoped that the objective would be achieved. However, Israel maintained its control over the crossings in and out of Gaza. The Rafah crossing between Egypt and Gaza was monitored by the Israeli army through special surveillance cameras. Official documents such as passports, I.D. cards, export and import papers, and many others had to be approved by the Israeli army.^{[citation needed]}

The Israeli position is that Gaza is no longer occupied, inasmuch as Israel does not exercise effective control or authority over any land or institutions in the Gaza Strip.^[25][26] Foreign Affairs Minister of Israel Tzipi Livni stated in January, 2008: “Israel got out of Gaza. It dismantled its settlements there. No Israeli soldiers were left there after the disengagement.”^[27] Israel also notes that Gaza does not belong to any sovereign state.

Immediately after Israel withdrew in 2005, Palestinian Authority Chairman Mahmoud Abbas stated, "the legal status of the areas slated for evacuation has not changed."^[25] Human Rights Watch also contested that this ended the occupation.^[28][29] The United Nations, Human Rights Watch and many other international bodies and NGOs continues to consider Israel to be the occupying power of the Gaza Strip as Israel controls Gaza Strip's airspace, territorial waters and controls the movement of people or goods in or out of Gaza by air or sea.^[3][4][5]

The United Nations Office for the Coordination of Humanitarian Affairs maintains an office on “Occupied Palestinian Territory,” which concerns itself with the Gaza Strip.^[30] A July 2004 opinion of the International Court of Justice treated Gaza as part of the occupied territories.^[31] In his statement on the 2008–2009 Israel–Gaza conflict Richard Falk, United Nations Special Rapporteur on "the situation of human rights in the Palestinian territories" wrote that international humanitarian law applied to Israel "in regard to the obligations of an Occupying Power and in the requirements of the laws of war."^[32] In a 2009 interview on Democracy Now Christopher Gunness, spokesperson for the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) contends that Israel is an occupying power. However, Meagan Buren, Senior Adviser to the Israel Project, a pro-Israel media group contests that characterization.^[33]

In 2007, after Hamas defeated Fatah in the Battle of Gaza (2007) and took control over the Gaza Strip, Israel imposed a blockade on Gaza. Palestinian rocket attacks and Israeli raids, such as Operation Hot Winter continued into 2008. A six month ceasefire was agreed in June 2008, but it was broken several times by both Israel and Hamas. As it reached its expiry, Hamas announced that they were unwilling to renew the ceasefire, and at the end of December 2008 Israeli forces began Operation Cast Lead, launching the Gaza War that left an estimated 1,166–1,417 Palestinians and 13 Israelis dead.^[34][35][36]

[edit] East Jerusalem

Jerusalem has created additional issues in relation to the question of whether or not it is occupied territory. The 1947 UN Partition Plan had contemplated that all of Jerusalem would be an international city within an international area that included Bethlehem for at least ten years, after which the residents would be allowed to conduct a referendum and the issue could be re-examined by the Trusteeship Council.

However, after the 1948 Arab–Israeli War Jordan captured East Jerusalem and the Old City, and Israel captured and annexed the western part of Jerusalem. Jordan annexed East Jerusalem along with the rest of the West Bank in 1950, but this annexation was recognized by only two countries, and not by the United Nations.^[37] Israel captured East Jerusalem from Jordan in the 1967 Six-Day War and a few weeks later ordered its "laws, jurisdiction and administration" to apply in several towns and villages surrounding Jerusalem.

It is for these reasons that East Jerusalem is considered by many to be part of the West Bank. However, the Oslo Accords treat the city separately. In 1980 Israel passed the "Jerusalem Law" proclaiming "united Jerusalem" as the Israeli capital, thereby annexing East Jerusalem. However, United Nations Security Council Resolution 478 declared this action to be "null and void", and that it "must be rescinded forthwith". It also called upon countries which held their diplomatic delegations to Israel in Jerusalem, to move them outside the city.

Most nations with embassies in Jerusalem complied, and relocated their embassies to Tel Aviv or other Israeli cities prior to the adoption of Resolution 478. Following the withdrawals of Costa Rica and El Salvador in August 2006, no country maintains its embassy in Jerusalem, although Paraguay and Bolivia have theirs in nearby Mevasseret Zion.^[38]

The United States Congress passed the Jerusalem Embassy Act in 1995, stating that "Jerusalem should be recognized as the capital of the State of Israel; and the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999. As a result of the Embassy Act, official U.S. documents and web sites refer to Jerusalem as the capital of Israel. Since passage, the law has never been implemented, because of opposition from Presidents Clinton, Bush, and Obama, who view it as a Congressional infringement on the Executive Branch’s constitutional authority over foreign policy;^[39] they have consistently claimed the presidential waiver on national security interests.

[edit] Applicability of the term "occupied"

[edit] Israeli judicial decisions

In two cases decided shortly after independence, in the Shimshon and Stampfer cases, the Supreme Court of Israel held that the fundamental rules of international law accepted as binding by all "civilized" nations were incorporated in the domestic legal system of Israel. The Nuremberg Military Tribunal determined that the articles annexed to the Hague IV Convention of 1907 were customary law that had been recognized by all civilized nations.^[40] In the past, the Supreme Court has argued that the Geneva Convention insofar it is not supported by domestic legislation "does not bind this Court, its enforcement being a matter for the states which are parties to the Convention". They ruled that "Conventional international law does not become part of Israeli law through automatic incorporation, but only if it is adopted or combined with Israeli law by enactment of primary or subsidiary legislation from which it derives its force". However, in the same decision the Court ruled that the Fourth Hague Convention rules governing belligerent occupation did apply, since those were recognized as customary international law.^[41]

The Israeli High Court of Justice determined in the 1979 Elon Moreh case that the area in question was under occupation and that accordingly only the military commander of the area may requisition land according to Article 52 of the Regulations annexed to the Hague IV Convention. Military necessity had been an after-thought in planning portions of the Elon Moreh settlement. That situation did not fulfill the precise strictures laid down in the articles of the Hague Convention, so the Court ruled the requisition order had been invalid and illegal.^[42] In recent decades, the government of Israel has argued before the Supreme Court of Israel that its authority in the territories is based on the international law of "belligerent occupation", in particular the Hague Conventions. The court has confirmed this interpretation many times, for example in its 2004 and 2005 rulings on the separation fence.^[43][44]

In its June 2005 ruling upholding the constitutionality of the Gaza disengagement, the Court determined that "Judea and Samaria" [West Bank] and the Gaza area are lands seized during warfare, and are not part of Israel:

The Judea and Samaria areas are held by the State of Israel in belligerent occupation. The long arm of the state in the area is the military commander. He is not the sovereign in the territory held in belligerent occupation (see The Beit Sourik Case, at p. 832). His power is granted him by public international law regarding belligerent occupation. The legal meaning of this view is twofold: first, Israeli law does not apply in these areas. They have not been "annexed" to Israel. Second, the legal regime which applies in these areas is determined by public international law regarding belligerent occupation (see HCJ 1661/05 The Gaza Coast Regional Council v. The Knesset et al. (yet unpublished, paragraph 3 of the opinion of the Court; hereinafter – The Gaza Coast Regional Council Case). In the center of this public international law stand the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations). These regulations are a reflection of customary international law. The law of belligerent occupation is also laid out in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention).^[45][46]

[edit] Israeli legal and political views

Soon after the 1967 war, Israel issued a military order stating that the Geneva Conventions applied to the recently occupied territories^[47], but this order was rescinded a few months later^[48]. For a number of years, Israel argued on various grounds that the Geneva Conventions do not apply. One is the Missing Reversioner theory^[49] which argued that the Geneva Conventions apply only to the sovereign territory of a High Contracting Party, and therefore do not apply since Jordan never exercised sovereignty over the region.^[50] However, that interpretation is not shared by the international community.^[51] The application of Geneva Convention to Occupied Palestinian Territories was further upheld by International Court of Justice, UN General Assembly, UN Security Council and the Israeli Supreme Court.^[51]

In cases the before the Israeli High Court of Justice the government has agreed that the military commander’s authority is anchored in the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, and that the humanitarian rules of the Fourth Geneva Convention apply.^[52] The Israeli MFA says that the Supreme Court of Israel has ruled that the Fourth Geneva Convention and certain parts of Additional Protocol I reflect customary international law that is applicable in the occupied territories.^[53] Gershom Gorenberg has written that the Israeli government knew at the outset that it was violating the Geneva Convention by creating civilian settlements in the territories under IDF administration. He explained that as the legal counsel of the Foreign Ministry, Theodor Meron was the Israeli government's expert on international law. On September 16, 1967 Meron wrote a top secret memo to Mr. Adi Yafeh, Political Secretary of the Prime Minister regarding "Settlement in the Administered Territories" which said "My conclusion is that civilian settlement in the Administered territories contravenes the explicit provisions of the Fourth Geneva Convention." ^[54] Moshe Dayan authored a secret memo in 1968 proposing massive settlement in the territories which said “Settling Israelis in administered territory, as is known, contravenes international conventions, but there is nothing essentially new about that.”^[55]

Various Israeli Cabinets have made political statements and many of Israel's citizens and supporters dispute that the territories are occupied and claim that use of the term "occupied" in relation to Israel's control of the areas has no basis in international law or history, and that it prejudges the outcome of any future or ongoing negotiations. They argue it is more accurate to refer to the territories as "disputed" rather than "occupied" although they agree to apply the humanitarian provisions of the Fourth Geneva Convention pending resolution of the dispute. Yoram Dinstein, has dismissed the position that they are not occupied as being “based on dubious legal grounds”.^[56] Many Israeli government websites do refer to the areas as being "occupied territories".^[57] According to the BBC, "Israel argues that the international conventions relating to occupied land do not apply to the Palestinian territories because they were not under the legitimate sovereignty of any state in the first place."^[58]

[edit] International views

The official term used by the United Nations Security Council to describe Israeli-occupied territories is "the Arab territories occupied since 1967, including Jerusalem", which is used, for example, in Resolutions 446 (1979), 452 (1979), 465 (1980) and 484. A conference of the parties to the Fourth Geneva Convention,^[59] and the International Committee of the Red Cross,^[60] have also resolved that these territories are occupied and that the Fourth Geneva Convention provisions regarding occupied territories apply.

In 1986, the International Court of Justice ruled that portions of the Geneva Conventions of 1949 merely declare existing customary international law.^[61] In 1993, the UN Security Council adopted a binding Chapter VII resolution establishing an International Criminal Tribunal for the former Yugoslavia. The resolution approved a Statute which said that the problem of adherence of some but not all States to the Geneva Conventions does not arise, since beyond any doubt the Convention is declarative of customary international law.^[62] The subsequent interpretation of the International Court of Justice does not support Israel's view on the applicability of the Geneva Conventions.^[63]

In July 2004, the International Court of Justice delivered an Advisory Opinion on the 'Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory'. The Court observed that under customary international law as reflected in Article 42 of the Regulations annexed to the Hague IV Convention, territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised. The Israel raised a number of exceptions and objections,^[64] but the Court found them unpersuasive. The Court ruled that territories had been occupied by the Israeli armed forces in 1967, during the conflict between Israel and Jordan, and that subsequent events in those territories, had done nothing to alter the situation.

Al Haq, a West Bank affiliate of the International Commission of Jurists, has asserted that "As noted in Article 27 of the Vienna Convention on the Law of Treaties, 'a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty'. As such, Israeli reliance on local law does not justify its violations of its international legal obligations".^[65] Further, the Palestinian mission to the U.N. has argued

it is of no relevance whether a State has a monist or a dualist approach to the incorporation of international law into domestic law. A position dependent upon such considerations contradicts Article 18 of the Vienna Convention on the Law of Treaties of 1969 which states that: "a state is obliged to refrain from acts which would defeat the object and purposes of a treaty when it has undertaken an act expressing its consent thereto." The Treaty, which is substantially a codification of customary international law, also provides that a State "may not invoke the provisions of its internal law as justification for its failure to perform a treaty" (Art. 27).^[66]

[edit] War crimes allegations

Some people claim that Israeli settlements constitute a transfer of its civilian population into the occupied territories and have alleged that such transfers constitute a grave breach of the Geneva Conventions and that such transfers constitute war crimes.^[11][12]

In 2000, the editors of the Geneva Academy of International Humanitarian Law and Human Rights Palestine Yearbook of International Law (1998–1999) said "the "transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory" amounts to a war crime. This is obviously applicable to Israeli settlement activities in the Occupied Arab Territories."^[67]

In 2004 the International Court of Justice —in an advisory, non-binding^[68] opinion—noted that the Security Council had described Israel's policy and practices of settling parts of its population and new immigrants in the occupied territories as a "flagrant violation" of the Fourth Geneva Convention. The Court also concluded that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law and that all the States parties to the Geneva Convention are under an obligation to ensure compliance by Israel with international law as embodied in the Convention.^[63]

Israel denies that the Israeli settlements are in breach of any international laws.^{[citation needed]} The Israeli Supreme Court has yet to rule decisively on settlement legality under the Geneva Convention.^[69]

[edit] See also

• Arab–Israeli conflict
• International law and the Arab–Israeli conflict
• Israeli–Palestinian conflict
• Palestinian territories
• Occupation of the Gaza Strip by Egypt
• Rule of the West Bank and East Jerusalem by Jordan

[edit] References

[edit] External links

• "From 'Occupied Territories' to 'Disputed Territories'" by Dore Gold
• "Israeli Water Interests in the Occupied Territories", from Security for Peace: Israel's Minimal Security Requirements in Negotiations with the Palestinians, by Ze'ev Schiff, 1989. Retrieved October 8, 2005.
• Howell, Mark (2007). What Did We Do to Deserve This? Palestinian Life under Occupation in the West Bank, Garnet Publishing. ISBN 1859641954