Israeli-occupied Territories - Applicability of The Term "occupied" - Israeli Legal and Political Views

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a military order stating that the Geneva Conventions applied to the recently occupied territories, but this order was rescinded a few months later. For a number of years, Israel argued on various grounds that the Geneva Conventions do not apply. One is the Missing Reversioner theory 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. However, that interpretation is not shared by the international community. 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.

In the cases 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. The Israeli Ministry of Foreign Affairs 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. 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." 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.”

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”. Many Israeli government websites do refer to the areas as being "occupied territories". 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."