Status of Territories Captured By Israel - Disputed

Disputed

The Jerusalem Center for Public Affairs and Israeli government websites who support the view that the territories are not occupied argue 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 negotiations. They regard the territories as "disputed" based on the following legal arguments:

• No borders have been established or recognized by the parties. Armistice lines do not establish borders, and the 1949 Armistice Agreements in particular specifically stated (at Arab insistence) that they were not creating permanent or de jure borders.

• In line with the above idea, the Israeli government has officially stated that its position is that the territories cannot be called occupied, as no nation had clear rights to them, and there was no operative diplomatic arrangement, when Israel acquired them in June 1967.

• Territories are only "occupied" if they are captured in war from an established and recognized sovereign, but no state had a legitimate or recognized sovereignty over the West Bank, Gaza Strip or East Jerusalem prior to the Six-Day War.
• The Fourth Geneva Convention is not applicable to the West Bank and Gaza Strip, since, under its Article 2, it pertains only to "cases of…occupation of the territory of a High Contracting Party" by another High Contracting party. The West Bank and Gaza Strip have never been the legal territories of any High Contracting Party.
• Even if the Fourth Geneva Convention had applied at one point, they certainly did not apply once the Israel transferred governmental powers to the Palestinian Authority in accordance with the 1993 Oslo Accords, since Article 6 of the convention states that the Occupying Power would only be bound to its terms "to the extent that such Power exercises the functions of government in such territory....".
• Israel took control of the West Bank as a result of a defensive war. The language of "occupation" has allowed Palestinian spokesmen to obfuscate this history. By repeatedly pointing to "occupation," they manage to reverse the causality of the conflict, especially in front of Western audiences. Thus, the current territorial dispute is allegedly the result of an Israeli decision "to occupy," rather than a result of a war imposed on Israel by a coalition of Arab states in 1967. Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, wrote in 1970 regarding Israel's case: "Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title."

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."

After 1967, a number of legal arguments were advanced which dismissed the right of Palestinians to self-determination and statehood. They generally proposed that Palestine was a land void of a legitimate sovereign and supported Israeli claims to the remaining territory of the Palestine Mandate. Historian and journalist, Gershom Gorenberg, says that outside of the pro-settlement community in Israel, these positions are considered quirky. He says that, while the Israeli government has used them for public relations purposes abroad, it takes entirely different positions when arguing real legal cases before the Israeli Supreme Court. In 2005 Israel decided to dismantle all Israeli settlements in the Gaza Strip and four in the northern West Bank. Gorenberg notes, the government's decision was challenged in the Supreme Court by settlers, and the government won the case by noting the settlements were in territory whose legal status was that of 'belligerent territory'. The government argued that the settlers should have known the settlements were only temporary.