The occupation in perspective

A call for a contextual understanding

By Maurice Ostroff June 11, 2011

If calls for a settlement are to be meaningful, the ill-defined expression 'end the occupation' must be replaced by a call for 'territorial compromise’ as contemplated in the careful wording of Security Council Resolutions 242 and 338. As in the case of Kashmir, the land in which a compromise is to be realized is “disputed territory”

Is Israel occupying Palestinian land?

In the aftermath of the disengagement from Gaza, intense pressure from all quarters is building up to “end the occupation. There are however, as many confusing differences of opinion about what is intended by “ending the occupation” as there are over what is meant by the word “occupation” iself.

Recently, while discussing with a BBC correspondent the legality or otherwise of Israel’s presence on the West Bank and previously in the Gaza strip, his answer was very simple. Ariel Sharon, the principal architect of the settlements policy had, at last, used the word "occupation.” Omitting a few logical steps the reporter’s conclusion was obvious. End the occupation and all will be well with the world.

The furor caused by Sharon’s use of this highly charged word “occupation” should cause us not only to examine more carefully our own use of words, but also our interpretation of words used by others. It highlights the confusing situation in which each member of the media, each political party and even each individual, interested in the conflict, attaches his/her own self-serving meaning to words, which are crucial to understanding the conflict.

What Sharon actually said on the radio was that it was not good for the Palestinians, nor for Israel, nor for the economy to continue indefinitely the kibush (i.e. conquest or occupation) over 3.5 million Palestinians. The next day, he explained to the Knesset Foreign Affairs and Defense Committee that he meant to say “it is undesirable for us to rule over a Palestinian population”.

Israel's underfunded PR efforts are vulnerable to the type of simplified logic displayed by the BBC man. In assuming that the justice of its cause is self-evident, Israel has consistently failed to challenge fundamentally incorrect statements, which have been repeated so frequently by Palestinian spokespeople, that they have been absorbed into conventional wisdom and accepted as fact by international politicians and journalists.

In fact, Sharon was not at all original in describing Israel’s presence in the territories as occupation. The Camp David Accords, which Menachem Begin signed in 1978, refer clearly to “occupation”. Even UN Security Council resolution 242, which will be referred to again in this article, explicitly uses this taboo word.

But the question of whether or not Israel’s presence in these territories is described as “occupation” is not the real issue. Rather, the real issue which needs clarification is the common misconception that the territory Israel is occupying was taken from the Palestinians; a view that prejudges the territorial negotiations envisioned in 242 and also provides the emotional excuse of "resisting occupation" to justify ongoing terrorism.

It is therefore important at this late stage, to identify significant relevant information relating to arguments, which are raised daily in all earnestness and sincerity by people who are unaware of the historical facts.

It is surprising that so many commentators fall victim to the debating technique of 'Begging The Question' in which the matter to be proved is already assumed in the language used in the premise of the argument. Interviewers on TV and radio are frequently guilty of failing to challenge statements, which prejudge the issue under discussion, such as 'Palestinian terror will cease when the illegal occupation ends’. This statement, which is regularly made as a self-evident truth, ignores the undisputable fact that Arab terrorism did not begin with the 1967 occupation. In the years 1951-1955, for example, Arab terrorists killed 922 Israelis. Typical was the March 1954 ambush of a bus traveling from Eilat to Tel Aviv, killing the driver and wounding most of the passengers. The terrorists then boarded the bus, and shot each passenger, one by one, spitting on their bodies.

The context of Israel’s presence in the territories

While famous for his military expertise, Sharon has never been regarded as an authority on international law and it is indeed amazing how persons who should know better have seized upon his use of a particular word to justify irrelevancies. As it is always helpful to understand clearly the meaning of words we use, let’s consider the context of Israel’s presence in the West bank and Gaza.

Jordan illegally entered the West Bank and East Jerusalem in 1948 and remained in occupation until 1967. It attempted to annex the territory in 1951, but that annexation was recognized only by Britain and Pakistan; not even by Egypt nor any other Arab state. Egypt, similarly occupied Gaza in 1948 in violation of UN resolution 181, but unlike Jordan Egypt did not attempt to annex it and significantly, did not accept the return of Gaza in its peace agreement with Israel.

That territorial adjustments were contemplated from the earliest days is confirmed by article II.2. of the 1949 Jordanian-Israeli General Armistice Agreement, which specifically stated: "no provision of this Agreement shall in any way prejudice the rights, claims, and positions of either Party hereto in the peaceful settlement of the Palestine questions, the provisions of this Agreement being dictated exclusively by military considerations".

As Jordan no longer makes any claim to the West Bank and Egypt makes no claim on Gaza the only remaining claimants are Israel and the Palestinians. As to who has the stronger claim, the Palestinians never had any title to these territories. Moreover, international law distinguishes clearly between "aggressive conquest" and territorial acquisition after a war of self-defense. Former US 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”

Significantly, even the UN rejected Soviet efforts to have Israel branded as the aggressor in the Six-Day War.

In these circumstances, the most accurate and realistic description of the West Bank and Gaza is disputed territory, whose final disposition will be determined by negotiation as provided in resolution 242 (about which more later).

“Disputed”, rather than “occupied” territories is the designation used in other similar situations such as Kashmir, which is claimed by India, Pakistan, and the Kashmiris and even the Northwest Passage which Canada claims as part of its territorial waters, while the United States regards it as international waters, not to speak of Taiwan and Tibet. (See "Disputed territories around the world

It is ironical that neither Jordan nor Egypt offered to create a Palestinian state in these territories when they were in a position to do so.

Legality of the occupation

Quite apart from its historical ties to Judea, Samaria and especially Jerusalem, Israel has a very strong claim to both territories. They were unambiguously allocated to the Jewish state in the League of Nations Mandate the preamble of which stated that its purpose was "the establishment in Palestine of a national home for the Jewish people in Mandatory Palestine" (which included not only present day Israel, but also the West Bank and what is now known as Jordan).

Jordan was hived off in terms of Article 25, of the mandate, which entitled the Mandatory, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of the mandate, as it may consider inapplicable to the existing local conditions. As such permission was given in respect of territory east, but not west of the Jordan, the West Bank, Jerusalem and present day Israel remained allocated for the Jewish national home. Their capture by Israel in a defensive war from states that originally seized them by armed aggression was therefore fully justified.

The late Eugene W. Rostow, who played a leading role in producing the famous Resolution 242, as well as the late Professor Julius Stone, one of the twentieth century's leading authorities on the Law of Nations, both pronounced that the Jewish right of settlement in the area is equivalent in every way to the right of the existing Palestinian population to live there. According to Rostow, the Armistice Lines of 1949, which are part of the West Bank boundary, represent nothing but the position of the contending armies when the final cease-fire was achieved in the War of Independence. And the Armistice Agreements specifically provide, except in the case of Lebanon, that the demarcation lines can be changed only by agreement when the parties move from armistice to peace. Resolution 242 is based on that provision of the Armistice Agreements and states certain criteria that would justify changes in the demarcation lines when the parties make peace. (See articles by Rostow)

Acknowledgement of the legality of the occupation does not preclude advocating withdrawal from part or all of the West Bank in order to achieve a peaceful settlement. It is however, intellectually dishonest to use the invalid assumption that the occupation is illegal to bolster a case for such withdrawal.

The legal position

An authoritative clear analysis of the legal status of the West bank and Gaza in terms of international law, by Australian lawyer, Ian Lacey, is available at

http://www.aijac.org.au/resources/reports/international_law.pdf

In an update, Ian lacey adds

that in his view, any possible concept of an occupation came to an end with the Oslo Accords.

The current binding legal instrument under the Accords is the Interim Agreement of 1995, which governs the status of the Territories on an interim basis until a final status agreement is negotiated. Under Article XI all of the civil powers and responsibilities in the whole of the Territories are now exercised by the Palestinian Authority, although in the lightly populated area still defined as Area C, this does not include powers relating to territory. The result is that 100% of the Palestinian population of the territories is presently governed by the Palestinian Authority.

|Under Article XII(1), ie. by express agreement with the Palestinians, Israel retains responsibility for defense and the overall security of Israelis and settlements, and has the powers to take the steps necessary to meet this responsibility. In other words Israel forces are present in the Territories by agreement and only to the extent made necessary by attacks on Israelis.

Further, under Article XXXI permanent status negotiations are to include Jerusalem, Settlements and Borders. In other words it is expressly acknowledged that existing Settlements are not illegal during the interim period, and that ultimate borders will be subject to negotiation. This reinforces the description of the Territories as disputed. As can be seen, they are certainly not occupied in any sense.

The legal position may enter a state of flux as a result of the election of a Palestinian government which has expressly stated that it does not intend to enter into the permanent status negotiations contemplated by Oslo. If the Interim Agreement were to be officially repudiated by the PA, and if that repudiation was officially accepted by Israel, then the legal situation would revert to the status quo ante. Israel would remain the only State body entitled to exercise sovereignty in the Territories, certainly until a permanent peace was negotiated, and arguably with a right of unilateral annexation, in whole or part, for the purposes of defense against future aggression, and as occurred in Europe after the Second World War.

What is meant by “end the occupation”?

The mantra 'end the occupation' is in itself wooly and should not be used without clarification of its intended meaning. Some assume it refers only to territory gained by Israel in 1967. Others refer to all land beyond the 1947 partition boundaries. But the insurmountable obstacle to any long-term peaceful solution is that many Palestinian and Arab spokespeople openly declare that there is no place for Israel at all and that they will continue their attacks until Israel ceases to exist. Until his last days, the late Chairman Arafat wore a badge on his uniform depicting a Palestinian state, which included the entire area of present-day Israel, from the Jordan to the Mediterranean. This strategic Palestinian goal goes a long way to explain the dramatic rise in terror attacks while peace talks were in progress during 1993 and 1994.

Israel's withdrawal from Gaza and parts of the West Bank should not be seen as correction of an illegal situation. Rather it is a declaration, that despite Israel's presence in these territories being completely justified by the circumstances, which prompted the 1967 war, and despite their legality in terms of international law, withdrawals and territorial adjustments have been made and more will be offered in a sincere effort to attain a meaningful peace.

Very few indeed, even among the most ardent advocates of 'ending the occupation' call for Israel to relinquish, the Western Wall and access to Mount Scopus which had been inaccessible to Israel prior to 1967. If suggestions for a settlement are to be meaningful, the misleading expression 'end the occupation' must be avoided and replaced by the concept of 'territorial compromise' as contemplated in the careful wording of Security Council Resolutions 242 and 338. These resolutions require the Arab states and Israel to make peace, and that when "a just and lasting peace" is reached in the Middle East, Israel should withdraw from some but not all of the territory it occupied in the course of the 1967 war. The Resolutions leave it to the parties to agree on the peace borders.

Much has been written about the implications of Resolution 242 and if we are to avoid the distortions introduced by propagandists, obviously, the most reliable source from whom to seek clarification are the persons who drafted it. In drafting Resolution 242, British Ambassador to the UN in 1967, Lord Caradon, and American Ambassador, Arthur Goldberg, deliberately omitted a demand for Israel to return to the pre-1967 borders. In an interview in the Beirut Daily Star on June 12, 1974, Lord Caradon stated:

"It would have been wrong to demand that Israel return to its positions of June 4, 1967 because these positions were undesirable and artificial. After all, they were just the places where the soldiers on each side happened to be on the day the fighting stopped in 1948. They were just armistice lines. That's why we didn't demand that the Israelis return to them, and I think we were right not to."