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Max Planck Encyclopedia of Public International Law [MPEPIL]

Israel, Occupied Territories

Benjamin Rubin

Subject(s):
Extraterritorial application of treaties — Peace treaties — Sovereignty — Territory, acquisition and transfer — Trust territory and mandate — Belligerence — Occupation — National liberation movements — Armed conflict

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Background

With all the wars that Israel has experienced since its creation in 1948, occupation has been a recurring phenomenon in its history.

As the 1967 Six Days War ended, Israel occupied territories over three times as large as its home territory. These included the Golan Heights occupied from Syria, the Sinai Peninsula and the Gaza Strip occupied from Egypt, and the West Bank occupied from Jordan.

Since 1978 Israel has been also in control of various parts of Lebanon, although this control did not always amount to belligerent occupation as this term is generally understood (Occupation, Belligerent).

B.  The West Bank

As its name implies, the West Bank is situated along the Jordan River between Israel and the Kingdom of Jordan. Its land area amounts to 5,860 km2. According to the 2007 census of the Palestinian Central Bureau of Statistics, the West Bank had at that time a population of 2,350,583 inhabitants.

The significance of the West Bank, in connection with the Arab-Israeli conflict is the fact that this is the territory (together with the Gaza Strip) in which Palestinian self-determination is to be realized on the one hand, and its historic and religious importance for Israel and the Jewish people at large on the other hand. What distinguishes the debate over the West Bank from other problems of occupation is that this is not merely a territorial issue or a search for a formula for Israeli withdrawal, but a quest for mutual acceptance and peaceful coexistence of the two peoples that inhabit the Holy Land (Holy Places). It is a question of constructing relations between Israel and the Palestinians. A solution on the territorial division is merely a necessary element in the overall resolution of the conflict (see also Camp David Accords [1978]). Statements of mutual acceptance (such as the Framework for Peace in the Middle East Agreed at Camp David and the Declaration of Principles on Interim Self-Government Arrangements [Oslo Accords]) are therefore often of greater importance than the details of various arrangements.

The West Bank was part of the British Mandate over Palestine until its termination in 1948 (Mandates). With the ending of the 1948–9 war and the conclusion of the General Armistice Agreement between Israel and Jordan (1949), the West Bank formed the area west of the Jordan River that remained in Jordanian hands. In 1950 the West Bank was annexed by Transjordan and the Hashemite Kingdom of Jordan was proclaimed uniting both banks of the river. This annexation was based on the decision of the Palestinian Arab Conference held in Jericho in December 1948, expressing the Palestinian wish to become part of Jordan. All Palestinians, whether in Jordan or in the West Bank, had already obtained Jordanian nationality by virtue of legislation passed in 1949.

The League of Arab States (LAS) protested against the annexation of the West Bank, and threatened to expel Jordan from the League, but during the deliberations of the Arab League the matter was resolved by a determination that Jordan holds the West Bank as a trustee pending a final solution of the problem.

Following the 1967 Six Days War, the West Bank came under Israeli occupation.

A mere three weeks later the Knesset authorized the government to extend Israeli law, jurisdiction, and administration to areas formerly part of mandated Palestine. Immediately afterwards, the Israeli government issued such an order relating to the eastern part of Jerusalem (which was occupied with the rest of the West Bank). Both parts of the city were united under the jurisdiction of the existing Jerusalem Municipality. The section that was thus annexed by Israel was significantly larger than the previously Jordanian part of Jerusalem, as the territory to which the government order applied extends from the Atarot airfield at the north to Rachel’s Tomb outside Bethlehem at the south.

10  Arab residents of the annexed part of the city were given the option of receiving Israeli citizenship, but only a few of them availed themselves of this option. Those who did not apply for citizenship were granted the status of permanent residents, and became entitled to all social security benefits attached to this status. The right to vote in the elections for the Jerusalem municipality (not for the Knesset) is open to all residents regardless of citizenship.

11  Although the legislation referred to ‘law, jurisdiction, and administration’ and not to annexation as such, in at least one case the Supreme Court considered both parts of Jerusalem to have become an integral part of Israel (Hanazalis v Court of the Greek Orthodox Patriarchate, 269). In 1980 the Knesset adopted the Basic Law: Jerusalem, Capital of Israel, which provides that ‘[u]nified Jerusalem is the capital of Israel’, hence there is no doubt that Israel regards the annexed area as its own territory.

12  The annexation of the eastern part of Jerusalem met with strong criticism in various UN bodies (for instance, UNGA Res 2253 [ES-V] ‘Measures Taken by Israel to Change the Status of the City of Jerusalem’ [4 July 1967] GAOR 5th Emergency Special Session Supp 1, 4, and UNGA Res 2254 [ES-V] ‘Measures Taken by Israel to Change the Status of the City of Jerusalem’ [14 July 1967] GAOR 5th Emergency Special Session Supp 1, 4), both passing immediately following the annexation). In UNSC Res 252 (1968) ([21 May 1968] SCOR 23rd Year 9), the Council expressed its unanimous view that ‘all legislative and administrative measures and actions taken by Israel … which tend to change the legal status of Jerusalem are invalid and cannot change the status’.

13  Under Art. 47 Geneva Convention relative to the Protection of Civilian Persons in Time of War (‘Geneva Convention IV’) the law of occupation continues to apply in East Jerusalem regardless of its purported annexation.

14  On the Arab side, competing claims were made by Jordan and the Palestine Liberation Organization (PLO). Jordan continued to regard itself as the legitimate sovereign over the West Bank, and the ‘guardian of the Holy Places’. Similar claims were made by the PLO. Jordan fortified its own position by continuing to fund social projects and to pay salaries to civil servants in the West Bank. The friction between Jordan and the PLO became very violent in 1970 when King Hussein felt that PLO activity within Jordan threatened the stability of the Kingdom. The PLO was forced to end all activities in Jordan and transferred its headquarters to Lebanon.

15  In October 1974 the Arab League Summit Conference convened the leaders of twenty Arab states, including King Hussein, and representatives of the PLO. A unanimous resolution (Resolution on Palestine Adopted by the Seventh Arab Summit Conference [adopted 28 October 1974] in JS Nielsen [ed] International Documents on Palestine: 1974 [Institute for Palestine Studies Beirut 1977] 525) was passed which, for the first time, declared the PLO to be the ‘sole legitimate representative of the Palestinian people’. While initially objecting to this resolution, Jordan found itself obliged to join the consensus. At the same time, Jordan continued to maintain its link with the West Bank and the union declared in 1950 was not dissolved.

16  As Egypt and Israel were approaching agreement on a peace treaty, the parties attempted to avoid the appearance of a separate peace through a programme for an Israeli-Palestinian peace. The divergent views of Israel and Egypt on this subject were reconciled in the Framework for Peace in the Middle East Agreed at Camp David. This framework for peace provided for a fully autonomous West Bank for a transitional period of five years. No Palestinian representative was involved in the drafting of this document and its substance was not acceptable to the PLO. Even subsequent intense negotiations between Egypt and Israel did not produce a workable formula that could put the Camp David Framework for Peace into practice. However, this agreement was not without historic significance. Paragraph A(1)(c) provides inter alia that the solution to the Palestinian issue should recognize ‘the legitimate rights of the Palestinian people’. Such a statement would have been a complete anathema to any Israeli government until that historic point in time, let alone a Likud government headed by Menahem Begin, the then Prime Minister who also led the delegation of Camp David. Recognition of Israel by the Palestinians came only five years later with the Oslo Accords.

17  With no solution in sight, a Palestinian uprising (the so-called ‘first intifada’), began in December 1987. The intifada brought Israeli-Palestinian relations to crisis proportions, but the hostility of the intifada was also directed against Jordan. In consequence, in his speech of July 1988, King Hussein announced that Jordan ceded its sovereignty over the West Bank to the PLO. All legal and administrative ties to the West Bank were terminated and the union of 1950 came to an end. Thereby, any doubts regarding the identity of the reversionary in the West Bank occupation were removed as the King’s statement finally confirmed the PLO as the undisputed reversionary. It was not until the Oslo Accords that Israel joined this general consensus.

18  Following King Hussein’s statement, the Palestine National Council proclaimed the State of Palestine on 15 November 1988. Although the declaration was recognized by many States, it did not have the effect of creating a new State of Palestine (Crawford, 434–48). At the same time, the international standing of the PLO was enhanced when the General Assembly (UNGA Res 43/177 ‘Question of Palestine’ [15 December 1988] GAOR 43rd Session Supp 49 vol 1, 61) decided by an overwhelming majority to change the designation of the ‘Palestine Liberation Organization’ to ‘Palestine’. This change was without prejudice to the observer status of the PLO within the UN system.

19  In 1993 conditions seemed ripe for an Israeli-Palestinian breakthrough. PLO support of Iraq during the Gulf War brought the organization into dire economic and political straits. In Israel, a new Labour government came to power and the intifada was taking its toll. Internationally, the end of the Cold War created the necessary background for a settlement.

20  This combination of circumstances brought about a historic turn of events in the Middle East. In 1993, following secret negotiations in Oslo, Israel and the PLO signed a Declaration of Principles on a settlement of the conflict between them (Oslo Accords para. 5). Over and above the substantive provisions of the Declaration, the major breakthrough in this event was the mutual recognition between the Parties. In an exchange of letters dated 9 September 1993, Chairman Arafat declared that ‘the PLO recognizes the right of the State of Israel to exist in peace and security’ while Prime Minister Rabin declared that ‘the Government of Israel has decided to recognize the PLO as the representative of the Palestinian people and commence negotiations with the PLO within the Middle East peace process’ (Exchange of Letters between Prime Minister Rabin and Chairman Arafat [done 9 September 1993] [1994] 48 Israel Yearbook and Almanac 284). On this basis, the Parties concluded a series of agreements culminating in the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (‘Interim Agreement’), signed in Washington DC on 28 September 1995. In the preamble to this Interim Agreement the Parties reaffirmed their determination to put an end to decades of confrontation and to live in peaceful coexistence, mutual dignity, and security, while recognizing each other’s legitimate political rights.

21  The essence of the Interim Agreement was the establishment of a Palestinian Authority that would be vested with the self-government powers outlined in the Agreement. The Interim Agreement was to last for a period of five years leading to a permanent settlement based on UNSC Res 242 (1967) ([22 November 1967] SCOR 22nd Year 8) and UNSC Res 338 (1973) ([22 October 1973] SCOR 28th Year 10). Permanent status negotiations regarding the West Bank and the Gaza Strip were to start as soon as possible.

22  The first chapter of the Interim Agreement deals with the structure of the Palestinian Authority and the transfer of powers from Israel’s military government to the new Authority. The Palestinian Authority would consist of a Legislative Council and an Executive Authority. The Council and the Chairman of the executive Authority would be elected through ‘direct, free and general political elections’. Annex II Interim Agreement contains a detailed set of rules on this subject.

23  The powers and areas of responsibility of the Palestinian Authority and the allocation of such powers and responsibilities between Israel and the Palestinian Authority are set out in great detail in Annex III Interim Agreement. This Annex mentions no less than forty areas of responsibility. Specific rules appear concerning each of them. Education is one of the few areas which were transferred to the Palestinian authority without reservation in a short and succinct provision. In most cases, the Interim Agreement takes account of the mutual relations between the Parties and includes specific provisions on future relations. This is of particular importance regarding areas of responsibility with economic implications. These are regulated by Annex V Interim Agreement which is the Protocol on Economic Relations. This Protocol contains provisions on monetary matters, taxation, labour, agriculture, industry, tourism, and insurance. All of these provisions impose limitations on the freedom of the Palestinian Authority in the exercise of its powers. Some of them are very similar to clauses in other agreements regulating relations between States. The provisions on monetary matters, for example, contain rules on Israeli banking in the territories, but also a provision that obliges the Palestinian Authority to establish a Monetary Authority and some rules on the proper functions of such an authority. The provision on health (Art. 17 Annex III) contains detailed provisions on co-operation between the Israeli and Palestinian health systems. The sphere of employment is also transferred to the Palestinian Authority, but certain provisions in this Article deal with the recruitment of Palestinian workers in Israel. A joint committee would be established to deal with these matters.

24  The Palestinian Authority does not have powers in the sphere of foreign relations. It is only authorized to conclude certain international economic agreements, agreements with donor countries, international development agreements, and cultural, scientific, and educational agreements.

25  Of special significance are the security arrangements. The Council established ‘a strong police force’, but no other Palestinian armed force could be established or operate in the West Bank or the Gaza Strip. Israeli forces were to be redeployed in specified military locations, and at the same time the Palestinian police was to assume responsibility for public order and internal security. Very detailed and location-specific provisions on this redeployment of forces and security arrangements appeared in Annex I. A Joint Coordination and Cooperation Committee was established to oversee the operation of the security arrangements.

26  Consultations on a final status settlement did not proceed according to plan and no agreement was in place after the five-year interim period elapsed. The most significant attempt at bringing the Parties together took place when Prime Minister Barak and Palestinian Authority Chairman Arafat came to Camp David in July 2000, at the invitation of US President Clinton. This Conference tackled the most difficult issues of the conflict, and although no agreement was reached, it is widely believed that its agenda will form the basis of any agreement that may eventually be achieved.

27  Three major issues were at the centre of the Conference and of its eventual collapse. The first was the territorial issue. While Chairman Arafat insisted on full Palestinian sovereignty over the whole of the West Bank and the Gaza Strip, Prime Minister Barak’s proposal amounted to over 90% of the area in addition to some territory in Israel’s Negev which would be ceded to the Palestinians to compensate for the part of the West Bank territory which would not be turned over to them. The Palestinians were willing to consider a one-to-one land swap.

28  The city of Jerusalem presented a major obstacle. Apart from the Israeli residential areas built in parts of the annexed section of Jerusalem, a very emotional and contentious issue is the part of the city that came to be known as ‘the holy basin’. This includes the Old City of Jerusalem, including all the holy places therein, the Mount of Olives opposite the Old City, and the valleys of Joshafath and Kidron with the ancient Jewish cemetery between the Old City and the Mount of Olives. The greatest difficulties concerned the Temple Mount in the Old City, which is particularly holy to both Jews and Muslims. The Palestinian position was that all of these places would come under their sovereignty, while the Jewish Quarter of the Old City and the Wailing Wall would come under Israeli authority (rather than sovereignty). Many creative proposals were suggested to solve the Temple Mount issue. Some of them involved various concepts of custodianship or a distinction between spiritual and political authority, but none met with the agreement of all Parties.

29  Another stumbling block was the issue of refugees. About half of the Palestinian people are refugees. Quoting UNGA Res 194 (III) (‘Palestine—Progress Report of the United Nations Mediator’ [11 December 1948] GAOR 3rd Session Part I Resolutions 21), the Palestinians have called for full implementation of the right of return, meaning that each refugee would be granted the option of returning to his or her home, of seeing his or her property restored, or of accepting compensation instead. Israelis asserted that allowing a right of return to Israel proper, rather than to the newly created Palestinian State, would mean an influx of Palestinians which would fundamentally alter the demographics of Israel, jeopardizing Israel’s Jewish character and its existence as a whole. This demand seemed to Israel a prelude to turning the two-States solution into a single greater Palestinian State. The Israeli contention is that the two-States solution was designed to satisfy the national aspirations of both peoples, and that each of them should find its political expression in its own part of the territory. According to the Israeli view, the Palestinian right of return can only be implemented in the Palestinian share of the land. Privately, some Israeli officials seemed to agree that a strictly limited number of refugees would be allowed to return to Israel on the basis of humanitarian considerations or family reunion.

30  A great deal has happened since the days when the Oslo Accords were seen as the best hope for peace in the Middle East. On the eve of the last Camp David Conference and the second intifada that followed shortly afterwards, the Oslo Accords were more often honoured in their breach than in anything else, with the unfortunate result that relations deteriorated into savage violence. However, in the midst of all the violence, attempts were made to address specific issues on the basis of the Oslo Accords (at this stage the relevant instrument is the Interim Agreement), and inevitably the question of their continued validity was raised time and again.

31  The Interim Agreement is part of a process that envisaged a development on the permanent status agreement within five years. The fact that this time frame has long expired may give rise to the contention that the Accords also expired at the end of the five-year period. Another legal argument would be that by now the Oslo Accords have lost their validity due to frequent violations from both sides. It is also arguable that the Accords have simply lost their political purpose and agreements of that kind, whether or not they are formally in force, are significant only as long as they are still on course towards achieving their political purpose.

32  It would seem that experience shows that there is still political life left in the Accords, particularly in the Interim Agreement. In April 2003 the Parties gave their consent to a ‘roadmap’ for a settlement of the conflict proposed by US President George W Bush. The road map was sometimes hailed as an alternative to the Oslo Accords, but even this document based itself, inter alia, on ‘agreements previously reached by the parties’. Neither of the Parties to the Accords ever saw fit to repudiate them formally. It should be recalled that under Art. 60 Vienna Convention on the Law of Treaties ([concluded 23 May 1969, entered into force 27 January 1980] 1155 UNTS 331), a material breach does not per se bring a treaty to an end. It merely offers the innocent party the option of terminating the treaty. Neither of the Parties availed itself of this option. Moreover, everyday relations between Israel and the Palestinians are still based on the Interim Agreement. One such example is that Israel collects taxes on behalf of the Palestinian Authority and regularly turns this money over to the Authority. Following the victory of Hamas in the January 2006 elections to the Palestinian Council, world opinion, including the chairman of the Palestinian Authority, cautioned the new government that it had to abide by ‘existing agreements’ with Israel.

33  As long as both Parties view the Oslo Accords as having political use, and as long as none of the Parties repudiates them, it may be safely assumed that the Accords apply. Some of their provisions are obviously not relevant any more, but the Oslo Accords should now be applied mutatis mutandis.

34  In September 2000 the second intifada began, partly as a result of the failure of Camp David. This time it was not an intifada of riots, but a concentrated terrorist campaign on Israeli territory. Suicide bombers blew themselves up in buses and in other public places. By July 2005 over 800 Israelis in Israel and about 200 in the West Bank had lost their lives. The opinion that this situation could only be brought under control by constructing a barrier between Israel and the West Bank, became widespread in Israel. Such a barrier was expected to prevent bombers from entering into Israel. Over 95% of the barrier that was eventually built consists of a high fence, while the rest, mostly in urban areas, is a concrete wall. The use of either term is by now indicative of a certain ideological approach towards this subject. Israel is using the term ‘fence’ while its detractors refer to it as a ‘wall’. Here the more objective term of a ‘barrier’ shall be used.

35  The decision to construct the barrier was not taken lightly or without public debate in Israel. Such a barrier is more than just a barrier; it is also a demarcating a line of separation between two areas. The segment of Israeli public opinion that loathe seeing Israel separated from the West Bank objected to a physical line of separation. The issue of the settlements was also part of the debate. At least certain settlements would obviously have to be left on the West Bank side of the barrier. If the barrier is to be viewed as a protective line one may conclude that the Government left those settlements unprotected. Be that as it may, work on the barrier has started.

36  The line delineated by the planners of the barrier follows the old boundary between Israel and Jordan (the so-called ‘Green Line’) for circa 25% of its route. In other parts the line takes into account strategic considerations and protrudes into the West Bank to include some of the settlements, while others are left on the West Bank side. The route of the barrier leads to certain reflections on the attitude of the Israeli government towards the future of the West Bank. The barrier is in many ways a revival of the Green Line. Successive Israeli governments have, in various ways, done their utmost to obscure this line. Now, even in places where the barrier does not exactly follow the line, it is clearly guided by it.

37  A more serious criticism regarding the barrier concerns the hardship caused to the Palestinian residents of the West Bank. Aside from the land requisitions that were needed for the building of the barrier, it cuts through a large number of Palestinian villages. At times farmers are disconnected from their land, or other sources of living, while others are disconnected from friends and family, essential health services, water resources, and educational institutions. Each crossing of the barrier for these purposes is subject to a permit. Israeli authorities have opened crossing points in order to facilitate crossing, but still, hardships are significant. This led to a request made by the United Nations General Assembly (‘UNGA’) to the International Court of Justice (‘ICJ’) for an advisory opinion on the following question (see UNGA Res ES-10/14 ‘Illegal Israeli Actions in Occupied East Jerusalem and the Rest of the Occupied Palestinian Territory’ [8 December 2003] UN Doc A/Res/ES-10/14):
What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?

38  The ICJ opinion was rendered on 9 July 2004 (Israeli Wall Advisory Opinion [Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory]).

39  Not long afterwards, Israel’s High Court of Justice (‘HCJ’) was called upon to judge on the same issue (Mara’abe v The Prime Minister of Israel). In order to evaluate these two judgments properly, they should be read side by side. In his judgment, Chief Justice Barak emphasized the difference in approach: while the ICJ ruled in a general way that the construction of the barrier is contrary to international law, the HCJ maintained that every section of the barrier should be examined separately in terms of proportionality. The HCJ balanced the security need for which the barrier was constructed against the harm done to the petitioners. As a result of this process, the planned route of the barrier was substantially redesigned, and on more than one occasion parts of the barrier that were already in place were dismantled and moved in accordance with HCJ decisions (see also Beit Sourik Village Council v The Government of Israel, which was rendered just a few days before the Advisory Opinion, and Abu Tir v The Military Commander of the Judea and Samaria Region).

40  Clearly, the question of proportionality does not arise unless the Court is satisfied that in the circumstances of the construction of the barrier the military government may encroach in any way on the rights of these protected persons.

41  The ICJ (in para. 137) questioned the motive behind the declared aim of the barrier, and treated the barrier as an instrument of annexation. The ICJ mentioned Israeli assurances that the barrier is of temporary nature, and then stated that ‘it creates a fait accompli on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation’. On this basis the ICJ concluded that the barrier violated the Palestinian right to self-determination. The HCJ, on the other hand received ample written evidence (in the Beit Sourik Village Council decision) on the formation of the decision to construct the barrier, and concluded that there is no reason to question the stated motives of the government.

42  Regarding the argument that the barrier was constructed for security purposes only, the ICJ and the HCJ presented diametrically opposed positions on its legality. Chief Justice Barak quoted Arts 23(g), 43 and 52 Convention concerning the Laws and Customs of War on Land and its Annex (‘Hague Regulations’), and Art. 53 Geneva Convention IV. The ICJ stated that Israel is in violation of the various provisions of both instruments as well as the Human Rights Conventions. Israel could not rely on Art. 23(g) Hague Regulations as it only applies during hostilities and not in occupied territories. The HCJ’s position is that if hostilities take place in occupied territories, Regulation 23 and other rules of war will also apply.

43  In her separate opinion, ICJ Judge Higgins noted that the Israeli Wall Advisory Opinion said ‘remarkably little’ on the application of the provisions of the Hague Regulations and the Geneva Convention IV. It would seem that the illegality of the barrier is described by the final statement of Judge Higgins that reads as follows:
there is undoubtedly a significant negative impact upon portions of the population of the West Bank that cannot be excused on the grounds of military necessity allowed by those Conventions; and nor has Israel explained to the United Nations or to this Court why its legitimate security needs can be met only by the route selected. (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [Advisory Opinion][Separate Opinion of Judge Higgins] para. 40)

44  Over and above its rulings on the barrier itself, the Court ruled on some long standing issues on the occupied territories generally. These are the applicability of Geneva Convention IV and of the Human Rights Conventions. These will be discussed below.

1.  Legal Status—An Israeli Perspective

45  It may be assumed that the applicability of Geneva Convention IV is a corollary of the legal status of a territory. In Israel, being the State in possession of territory not under its sovereignty and having historical ties to the territory, the concerns and the debate centred on the issue of the legal status of the West Bank, while the issue of the applicability of Geneva Convention IV was viewed merely as a possible indication regarding the legal status of that territory.

46  On 11 August 1967, the Military Commander for the West Bank issued the Order Concerning Security Provisions. It provides as follows in its Art. 35:
The Military Courts and the Military Courts Administration shall observe the provisions of the Geneva Convention of August 12 1949 Relative to the Protection of Civilian Persons in Time of War in any matter connected with judicial proceedings. In any contradiction between this Order and the said Convention, the provisions of the Convention shall prevail.

47  Less than five months later, on 29 December 1967, Art. 35 was repealed.

48  This change of heart was based on an article published by Yehuda Blum titled ‘The Missing Reversionary, Reflections on the Status of Judea and Samaria’. Blum’s assumption is that the law of occupation presupposes the existence of a State which is a legitimate sovereign. In view of his reservations regarding Jordan’s title to the West Bank, Blum argued that Israel’s control of the West Bank does not qualify as belligerent occupation. Blum explained that as Jordan’s status in the West Bank was that of a belligerent occupant having taken the West Bank through an illegal use of force, Israel, having taken it in self-defence, has a better title to that territory, and as no other State has a claim there, Israel’s title is indistinguishable from sovereignty.

49  Blum’s contentions were warmly embraced by Meir Shamgar, the Attorney General of the day. Ignoring any notion of self-determination, Shamgar rejected the applicability of Geneva Convention IV. Shamgar’s approach was based on the language of Art. 2 Geneva Convention IV providing that ‘[t]he Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party’. His concern was that if Israel applies the Convention, this application may be construed as an admission that the West Bank is a ‘territory of a High Contracting Party’, in other words—Jordanian territory. As Shamgar was not particularly concerned by the substance of the provisions of the Convention, he distinguished between those provisions that are aimed at protecting the interests of the legitimate sovereign and the so-called ‘humanitarian provisions’. He therefore announced the de facto application of the latter.

50  It is of some interest to note that before becoming Attorney General, Shamgar served as Israel’s Military Advocate General. In that capacity he was responsible for both versions of the Order Concerning Security Provisions mentioned above.

51  The flaw in Shamgar’s contentions is not merely in his ignoring of the idea of self-determination (which would confer reversionary rights on the local population of the West Bank), but probably also in the very language of Art. 2 Geneva Convention IV. It has been argued that the controlling paragraph (when the occupation begins during a war) is para. 1 of Art. 2 which refers to ‘all cases of declared war or of any other armed conflict’.

52  Yoram Dinstein presented a different view regarding Jordan’s standing in the West Bank. He argued that the inhabitants of the West Bank exercised their right to self-determination by expressing their wish in a number of assemblies, most memorably the assembly of elders in Jericho at the end of 1948, to become part of the Kingdom of Jordan. They also authorized the Jordanian Parliament to annex the West Bank. Consequently, Jordan acquired sovereignty over the West Bank. Be that as it may, whether Jordan became sovereign in the West Bank or not, the right to self-determination of the Palestinian people is the guiding principle in that regard. Even in the absence of a State that is the legitimate sovereign in the West Bank, sovereignty rests with the people there, and that sovereignty entails reversionary rights over the West Bank.

53  The Blum-Shamgar view became the official view of the Israeli Government. This view is maintained even as the Supreme Court of Israel has consistently treated the West Bank and the Gaza Strip as occupied territories. One cannot find better evidence of the purely political nature of Israel’s official position.

2.  A Palestinian Perspective

54  Since its inception, and until the conclusion of the Oslo Accords, the PLO rejected Israeli statehood. The definition of the West Bank as occupied territory or otherwise was irrelevant to its thinking and no statement was made on the subject. In the following years Palestinian writers simply assumed the applicability of the law of occupation to the occupied territories without any analysis of this issue (see Shehadeh [1985]).

3.  An International Perspective

55  The concern of the international community focuses on the application of Geneva Convention IV. Almost complete unanimity exists in accepting the applicability of the Convention (Roberts 89).

56  The same conclusion was also reached by the ICJ in its Israeli Wall Advisory Opinion (paras 90–101). The Court maintained that the Geneva Convention applies regardless of the standing of Jordan in the West Bank. The ICJ then pointed out that the controlling language in Art. 2 Geneva Convention IV resides in the first paragraph under which the Convention applies in an armed conflict between two Parties to the Convention. Once these conditions are satisfied, the Convention applies in any territory occupied in the course of the conflict by one of the contracting parties:

[t]he object of the second paragraph of Article 2 is not to restrict the scope of application of the Convention, as defined in the first paragraph, by excluding therefrom territories not falling under the sovereignty of one of the contracting parties. It is directed simply to making it clear that, even if occupation effected during the conflict met no armed resistance, the Convention is still applicable (para. 95).

57  The Court went on to explain that ‘[t]his interpretation reflects the intention of the drafters of the Fourth Geneva Convention to protect civilians who find themselves, in whatever way, in the hands of the Occupying Power’ (ibid).

58  The Court then cited the position taken by the International Committee of the Red Cross (‘ICRC’) that affirmed the de jure applicability of Geneva Convention IV, and the voluminous evidence represented by UN Resolutions to this effect.

C.  The Gaza Strip

59  The Gaza Strip is a territory along the coast of the Mediterranean Sea to the south of the Israeli coast. It borders with Egypt in the south. It is 41 km long and 6–12 km wide. According to the 1997 census of the Palestinian Central Bureau of Statistics, the population of the Gaza Strip is around 1,022,207 inhabitants (no later reliable statistics are available).

60  Following World War I the Gaza Strip became part of the British Mandate of Palestine. Upon the termination of the British mandate and the 1948 war, the Gaza Strip was under Egyptian control. Egypt itself had no claim for sovereignty over that area, so it must be concluded that Egypt’s status in the Gaza Strip was that of an occupant.

61  The demarcation line between Israel and the Gaza Strip is delineated in Art. VI General Armistice Agreement between Israel and Egypt (1949), as amended in the Modus Vivendi to the Egyptian-Israeli General Armistice Agreement (1950).

62  Israel occupied the Gaza Strip for a brief period of time in 1956 following the Suez episode, and then again following the Six Days War in 1967.

63  The Israeli position on the status of the West Bank is based on reservations regarding the status of Jordan in that territory. As Egypt never claimed sovereignty over the Gaza Strip, the objections to Israel’s position regarding Gaza are focused to a greater extent on the idea of self-determination. By the same token, the Peace Treaty between Israel and Egypt was not relevant to the status of the Gaza Strip. The territory did not revert to Egyptian control, and it remained a territory occupied by Israel.

64  Following the Palestinian elections of January 2006, when Hamas won a plurality in the Palestinian National Assembly and internal fighting erupted between the Fatah movement and Hamas, Hamas eliminated all Fatah organizational presence from the Gaza Strip. Since that event Hamas has had complete and exclusive control over the Gaza Strip.

65  The most significant result of this was the split of the occupied Palestinian territories into two regions. The West Bank remains under the rule of the Palestinian Authority and subject to the presidency of Mahmud Abbas. At the same time, the Palestinian Authority is unable to exercise any power in the Gaza Strip. The result is what appears to be the existence of two distinct Palestinian entities.

66  In principle, this state of affairs is inconsistent with the fundamental assumptions of the Oslo process and with any envisaged settlement to the Palestinian-Israeli conflict. Suffice it to say that the Interim Agreement proclaims this principle in two places (the language of Art. 11 (1), Art. 31 (8)) in the following words: ‘[t]he two Parties view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period’. In practice, this state of affairs presents a formidable obstacle to the peace negotiations as it casts doubt on the extent to which representatives of the Palestinian Authority speak for the entire Palestinian people.

67  In August 2005 while the Gaza Strip was still under the rule of the Palestinian Authority, Israel completely withdrew its forces, as well as all civilian presence, from the Gaza Strip. The status of the Gaza Strip since this evacuation has been a subject of controversy. As foreign presence is the essence of occupation, Israel argues that the occupation was terminated with the evacuation. However, the evacuation was accompanied by certain severe measures that cast doubt on this contention. These measures include Israeli control over access to the Gaza Strip via air, land, and sea. In addition, the Gaza Strip is dependent, to a very large extent, on the provision of basic necessities, including electricity and fuel, by Israel. It seems that the doubtful legality of these measures should be considered separately from the issue of the legal status of the Gaza Strip and the occupation of Gaza that ended with Israel’s disengagement.

D.  The Golan Heights

68  The Golan Heights hold major strategic significance for both parties. On its western side the Heights appear as a high cliff overlooking the north-western part of Israel and affording Syria a dominant position over Israeli villages around Lake Kinneret (the Sea of Galilee). The eastern separating line between Israel and Syria on the Golan Heights is a mere 43 km from Syria’s capital of Damascus and the hilltops of the Golan Heights afford Israel good intelligence surveillance over Syrian territory.

69  In 1967 the whole of the Golan Heights came under Israeli occupation. The eastern line of the occupied territory changed somewhat following the 1973 war and the Agreement on Disengagement between Israeli and Syrian Forces of 5 June 1974 ((1974) 13 ILM 880). This change was without strategic significance.

70  The Armistice Line between Israel and Syria was drawn in the General Armistice Agreement between Israel and Syria (1949) along the international boundary between Mandated Palestine and Syria. During the years subsequent to the Armistice Agreement Syrian forces went beyond that line and took over certain areas on the Israeli side of the line. The difference between ‘the international line’ and the ‘June 1967 line’ should be understood against this background.

71  On 14 December 1981 Israel adopted the Golan Heights Law ([1981/82] 36 Laws of the State of Israel 7) under which ‘the law, jurisdiction, and administration of the State of Israel shall apply to the area of the Golan Heights’. Similar language was used for the annexation of East Jerusalem, and it seems to signify annexation through the application of the legal system. On the other hand, when Prime Minister Begin introduced this law in the Knesset he said specifically that ‘the minute the President of Syria will express his readiness to negotiate a treaty of Peace with Israel, at that very minute negotiations will start and nothing will stand in our way’.

72  The language of the law gave rise to the argument that in view of the obvious illegality of an annexation, and in view of the fact that statutes should receive an interpretation that least conflicts with international law, the Golan Heights Law should be interpreted as merely extending Israeli law to the area without annexing it (L Shellef ‘The Golan Heights Law—an extension of the law and not annexation’ 41 Hapraklit 35). Be that as it may, international as well as Israeli public opinion viewed the Golan Heights Law as an annexation of the Golan.

73  When the question came before the Supreme Court of Israel, the Court tried to avoid this issue. While stressing that the mere extension of the law to a certain area outside State territory does not necessarily constitute annexation, the Court stated that all that was necessary to deduce from the law for the purposes of that case was whether all norms that apply in any part of Israel also apply in the Golan Heights (Abu Sallah v The Minister of the Interior).

74  In this context it is interesting to note that unlike Israel’s practice in relation to the annexation of Jerusalem, no attempt was made, either by Israeli scholars or by government representatives, to justify the annexation in terms of international law.

75  In the international arena, the UN Security Council pronounced the Golan Heights Law as being null and void and without international legal effect, and demanded that the law be rescinded (UNSC Res 497 [1981] [17 December 1981] SCOR 36th Year 6; see also UNGA Res 36/226 B ‘The Situation in the Middle East’ [17 December 1981] GAOR 36th Session Supp 51, 48, and UNGA Res ES-9/1 ‘The Situation in the Occupied Arab Territories’ [5 February 1982] UN Doc A/RES/ES-9/1).

76  In the Golan too, as in East Jerusalem, despite the purported annexation, the law of occupation continues to apply regardless of any steps taken by Israel.

E.  Sinai Peninsula

77  Located between the Gulf of Suez and the Suez Canal to the west, the Gulf of Aqaba and its border with Israel to the east, and the Mediterranean to the north, the Sinai Peninsula covers some 61,000 km2. For centuries the Sinai has been the land-bridge between Africa and the Middle-East, and therein lies its strategic significance.

78  Since the 16th century, the Sinai was been part of the Ottoman Empire. In 1906, when the Turkish government yielded to British pressure to hand over the peninsula, it became part of British-controlled Egypt, and at the end of World War I, in 1918, it was turned over to Egypt and remained subject to Egyptian sovereignty. Since the establishment of the State of Israel the Sinai has served as a buffer between the two States, and events that took place there reflected the relations between them.

79  Following the Suez crisis in 1956, Israel occupied the Sinai Peninsula for a few months, then gave in to US and Soviet pressure and withdrew from the peninsula. Under the terms of the withdrawal, the United Nations Emergency Force (‘UNEF’) was stationed in Sinai. It was precisely the evacuation of the Sinai by UNEF, at Egyptian insistence, that heralded the crisis that climaxed in the Six Days War. That war resulted in Israel being once again in occupation of the Sinai.

80  Except for its northern part at the Mediterranean coast, the Sinai Peninsula is sparsely populated by Bedouins. In the north, the population consisted at the time of the occupation of the small towns of El-Arish and Rafah, as well as some fishing villages. Along the coast Israel also added its town settlement of Yamit and some smaller settlements. Other Israeli settlements were in the resort area of Sharem-a-sheikh.

81  The military and political stalemate that prevailed until 1973 was broken by the war of October of that year (the Yom Kippur War). In the aftermath of that war, the Geneva Peace Conference was convened. Pursuant to this Conference, Israel and Egypt concluded the Egyptian-Israeli Agreement on Disengagement of Forces in Pursuance of the Geneva Peace Conference (1974). Under the terms of the Agreement, the forces of both Parties were deployed behind lines of disengagement east of the Suez Canal, and at a strategic distance behind those lines was an area limited in armaments and forces. UNEF was stationed between the lines of disengagement. It was specifically declared that the agreement constituted ‘a first step towards a final, just and durable peace’ between Egypt and Israel.

82  A further agreement was concluded in Geneva on 4 September 1975 (Interim Agreement between Israel and Egypt). In addition to further redeployment, the Parties declared that ‘the conflict between them and in the Middle East shall not be resolved by military forces but by peaceful means’ (Art. 1). They further undertook ‘not to resort to the threat or use or military blockade against each other’ (Art. 2).

83  The peace process was given decisive impetus by the initiative of the late President Sadat of Egypt and his trip to Israel. During the peace negotiations that followed, the Palestinian question was a central issue. The Camp David Conference produced agreement between Israel and Egypt on this issue. Another Camp David accord was a Framework for the Conclusion of a Peace Treaty between Egypt and Israel. This Framework outlines the basic principles of the peace treaty that followed during the next year. The principles included the complete withdrawal of Israeli forces from Sinai and the exercise of Egyptian sovereignty up to the international boundary, freedom of navigation through the Gulf of Suez and the Suez Canal, and limitations of forces and armaments in the Sinai.

84  The treaty of peace was signed in Washington on 1 April 1979. In addition to the withdrawal of Israeli forces from Sinai, spread over three years, Israel committed itself to evacuate all its settlements from the Sinai. Detailed security arrangements including limitations on troops and armaments applied on both sides of the boundary. Originally United Nations forces were to be deployed in the Sinai to ensure compliance with these arrangements, but in view of a threat of a Russian veto cast in the Security Council at Syria’s request, a Multinational Force and Observers (‘MFO’) was entrusted with this mission. The MFO consisted of forces from the US as well as from Australia, Canada, Colombia, Fiji, France, Hungary, Italy, New Zealand, and Norway.

85  The Egyptian-Israeli Joint Commission entrusted with the demarcation of the ‘recognized International Boundary’, to which Israel undertook to withdraw under the terms of the Treaty of Peace, agreed on most of the pillars that constituted the boundary, though the location of several pillars remained in dispute. The most important of these was pillar 91 in the Taba area. The disputed area was a small though very scenic holiday resort at the shores of the Gulf of Aqaba a few kilometres outside the Israeli resort town of Eilat.

86  The location of these pillars was submitted to arbitration in accordance with Art. VII Treaty of Peace (Agreement to Arbitrate the Boundary Dispute concerning the Taba Beachfront [done 11 September 1986] (1987) 26 ILM 1).

87  The award was rendered on 29 September 1988 (Dispute concerning Certain Boundary Pillars between the Arab Republic of Egypt and the State of Israel [Award]). Israel’s contention was that pillar 91 should be located in accordance with the Agreement between the Commissioners of the Turkish and the Commissioners of the Egyptian Khediviak, concerning the Fixing of a Separating Administrative Line between the Vilayet of Hejaz and Governorate of Jerusalem and the Sinai Peninsula ([done 1 October 1906] 99 BSP 482) (‘1906 Agreement’) under which the boundary was originally demarcated and pillar 91 was erected. The majority of the Arbitration Tribunal found in favour of the place in which pillar 91 was actually placed following the original implementation of the 1906 Agreement. The 1906 Agreement could only serve as an indication in case of doubt regarding the actual location of a boundary pillar. Even in case of a clear contradiction between the Agreement and the actual location of the pillar, the actual location should prevail since the demarcation on the ground is considered an authentic interpretation of the Agreement even if deviation may have occurred.

88  This Award left the bulk of the area and the resort facilities to Egypt, while leaving to Israel 250 metres of beach in the disputed area. The award was soon afterwards implemented, and an agreement was reached between Israel and Egypt on specific facilities for tourists crossing from Israel to Taba (see also Taba Arbitration).

F.  Lebanon

89  PLO activities in Lebanon and attacks from Lebanon against Israeli targets, resulted in an invasion of that country by Israeli forces in 1982, in an operation called ‘Peace for Galilee’. During that war, Israeli forces reached as far as Beirut and beyond. However, it was only in South Lebanon that Israel consolidated effective control as understood in the context of occupation.

90  In 1985 Israeli forces withdrew within Lebanon into a ‘security belt’ extending a few kilometres from the international boundary, which was maintained in order to distance the Israeli civilian population from threatening local Lebanese militias. In 2000 Israel ended the occupation of South Lebanon. The UN Secretary-General duly confirmed in a report to the Security Council ‘that Israeli forces have withdrawn from Lebanon in compliance with resolution 425 (1978)’ (UNSC ‘Report of the Secretary-General on the Implementation of Security Council Resolutions 425 (1978) and 426 (1978)’ [16 June 2000] UN Doc S/2000/590).

91  Two points should be recalled in connection with the occupation of South Lebanon.

92  The first is that Israel never established its own administration in South Lebanon. The operation of indigenous authorities within an occupied territory is a fairly common phenomenon. It should, however, be stressed that, legally speaking, any failure on the part of these authorities to carry out the obligations incumbent upon the occupant in the administration of the territory are the responsibility of the occupant itself.

93  The other is that in maintaining its effective control over South Lebanon, Israel was aided by a local Christian militia named the South Lebanese Army. This militia was in effect an auxiliary force of the Israeli armed forces and operated under their control. In terms of effective control, the presence of this militia could have been equated with Israeli presence.

G.  The Operation of the High Court of Justice

1.  Jurisdiction and Justiciability

94  The judicial control over the activities of the military government in the occupied territories is the jurisdiction of Israel’s Supreme Court in its capacity as High Court of Justice (‘HCJ’). The role played by the Court in this context is invaluable. Without it there would be no judicial control of any kind over the activities of the military government. In addition, the HCJ provides us with the legal framework of the occupation as viewed by Israel.

95  Bearing in mind that this judicial review extends to territory outside Israeli territory (Extraterritoriality), where Israeli law does not apply, the jurisdiction of the HCJ is not self-evident.

96  At the initial phases of the occupation, it was understood that the Court would entertain petitions relating to the activities of the military government in the absence of objection by the State (Electric Corporation for Jerusalem District, Ltd v The Minister of Defence High Court of Justice of Israel HC 256/72; summarized in [1975] 5 IsraelYBHumRts 381). As the Court is expected to raise the question of jurisdiction on its own initiative, it may be concluded that the Court itself played a part in this de facto jurisdiction. However, this uncertain state of affairs seemed unsatisfactory as a long term arrangement. In the case of Abu Hilu v The Government of Israel, the Court stated that its jurisdiction applies to the acts of the military government being persons fulfilling public duties according to law.

97  The general philosophy of the HCJ powers of review made this special extension simpler than it otherwise might have been. As Yaacov Zemach explains:

[t]he range of the High Court’s judicial powers is couched in discretionary rather than jurisdictional terms … The vehicle through which the Court exercises control over its own jurisdiction is the concept of justiciability. (at 28–29)

98  The critical question in this regard is, therefore, not a question of principle applying to the activities of the military government, but a question of justiciability in particular cases.

99  Petitions were very rarely rejected on the basis of justiciability. One of those cases was a petition by the ‘Peace Now’ movement against the establishment of settlements (Bargil v The Government of Israel). In other cases, when such petitions were based on property rights of the petitioners, they were entertained, and in one case the settlement of Elon Moreh was removed. The ‘Peace Now’ petition was different in the sense that it was directed against the very legality of the settlements, and this was considered to be a political question unsuitable for consideration by the Court.

2.  Applicable Law

100  The law applied by the HCJ originates from a number of sources. The first source is Israeli administrative law that the HCJ applies to all government authorities. The second is Jordanian law which remained in force by virtue of Art. 43 Hague Regulations, and is applied subject to the legislation of the military government.

101  International law forms a category in itself. The applicability of international law is subject to two considerations, and the two are often confused. The first consideration is the general rule on the applicability of international law within the Israeli legal system. It has long been the practice of Israeli courts to apply customary international law directly as part of the law of the land, whereas treaty-based law required specific adoption through legislation. The second consideration is the view of the Israeli government on the applicability of the Geneva Conventions and the various opinions expressed in this regard. The first consideration is one of domestic Israeli law, while the second is a question of the general applicability of the Geneva Convention in international law. Whereas the academic and political debate centred on the second consideration, the HCJ concerned itself almost entirely with the first consideration. In cases where the question of the applicability of the Geneva Convention in international law came up, the Court has mostly chosen not to give an opinion.

102  The Hague Regulations are recognized as representing customary international law and are fully applied. Geneva Convention IV, on the other hand, was never adopted into internal law and is recognized only to the extent that the Court considers it customary international law. Unfortunately, the Court’s view is that most of the provisions in the Geneva Convention are treaty-based. In certain cases (Mustafa v The Military Commander of the Judea and Samaria Region, and other cases cited there) the Court refused to remedy a grievance purely on the basis that the provision relied upon is not customary international law. However, as shown below, in the major cases the Court did examine the acts of the military government against such provisions of the Conventions. Any problems that ensued were related to the substance of those decisions rather than to the law applied.

103  Human rights conventions were also not applied by the Court, although on various occasions the Court seemed open to arguments based on these conventions. In 2007 the Court specifically stated that the jus in bello is the lex specialis in times of war, but if found insufficient it may be complemented by the law of human rights. (The Public Committee against Torture in Israel v The Government of Israel). This wording, although tentative and cautious, is generally expected to be followed by a more consistent application of human rights law. This new openness to human rights conventions may be attributed to the prolonged character of the occupation, as it is becoming increasingly difficult to deny the application of human rights principles over such a long period of time.

104  In its Israeli Wall Advisory Opinion, the ICJ discussed the question of the application of the International Covenant on Civil and Political Rights ([adopted 19 December 1966, entered into force 23 March 1976] 999 UNTS 171), the International Covenant on Economic, Social and Cultural Rights ([adopted 16 December 1966, entered into force 3 January 1976] 993 UNTS 3), and the Convention on the Rights of the Child ([adopted 20 November 1989, entered into force 2 September 1990] 1577 UNTS 3). The Court recalled that it already had occasion to rule that the first two conventions apply in occupied territories subject to the laws of war as lex specialis (Legality of the Threat or Use of Nuclear Weapons [Advisory Opinion] [1996] ICJ Rep 226, para. 25). In view of the object and purpose of the Convention, the Court interpreted the words ‘subject to its jurisdiction’ in Art. 2 (1) Convention on Civil and Political Rights as extending beyond territorial jurisdiction and including situations such as occupied territories. The same applies to the Convention on the Rights of the Child. On the Convention on Economic Social and Cultural Rights, the ICJ was more hesitant, as this Convention contains no provision on its scope, but the Court also stated that ‘it is not to be excluded that it applies both to territories over which a State party has sovereignty, and to those over which that State exercises territorial jurisdiction’ (para. 112).

H.  Impact of the HCJ

105  The HCJ undoubtedly has a restraining influence on the activities of the military government. In all cases the military government must demonstrate in court that it has acted reasonably and without excess in pursuance of legitimate aims. This, in itself, diminishes the probability of the occurrence of certain unacceptable acts that occupants may be prone to commit. It is also the reason why, in numerous cases, the mere threat of a petition to the HCJ led to settlements out of court that benefited the prospective petitioners. As the Court recognized the status of the territories as occupied, it also enforces compliance with the laws of war, albeit subject to the restrictive rules outlined above. At the same time, the HCJ did not rectify illegalities in some of the central activities of the military government. The two most obvious examples are those of the settlements and deportations.

1.  Settlements

106  The issue of the settlements involves the question of principle and the additional problems that come up as a result of the establishment of settlements.

107  The illegality of the settlements is based on Art. 49 Geneva Convention IV as well as on the fact that the settlement of the occupant’s own population in an occupied territory may be an indication of the occupant’s intention to annex the territory in fact if not in law.

108  Under Art. 49 Geneva Convention IV, ‘[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’. Although this provision was cited before the Supreme Court of Israel, the Court did not rule on this issue, finding it more convenient to say that Art. 49 Geneva Convention IV is not part of customary international law and, consequently it is not part of Israel’s internal law (Ayub v The Minister of Defense) (‘Beth El case’). It was, however, argued by the Israel National Section of the International Commission of Jurists (54–55) that Art. 49 Geneva Convention IV does not apply to the Israeli settlements as it was intended to protect the local population from deportations and displacement. It was argued that the local population was not displaced by the settlements. It was also argued that Art. 49 Geneva Convention IV refers to State actions by which the occupant transfers part of its population to the occupied territory not to voluntary movement of individuals into the occupied territory. This second argument may, at most, apply if land is privately purchased by private individuals who then move into the territories, but when settlements are established as a result of a direct decision of the government and with its assistance and encouragement, this argument loses any validity it may have had.

109  The use of private land for the establishment of settlements throws another doubt on the question of the settlements. This practice, as distinct from the question of principle that the settlements raise, was frequently considered by the Supreme Court.

110  As the Hague Regulations only forbid the confiscation of private property, but not the requisition of such property for military needs, a practice was developed by which private land was requisitioned for the building of settlements. This practice came before the Supreme Court in the Beth El case. The government sought to justify the requisition of land for establishing a settlement on the contention that it was situated in a strategic location controlling major highways and infrastructure. The petitioners, from whom land was taken, argued that, under Art. 52 Hague Regulations, land may be requisitioned for the needs of the army of occupation but not general security interests. The Court rejected this distinction stating that military needs also include a possible danger to the home territory of the occupant.

111  The temporary nature of requisitions presents another problem in legalizing the settlements. In this regard the government stated that the settlements will remain in place only as long as the occupation lasts. The eventual fate of these settlements will be determined in international negotiations on the final status of the occupied territories. This is a rather forced response to the problem of the permanency of the settlements, but it should be viewed against the background of the Camp David accords signed 6 months previously which provided for the withdrawal of all settlements from the Sinai Peninsula as part of the complete evacuation of that territory. The Court accepted this statement as a valid response to the problem.

112  In the subsequent Dwikat v The Government of Israel case, concerning the settlement Elon Moreh (‘Eilon Moreh’ case), similar submissions were made, but in this case the Court judged the requisition order to have been motivated by political rather than military considerations, inasmuch as the settlement was initiated and planned by the government rather than the army, and the selection of the site was based to a large extent on the views of the settlers. The settlement was removed and the land returned to its owners.

113  Regardless of all the legal arguments concerning the settlements, it cannot be doubted that this is a major obstacle on the road to peace. The two-States solution and the partition of the land between Israel and a Palestinian State imply a Jewish State of Israel within its pre-1967 boundaries and an Arab-Palestinian State in the rest of the West Bank and Gaza.

2.  Deportations

114  Deportation of protected persons from the occupied territories on security grounds began soon after the start of the occupation in 1967, and peaked at the deportation of 415 alleged Hamas and Islamic Jihad activists in December 1992. No deportations took place after that event. It is interesting to note that the deportation of the 415 persons was carried out by the Rabin Government on the very eve of the Oslo Accords. The connection between these two events may be a subject for speculation, but no clear connection became known.

115  Domestically, the basis for deportations is Regulation 122 Defence Regulations (of 1945), which were enacted by Britain as the Mandatory Power, and remained in force both in Israel and in Jordan even after the termination of the Mandate. Although the validity of the Defence Regulations in the West Bank or the Gaza Strip remains a matter of controversy, internationally, the debate centred on the legality of the deportations under the laws of war.

116  The main argument against the legality of deportations is based on Art. 49 Geneva Convention IV. This Article provides in very clear terms that ‘individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive’. The Court made the point that Art. 49 Geneva Convention IV does not represent customary international law, but also attempted to justify the deportations under the terms of this provision. This was done in an inappropriate way.

117  When the issue of Art. 49 Geneva Convention IV first came before the Supreme Court, in Abu Awad v The Military Commander of the Judea and Samaria Region, the Court stated that it was merely intended to outlaw acts of the type committed by the Germans in World War II when millions of civilians were expelled from their homes to labour camps and concentration camps. The Commentary: Geneva Convention relative to the Protection of Civilian Persons in Time of War (278–79) does indeed mention this historic background of Art. 49 Geneva Convention IV but there is nothing in this background to alter the simple and all inclusive language of the Article or its absolute nature which is also referred to in the commentary.

118  This approach to Art. 49 Geneva Convention IV was repeated consistently in the deportation cases that followed. In the Afu v IDF Commander of the West Bank case, Justice Shamgar attempted to explain the deviation from the simple wording of Art. 49 by saying that even if the clear wording of a provision is reasonable and workable, the Court should still give precedence to the purpose of the provision and the evil that it attempted to remedy (at 71). This theory is inconsistent with rules of treaty interpretation and in particular with Art. 31 Vienna Convention on the Law of Treaties.

I.  Conclusions and a Look at the Future

119  Despite serious legal and humanitarian reservations that were raised regarding certain Israeli practices, Israel remains an occupying power that conducts itself within the framework of the law of occupation. The occupied territories are governed by a military administration and its activities are guided, at least in principle, by the laws of occupation. The ICRC has taken its part as the substitute of a protecting power with the co-operation of Israeli authorities. Most significantly, regardless of political positions taken by the government, the Supreme Court treats the occupied territories as such, and judges the activities of the military government by the standards of the laws of occupation.

120  Nevertheless, Israel’s record was seriously tarnished by the position taken by the government on the application of Geneva Convention IV and the Human Rights Conventions, and by some of its practices which in certain cases were sanctioned by the Supreme Court.

121  Most of these positions and practices were not even to Israel’s own advantage. This is true, in particular, of the issue of the applicability of Geneva Convention IV. The motive behind Shamgar’s position did not have much to do with the substance of the provisions of Geneva Convention IV. He tried to establish that no other State has a better title to the West Bank than Israel and consequently, that Israel is not an occupant. With the benefit of hindsight we now know that his position did nothing to strengthen Israel’s position in the West Bank. An overwhelming majority of world opinion rejected his approach and the Supreme Court of Israel itself consistently treated the West Bank as occupied territory. If the Supreme Court had any doubts on the application rather than on the applicability of Geneva Convention IV, it was based on its status as customary international law or treaty-based law. At the same time, Israel paid a very high political price in the international arena for Shamgar’s futile legalistic exercise. An impression was created in world opinion that Israel rejects any legal restraints in the West Bank, a perception which is not true.

122  The issue of the territories occupied by Israel is the most conspicuous aspect of the conflict in the Middle East. This issue will resolve itself once the conflict in general is resolved. Contrary to the conclusion one may draw from events and disputes that occupy daily Middle Eastern attention, the wider view indicates a progression towards reconciliation albeit very slow and erratic. From mutual denial and rejection, the parties have arrived at the recognition of the reality of each other’s existence as a permanent part of the Middle East. Although extremist elements exist in both camps, realistic debate no longer centres on Israel’s right to exist or the existence of a Palestinian people, but on conditions for peaceful coexistence between the two.

123  At the same time, the existing issues are excruciatingly complex and involve the most basic elements of the parties’ national identity. This is very well demonstrated by the issues that arose at the second Camp David Conference. And yet—the parties never before dared even discuss the issues of Jerusalem or the settlement of overseas Palestinians. In that sense the second Camp David was a breakthrough rather than a fateful failure. This round of discussions led to the bloody second intifada, but the principle has been established that these are the issues to be resolved.

124  Daily realities reveal the kind of difficulties that call for a most imaginative approach. Distrust between the parties is great. On the Palestinian side Hamas has gained considerable support in Palestinian public opinion, and it has brought the Gaza Strip under its control. As Hamas does not share Palestinian acceptance of Israeli statehood, there is great scepticism in Israeli public opinion about negotiating with the official leadership of the Palestinian Authority. The current suggestion is that the product of such negotiations would be ‘a shelf agreement’ which would be implemented once the internal strife among the Palestinians is resolved.

125  On the Israeli side settlement activity is continuing. Palestinians see this activity as inconsistent with the possibility of a Palestinian State in the West Bank, or indeed with Israeli intentions to arrive at this outcome. This obstacle can be resolved either through the removal of the settlements in the context of peace agreements (as was the case in the Treaty of Peace with Egypt) or through the handover to Palestinian sovereignty of an appropriate territory which is now part of Israel proper.

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