FROM "OCCUPIED TERRITORIES" TO "DISPUTED TERRITORIES"
Dore Gold
"Occupation" as an Accusation / The Terminology of Other Territorial
Disputes / No Previously-Recognized Sovereignty in the Territories /
Aggression vs. Self-Defense / Israeli Rights in the Territories / After
Oslo, Can the Territories be Characterized as "Occupied"?
"Occupation" as an Accusation
At the heart of the Palestinian diplomatic struggle
against Israel is the repeated assertion that the Palestinians of the
West Bank and Gaza Strip are resisting "occupation." Speaking recently
on CNN's Larry King Weekend, Hanan Ashrawi hoped that the U.S. war on
terrorism would lead to new diplomatic initiatives to address its root
"causes." She then went on to specifically identify "the occupation
which has gone on too long" as an example of one of terrorism's sources.1 In other words, according to Ashrawi, the violence of the intifada emanates from the "occupation."
Mustafa Barghouti, president of the Palestinian
Medical Relief Committees and a frequent guest on CNN as well,
similarly asserted that: "the root of the problem is Israeli
occupation."2 Writing in the Washington Post on
January 16, 2002, Marwan Barghouti, head of Arafat's Fatah PLO faction
in the West Bank, continued this theme with an article entitled: "Want
Security? End the Occupation." This has become the most ubiquitous line
of argument today among Palestinian spokesmen, who have to contend with
the growing international consensus against terrorism as a political
instrument.
This language and logic have also penetrated the
diplomatic struggles in the United Nations. During August 2001, a
Palestinian draft resolution at the UN Security Council repeated the
commonly used Palestinian reference to the West Bank and Gaza Strip as
"occupied Palestinian territories." References to Israel's "foreign
occupation" also appeared in the Durban Draft Declaration of the UN
World Conference Against Racism. The Libyan ambassador to the United
Nations, in the name of the Arab Group Caucus, reiterated on October 1,
2001, what Palestinian spokesmen had been saying on network television:
"The Arab Group stresses its determination to confront any attempt to
classify resistance to occupation as an act of terrorism."3
Three clear purposes seem to be served by the
repeated references to "occupation" or "occupied Palestinian
territories." First, Palestinian spokesmen hope to create a political
context to explain and even justify the Palestinians' adoption of
violence and terrorism during the current intifada. Second, the
Palestinian demand of Israel to "end the occupation" does not leave any
room for territorial compromise in the West Bank and Gaza Strip, as
suggested by the original language of UN Security Council Resolution
242 (see below).
Third, the use of "occupied Palestinian
territories" denies any Israeli claim to the land: had the more neutral
language of "disputed territories" been used, then the Palestinians and
Israel would be on an even playing field with equal rights.
Additionally, by presenting Israel as a "foreign occupier," advocates
of the Palestinian cause can delegitimize the Jewish historical
attachment to Israel. This has become a focal point of Palestinian
diplomatic efforts since the failed 2000 Camp David Summit, but
particularly since the UN Durban Conference in 2001. Indeed, at Durban,
the delegitimization campaign against Israel exploited the language of
"occupation" in order to invoke the memories of Nazi-occupied Europe
during the Second World War and link them to Israeli practices in the
West Bank and Gaza Strip.4
The Terminology of Other Territorial Disputes
The politically-loaded term "occupied territories"
or "occupation" seems to apply only to Israel and is hardly ever used
when other territorial disputes are discussed, especially by interested
third parties. For example, the U.S. Department of State refers to
Kashmir as "disputed areas."5 Similarly in its Country Reports on Human Rights Practices,
the State Department describes the patch of Azerbaijan claimed as an
independent republic by indigenous Armenian separatists as "the
disputed area of Nagorno-Karabakh."6
Despite the 1975 advisory opinion of the
International Court of Justice establishing that Western Sahara was not
under Moroccan territorial sovereignty, it is not commonly
accepted to describe the Moroccan military incursion in the former
Spanish colony as an act of "occupation." In a more recent decision of
the International Court of Justice from March 2001, the Persian Gulf
island of Zubarah, claimed by both Qatar and Bahrain, was described by
the Court as "disputed territory," until it was finally allocated to
Qatar.7
Of course each situation has its own unique
history, but in a variety of other territorial disputes from northern
Cyprus, to the Kurile Islands, to Abu Musa in the Persian Gulf -- which
have involved some degree of armed conflict -- the term "occupied
territories" is not commonly used in international discourse.8
Thus, the case of the West Bank and Gaza Strip
appears to be a special exception in recent history, for in many other
territorial disputes since the Second World War, in which the land in
question was under the previous sovereignty of another state, the term
"occupied territory" has not been applied to the territory that had
come under one side's military control as a result of armed conflict.
No Previously-Recognized Sovereignty in the Territories
Israel entered the West Bank and Gaza Strip in the
1967 Six-Day War. Israeli legal experts traditionally resisted efforts
to define the West Bank and Gaza Strip as "occupied" or falling under
the main international treaties dealing with military occupation.
Former Chief Justice of the Supreme Court Meir Shamgar wrote in the
1970s that there is no de jure applicability of the 1949 Fourth
Geneva Convention regarding occupied territories to the case of the
West Bank and Gaza Strip since the Convention "is based on the
assumption that there had been a sovereign who was ousted and that he
had been a legitimate sovereign."
In fact, prior to 1967, Jordan had occupied the
West Bank and Egypt had occupied the Gaza Strip; their presence in
those territories was the result of their illegal invasion in
1948, in defiance of the UN Security Council. Jordan's 1950 annexation
of the West Bank was recognized only by Great Britain (excluding the
annexation of Jerusalem) and Pakistan, and rejected by the vast
majority of the international community, including the Arab states.
At Jordan's insistence, the 1949 Armistice
Line, that constituted the Israeli-Jordanian boundary until 1967, was
not a recognized international border but only a line separating
armies. The Armistice Agreement 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" (emphasis added) (Article II.2).
As noted above, in many other cases in recent
history in which recognized international borders were crossed in armed
conflicts and sovereign territory seized, the language of "occupation"
was not used -- even in clear-cut cases of aggression. Yet in the case
of the West Bank and Gaza, where no internationally recognized sovereign control previously existed, the stigma of Israel as an "occupier" has gained currency.
Aggression vs. Self-Defense
International jurists generally draw a distinction
between situations of "aggressive conquest" and territorial disputes
that arise after a war of self-defense. 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."9
Here the historical sequence of events on June 5, 1967, is critical, for Israel only entered the West Bank after
repeated Jordanian artillery fire and ground movements across the
previous armistice lines. Jordanian attacks began at 10:00 a.m.; an
Israeli warning to Jordan was passed through the UN at 11:00 a.m.;
Jordanian attacks nonetheless persisted, so that Israeli military
action only began at 12:45 p.m. Additionally, Iraqi forces had crossed
Jordanian territory and were poised to enter the West Bank. Under such
circumstances, the temporary armistice boundaries of 1949 lost all
validity the moment Jordanian forces revoked the armistice and
attacked. Israel thus 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.
Israeli Rights in the Territories
Under UN Security Council Resolution 242 from
November 22, 1967 -- that has served as the basis of the 1991 Madrid
Conference and the 1993 Declaration of Principles -- Israel is only
expected to withdraw "from territories" to "secure and recognized
boundaries" and not from "the territories" or "all the
territories" captured in the Six-Day War. This deliberate language
resulted from months of painstaking diplomacy. For example, the Soviet
Union attempted to introduce the word "all" before the word
"territories" in the British draft resolution that became Resolution
242. Lord Caradon, the British UN ambassador, resisted these efforts.10
Since the Soviets tried to add the language of full withdrawal but
failed, there is no ambiguity about the meaning of the withdrawal
clause contained in Resolution 242, which was unanimously adopted by
the UN Security Council.
Thus, the UN Security Council recognized that
Israel was entitled to part of these territories for new defensible
borders. Britain's foreign secretary in 1967, George Brown, stated
three years later that the meaning of Resolution 242 was "that Israel
will not withdraw from all the territories."11
Taken together with UN Security Council Resolution 338, it became clear
that only negotiations would determine which portion of these
territories would eventually become "Israeli territories" or
territories to be retained by Israel's Arab counterpart.
Actually, the last international legal allocation
of territory that includes what is today the West Bank and Gaza Strip
occurred with the 1922 League of Nations Mandate for Palestine, which
recognized Jewish national rights in the whole of the Mandated
territory: "recognition has been given to the historical connection of
the Jewish people with Palestine and to the grounds for reconstituting
their national home in that country." The members of the League of
Nations did not create the rights of the Jewish people, but rather
recognized a pre-existing right, that had been expressed by the
2,000-year-old quest of the Jewish people to re-establish their
homeland.
Moreover, Israel's rights were preserved under the
United Nations as well, according to Article 80 of the UN Charter,
despite the termination of the League of Nations in 1946. Article 80
established that nothing in the UN Charter should be "construed to
alter in any manner the rights whatsoever of any states or any peoples
or the terms of existing international instruments." These rights were
unaffected by UN General Assembly Resolution 181 of November 1947 --
the Partition Plan -- which was a non-binding recommendation that was
rejected, in any case, by the Palestinians and the Arab states.
Given these fundamental sources of international
legality, Israel possesses legal rights with respect to the West Bank
and Gaza Strip that appear to be ignored by those international
observers who repeat the term "occupied territories" without any
awareness of Israeli territorial claims. Even if Israel only seeks
"secure boundaries" that cover part of the West Bank and the
Gaza Strip, there is a world of difference between a situation in which
Israel approaches the international community as a "foreign occupier"
with no territorial rights, and one in which Israel has strong
historical rights to the land that were recognized by the main bodies
serving as the source of international legitimacy in the previous
century.
After Oslo, Can the Territories be Classified as "Occupied"?
In the 1980s, President Carter's State Department
legal advisor, Herbert Hansell, sought to shift the argument over
occupation from the land to the Palestinians who live there. He
determined that the 1949 Fourth Geneva Convention governing military
occupation applied to the West Bank and Gaza Strip since its paramount
purpose was "protecting the civilian population of an occupied
territory."12 Hansell's legal
analysis was dropped by the Reagan and Bush administrations;
nonetheless, he had somewhat shifted the focus from the territory to
its populace. Yet here, too, the standard definitions of what
constitutes an occupied population do not easily fit, especially since
the implementation of the 1993 Oslo Agreements.
Under Oslo, Israel transferred specific powers from
its military government in the West Bank and Gaza to the newly created
Palestinian Authority. Already in 1994, the legal advisor to the
International Red Cross, Dr. Hans-Peter Gasser, concluded that his
organization had no reason to monitor Israeli compliance with the
Fourth Geneva Convention in the Gaza Strip and Jericho area, since the
Convention no longer applied with the advent of Palestinian
administration in those areas.13
Upon concluding the Oslo II Interim Agreement in
September 1995, which extended Palestinian administration to the rest
of the West Bank cities, Foreign Minister Shimon Peres declared: "once
the agreement will be implemented, no longer will the Palestinians
reside under our domination. They will gain self-rule and we shall
return to our heritage."14
Since that time, 98 percent of the Palestinian
population in the West Bank and Gaza Strip has come under Palestinian
jurisdiction.15 Israel transferred 40
spheres of civilian authority, as well as responsibility for security
and public order, to the Palestinian Authority, while retaining powers
for Israel's external security and the security of Israeli citizens.
The 1949 Fourth Geneva Convention (Article 6)
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." Under the earlier 1907 Hague Regulations, as well, a
territory can only be considered occupied when it is under the
effective and actual control of the occupier. Thus, according to the
main international agreements dealing with military occupation,
Israel's transfer of powers to the Palestinian Authority under the Oslo
Agreements has made it difficult to continue to characterize the West
Bank and Gaza as occupied territories.
Israel has been forced to exercise its residual
powers in recent months only in response to the escalation of violence
and armed attacks instigated by the Palestinian Authority.16 Thus, any increase in defensive Israeli military deployments today around Palestinian cities is the direct consequence of a Palestinian decision
to escalate the military confrontation against Israel, and not an
expression of a continuing Israeli occupation, as the Palestinians
contend. For once the Palestinian leadership takes the strategic
decision to put an end to the current wave of violence, there is no
reason why the Israeli military presence in the West Bank and Gaza
cannot return to its pre-September 2000 deployment, which minimally
affected the Palestinians.
Describing the territories as "Palestinian" may
serve the political agenda of one side in the dispute, but it prejudges
the outcome of future territorial negotiations that were envisioned
under UN Security Council Resolution 242. It also represents a total
denial of Israel's fundamental rights. Furthermore, reference to
"resisting occupation" has simply become a ploy advanced by Palestinian
and Arab spokesmen to justify an ongoing terrorist campaign against
Israel, despite the new global consensus against terrorism that has
been formed since September 11, 2001.
It would be far more accurate to describe the West
Bank and Gaza Strip as "disputed territories" to which both Israelis
and Palestinians have claims. As U.S. Ambassador to the UN Madeleine
Albright stated in March 1994: "We simply do not support the
description of the territories occupied by Israel in the 1967 War as
occupied Palestinian territory."
* * *
Notes
1. CNN Larry King Weekend, "America
Recovers: Can the Fight Against Terrorism be Won?," November 10, 2001
(CNN.com/transcripts).
2. Mustafa Barghouti, "Occupation is the Problem," Al-Ahram Weekly Outline, December 6-12, 2001.
3. Anne F. Bayefsky, "Terrorism and Racism: The Aftermath of Durban," Jerusalem Viewpoints, no. 468, December 16, 2001.
4. See Bayefsky, op. cit. U.S. and
European officials may use the term "occupation" out of a concern for
the humanitarian needs of the Palestinians, without identifying with
the PLO political agenda at Durban or at the UN.
5. U.S. Department of State, Consular Information Sheet: India (http://travel.state.gov/india.html) November 23, 2001.
6. 1999 Country Reports on Human Rights Practices: Azerbaijan, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, February 25, 2000.
7. Case Concerning Maritime
Delimitation and Territorial Questions between Qatar and Bahrain, March
15, 2001, Judgment on the Merits, International Court of Justice, March
16, 2000, paragraph 100.
8. The Japanese Foreign Ministry
does not use the language of "ending the Russian occupation of the
Kurile Islands," but rather resolving "the Northern Territory Issue."
(www.mofa.go.jp/region/europe/russia/territory). U.S. Department of
State "Background Notes" describe the Turkish Republic of Northern
Cyprus as the island's "northern part [which is] under an autonomous
Turkish-Cypriot administration supported by the presence of Turkish
troops" -- not under Turkish occupation.
9. Stephen Schwebel, "What Weight to Conquest," American Journal of International Law, 64 (1970):345-347.
10. Vernon Turner, "The Intent of UNSC 242 -- The View of Regional Actors," in UN Security Council Resolution 242: The Building Block of Peacemaking (Washington: Washington Institute for Near East Policy, 1993), p. 27.
11. Meir Rosenne, "Legal Interpretations of UNSC242," in UN Security Council Resolution 242: The Building Block of Peacemaking, op. cit., p. 31.
12. Under the Carter administration,
Hansell's distinction led, for the first time, to a U.S. determination
that Israeli settlement activity was illegal since it purportedly
contravened Article 49 of the Fourth Geneva Convention which stated
that "the Occupying Power shall not deport or transfer parts of its own
civilian population into the territory it is occupying." Subsequently,
the Reagan and Bush administrations altered the legal determination of
the Carter period, changed the U.S. voting pattern at the UN, and
refused to describe Israeli settlements as illegal, even if American political
objections to settlement activity continued to be expressed. One reason
was that the Fourth Geneva Convention applied to situations like that
of Nazi-occupied Europe, which involved "forcible transfer, deportation
or resettlement of large numbers of people." This view was formally
stated by the U.S. Ambassador to the UN in Geneva, Morris Abram, on
February 1, 1990, who had served on the U.S. staff at the Nuremberg
trials and, hence, was familiar with the legal intent behind the 1949
Fourth Geneva Convention.
13. Dr. Hans-Peter Gasser, Legal
Adviser, International Committee of the Red Cross, "On the
Applicability of the Fourth Geneva Convention After the Declaration of
Principles and the Cairo Agreement," paper presented at the
International Colloquium on Human Rights, Gaza, September 10-12, 1994.
Gasser did not state that in his view the territories were no longer
"occupied," but he did point out the legal complexities that had arisen
with Oslo's implementation.
14. Foreign Minister Shimon Peres's
Address at the Israeli-Palestinian Interim Agreement Signing Ceremony,
Washington, D.C., September 28, 1995.
15. Ehud Barak, "Israel Needs a True Partner for Peace," New York Times, July 30, 2001.
16. The present intifada violence
resulted from a strategic decision taken by Yasser Arafat, as admitted
by numerous Palestinian spokesmen:
"Whoever thinks the intifada broke out because of the despised Sharon's
visit to the Al-Aqsa Mosque is wrong....This intifada was planned in
advance, ever since President Arafat's return from the Camp David
Negotiations," admitted Palestinian Communications Minister 'Imad
Al-Faluji (Al-Safir,
March 3, 2001, trans. MEMRI). Even earlier, Al-Faluji had explained
that the intifada was initiated as the result of a strategic decision
made by the Palestinians (Al-Ayyam, December 6, 2000).
Arafat began to call for a new intifada in the first few months of the
year 2000. Speaking before Fatah youth in Ramallah, Arafat "hinted that
the Palestinian people are likely to turn to the intifada option" (Al-Mujahid, April 3, 2000).
Marwan Barghouti, the head of Fatah in the West Bank, explained in
early March 2000: "We must wage a battle in the field alongside of the
negotiating battle...I mean confrontation" (Ahbar Al-Halil, March 8, 2000). During the summer of 2000, Fatah trained Palestinian youths for the upcoming violence in 40 training camps.
The July 2000 edition of Al-Shuhada
monthly, distributed among the Palestinian Security Services, states:
"From the negotiating delegation led by the commander and symbol, Abu
Amar (Yasser Arafat) to the brave Palestinian people, be ready. The
Battle for Jerusalem has begun." One month later, the commander of the
Palestinian police told the official Palestinian newspaper Al-Hayat Al-Jadida:
"The Palestinian police will lead together with the noble sons of the
Palestinian people, when the hour of confrontation arrives." Freih Abu
Middein, the PA Justice Minister, warned that same month: "Violence is
near and the Palestinian people are willing to sacrifice even 5,000
casualties" (Al-Hayut al-Jadida, August 24, 2000 -- MEMRI).
Another official publication of the Palestinian Authority, Al-Sabah,
dated September 11, 2000 -- more than two weeks before the Sharon visit
-- declared: "We will advance and declare a general intifada for
Jerusalem. The time for the intifada has arrived, the time for intifada
has arrived, the time for Jihad has arrived."
Arafat advisor Mamduh Nufal told the French Nouvel Observateur
(March 1, 2001): "A few days before the Sharon visit to the Mosque,
when Arafat requested that we be ready to initiate a clash, I supported
mass demonstrations and opposed the use of firearms." Of course, Arafat
ultimately adopted the use of firearms and bomb attacks against Israeli
civilians and military personnel. On September 30, 2001, Nufal detailed
in al-Ayyam that Arafat actually issued orders to field commanders for violent confrontations with Israel on September 28, 2000.
* * *
Dore Gold is President of the Jerusalem Center for
Public Affairs. Previously, he served as Israel's Ambassador to the
United Nations (1997-1999). This Jerusalem Viewpoints is based on an earlier Jerusalem Issue Brief on this subject.
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