The Israeli-occupied territories are the territories which have been designated as occupied territory by many international organisations, governments and others to refer to the territory captured by Israel from Egypt, Jordan, and Syria during the Six-Day War of 1967. They consist of the West Bank, the Gaza Strip and much of the Golan Heights and, until 1982, the Sinai Peninsula. The West Bank and Gaza Strip are also referred to as Palestinian territories. Palestinian Authority considers East Jerusalem to be part of the West Bank, the position disputed by Israel.
The first use of the term was in United Nations Security CouncilResolution 242 following the Six Day War in 1967, which called for "the establishment of a just and lasting peace in the Middle East" to be achieved by "the application of both the following principles: ... Withdrawal of Israeli armed forces from territories occupied in the recent conflict ... Termination of all claims or states of belligerency" and respect for the right of every state in the area to live in peace within secure and recognized boundaries.
Following Israeli withdrew from the Sinai Peninsula in 1982, as part of the 1979 Israel–Egypt Peace Treaty, that territory ceased to be considered occupied territory. Although Israel unilaterally disengaged from Gaza in September 2005, it continues to be designated the occupying power in the Gaza Strip by the United Nations, the United States, the United Kingdom and various human rights organizations.[citation needed] Israel disputes it is the occupying power in the Gaza Strip. Israel's annexation of East Jerusalem in 1980 and the Golan Heights in 1981[1] has not been recognised by any other country.[2]
Overview
The significance of the designation of these territories as occupied territory is that certain legal obligations fall on the occupying power under international law, such as the Fourth Geneva Convention. One of those obligations is to maintain the status quo until the signing of a peace treaty, the resolution of specific conditions outlined in a peace treaty, or the formation of a new civilian government.[3]
The Sinai Peninsula is a sparsely populated territory between the Suez Canal and the Gulf of Aqaba. Israel first captured the Sinai, along with the Gaza Strip, during the 1956 Suez Campaign. Israel's invasion of the Sinai was coordinated with France and the United Kingdom's seizure of the Suez Canal. Pressure from the Soviet Union and the United States forced Israel to withdraw from both the Sinai and Gaza the next year.
After re-capturing the Sinai in the 1967 Six Day War, Israel began establishing settlements along the Gulf of Aqaba, and in the northeast portion, just below the Gaza Strip, with plans to expand the settlement of Yamit into a city with a population of 200,000.[6] The actual population of Yamit, however, never exceeded 3,000.[7] The Sinai Peninsula was returned to Egypt beginning in 1979 under the Israel–Egypt Peace Treaty following the 1978 Camp David Accords. Israel completed its withdrawal, including the dismantling of eighteen settlements, two air force bases, a naval base, and other installations in 1982. The returned territory included the only oil resources under Israeli control.
From 1982 to 2000 Israel occupied the southern part of Lebanon. During that time Hezbollah rocket brigades were kept out of range of major Israeli cities[citation needed]. Since the 2000 withdrawal[citation needed], Hezbollah has been able to launch rockets hitting targets as far south as Hadera during the 2006 Lebanon War.
The Mountain Aquifer, from which Israel draws over a third of its fresh water resources, has 83% of its recharge area located in the West Bank.[8] The portion of the Coastal Aquifer that lies in the Gaza Strip has been overexploited for many years, and its water —Gaza's only significant source of fresh water— has become brackish and of limited use due to infiltration of sea water.
From their occupation in 1967 until 1993, the majority of people living in these territories —those who are not Israeli citizens — were subject to Israeli military administration without Israeli citizenship, including the right to vote in Israeli elections. Israel retained the mukhtar (mayoral) system of government inherited from Jordan, and subsequent governments began developing infrastructure in Arab villages under its control. (see Palestinians and Israeli law, International legal issues of the conflict, Palestinian economy)
In 2000 the Israeli government started to construct the Israeli West Bank barrier, separating Israel and several of its settlements, as well as a significant number of Palestinians, from the remainder of the West Bank. In 2004, the International Court of Justice issued an advisory opinion stating that the barrier violates international law.[9] In a related case the Israeli Supreme Court, sitting as the High Court of Justice, stated that Israel has been holding the areas of Judea and Samaria in belligerent occupation, since 1967. The court also held that the normative provisions of public international law regarding belligerent occupation are applicable. The Regulations Concerning the Laws and Customs of War on Land, The Hague of 1907 and the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 were both cited.[10]
In 2005, Israel legislated that all of the residents in the Gaza Strip and in four settlements in the northern West Bank as part of Israel's unilateral disengagement plan would have to abandon their homes. Some settlers resisted the order, and were forcibly removed by the IDF.
In 2007, after Hamas defeated Fatah in the Battle of Gaza (2007) and took control over the Gaza Strip, Israel imposed a blockade on Gaza. Palestinian rocket attacks and Israeli raids, such as Operation Hot Winter continued into 2008. A six month ceasefire was agreed in June 2008, but it was broken several times by both Israel and Hamas. As it reached its expiry, Hamas announced that they were unwilling to renew the ceasefire, and at the end of December 2008 Israeli forces began Operation Cast Lead, launching the Gaza War that left an estimated 1,166–1,417 Palestinians and 13 Israelis dead.[11][12][13]
While East Jerusalem is considered by many to be part of the West Bank, it is treated separately in negotiations. The 1947 UN Partition Plan had contemplated that all of Jerusalem would be an international city (within an international area which was supposed to include Bethlehem too) for at least ten years, after which the residents would be allowed to conduct a referendum and the issue could be re-examined by the Trusteeship Council. However, after the 1948 Arab–Israeli WarJordan captured East Jerusalem and the Old City, and Israel captured and annexed the western part of Jerusalem. Jordan annexed East Jerusalem along with the rest of the West Bank in 1950, but this annexation was not recognized by the United Nations.[14]
Israel captured East Jerusalem from Jordan in the 1967 Six-Day War and a few weeks later ordered to apply its "laws, jurisdiction and administration" in its territory in several towns and villages surrounding it. In 1980 Israel passed the "Jerusalem Law" proclaiming "united Jerusalem" as the Israeli capital, thus officially annexing East Jerusalem. However, United Nations Security CouncilResolution 478 declared this action to be "null and void", and that it "must be rescinded forthwith". It also called upon countries which held their diplomatic delegations to Israel in Jerusalem, to move them outside the city.
Most nations with embassies in Jerusalem complied, and relocated their embassies to Tel Aviv or other Israeli cities prior to the adoption of Resolution 478. Following the withdrawals of Costa Rica and El Salvador in August 2006, no country maintains its embassy in Jerusalem, although Paraguay and Bolivia have theirs in nearby Mevasseret Zion.[15]
The United States Congress passed the Jerusalem Embassy Act in 1995, stating that "Jerusalem should be recognized as the capital of the State of Israel; and the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999. As a result of the Embassy Act, official U.S. documents and web sites refer to Jerusalem as the capital of Israel. Since passage, the law has never been implemented, because of opposition from Presidents Clinton, Bush, and Obama, who view it as a Congressional infringement on the Executive Branch’s constitutional authority over foreign policy;[16] they have consistently claimed the presidential waiver on national security interests.
There is little international support for Israel's claim that Jerusalem is its undivided capital. As of 19 May 2007 no country has their embassy there, instead choosing to locate in Tel Aviv. The 2007 Jerusalem Day celebrations were not attended by either US or EU ministers.[17]
The Golan Heights were captured from Syria near the end of the Six Day War. An armistice line was created and the region came under control of the Israeli military.[18]
In the Yom Kippur War, the Syrian military attempted to retake the territory. Despite inflicting high casualties, the ambushing assault was unsuccessful. Following the war, both countries signed an armistice. As a condition, a UN observation force was established to ensure the ceasefire remained.[19]
An estimated 20,000 Israeli settlers and 20,000 Syrians live within the territory. All inhabitants are entitled to Israeli citizenship.[19]
On 14 December 1981 Israel passed the Golan Heights Law, applying common law over the territory. While generally considered "annexation" by critics and many experts, Israel has expressly avoided using the term to describe this action. The UN Security Council promptly rejected the action with Resolution 497.[20]
The Israeli High Court of Justice determined in the 1979 Elon Moreh case that only the military commander of an area may requisition land according to article 52 of the regulations annexed to the Hague IV Convention. Military necessity had been an after-thought in planning portions of the Elon Moreh settlement. That situation did not fulfill the precise strictures laid down in the articles of the Hague Convention, so the Court ruled the requisition order had been invalid and illegal.[24] Various Israeli Cabinets have made political statements and many of Israel's citizens and supporters dispute that the territories are occupied and claim that use of the term "occupied" in relation to Israel's control of the areas has no basis in international law or history, and that it prejudges the outcome of any future or ongoing negotiations. They argue it is more accurate to refer to the territories as "disputed" rather than "occupied" although they agree to apply the humanitarian provisions of the Fourth Geneva Convention pending resolution of the dispute. Yoram Dinstein, has dismissed the theory as being “based on dubious legal grounds”. Dinstein is Professor Emeritus at Tel Aviv University where he formerly held the posts of President, Rector and Dean of Law.[25] Many Israeli government websites do refer to the areas as being "occupied territories".[26]
In recent decades the government of Israel has argued before the Supreme Court of Israel that its authority in the territories is based on the international law of "belligerent occupation", in particular the Hague Conventions. The court has confirmed this interpretation many times, for example in its 2004 and 2005 rulings on the separation fence.[27][28] According to the BBC, "Israel argues that the international conventions relating to occupied land do not apply to the Palestinian territories because they were not under the legitimate sovereignty of any state in the first place."[29]
The Israel raised a number of exceptions and objections,[30] but the Court found them unpersuasive. The Court ruled that territories had been occupied by the Israeli armed forces in 1967, during the conflict between Israel and Jordan, and that subsequent events in those territories, had done nothing to alter the situation.
Soon after the 1967 war, Israel issued a military order stating that the Geneva Conventions applied to the recently occupied territories [5], but this order was rescinded a few months later [6]. For a number of years, Israel argued on various grounds that the Geneva Conventions do not apply. One is the Missing Reversioner theory[31] which argued that the Geneva Conventions apply only to the sovereign territory of a High Contracting Party, and therefore do not apply since Jordan never exercised sovereignty over the region [32]. In 1986, the International Court of Justice ruled that portions of the Geneva Conventions of 1949 merely declare existing customary international law.[33] In 1993, the UN Security Council adopted a binding Chapter VII resolution establishing an International Criminal Tribunal for the former Yugoslavia. The resolution approved a Statute which said that the problem of adherence of some but not all States to the Geneva Conventions does not arise, since beyond any doubt the Convention is declarative of customary international law.[34] The subsequent interpretation of the International Court of Justice does not support Israel's view on the applicability of the Geneva Conventions.[23]
In its June 2005 ruling upholding the constitutionality of the Gaza disengagement, the Israeli High Court determined that "Judea and Samaria" [West Bank] and the Gaza area are lands seized during warfare, and are not part of Israel:
The Judea and Samaria areas are held by the State of Israel in belligerent occupation. The long arm of the state in the area is the military commander. He is not the sovereign in the territory held in belligerent occupation (see The Beit Sourik Case, at p. 832). His power is granted him by public international law regarding belligerent occupation. The legal meaning of this view is twofold: first, Israeli law does not apply in these areas. They have not been "annexed" to Israel. Second, the legal regime which applies in these areas is determined by public international law regarding belligerent occupation (see HCJ 1661/05 The Gaza Coast Regional Council v. The Knesset et al. (yet unpublished, paragraph 3 of the opinion of the Court; hereinafter – The Gaza Coast Regional Council Case). In the center of this public international law stand the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations). These regulations are a reflection of customary international law. The law of belligerent occupation is also laid out in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention).[35][36]
In two cases decided shortly after independence (the Shimshon and Stampfer cases) the Israeli Supreme Court held that the fundamental rules of international law accepted as binding by all "civilized" nations were incorporated in the domestic legal system of Israel. The Nuremberg Military Tribunal determined that the articles annexed to the Hague IV Convention of 1907 were customary law that had been recognized by all civilized nations.[37] In the past, the Israeli Supreme Court has argued that the Geneva Convention insofar it is not supported by domestic legislation "does not bind this Court, its enforcement being a matter for the states which are parties to the Convention". They ruled that "Conventional international law does not become part of Israeli law through automatic incorporation, but only if it is adopted or combined with Israeli law by enactment of primary or subsidiary legislation from which it derives its force". However, in the same decision the Court ruled that the Hague IV Convention rules governing belligerent occupation did apply, since those were recognized as customary international law.[38] The Court has not ruled on the status of the Geneva Conventions since the Security Council determined they were customary international law, because the government of Israel has declared it complies with their international humanitarian law provisions. Al Haq, a West Bank affiliate of the International Commission of Jurists, has asserted that "As noted in Article 27 of the Vienna Convention on the Law of Treaties, 'a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty'. As such, Israeli reliance on local law does not justify its violations of its international legal obligations".[39] Further, the Palestinian mission to the U.N. has argued
it is of no relevance whether a State has a monist or a dualist approach to the incorporation of international law into domestic law. A position dependent upon such considerations contradicts Article 18 of the Vienna Convention on the Law of Treaties of 1969 which states that: "a state is obliged to refrain from acts which would defeat the object and purposes of a treaty when it has undertaken an act expressing its consent thereto." The Treaty, which is substantially a codification of customary international law, also provides that a State "may not invoke the provisions of its internal law as justification for its failure to perform a treaty" (Art. 27).[40]
War crimes allegations
Some people claim that Israeli settlements constitute a transfer of its civilian population into the occupied territories and have alleged that such transfers constitute a grave breach of the Geneva Conventions and that such transfers constitute war crimes.[4][5]
In 2000, the editors of the Geneva Academy of International Humanitarian Law and Human Rights Palestine Yearbook of International Law (1998–1999) said "the "transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory" amounts to a war crime. This is obviously applicable to Israeli settlement activities in the Occupied Arab Territories."[41]
In 2004 the International Court of Justice (ICC) —in an advisory, non-binding[42] opinion—noted that the Security Council had described Israel's policy and practices of settling parts of its population and new immigrants in the occupied territories as a "flagrant violation" of the Fourth Geneva Convention. The Court also concluded that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law and that all the States parties to the Geneva Convention are under an obligation to ensure compliance by Israel with international law as embodied in the Convention.[23] (Israel is not a party to the treaty creating the ICC.)
Israel denies that the Israeli settlements are in breach of any international laws.[citation needed]
^ abSee Articles 85, 88, and 89 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 [2]
^The Arab–Israeli Dilemma (Contemporary Issues in the Middle East), Syracuse University Press; 3rd edition (August, 1985 ISBN 0-8156-2340-2
^During the Autumn of 2003, following the declassification of key Aman documents, the newspaper Yedioth Ahronoth released a series of controversial articles which revealed that key Israeli figures were aware of considerable danger that an attack was likely, including Golda Meir and Moshe Dayan, but had decided not to act. The two journalists leading the investigation, Ronen Bergman and Gil Meltzer, later went on to publish Yom Kippur War, Real Time: The Updated Edition, Yediot Ahronoth/Hemed Books, 2004. ISBN 965-511-597-6
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