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Yes it is Occupied Territory

by Lynette Nusbacher

Robert Stark’s 3 January blog on the Times of Israel site is part of an odd narrative which maintains that the Israeli occupation of the West Bank is not an occupation at all.  The article is inaccurate, and its inaccuracies are clearly part of a tendentious attempt to support a narrative which is dangerous in the extreme to Israel and its interests.

The reason to construct this narrative is first to exempt Israel from the burdens in the International Law of Armed Conflict that come with military occupation; and second to assert that the West Bank is sovereign Israeli territory and that the Palestinian Arab population of the territory need not aspire to self-rule.

In this case, Mr Stark uses elements of this narrative to claim that Israeli settlements in the West Bank do not violate international law.  That is, if the settlements are on sovereign Israeli territory rather than occupied territory, the arguments which make them illegal are moot.

Put aside the legality or even the utility of settling Israelis in communities that arguably ought to be part of a future Palestine.  The argument that the West Bank is sovereign Israeli territory is a dangerous one.  It’s dangerous because if Nablus and Jenin and Hebron are cities in Israel, but their populations are not governed by the same laws that apply in Yitzhar, Shaked and Kiryat Arba; then those who accuse Israel of operating an ‘apartheid state’ have justification.  The only justification for not giving the vote to the West Bank’s Arabs is that they are an occupied population.

So Mr Stark’s argument has a pernicious purpose, but far more important it is inaccurate in many of its points.  The idea that the West Bank is not occupied territory is based on leaving out a lot of evidence.

Robert Stark writes:

… the land on both sides of the river Jordan were recognized as part of the Jewish National Home by the 1920 San Remo Conference. This was endorsed by the League of Nations (predecessor to the United Nations) in the 1922 League of Nations Mandate to Britain, and affirmed by article 80 of the United Nations charter in 1945.

This is not only a claim to the West Bank, but also to Jordan.  (Jordan was 85% of the British Palestine Mandate, split off immediately as the Emirate of Transjordan and given independence in 1946.)  It is based on the statement from the San Remo Conference which essentially turned the Balfour Declaration from British Government policy into the policy of the victorious First World War allies.

However, like the Balfour declaration the San Remo declaration envisions a Jewish homeland in Palestine but reserves the civil rights of other populations.  The League of Nations mandate to the United Kingdom preserved this language.  Article 80 of the United Nations Charter extends League of Nations mandates (like the United Kingdom’s mandate in Palestine) as United Nations trusteeships, again taking pains not to alter the rights of other populations in those mandates (like the various peoples living in Palestine at the time).

Accurate version:

The Jewish people are entitled to a national homeland in the Palestine Mandate according to wartime British Government policy, postwar Allied governments’ policy, and the Charter of the United Nations, but this homeland does not need to be the entirety of the Palestine Mandate.

There’s something else, far more important than these declarations, that bears on this point.  Mr Stark ignores UN General Assembly Resolution 181 which clarifies San Remo to the effect that the entire Palestine Mandate (including Transjordan) was not going to be the National Homeland for the Jewish People.  Why is this resolution far more important? Because it is the resolution which partitioned Palestine to create a Jewish state and an Arab state.  If you ignore GA181 you’re ignoring the statement by a majority of the world’s states that Israel ought to exist.

Mr Stark writes:

The Fourth Geneva Convention provides the international law as relates to occupied territory, and is the basis of any legal argument against Israel on the subject of Israeli settlements.

In order for a territory to be recognized as occupied by the Fourth Geneva Convention, a territory must have changed hands in a conflict in which one country takes control of foreign territory. In Israel’s case, the only other country that controlled the territory in question was Jordan. Yet, Jordan relinquished all claims to the territory in 1988 and recognized the territory as part of Israel in a peace treaty signed in 1994.

While the Fourth Geneva Convention of 1949 is a very important part of the Law of Armed Conflict regarding occupation, it is not the only part.  The Hague Convention of 1907 says, ‘Art. 42. Territory is considered occupied when it is actually placed under the authority of the hostile army.  The occupation extends only to the territory where such authority has been established and can be exercised.’  This means that regardless of whether Jordan was or wasn’t legitimately ruling the West Bank between 1948 and 1967, occupying the territory creates occupation.

Mr Stark writes:

The [Fourth Geneva] convention only applies to States that are a party to the convention itself. Thus, either the occupier or the occupied must be a signatory to the convention in order for it to apply. Since the Arab residents of the West bank are not residents of a state that is bound by the Convention, and Israel is not a signatory either, therefore the Fourth Geneva Convention does not apply to this conflict.

This is inaccurate.  Nearly every expert on the Law of Armed Conflict holds that the 1949 Geneva Conventions and preceding Geneva and Hague conventions apply universally.  While Mr Stark references the late Julius Stone (1907-1985) who appears to have held otherwise in a 1981 book, it is dishonest not to mention that only the late Professor Stone holds otherwise.  Mr Stark cites the Versailles Court of Appeals in saying that the Fourth Geneva Convention does not apply here, but he is misrepresenting the decision of the court.  The French court ruled only that putting transport infrastructure in place in occupied territory did not violate the Fourth Geneva Convention.

When King Hussein relinquished Jordan’s claim to the West Bank in 1988, he relinquished it to the PLO, not to Israel.  The Hashemite Kingdom of Jordan did not recognise the West Bank as part of Israel in the 1994 Jordanian-Israeli peace treaty which one can read in detail at http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/israel-jordan%20peace%20treaty.aspx .  Jordan’s renunciation of sovereignty was not retroactive either in treaty or in fact.

Jordan’s annexation of the West Bank in 1947 was not widely recognised as legitimate.  This does not mean it didn’t happen.  Just as Israel’s annexation of the Golan Heights is not universally recognised but exists in fact, Jordan’s annexation of the West Bank was not universally recognised but existed in fact.  Lack of recognition does not mean that either annexation isn’t relevant in law or in practice.

Mr Stark writes:

Thus, even if Israel’s capture of the territory in 1967 is considered an occupation, the fact that Jordan later relinquished all its claims and then recognized the territory as part of the State of Israel means any such occupation is long over.

This is a statement without foundation.  Israel occupied Jordanian territory in 1967 when Jordan was a belligerent in a war.  It is worthy of note that Israel did not at that time annexe that territory apart from the portions close to Jerusalem.  The Israeli government did not then, nor has it since, asserted that this territory is part of Israel.  Israel has continued to administer the territory through its armed forces and to apply military justice to the population living there who are not Israeli.

Just because Jordan relinquished its 1947 claim to the territory does not mean that it stopped being occupied.  It just made it something other than Jordanian territory.

Mr Stark writes:

Those who claim the settlements are illegal point to Article 49 of the convention, which states that to be an illegal occupier the occupying power must do one of two things:

  1. Forcibly transfer the population under occupation to outside the occupation zone, either inside the controlling country or to another country.
  2. Transfer the population of the occupier from its own country to the occupied zone.

This is inaccurate in that the Geneva Conventions do not create a category of ‘illegal occupier’.  They merely impose responsibilities on those who are in fact occupying belligerent populations in and after wars.  It is possible to violate the Geneva convention by transferring the population under occupation out of the occupation zone (something that Israel has done in the past when security prisoners were transported to Lebanon), and by transferring the population of the occupier from its own country to the occupied zone.

Using the City of Ariel as a clear case in point, regardless of the decisions of individual Israelis to move to Ariel, 18,000 people, many whose relocation to Ariel was part of their immigrant absorption process, subsidies on mortages there, the allocation of state land and the extension of Israeli infrastructure and law to Ariel can be taken as a transfer of population.  To say that a transfer is no transfer is inaccurate.

Going directly to a Nazi example, Mr Stark writes:

There is simply no legitimate comparison between Israeli citizens’ vote, through their wallet and their feet, and the millions of Germans and others who were actively required by their own government to move from their country into newly occupied zones elsewhere.

It is, I suggest, bordering on indecent to compare Israeli policy in the West Bank to Nazi policy in Ukraine.  Furthermore, Mr Stark misunderstands the reality of Nazi attempts to colonise the territories it occupied in Eastern Europe.  Whereas there was dubiously free voluntary resettlement of Volksdeutsch from the Baltic States into Poland, much of the policy included relying on convincing German citizens to vote with their wallets and their feet to settle in occupied territory (a policy which unsurprisingly failed).

I do not blame Mr Stark for drawing this comparison:  it is forced on him by his source material.  Professor Stone and Eugene Rostow (1913-2002) have both written that transfer of populations prohibited in the Fourth Geneva Convention only applies, in effect, to Nazis and that anyone who does not achieve Nazi levels of inhumanity is excused Article 49 of the Fourth Geneva Convention.  In this their opinions were not widely supported at the time (Stone in 1981 and Rostow in 1990) nor now.

While Stone and Rostow, and indeed much more recent scholarship, can be brought to make a case that Israel’s occupation is as humane and lawful as an act of war ever is; to bring only their arguments without acknowledging the overwhelming weight of opposition is not good advocacy.

Whereas Israelis moving to Ariel are free to do so or not to do so, and their life in Ariel is pleasant and without the horrors visited upon the Volksdeutsch populations of the Baltic States who were tricked and coerced into resettlement camps; a polite transfer is still a transfer.

His last point is that:

… the Palestinian-Authority, under Yasser Arafat, signed the Oslo Accords with Israel. This was an internationally recognized agreement to divide jurisdiction of the territory between Israel and the newly created Palestinian Authority.

This is yet another inaccuracy.  The Oslo II Agreement of 1994, which is available here transferred authority from the Israeli government to the Palestinian Authority.  It nowhere divides jurisdiction in terms of sovereignty, merely with respect to responsibility in certain areas defined in the annexes to the agreement.

Mr Stark sets out an argument which is based on the ideas that the West Bank was always part of Israel because the Balfour Declaration, San Remo statement and League of Nations Mandate were not modified by the Partition of Palestine by the UN in 1947.  He writes that the dubious status of the West Bank’s occupation by Jordan in 1947 and Jordan’s relinquishing sovereignty to the PLO in 1988 means that it is not occupied Jordanian territory and therefore not occupied territory at all.  He claims that the Fourth Geneva Convention does not apply to Israel, that Israel has not transferred people under occupation outside the territories, that Israel has not transferred people from Israel into the territories.  He claims that in the Oslo Accords the Palestinian Authority ceded their claims and their rights to Area C to Israel.  In all these respects he is writing inaccurately.

Those who regard Judaea and Samaria as the inalienable patrimony of the Jewish people, those who regard the West Bank as key terrain for the defence of Israel, and those who view the Palestinian Authority as an untrustworthy partner can surely make their arguments without descending to the tendentious misrepresentation of fact.  I should also hope that they would do so without making an argument that Israel is not a legitimate military occupier but, as one must conclude from Mr Stark’s argument, an undemocratic tyranny.