The Legal Status of the West Bank
The legal status of the West Bank has been a thorny issue wrapped in confusion, historical change, as well as ideological motivations at the expense of legal clarity. Below is a brief treatment of the issues pertaining to the legal status of the West Bank and it is designed to be an introductory overview. I would direct the reader who seeks additional information to another brief synopsis published recently in the Jerusalem Post Magazine titled: “50 Years of Law Versus Reality” (www.jpost.com May 26, 2017). Also listen to and read the work of Eugene Kontorovich at: http://insct.syr.edu/legal-case-israels-settlements/ a legal expert who devotes scholarly attention to the issue. Below is my own distillation of the issues, based on the above sources, designed to establish some foundation for discussion.
Israel never imagined there would be 400,000 Jews living in the West Bank in a complex and politically charged project called the “settlements.” The land mass that includes the West Bank has been of questionable and debatable legal status for the last 50 years for sure but even before that. What is currently referred to as the West Bank was the outskirts of the Ottoman Empire who were defeated in World War I. The land became part of the British mandate and slipped into additional confusion about who had legal rights. When Israel took control of the land after Israel was attacked in 1967 (the Six-Day War) it fell into the category of “belligerent occupation.” This is a category of international law that requires the conquering force to adhere to a few rules of occupation. Under belligerent occupation the occupying force maintains the rights of the local people, agrees not to change the face of the land, and means that it cannot annex the land but is holding it temporarily. When land is acquired through force or war belligerent occupation is a mechanism for maintaining citizen rights and allowing political decisions to develop.
One of the controversies and difficulties about the legal status of the West Bank is whether or not to apply the principles of The Hague Regulations or the Geneva Convention. Belligerent occupation is a principal from The Hague regulations. The Geneva Convention requires more humanitarian rule even including returning conquered land. But the Israelis argued that Jordan was not a legitimate owner because they had only recently annexed the West Bank in the 1948 war. So Israel argued that it took disputed land from a wartime situation and did not conquer it from a sovereign nation, that is, they did not conquer the land from a legitimate state namely Jordan.
This is a key legal issue: did Israel acquire the West Bank from a legitimately recognized state that had sovereign power, which means according to the Geneva Accords Israel has obligations for peace negotiations, or was the West Bank genuinely disputed property.
The argument by Israel that all of the West Bank was negotiable provided justification for the ballooning settlements. As the settlements have developed, historical and legal arguments about the rights of the Jewish people – supported by a variety of historical documents ranging from the Bible to the Balfour declaration – have become more pronounced. The preponderance of evidence supports the notion that acquiring land by building settlements is illegal. But, on the other hand, Israel argues that it is still engaged in belligerent occupation and protecting the rights of the local inhabitants, that is, the Palestinians.
The legal status of the land acquired in 1967 is clearly debatable such that there are legal principles under which Israel is culpable according to international law, or principles that support Israel’s presence. In either case, the current situation is not sustainable.