Israel’s Rights in the West Bank and International Law.
November 20, 2019
The issue of international law seems to be increasingly important and an issue that can be interpreted as supportive of either side. Alan Baker weighs in on some issues as I will in a future post.
The issue of Israel’s rights in the West Bank under international law, as simple as it sounds, conceals a complex and extensive web of historic, legal, military and political issues that, for many years, have engaged and continue to engage the parties to the conflict, as well as the international community as a whole.
This article will briefly analyze the three major elements defining Israel’s rights in the West Bank.
Firstly, and underscoring all other considerations, are the international legal rights emanating from the indigenous and historic claims of the Jewish people in the area as a whole, virtually from time immemorial. These rights were acknowledged in 1917 by the Balfour Declaration’s promise of a national home for the Jews in Palestine, and subsequently recognized internationally and encapsulated into international law through a series of international instruments.
Secondly, Israel’s legal rights following the 1967 Six-Day War, as the power administering the West Bank areas of Judea and Samaria (so described in the U.N. 1947 Partition Resolution 181), and the concomitant, unique sui genesis status of the area.
Thirdly, Israel’s rights under international law following the 1993-1995 Oslo Accords between Israel and the PLO, and especially the 1995 Interim Agreement, (commonly known as Oslo 2) which established a unique territorial arrangement as a form of lex specialis, that divided the control and governance of the West Bank areas between a Palestinian Authority established for that purpose, and Israel.
Israel’s rights in the West Bank areas of Judea and Samaria did not originate with Israel’s attaining control of the area following the 1967 Six-Day War.
Long before, the Balfour Declaration issued by the British government in 1917 acknowledged the indigenous presence and historic aspirations of the Jewish people to reestablish their historic national home in Palestine. While legally the Balfour Declaration, in and of itself, was a unilateral governmental declaration, it received international legal acknowledgement and validity in a series of instruments, commencing with the 1920 San Remo Conference and Declaration by the Supreme Council of the Principal Allied Powers. San Remo encapsulated the content of the Balfour Declaration into the post-World War I arrangements dividing the former Ottoman Empire. In this way, the Principal Allied Powers finalized the territorial dispositions regarding the Jewish people in respect to Palestine and the Arabs in respect to Mesopotamia (Iraq), Syria, and Lebanon.
The San Remo Declaration stated inter alia that:
“The mandatory will be responsible for putting into effect the declaration originally made on the 8th [2nd] of November, 1917, by the British Government, and adopted by other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people …”
This was incorporated into Article 95 of the (unratified) Treaty of Sèvres of Aug. 10, 1920, and subsequently in the Preamble and Article 2 of the Mandate for Palestine approved by the Council of the League of Nations on July 24, 1922:
“The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.”
The continued validity of these foundational legal rights encapsulated in the various international instruments predating the establishment of the United Nations was also assured under Article 80 of the United Nations Charter:
“… nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.”
The second element defining Israel’s rights under international law in the West Bank areas of Judea and Samaria relates to the period following the 1967 Six-Day War, subsequent to Jordan’s participation in the combined military action against Israel, in concert with Egypt and Syria. During this conflict Israel attained control of the areas of Judea and Samaria and established a military administration to govern the local population, pursuant to the accepted norms and requirements of international law.
However, the issue of Israel’s international rights in administering the area was complex in light of the unique legal and political status of the territory.
In classical situations of belligerent occupation of the territory of a sovereign state, the rights and obligations vis-a-vis the territory and the local population are set out in the 1907 Hague Regulations of Land Warfare and the 1949 Fourth Geneva Convention on the Protection of Civilian Persons in Time of War.
These instruments prescribe clear norms of behavior between an occupier and the local population as to the rights and duties involved in administering the area, protecting the forces of the occupier and respecting the humanitarian rights of the local population. Such norms cover issues of property, respect for local law and private property rights, ensuring public order and safety, and respecting the territorial rights of the sovereign pending settlement of the dispute.
With regard to the West Bank areas, the legal situation was not the classical situation of belligerent occupation of the land of a sovereign state. This irregularity stemmed from the fact that Jordan was not considered by the international community as having attained legitimate sovereign rights over the areas of Judea and Samaria, following its 1950 unrecognized annexation of the areas. As such, from the legal point of view, since there existed no legitimate sovereign power, a sui generis situation existed in which the classic laws of occupation were not legally applicable.
Israel’s status, as explained by its then Military Advocate General, Meir Shamgar (later to become Israel’s attorney general and chief justice), was:
“The territorial position is … sui generis, and the Israeli government tried therefore to distinguish between theoretical juridical and political problems on the one hand, and the observance of the humanitarian provisions of the Fourth Geneva Convention on the other hand.”
From the start, Israel distinguished between the unique nature and status of the territory on the one hand, and accepted and requisite international obligations vis-a-vis the local population in the day-to-day administration of the territory, on the other hand, pending a peaceful solution regarding its final status.
Concomitant with its assuming control in June 1967 Israel committed itself, through a series of military proclamations and orders to act in accordance with the relevant norms of international law in all matters including property, respecting existing local legislation, and other general provisions.
In the same context, without officially acknowledging the formal applicability of the Fourth Geneva Convention to the territories, which would have been tantamount to recognizing that the territory was Jordanian, Israel committed itself to apply vis-a-vis the local population, the humanitarian provisions of the Fourth Geneva Convention.
Pursuant to Article 55 of the 1907 Hague Regulations dealing with the issue of property, Israel, as “administrator and usufructuary,” maintained the right to use public, non-privately owned land and property, pending the final outcome of the dispute.
This premise served as the basis for Israel’s settlement policy, enabling use of public lands and properties while strictly respecting private rights of ownership of local residents of the territories. Thus, residents of Israeli settlements never received ownership rights to the land, which is provisionally leased to them by a government custodian pending an agreed determination of the territorial dispute.
Israel has consistently rejected the oft-heard accusation in international political bodies that its settlement policy violates the prohibition in Fourth Geneva Convention on the mass transfer of its residents into the territory. This in light of the provenance of such prohibition in the post-Second World War mass transfers of populations in Europe by the Nazis in an attempt to alter the demographic structure of the countries involved. This was made clear in the official Red Cross commentary, edited by Jean Pictet, on the sixth paragraph of the Geneva Convention article 49, regarding deportation and transfer of persons into occupied territory.
According to Pictet:
“…. It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.”
The fact that the 1993-95 Oslo Accords determined that the issue of settlements will be a negotiating issue in the permanent status negotiations underlines the fact that the settlement issue has yet to be agreed upon, and is, of necessity, inherently linked to the other permanent status issues, including borders, Jerusalem, security and the like. As stated in the Oslo Accords:
“It is understood that these negotiations shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.”
Pursuant to the 1967 Six-Day War, U.N. Security Council Resolution 242, adopted on Nov. 22, 1967, set out the basic framework of rights and obligations intended to lead to a solution of the Middle East conflict. The nonbinding but key resolution, adopted under Chapter VI of the U.N. Charter dealing with the pacific settlement of disputes, affirmed inter alia the rights of all states in the area to just and lasting peace, termination of belligerency, respect for sovereignty and independence, and secure and recognized boundaries, and called for negotiations to achieve a peaceful and accepted settlement.
This resolution has constituted the basis for the subsequent peace treaties between Israel and its neighbors Egypt and Jordan. It also serves as the central pillar in the series of agreements signed between Israel and the PLO regarding the West Bank. Such negotiations proceeded over the years to develop possible models for Israel and the Palestinians to negotiate between them the rights that they respectively claim in the areas of the West Bank.
During this period, and up to the signing of the 1993-1995 Oslo Accords, Israel continued to administer the areas on the basis of the rights to which it was entitled pursuant to international law.
The third element defining Israel’s rights in West Bank was the landmark 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo 2) witnessed by the world leaders and endorsed by the U.N.
The parties agreed, pending the negotiation an agreement to determine the permanent status of the area, to divide the effective control between a Palestinian Authority established for that purpose, and Israel. In this way the Oslo Accords created a sui generis legal regime, a lex specialis that overrides any other, previously applicable legal framework that may have been applicable, including the Geneva Convention.
As such, the PLO, as the formal representative of the Palestinian people, formally agreed that in addition to those West Bank and Gaza Strip areas in which all powers and responsibilities for governance and administration would be transferred into the hands of the Palestinian Authority (Areas A and B and the Gaza Strip), Israel would retain powers and responsibilities in part of the area (Area C) vis-a-vis both local Palestinian residents in the area, as well as the Israeli citizens residing in settlements and villages. The parties agreed that this arrangement would remain valid pending the outcome of negotiations between them on the permanent status of the areas.
Despite attempts by the international community, through nonbinding political statements and resolutions in the U.N., to prejudge the outcome of the negotiations by claiming that the territories are “occupied Palestinian territories,” there exists no such legally accepted or agreed to determination.
Similarly, the Oslo Accords did not specify the form the permanent status of the area would take—whether one state, two states, federation, confederation or otherwise. Thus, states and organizations advocating a “two-state solution” are, in fact preempting the outcome of the negotiations that have yet to take place. Any agreed solution will only emanate from negotiations between the Palestinian leadership and Israel and cannot be imposed unilaterally by U.N. resolutions, or by any international forum, or individual leaders.
Any permanent status agreement, if and when reached, will be the sole agreed upon instrument duly determining the status of the area and the respective international and bilateral rights and commitments both of Israel and the Palestinians.
Time will tell.