Daily Alert

Occupied Territories or Disputed Territories?

Last month's Palestinian draft resolution at the UN Security Council again described the West Bank and Gaza Strip as "occupied Palestinian territories." References to Israel's "foreign occupation" also appear in the Durban Draft Declaration of the UN World Conference Against Racism. This language was not just chosen for rhetorical purposes but in order to invoke specific legal claims: For example, Palestinian insistence on using the term "occupied territories" is usually connected to the assertion that they fall under the 1949 Fourth Geneva Convention. Yet, Palestinian spokesmen also speak about Israeli military action in Area A as an infringement on Palestinian sovereignty: If Israel "invaded Palestinian territories," then they cannot be regarded as "occupied"; however, if the territories are defined as "occupied," Israel cannot be "invading" them.
Share this

Table of Contents

Vol. 1, No. 1       September 2, 2001

Last month’s Palestinian draft resolution at the UN Security Council again described the West Bank and Gaza Strip as “occupied Palestinian territories.” References to Israel’s “foreign occupation” also appear in the Durban Draft Declaration of the UN World Conference Against Racism. This language was not just chosen for rhetorical purposes but in order to invoke specific legal claims: For example, Palestinian insistence on using the term “occupied territories” is usually connected to the assertion that they fall under the 1949 Fourth Geneva Convention. Yet, Palestinian spokesmen also speak about Israeli military action in Area A as an infringement on Palestinian sovereignty: If Israel “invaded Palestinian territories,” then they cannot be regarded as “occupied”; however, if the territories are defined as “occupied,” Israel cannot be “invading” them.

Israel’s Traditional Definitions

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. Jordan’s 1950 annexation of the West Bank was recognized only by Great Britain and Pakistan and rejected by the vast majority of the international community, including the Arab states.

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.” Israel only entered the West Bank after repeated Jordanian artillery fire and ground movements across the previous armistice lines; additionally, Iraqi forces crossed Jordanian territory and were poised to enter the West Bank. Under such circumstances, even the UN rejected Soviet efforts to have Israel branded as the aggressor in the Six-Day War.

In any case, under UN Security Council Resolution 242 from November 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 “all the territories” captured in the Six-Day War. This language resulted from months of painstaking diplomacy. Thus, the UN Security Council recognized that Israel was entitled to part of these territories for new defensible borders. 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.

The last international legal allocation of territory that includes those strategic zones of 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. Moreover, these 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. Given these fundamental sources of international legality, Israel cannot be characterized as a “foreign occupier” with respect to the West Bank and Gaza Strip.

The Impact of Oslo: Are the West Bank and Gaza Strip “Occupied” From a Legal Standpoint?

Under the Oslo Agreements, 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. Since that time, 98 percent of the Palestinian population in the West Bank and Gaza Strip have come under Palestinian jurisdiction. 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. These residual powers have only been employed extensively, in recent months, in response to the escalation of violence and armed attacks imposed on Israel by the decision of the Palestinian Authority.

The 1949 Fourth Geneva Convention itself (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.

It is not surprising that at the United Nations, the U.S. has opposed the phraseology of “occupied Palestinian territories.” In March 1994, U.S. Ambassador to the UN Madeleine Albright stated: “We simply do not support the description of the territories occupied by Israel in the 1967 War as occupied Palestinian territory.”

Describing the West Bank and Gaza Strip as “occupied Palestinian territories” is incorrect and misleading. Israel’s transfer of government functions under the Oslo Agreements greatly strengthens Israel’s case that the main international conventions relevant to military occupations do not apply. Describing these territories as “Palestinian” may serve the Palestinians’ political agenda but prejudges the outcome of future territorial negotiations that were envisioned under UN Security Council Resolution 242. It also serves the current Palestinian effort to obtain international affirmation of Palestinian claims and a total denial of Israel’s fundamental rights in every international forum. 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. Additionally, UN resolutions that characterize these territories as “Palestinian” clearly undermine the foundations of the peace process for the future.

The Jerusalem Center

The Jerusalem Center for Security and Foreign Affairs is a leading foreign policy research, public diplomacy, and communications center that partners with Arab and Muslim majority counterparts and countries to fashion a more secure and prosperous Middle East.
Share this

Subscribe to Daily Alert

The Daily Alert – Israel news digest appears every Sunday, Tuesday, and Thursday.

Related Items

Stay Informed, Always

Get the latest news, insights, and updates directly in your inbox—be the first to know!

Subscribe to Jerusalem Issue Briefs
The Daily Alert – Israel news digest appears every Sunday, Tuesday, and Thursday.







Notifications

The Jerusalem Center
What makes a child believe killing a #Jew is justified?

In PA textbooks, Jews are called liars and frauds; their fate: elimination. This is #indoctrination—not #education. But change is happening. On East to West, @IMPACT_SE CEO Marcus Sheff exposes how #UNRWA-funded schools are fueling extremism—and what real reform looks like.  Listen now on Spotify: open.spotify.com/show/2JHqh973U  Watch on YouTube: youtu.be/8OkJTGNfVUc

11:43am
The Jerusalem Center
Highlights from the @Jerusalem_Post Annual Conference in NYC:

Dr. @Dan_Diker, President of the JCFA: “October 7 wasn’t just an attack on Israel — it was a blow to the U.S. on Israeli soil. It demands moral clarity and a united front between Israel and the U.S. to defeat jihadist terror.”

2:20pm
The Jerusalem Center
@XAVIAERD says it like it is

Well, @XAVIAERD says it like it is: If you’re part of “#Queers for #Palestine,” he’ll pay for your flight to #Gaza. Go see for yourself how they treat LGBTQ+ people over there. Don’t miss this bold take on the Israel-Hamas war and the woke right.

2:32pm
The Jerusalem Center
“This isn’t Israel vs. Hamas — it’s the frontline of the free world.”

“This isn’t Israel vs. Hamas — it’s the frontline of the free world.” On Our Middle East by @JNS_org, @Dan_Diker@KhaledAbuToameh (JCFA/@GatestoneInst) break it down: If Hamas isn’t crushed, Iran wins. The jihadis—from #Gaza to your campus—get the green light. Diker: “This war is for the West.” No fluff. No filters. Just raw insight from two insiders who actually know what’s going on.  Watch: youtu.be/4Aq_zcbb4Yo

2:15pm
The Jerusalem Center
5/5 Lt. Col. Kalo on East to West with @smartinezamir:

“This operation showcases Israel’s strategic intelligence superiority both regionally and globally. It demonstrates the moral commitment to recovered soldiers and also strengthens Israel’s position with allies.” youtube.com/watch?v=nIvNNi

2:07pm
The Jerusalem Center
4/5 The operation built on intelligence gathered during the 2019 #Baumel recovery

#Mossad agents operated under cover in #Syria for years, visiting a graveyard multiple times under fire to collect remains for DNA matching. The intelligence community’s evolution combines technology, big data analysis, and human intelligence capabilities.

2:02pm
The Jerusalem Center
3/5 This recovery coincided with the release of Israeli hostage Edan Alexander

This recovery coincided with the release of Israeli hostage Edan Alexander from #Hamas in #Gaza, significantly boosting national morale amid an ongoing conflict now stretching over 18 months. The dual successes demonstrate #Israel‘s unwavering commitment to bringing all soldiers home.

1:58pm
The Jerusalem Center
2/5 The operation used the power vacuum following #Assad’s fall from #Damascus

Lt. Col. Avi Kalo, former head of IDF Prisoners & Missing Persons Division, calls it “an outstanding event that brings hope and new spirit to the people of Israel.” The operation utilized the power vacuum following #Assad‘s fall from #Damascus, allowing #Israeli intelligence to deploy ground capabilities in #Syria.

1:56pm
The Jerusalem Center
1/5 Israeli forces recovered the remains of Sergeant First Class Zvi Feldman

In an unprecedented operation, Israeli forces have recovered the remains of Sergeant First Class Zvi #Feldman, missing since the 1982 Battle of Sultan Yacoub. The complex #Mossad mission was conducted deep within #Syrian territory, 43 years after his disappearance. This follows the successful 2019 recovery of Zachary #Baumel from the same battle.

1:54pm
The Jerusalem Center
A molotov attack on a bus = a “barbecue party”?

That’s what #Palestinian kids are being taught under @UNRWA  — from grade school to graduation. This isn’t education. It’s indoctrination. Marcus Sheff of @IMPACT_SE  breaks it down with @smartinezamir

12:51pm

Close