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Jerusalem Center for Public Affairs
Strategic Alliances for a Secure, Connected, and Prosperous Region

“Occupation”: The Search for an Alternative Term

Filed under: International Law, Israel, Settlements

Condemning Israel for having installed an “occupation” in the territories it captured in 1967, has become a mantra for many discussions about the Middle East. But is this characterization true? How should fair-minded people approach this question?

Israel captured the territory of Judea and Samaria, which is also called the West Bank, as a result of the 1967 Six-Day War, when it battled a coalition of five Arab armies in a war of self-defense. There was considerable debate among Israelis over how to label these territories. Were they:

  • liberated territories,
  • administered territories,
  • or occupied territories?

In Israel itself, there was strong opposition to the term “occupation.” It had direct associations with the Second World War when much of Europe was vanquished by the German Army, which committed the most heinous atrocities, particularly against the Jewish people.

Are there international criteria for determining whether a given territory should be designated as “occupied”?

The most important legal treaty in this regard is the 1949 Fourth Geneva Convention. Since the Six-Day War, there has been a debate over its applicability to the situation in the West Bank. Former Chief Justice of the Israeli Supreme Court, Meir Shamgar, wrote in the 1970s that “territory conquered does not always become occupied territory to which the rule of the Fourth Convention applies.” He further explained that the convention “is based on the assumption that there had been a sovereign, who was ousted, and that he had been a legitimate sovereign.”

But that was not the case with the previous Jordanian presence in the territories, which was the result of its illegal invasion of the West Bank in 1948 in defiance of the UN Security Council. Jordan’s 1950 annexation of the West Bank was only recognized by Britain, Pakistan, and Iraq, but not by the rest of the international community, including the Arab states.

To look at different cases where the control of territory has been questioned, Kashmir is a contested territory, but the U.S. State Department refers to Kashmir as a “disputed area” – not “occupied.” Similarly, it labels the patch of Azerbaijan claimed as an independent republic by indigenous Armenian separatists as “the disputed area of Nagorno-Karabach.” After the Soviets seized the Kurile Islands, even the Japanese were reluctant to call them “occupied.” Thus, the term “occupied territories” was rarely used in other instances.

For many, “occupation” was a loaded term. The International Committee of the Red Cross (ICRC), which has special responsibility for the Fourth Geneva Convention’s implementation, decided to hold an expert meeting on the subject in 2008. One of its conclusions was that a majority of the experts, who were consulted, noted the “pejorative connotation of ‘occupation’.” They, too, thought an alternative language was needed.

In the territories Israel captured back in 1967, a new reality has emerged in any case. Israel unilaterally withdrew from the Gaza Strip in 2005. And it agreed to the establishment of a self-governing Palestinian Authority in the West Bank, in line with the Oslo Accords, first signed in 1993. Was this a Palestinian state? No. But it wasn’t an occupation either, making the term completely irrelevant for describing the Israeli-Palestinian conflict.

Unfortunately talking about the “occupation” has become a means of branding Israel unfairly and is often used to wage political warfare against the Jewish state.

In light of this background, it would be far more accurate to adopt the neutral language and call the territories in question “disputed territories,” as many territories are labeled in other cases whose status evolved in similar circumstances.