Staking our claim

by Evelyn Gordon

August 12, 2002

US Secretary of Defense Donald Rumsfeld shocked the world last week when he referred to Israel's "so-called occupation" of the West Bank and Gaza. By implying that he does not consider Israel's presence in these territories to be an illegal occupation, Rumsfeld defied one of the modern world's most widely accepted dogmas. Yet the very fact that his statement was received as little short of heretical begs an obvious question: How did a label with not a shred of basis in international law turn into such a universally accepted truth?

The standard definition of an occupation under international law is found in the Fourth Geneva Convention, which applies explicitly to "partial or total occupation of the territory of a High Contracting Party" (Article 2, emphasis added). In other words, "occupation" for the purposes of the convention means the presence of one country's troops in territory that belongs to another sovereign state the only type of entity that can be a contracting party to the convention.
But when territory that does not clearly belong to another sovereign state is captured by one of the possible legitimate claimants as, for instance, in Kashmir, which is claimed by India, Pakistan, and the Kashmiris the term generally used is "disputed," not "occupied."

And that is precisely the situation in the West Bank and Gaza.

Neither of these territories belonged to any sovereign state when Israel captured them in 1967; they were essentially stateless territory. Both had originally been part of the League of Nations Mandate for Palestine and, according to the UN partition plan of 1947, they should have become part of a new Arab state when Britain abandoned the Mandate in 1948.

But since the Arabs themselves rejected this plan, not only did that state never come into being, it never even acquired theoretical legitimacy: The partition plan was no more than a non-binding "recommendation" (the resolution's own language) adopted by the General Assembly. Once rejected by one of the parties involved, it essentially became a dead letter.

The West Bank and Gaza were therefore not owned by anyone when they were seized by Jordan and Egypt, respectively, in 1948; and since their annexation by these countries was never internationally recognized (Jordan's annexation of the West Bank, for instance, was accepted only by Britain and Pakistan), they were still stateless territory in 1967.

Moreover, Israel had a very strong claim to both territories. Even aside from the obvious historical claim the heart of the biblical kingdom of Israel was in what is now called the West Bank the terms of the original League of Nations Mandate quite clearly assigned the West Bank and Gaza to the Jewish state.
The preamble to the Mandate explicitly stated that its purpose was "the establishment in Palestine of a national home for the Jewish people."

DOES THIS mean that all of Mandatory Palestine which included not only modern-day Israel, the West Bank and Gaza, but also the modern-day state of Jordan was supposed to be a Jewish state? An answer can be found in Article 25, which reads: "In the territories lying between the Jordan [River] and the eastern boundary of Palestine... the Mandatory shall be entitled, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of this mandate as he may consider inapplicable to the existing local conditions."

No such permission, however, was given west of the Jordan. In other words, while the Mandate arguably gave Britain and the council together the right to "withhold application" of the Mandate's stated purpose east of the Jordan, the land west of this river which includes the West Bank and Gaza, as well as Israel was unequivocally earmarked for the Jewish national home. And the fact that both territories were captured in a defensive war from states that originally seized them through armed aggression strengthens Israel's claim still further.

How, then, did the myth of "occupation" i.e., the myth that these territories indisputably belong to someone other than Israel gain such universal credence? Sadly, the main culprit is Israel itself.

When Israel captured the territories in 1967, the government did not assert its claim. Instead, it insisted that Israel did not want these lands and was merely "holding them in trust" to be "returned" to the Arabs in exchange for a peace treaty. And every subsequent government reiterated this line. But since no third party could be expected to press a claim that Israel refused to press for itself, the Arab claim, by default, became the only one on the international agenda. And since territories cannot be "disputed" if there is only one claimant, the only alternative was to view them as belonging to the sole remaining claimant leaving Israel as the "occupier."

Israel did, of course, lay claim to one section of these territories from the start: east Jerusalem. But legally speaking, Israel's claim to east Jerusalem is no different from its claim to the rest of the West Bank. By essentially denying the latter claim, Israel badly undermined the former.
After 35 years, it may well be impossible to rectify this enormous historical error. But Israel cannot afford not to make the effort. It must explain, at every opportunity, the sound legal basis for its own claim to the West Bank and Gaza. To do otherwise is to guarantee that it begins any future negotiations from the irremediably inferior position of an "occupier."