By Dore Gold, Israel’s Ambassador to the United Nations (1997-1999).
The Jerusalem Center for Public Affairs, April 27, 2002.
“Occupation” as an Accusation
At the heart of the Palestinian diplomatic struggle against Israel is the repeated
assertion that the Palestinians of the West Bank and Gaza Strip are resisting
“occupation.” Speaking recently on CNN’s Larry King Weekend, Hanan Ashrawi
hoped that the U.S. war on terrorism would lead to new diplomatic initiatives to
address its root “causes.” She then went on to specifically identify “the
occupation which has gone on too long” as an example of one of terrorism’s
In other words, according to Ashrawi, the violence of the intifada
emanates from the “occupation.”
Mustafa Barghouti, president of the Palestinian Medical Relief Committees and a
frequent guest on CNN as well, similarly asserted that: “the root of the problem
is Israeli occupation.”2
Writing in the Washington Post on January 16, 2002, Marwan
Barghouti, head of Arafat’s Fatah PLO faction in the West Bank, continued this
theme with an article entitled: “Want Security? End the Occupation.”
This has become the most ubiquitous line of argument today among
Palestinian spokesmen, who have to contend with the growing international
consensus against terrorism as a political instrument.
This language and logic have also penetrated the diplomatic struggles in the
United Nations. During August 2001, a Palestinian draft resolution at the UN
Security Council repeated the commonly used Palestinian reference to the West
Bank and Gaza Strip as “occupied Palestinian territories.”
References to Israel’s “foreign occupation” also appeared in the Durban
Draft Declaration of the UN World Conference Against Racism.
The Libyan ambassador to the United Nations, in the name of the Arab
Group Caucus, reiterated on October 1, 2001, what Palestinian spokesmen had
been saying on network television: “The Arab Group stresses its determination
to confront any attempt to classify resistance to occupation as an act of
Three clear purposes seem to be served by the repeated references to
“occupation” or “occupied Palestinian territories.”
First, Palestinian spokesmen hope to create a political context to explain
and even justify the Palestinians’ adoption of violence and terrorism during the
Second, the Palestinian demand of Israel to “end the occupation” does
not leave any room for territorial compromise in the West Bank and Gaza Strip,
as suggested by the original language of UN Security Council Resolution 242
Third, the use of “occupied Palestinian territories” denies any Israeli claim to the
land: had the more neutral language of “disputed territories” been used, then
the Palestinians and Israel would be on an even playing field with equal rights.
Additionally, by presenting Israel as a “foreign occupier,” advocates of
the Palestinian cause can delegitimize the Jewish historical attachment to Israel.
This has become a focal point of Palestinian diplomatic efforts since the failed
2000 Camp David Summit, but particularly since the UN Durban Conference in
Indeed, at Durban, the delegitimization campaign against Israel exploited
the language of “occupation” in order to invoke the memories of Nazi-occupied
Europe during the Second World War and link them to Israeli practices in the
West Bank and Gaza Strip.4
The Terminology of Other Territorial Disputes
The politically-loaded term “occupied territories” or “occupation” seems to
apply only to Israel and is hardly ever used when other territorial disputes are
discussed, especially by interested third parties. For example, the U.S.
Department of State refers to Kashmir as “disputed areas.”5
Similarly in its Country Reports on Human Rights Practices, the State
Department describes the patch of Azerbaijan claimed as an independent
republic by indigenous Armenian separatists as “the disputed area of
Despite the 1975 advisory opinion of the International Court of Justice
establishing that Western Sahara was not under Moroccan territorial
sovereignty, it is not commonly accepted to describe the Moroccan military
incursion in the former Spanish colony as an act of “occupation.”
In a more recent decision of the International Court of Justice from
March 2001, the Persian Gulf island of Zubarah, claimed by both Qatar and
Bahrain, was described by the Court as “disputed territory,” until it was finally
allocated to Qatar.7
Of course each situation has its own unique history, but in a variety of other
territorial disputes from northern Cyprus, to the Kurile Islands, to Abu Musa in
the Persian Gulf – which have involved some degree of armed conflict – the term
“occupied territories” is not commonly used in international discourse.8
Thus, the case of the West Bank and Gaza Strip appears to be a special
exception in recent history, for in many other territorial disputes since the
Second World War, in which the land in question was under the previous
sovereignty of another state, the term “occupied territory” has not been applied
to the territory that had come under one side’s military control as a result of
No Previously-Recognized Sovereignty in the Territories
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
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
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, in defiance of the UN Security Council. Jordan’s
1950 annexation of the West Bank was recognized only by Great Britain
(excluding the annexation of Jerusalem) and Pakistan, and rejected by the vast
majority of the international community, including the Arab states.
At Jordan’s insistence, the 1949 Armistice Line, that constituted the
Israeli-Jordanian boundary until 1967, was not a recognized international border
but only a line separating armies.
The Armistice Agreement specifically stated: “no provision of this
Agreement shall in any way prejudice the rights, claims, and positions of either
Party hereto in the peaceful settlement of the Palestine questions, the
provisions of this Agreement being dictated exclusively by military
considerations” (Article II.2).
As noted above, in many other cases in recent history in which recognized
international borders were crossed in armed conflicts and sovereign territory
seized, the language of “occupation” was not used – even in clear-cut cases of
aggression. Yet in the case of the West Bank and Gaza, where no
internationally recognized sovereign control previously existed, the stigma of
Israel as an “occupier” has gained currency.
Aggression vs. Self-Defense
International jurists generally draw a distinction between situations of
“aggressive conquest” and territorial disputes that arise after a war of
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.”9
Here the historical sequence of events on June 5, 1967, is critical, for Israel
only entered the West Bank after repeated Jordanian artillery fire and ground
movements across the previous armistice lines. Jordanian attacks began at
10:00 a.m.; an Israeli warning to Jordan was passed through the UN at 11:00
a.m.; Jordanian attacks nonetheless persisted, so that Israeli military action only
began at 12:45 p.m. Additionally, Iraqi forces had crossed Jordanian territory
and were poised to enter the West Bank.
Under such circumstances, the temporary armistice boundaries of 1949
lost all validity the moment Jordanian forces revoked the armistice and
attacked. Israel thus took control of the West Bank as a result of a defensive
The language of “occupation” has allowed Palestinian spokesmen to obfuscate
this history. By repeatedly pointing to “occupation,” they manage to reverse the
causality of the conflict, especially in front of Western audiences. Thus, the
current territorial dispute is allegedly the result of an Israeli decision “to
occupy,” rather than a result of a war imposed on Israel by a coalition of Arab
states in 1967.
Israeli Rights in the Territories
Under UN Security Council Resolution 242 from November 22, 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 “the territories” or “all the territories”
captured in the Six-Day War.
This deliberate language resulted from months of painstaking diplomacy.
For example, the Soviet Union attempted to introduce the word “all” before the
word “territories” in the British draft resolution that became Resolution 242.
Lord Caradon, the British UN ambassador, resisted these efforts.10
Since the Soviets tried to add the language of full withdrawal but failed,
there is no ambiguity about the meaning of the withdrawal clause contained in
Resolution 242, which was unanimously adopted by the UN Security Council.
Thus, the UN Security Council recognized that Israel was entitled to part of
these territories for new defensible borders. Britain’s foreign secretary in 1967,
George Brown, stated three years later that the meaning of Resolution 242 was
“that Israel will not withdraw from all the territories.”11
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
Actually, the last international legal allocation of territory that includes 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: “recognition has been given to the historical connection
of the Jewish people with Palestine and to the grounds for reconstituting their
national home in that country.”
The members of the League of Nations did not create the rights of the
Jewish people, but rather recognized a pre-existing right, that had been
expressed by the 2,000-year-old quest of the Jewish people to re-establish their
Moreover, Israel’s 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. Article 80 established that nothing in the UN Charter should
be “construed to alter in any manner the rights whatsoever of any states or any
peoples or the terms of existing international instruments.”
These rights were unaffected by UN General Assembly Resolution 181 of
November 1947 – the Partition Plan – which was a non-binding recommendation
that was rejected, in any case, by the Palestinians and the Arab states.
Given these fundamental sources of international legality, Israel possesses legal
rights with respect to the West Bank and Gaza Strip that appear to be ignored
by those international observers who repeat the term “occupied territories”
without any awareness of Israeli territorial claims.
Even if Israel only seeks “secure boundaries” that cover part of the West
Bank and the Gaza Strip, there is a world of difference between a situation in
which Israel approaches the international community as a “foreign occupier”
with no territorial rights, and one in which Israel has strong historical rights to
the land that were recognized by the main bodies serving as the source of
international legitimacy in the previous century.
After Oslo, Can the Territories be Classified as “Occupied”?
In the 1980s, President Carter’s State Department legal advisor, Herbert
Hansell, sought to shift the argument over occupation from the land to the
Palestinians who live there. He determined that the 1949 Fourth Geneva
Convention governing military occupation applied to the West Bank and Gaza
Strip since its paramount purpose was “protecting the civilian population of an
Hansell’s legal analysis was dropped by the Reagan and Bush
administrations; nonetheless, he had somewhat shifted the focus from the
territory to its populace. Yet here, too, the standard definitions of what
constitutes an occupied population do not easily fit, especially since the
implementation of the 1993 Oslo Agreements.
Under Oslo, 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.13
Upon concluding the Oslo II Interim Agreement in September 1995, which
extended Palestinian administration to the rest of the West Bank cities, Foreign
Minister Shimon Peres declared: “once the agreement will be implemented, no
longer will the Palestinians reside under our domination. They will gain self-rule
and we shall return to our heritage.”14
Since that time, 98 percent of the Palestinian population in the West Bank and
Gaza Strip has come under Palestinian jurisdiction.15
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.
The 1949 Fourth Geneva Convention (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.
Israel has been forced to exercise its residual powers in recent months only in
response to the escalation of violence and armed attacks instigated by the
Thus, any increase in defensive Israeli military deployments today around
Palestinian cities is the direct consequence of a Palestinian decision to escalate
the military confrontation against Israel, and not an expression of a continuing
Israeli occupation, as the Palestinians contend. For once the Palestinian
leadership takes the strategic decision to put an end to the current wave of
violence, there is no reason why the Israeli military presence in the West Bank
and Gaza cannot return to its pre-September 2000 deployment, which minimally
affected the Palestinians.
Describing the territories as “Palestinian” may serve the political agenda of one
side in the dispute, but it prejudges the outcome of future territorial
negotiations that were envisioned under UN Security Council Resolution 242.
It also represents a total denial of Israel’s fundamental rights.
Furthermore, reference to “resisting occupation” has simply become a ploy
advanced by Palestinian and Arab spokesmen to justify an ongoing terrorist
campaign against Israel, despite the new global consensus against terrorism
that has been formed since September 11, 2001.
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. As
U.S. Ambassador to the UN Madeleine Albright stated in March 1994: “We
simply do not support the description of the territories occupied by Israel in the
1967 War as occupied Palestinian territory.”
- CNN Larry King Weekend, “America Recovers: Can the Fight
Against Terrorism be Won?,” Aired November 10, 2001, 21:00 ET
- Mustafa Baghouti, “Occupation is the Problem,”Al-Ahram Weekly Outline,
December 6-12, 2001.
- Anne F. Bayefsky, “Terrorism and Racism: The Aftermath of Durban,”
Jerusalem Viewpoints, no. 468, December 16, 2001.
- See Bayefsky, op. cit. U.S. and European officials may use the term
“occupation” out of a concern for the humanitarian needs of the Palestinians,
without identifying with the PLO political agenda at Durban or at the UN.
- U.S. Department of State, Consular Information Sheet: India
November 23, 2001.
- 1999 Country Reports on Human Rights Practices: Azerbaijan, released
by the Bureau of Democracy, Human Rights and Labor, U.S. Department of
State, February 25, 2000.
- Case Concerning Maritime Delimitation and Territorial Questions between
Qatar and Bahrain, March 15, 2001, Judgment on the Merits, International
Court of Justice, March 16, 2000, paragraph 100.
- The Japanese Foreign Ministry does not use the language of “ending the
Russian occupation of the Kurile Islands,” but rather resolving “the Northern
Territory Issue.” (www.mofa.go.jp/region/europe/russia/territory).U.S. Department of State “Background Notes” describe the Turkish
Republic of Northern Cyprus as the Island’s “northern part under an
autonomous Turkish-Cypriot administration supported by the presence of
Turkish troops” – not under Turkish occupation.
- Stephen Schwebel, “What Weight to Conquest,” American Journal of
International Law, 64 (1970):345-347.
- Vernon Turner, “The Intent of UNSC 242 — The View of Regional
Actors,” in UN Security Council Resolution 242: The Building Block of
Peacemaking (Washington: Washington Institute for Near East Policy, 1993), p.
- Meir Rosenne, “Legal Interpretations of UNSC242,” in UN Security
Council Resolution 242: The Building Block of Peacemaking, op. cit., p. 31.
- Under the Carter administration, Hansell’s distinction led, for the first
time, to a U.S. determination that Israeli settlement activity was illegal since it
purportedly contravened Article 49 of the Fourth Geneva Convention which
stated that “the Occupying Power shall not deport or transfer parts of its own
civilian population into the territory it is occupying.”Subsequently, the Reagan and Bush administrations altered the legal
determination of the Carter period, changed the U.S. voting pattern at the UN,
and refused to describe Israeli settlements as illegal, even if American political
objections to settlement activity continued to be expressed. One reason was
that the Fourth Geneva Convention applied to situations like that of
Nazi-occupied Europe, which involved “forcible transfer, deportation or
resettlement of large number of people.”This view was formally stated by the U.S. Ambassador to the UN in
Geneva, Morris Abram, on February 1, 1990, who had served on the U.S. staff
at the Nuremberg trials and, hence, was familiar with the legal intent behind the
1949 Fourth Geneva Convention.
- Dr. Hans-Peter Gasser, Legal Adviser, International Committee of the Red
Cross, “On the Applicability of the Fourth Geneva Convention After the
Declaration of Principles and the Cairo Agreement,” paper presented at the
International Colloquium on Human Rights, Gaza, September 10-12, 1994.
Gasser did not state that in his view the territories were no longer “occupied,”
but he did point out the legal complexities that had arisen with Oslo’s
- Foreign Minister Shimon Peres’s Address at the Israeli-Palestinian Interim
Agreement Signing Ceremony, Washington, D.C., September 28, 1995.
- Ehud Barak, “Israel Needs a True Partner for Peace,” New York Times, July 30,
- The present intifada violence resulted from a strategic decision taken by
Yasser Arafat, as admitted by numerous Palestinian spokesmen:”Whoever thinks the intifada broke out because of the despised Sharon’s
visit to the Al-Aqsa Mosque is wrong….This intifada was planned in advance,
ever since President Arafat’s return from the Camp David Negotiations,”
admitted Palestinian Communications Minister ‘Imad Al-Faluji (Al-Safir, March 3,
2001, trans. MEMRI).Even earlier, Al-Faluji had explained that the intifada was initiated as the
result of a strategic decision made by the Palestinians (Al-Ayyam, December 6,
2000).Arafat began to call for a new intifada in the first few months of the year
2000. Speaking before Fatah youth in Ramallah, Arafat “hinted that the
Palestinian people are likely to turn to the intifada option” (Al-Mujahid, April 3,
2000).Marwan Barghouti, the head of Fatah in the West Bank, explained in
early March 2000: “We must wage a battle in the field alongside of the
negotiating battle…I mean confrontation” (Ahbar Al-Halil, March 8, 2000).
During the summer of 2000, Fatah trained Palestinian youths for the upcoming
violence in 40 training camps.
The July 2000 edition of Al-Shuhada monthly, distributed among the
Palestinian Security Services, states: “From the negotiating delegation led by
the commander and symbol, Abu Amar (Yasser Arafat) to the brave Palestinian
people, be ready. The Battle for Jerusalem has begun.”
One month later, the commander of the Palestinian police told the official
Palestinian newspaper Al-Hayat Al-Jadida: “The Palestinian police will lead
together with the noble sons of the Palestinian people, when the hour of
Freih Abu Middein, the PA Justice Minister, warned that same month:
“Violence is near and the Palestinian people are willing to sacrifice even 5,000
casualties” (Al-Hayut al-Jadida, August 24, 2000 — MEMRI).
Another official publication of the Palestinian Authority, Al-Sabah, dated
September 11, 2000 – more than two weeks before the Sharon visit – declared:
“We will advance and declare a general intifada for Jerusalem. The time for the
intifada has arrived, the time for intifada has arrived, the time for Jihad has
Arafat advisor Mamduh Nufal told the French Nouvel Observateur (March
1, 2001): “A few days before the Sharon visit to the Mosque, when Arafat
requested that we be ready to initiate a clash, I supported mass demonstrations
and opposed the use of firearms.”
Of course, Arafat ultimately adopted the use of firearms and bomb
attacks against Israeli civilians and military personnel. On September 30, 2001,
Nufal detailed in al-Ayyam that Arafat actually issued orders to field
commanders for violent confrontations with Israel on September 28, 2000.