Trump must reject the myth of ‘occupied Palestine’

A close look at the region’s history and relevant international law casts significant doubt on the “occupied territories” dogma. And without an occupation, the legal case against the settlements collapses.

A military helicopter carries Israeli Prime Minister Benjamin Netanyahu to Alon Shvut in Gush Etzion on Nov. 19, 2019. Photo by Gershon Elinson/Flash90.
A military helicopter carries Israeli Prime Minister Benjamin Netanyahu to Alon Shvut in Gush Etzion on Nov. 19, 2019. Photo by Gershon Elinson/Flash90.
Matthew Mainen
Matthew Mainen

U.S. Secretary of State Mike Pompeo announced on Monday that the United States no longer considers Israel’s settlements in the West Bank inconsistent with international law. This policy shift comes in the wake of last week’s ruling by the European Court of Justice (ECJ), laudably criticized by the Trump administration, holding that labels for food produced in Israeli settlements must adequately inform E.U. consumers of their origin in “occupied territory.”

The legality of the settlements, in fact, largely hinges on whether the territory they are on is occupied or not. Article 49(6) of the Fourth Geneva Convention prohibits an occupying power from deporting or transferring its population into occupied territory. While there are compelling arguments that this does not even cover the kind of voluntary relocation undertaken by Israelis moving over the Green Line, the prohibition is outright inapplicable if no occupation exists. There is good reason to believe this is the case here.

There are several points of reference for understanding the territories’ legal status. Security Council Resolution 242, passed in the aftermath of the Six-Day War, suggests that Israel’s territorial gains in war are invalid. This rule, however, is not absolute. After all, most of the world recognized an exactly similar acquisition less than two decades prior.

When Israel declared independence on May 14, 1948, its borders looked far different than those ultimately accepted by the international community. Beersheva, Israel’s most populous southern city, was not captured from the Egyptian army until October 1948. Eilat, which became Israel’s Red Sea port and resort town, was acquired in March 1949.

These places have never been considered occupied nor has their acquisition through war been deemed illegitimate (unless one holds Israel’s existence itself to be illegitimate). No one calls Eilat a settlement. Why, then, is the opposite true for adjacent territories captured in 1967, which if captured in 1949 would unquestionably be part of Israel?

For this disparate treatment to make sense, those maintaining that the disputed territories are occupied should be able to identify a substantial change in international law, or legal status of the territories, during the intervening years. When one looks closely, however, none can be found.

International law derives from treaty and custom, and many scholars look to the Fourth Geneva Convention in making the case that the territories are occupied. This was the path taken in the International Court of Justice’s (ICJ) advisory opinion on Israel’s security barrier. Curiously, however, the treaty neither defines occupation nor expands the scope of which territories qualify for such designation. The ICJ’s reading of the treaty is therefore beyond creative. It’s outright dishonest.

Perhaps sensing the deficiencies in the court’s reasoning, Judge Awn al-Khasawneh issued a concurring opinion grounded in customary international law. Such laws emerge when a sufficient number of states continuously adhere to an unwritten norm because they deem adherence legally obligatory. Noting the longstanding international consensus, as seen through a multitude of United Nations resolutions against Israel, Judge al-Khasawneh deemed the disputed territories occupied.

But there’s a problem with this line of reasoning: It only tells us what customary norms emerged after Israel acquired the territory. It does not inform us as to the law at the time of Israel’s acquisition. In other words, Judge al-Khasawneh seemingly imposed an ex post facto law on Israel, something unconscionable in modern jurisprudence.

Besides, changes in customary international law cannot be imposed on states against their will. Even if custom now deems places like the disputed territory eligible for occupation, Israel is a persistent objector, a state that has opted out of a customary obligation.

While an argument could be made that Israel might have initially considered otherwise, as it briefly issued a military proclamation applying the humanitarian laws of occupation to the disputed territories, its position ultimately solidified that the territories were not occupied.

As last week’s ECJ decision exemplifies, the idea that the disputed territories are occupied is still taken as gospel. A closer look at the region’s history and relevant international law, however, casts significant doubt on this dogma. And without an occupation, the legal case against the settlements collapses.

Previously, the Trump administration stopped referring to the territories as occupied in State Department documents, but leading official Michael Kozak indicated that there was no official shift in policy. With Secretary Pompeo’s Monday announcement, it’s time to make things official: “Occupied Palestine” is a myth.

Matthew Mainen is a Washington, D.C., resident fellow at the Middle East Forum. Follow him on Twitter.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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