The oft-used phrase does not accurately reflect the status of the areas it purports to describe, writes Alan Baker, a former Israeli Foreign Ministry legal counsel and former ambassador to Canada.
JERUSALEM — When New Jersey Gov. Chris Christie apologized to Republican donor Sheldon Adelson for using the term “occupied territories” to refer to the West Bank, critics pounced. Jon Stewart of The Daily Show ridiculed the apology, insisting that the phrase is “widely accepted” and accurate.
While the term is indeed widely used to describe Israel’s relationship to the West Bank areas of Judea and Samaria, that doesn’t make it accurate. Indeed, the use of the term “occupied territories” in this context is flawed legally, historically and factually.
The phrase does not accurately reflect the status of the areas that it purports to describe. Yet it has regrettably become lingua franca in contemporary international and U.N. parlance, including for senior members of the U.S. administration and European leaders.
The expressions “occupied territory” and “occupied Palestinian territory” are political terms frequently used in nonbinding political resolutions, principally in the U.N. General Assembly, representing nothing more than the political viewpoint of the majority of states voting in favor of such resolutions.
These political pronouncements have never constituted, nor should they constitute, an authority for any determination that the territories are Palestinian or that they are occupied. Such determinations would appear to be based on incorrect and partisan readings of the factual situation and of the relevant international legal documentation.
In the 1967 Six Day War Israel took control of Samaria, Judea, eastern Jerusalem and the Gaza Strip. These areas had previously been seized by the Hashemite Kingdom of Jordan and Egypt and held by them since the 1948 war, initiated by them against Israel.
International law relates to occupation of foreign territory from a “prior legitimate sovereign,” and these areas never constituted the legitimate sovereign territory of Jordan or Egypt. Hence, the accepted international law definition of “occupation” of territory cannot be attributed to Israel’s status in these areas.
The unique historic and legal nature of these territories, in which there has existed a basic indigenous Jewish presence since at least 1500 BCE, long before the arrival of Islam in the 7th-century CE, with concomitant Jewish historic rights, inevitably renders these territories as sui generis, or having a unique legal status. This status runs counter to any attempt to use standard definitions such as “occupied territories” in order to designate or describe these areas.
Furthermore, the historic and legal rights of the Jewish people to this territory, rendering it unique and not “occupied,” have been acknowledged and encapsulated legally and historically in official, binding and still valid international documents: the 1917 Balfour Declaration, the 1920 San Remo Declaration, the 1922 League of Nations Mandate Instrument and the 1945 U.N. Charter.
By any objective criteria, the status of the territory could therefore only be considered to be at the most “disputed territory,” subject to an agreed-upon negotiation process between Israel and the Palestinians aimed at determining its ultimate status by agreement. This negotiating process includes the requirement to agree on secure and recognized permanent boundaries.
Demands that Israel withdraw to the “1967 lines,” which are in effect the 1949 armistice demarcation lines, are equally flawed and misleading. Such demands attempt to prejudge an open negotiating issue.
Efforts by leading elements in the international community to assign the territory to the Palestinians, prior to a successful conclusion of the negotiating process, or to deny the rights and status of Israel, demonstrate nothing more than political ignorance and bias.
Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, as well as of the International Action Division of the Legal Forum for Israel. He has served as the legal counsel to Israel’s Foreign Ministry and as Israel’s ambassador to Canada.