The West Bank: ‘Occupied’ or not?

The West Bank: ‘Occupied’ or not?

Op-Ed: The West Bank is under military occupation, and that’s a fact

By Jessica Montell, JTA World News Service

JERUSALEM (JTA) — According to press reports, the crowd at a recent Republican Jewish Coalition conference “noticeably gasped” when New Jersey Gov. Chris Christie referred to the West Bank as “occupied territories.” Christie promptly apologized to the event’s host, mega-donor Sheldon Adelson, clarifying that his remarks “were not meant to be a statement of policy,” according to a source.

This incident illustrates the many semantic land mines involved in talking about the Israeli-Palestinian conflict. The terms employed to talk about the separation barrier or the Israeli settlements or some of Jerusalem’s holy sites often belie a political agenda intended not only to describe reality but also to affect it.

Yet this incident also illustrates the way in which an inherently legal term has been branded as somehow part of a radical political agenda.

Acknowledging that the West Bank is presently subject to military occupation is not at all a statement of policy. It is a statement of fact.

Many Jews, both in Israel and in the United States, use the biblical names Judea and Samaria, highlighting the belief that this territory forms the foundation of the Jewish people. This territory is indeed the biblical heartland of the Jewish tradition, where according to our Bible the Patriarch Abraham purchased a plot of land for his family, where Joshua brought the people after 40 years of wandering in the desert and built the tabernacle to house the Ark of the Covenant.

But calling this area Judea and Samaria tells us nothing about the applicable legal framework: Who is the legislator in Judea and Samaria? Who is the executive branch of government in the West Bank? What is the judiciary there?

The answer to all three questions is the Israeli military. The military passes laws, in the form of military orders that supersede the local laws that otherwise remain in force. Even the fact that Israeli law applies in the settlements, and personally to settlers, is not due to legislation from the Knesset but because the military commander signed an order giving force to that particular piece of Knesset legislation.

The military is also the executive, administering all aspects of the governance of this territory. Many of the Israeli civil authorities operate in the settlements, and the Palestinian Authority has responsibility for civil affairs within Palestinian cities. However, all of these authorities operate within the overall control of the Israeli military.

And the military is the judiciary. The military legal advisors decide what is lawful and what is not. The Israeli military maintains a military court system in which Palestinians are tried for everything from security offenses to traffic violations.

All Palestinians — including those living in Area A under the nominal control of the Palestinian Authority — are subject to the jurisdiction of the Israeli military. Some 300,000 Israelis live in this territory as well (not counting the 200,000 Israelis in the territory annexed to the city of Jerusalem). Though they also live in territory governed by military law, settlers enjoy all the rights of the Israeli democracy, as well as additional financial benefits intended to encourage Israelis to live there. The result is that two different and discriminatory legal systems operate in the same territory, with a person’s rights and benefits determined by his or her national origin.

The words “military occupation” might sound harsh to the American ear. Many Israelis don’t like the sound of it either. Yet the reality is indeed harsh. Millions of Palestinians have lived for almost half a century under military rule, denied basic rights and subject to the whims of a government they did not elect and have no ability to influence.

Adelson and his ilk may be able to dictate a form of censorship of the political conversation in the United States. This ostrich-like behavior, however, does not alter the reality on the ground. This is a rotten system. U.S. Secretary of State John Kerry is currently devoting massive efforts to address this problem. If his efforts are to have any hope of success, we must first of all call it like it is.

Jessica Montell is executive director of B’Tselem: The Israeli Information Center for Human Rights in the Occupied Territories.


Op-Ed: ‘Occupied territories’ is a flawed and biased term

By Alan Baker, JTA World News Service

JERUSALEM (JTA) — 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.