Understanding Occupation Under International Law and the Case of Judea and Samaria (West Bank)
Occupation, as defined under international law
Occupation, as defined under international law, specifically applies to the territories of sovereign states. This concept is rooted in the principles established by the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949. However, the status of Judea and Samaria (also known as the West Bank) is often misunderstood in this context.
Key Points:
Definition
Occupation refers to the control of a territory by a foreign military power. For it to be considered occupation, the territory must belong to a sovereign state.
Sovereignty
The occupying power must displace the previous sovereign authority of the state. Territories without a recognized sovereign status do not fall under this definition.
Uti Possidetis Juris
The international law principle of Uti Possidetis Juris, which means "as you possess under law," establishes that newly formed states presumptively inherit the borders of the preceding administrative entity upon independence. This principle has been influential in determining the territorial boundaries of many newly independent states, including Israel.
Occupation vs. Right to Self-Determination
The concept of occupation pertains to the control of a sovereign state's territory by a foreign power, while the right to self-determination refers to the ability of a people to determine their own political status and pursue their own economic, social, and cultural development. These are distinct legal principles. The lack of recognized Palestinian sovereignty means Judea and Samaria are not "occupied" under international law, although Palestinians may still pursue self-determination through other legal and political avenues.
Judea, Samaria and East Jerusalem Context
Historical Background: Before 1967, Judea and Samaria were controlled by Jordan. However, Jordan’s annexation of the West Bank was only recognized by a few countries, and it relinquished its claims to the territory in 1988. Palestinian Statehood: Palestine has never been a recognized sovereign state with defined borders. Therefore, according to international law, Judea and Samaria cannot be considered "occupied" in the legal sense that applies to sovereign states.
Oslo Accords: Division of Territories
Under the Oslo Accords, Judea and Samaria were divided into Areas A, B, and C.
Area A: Full civil and security control was transferred to the Palestinian Authority (PA).
Area B: Civil control was transferred to the PA, while Israel retained security control.
Area C: Israel retained full civil and security control. Sovereignty: The Oslo Accords did not transfer sovereignty over these areas. The agreements were interim arrangements intended to facilitate a peace process, with final status issues, including sovereignty, to be negotiated later.
Arabs from Judea and Samaria Refusing Israeli Citizenship
The Six-Day War: In June 1967, Israel fought against Egypt, Jordan, and Syria, resulting in Israel capturing the Gaza Strip, the Sinai Peninsula, the Golan Heights, East Jerusalem, and the West Bank (Judea and Samaria).
Israeli Control: Following the war, Israel assumed control over these territories, including Judea and Samaria, which had been under Jordanian administration since 1948.
Citizenship Offer: After the war, Israel offered residents of the newly controlled territories, to Arabs living in East Jerusalem, the opportunity to apply for Israeli citizenship. The majority refused for several reasons:
National Identity: Many Arabs in Judea and Samaria identified as Palestinians and sought self-determination. Accepting Israeli citizenship was seen as a betrayal of their national identity and aspirations for an independent Palestinian state.
Political Pressure: Arab leaders and surrounding Arab nations discouraged or outright rejected any cooperation with Israel, including the acceptance of citizenship, to maintain pressure on Israel and support the Palestinian cause.
International Status: Accepting Israeli citizenship might have been perceived as legitimizing Israeli control over the territories, something many Palestinians and the broader Arab world were not willing to do.
Jordanian Citizenship and Jordanian relinquishing its claims over West Bank sovereignty: Citizenship Revocation
After relinquishing its claims to the West Bank in 1988, Jordan stripped West Bank Palestinians of Jordanian citizenship. This left many Palestinians in a state of legal limbo and given sovereignty to Israel over that territory, further complicating their status and exacerbating the issue of statelessness.
Semi-Citizenship under the PA: After the Oslo Accords, Palestinians in Areas A and B of Judea and Samaria, East Jerusalem and Gaza gained a form of semi-citizenship under the Palestinian Authority. While this provides them with certain administrative rights and a sense of national identity, as well as a passport to travel abroad, it does not equate to full citizenship of a recognized sovereign state.