By Darius Lee, LL.M. in International Law and Human Rights, Hebrew University of Jerusalem; LL.B. (Hons.), National University of Singapore.
Introduction
International law can be confusing even for lawyers and law students who are trying to grasp its basic concepts. What do terms like “conquest”, “belligerent occupation”, “annexation”, “statehood”, “non-self-governing territory” and “the right to self-determination” mean? To the average non-lawyer, these terms might sound like a completely foreign language.
In this article, we hope to provide a simple layperson’s guide to some basic concepts in international law, and their relevance to the Israeli-Palestinian conflict.
Some Basic Concepts
Statehood
A “state” is defined under the Montevideo Convention as a person under international law possessing the following: (a) permanent population, (b) defined territory, (c) government, and (d) capacity to enter into relations with the other states. States have “sovereignty”, which is the right of a state to exercise its functions in relation to a portion of the globe to the exclusion of any other state.
Conquest
“Conquest” is defined as the taking of possession of territory through military force in a time of war. Until the early 20th century, a state could gain new territory if it firmly conquered a territory and formally annexed the territory as part of its own, in a process known as “subjugation”. Hence, the conquered territory would cease to be part of another state (See Oppenheim, International Law: A Treatise, 2nd ed. (1912)). However, under the Regulations Respecting the Laws and Customs of War on Land (the ‘Hague Regulations’ – a document annexed to the Fourth Hague Convention of 18 October 1907), a significant shift occurred in international law.
Belligerent Occupation and Annexation
The Hague Regulations introduced the concept of “belligerent occupation”. Under the Hague Regulations, territory is considered to be occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised (Article 42).
“Annexation” is the process by which a state extends its sovereignty to a particular territory. Under the new legal framework of belligerent occupation, conquest and subjugation were no longer legally acceptable means of obtaining new territory.
Instead, the original sovereign over the territory still remained the legitimate sovereign even though it was no longer in control of the territory (usually as a government-in-exile). It follows that the occupying power could no longer annex the territory, but instead incurred both the responsibility and power to preserve order, punish crime and protect lives and property within the occupied territory.
Having said that, territory could still be transferred after the war by other means, such as a peace treaty. One prominent example of such a post-war peace treaty was the Treaty of Versailles, concluded at the end of the First World War.
The law of belligerent occupation underwent another significant change after the Second World War, including the horrors of the Holocaust and other atrocities. To strengthen protections during the time of war, the International Committee of the Red Cross (“ICRC”) led a process which culminated in the four Geneva Conventions of 1949.
The Four Geneva Conventions
The four Geneva Conventions of 1949 are the following:
- The Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
- The Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea
- The Convention Relative to the Treatment of Prisoners of War
- The Convention Relative to the Protection of Civilian Persons in Time of War.
These conventions introduced new principles, or otherwise expanded and strengthened the principles contained in earlier Geneva Conventions of 1864, 1906 and 1929. It is the ‘Fourth Geneva Convention’, as evidenced in its title that is geared towards the protection of civilian populations during times of war, including strengthening the principles of belligerent occupation.
Article 49(6) of the Fourth Geneva Convention provides: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” The provision has been cited by the UN to criticize Israeli settlements in Judea and Samaria (the “West Bank”) and the Golan Heights. “Settlements”, in this context, are communities established with the support and authorization of the government. These stand in contrast with “outposts”, which are communities established without such support and authorization.
Right to Self-determination
Another development that emerged in post-Second World War period was the development of international human rights law, including the “right to self-determination“, which helped to delegitimise the system of colonialism practiced by many European and other states until the 20th century. Before this, the principle of self-determination was considered a political principle, and had been espoused by American President Woodrow Wilson in his famous Fourteen Points speech in 1918.
The right to self-determination refers to the right of a “people” to freely determine their political status and freely pursue their economic, social and cultural development. This right is enshrined in various documents, including certain resolutions of the United Nations (“UN”) General Assembly and the two human rights treaties of 1966 – the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.
Non-self-governing Territory
A “Non-Self-Governing Territory” (“NSGT”) is defined as a territory which is geographically separate, and distinct ethnically, culturally or both, from the country administering it, and has not attained full self-government. Examples of NSGTs include territories which are under colonial rule. The peoples in such NSGTs have the right to self-determination.
The right of peoples to self-determination consists of “external” and “internal” dimensions. The “external” dimension concerns the international status of the people. There are several ways that a people can exercise this right. These include (a) emergence as a sovereign independent state, (b) free association or (c) integration with an independent state, as long as these are exercised in accordance with the free and genuine will of the people concerned. An NSGT reaches a full measure of self-government if it attains any of these outcomes.
The “internal” dimension of self-determination protects the people’s right to determine their own political, economic, social and cultural development. Other states have no right to interfere or decide such matters on behalf of the people; these are questions to be decided by the people themselves.
How are these concepts relevant to the Israeli-Palestinian conflict?
Mandate for Palestine
Following the Balfour Declaration of 1917 and the San Remo Resolution of 1920, the League of Nations established the Mandate for Palestine in 1922. The Preamble of the Mandate refers to Britain’s responsibility, as the Mandatory Power over Palestine, to put into effect the Balfour Declaration in favor of establishing in Palestine a national home for the Jewish people, and give “recognition” to the “historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”
However, due to Arab opposition, the British imposed increasing restrictions on Jewish immigration, culminating in White Papers in 1922, 1930 and 1939 that set out its policies on the Mandate. The 1939 White Paper rejected the notion of a Jewish state, imposed limits on Jewish immigration, and restricted transfers of land to Jews in Mandatory Palestine, at a time when Nazi Germany was openly persecuting Jews and had already annexed various territories in Europe.
Establishment of the State of Israel
On 14 May 1948, the State of Israel was established, after the termination of the Mandate for Palestine by the British on that same date. The new state was immediately attacked by its Arab neighbors in the 1948 war, which Israel refers to as the War of Independence.
The Green Line and the “West Bank”
The UN Security Council passed Resolution 62 on 16 November 1948, calling upon parties to establish armistice lines beyond which the armed forces of the respective parties shall not move. In view of the resolution, Israel signed armistice agreements in 1949 with Egypt (24 February 1949), Lebanon (23 March 1949), Jordan (3 April 1949), and Syria (20 July 1949).
The agreement between Israel and Jordan marked out parts of Judea and Samaria (which Jordan meanwhile had named the “West Bank”) beyond which the forces of each side were prohibited from crossing (often referred to as the “Green Line”, because of the color used to mark the line on the map). However, it must be understood that the armistice agreement did not affect territorial claims (Article 2 of the Israel-Jordan Armistice Agreement).
The 1967 Six-Day War
Egypt amassed its forces against Israel’s southern frontier in 1967, causing Israel to respond pre-emptively in self-defense, and leading to the 1967 Six-Day War. During the war, Israel took control of various territories, including the Gaza Strip, East Jerusalem, the “West Bank” (Judea and Samaria) and the Golan Heights.
Occupation or administration
It is disputed whether the law of belligerent occupation and the Fourth Geneva Convention apply to these territories which came under Israeli control in 1967. The UN considers all of these territories to be under belligerent occupation, and the Fourth Geneva Convention to be applicable.
Israel has taken different positions with regard to the different territories. The Israeli government applied its laws to the whole of Jerusalem and the Golan Heights, but did not do so in relation to the “West Bank”. Israel takes the position that the Fourth Geneva Convention does not legally apply to Judea and Samaria even though it respects and applies the “humanitarian provisions” therein. Israel withdrew from the Gaza Strip in 2005.
The Oslo Accords
The Palestinian Authority (“PA”) was created and vested with authority under a series of agreements between the Palestine Liberation Organization and the Israeli government beginning in 1993, known as the “Oslo Accords”. Under the Oslo Accords, Israel recognized the “legitimate rights” of the “Palestinian people”, a move viewed by many as a step towards Palestinian self-determination. Many issues were meant to be resolved under permanent status negotiations envisioned by the Oslo Accords, including Jerusalem, settlements, specified military locations, Palestinian refugees, borders and foreign relations. However, progress has been minimal due to various conflicts, and the PA has unilaterally pursued international recognition of statehood in other ways, including in the UN and before the International Criminal Court.
The Wall Advisory Opinion
In December 2003, the UN General Assembly sought an advisory opinion from the International Court of Justice (“ICJ”) regarding Israel’s construction of the security barrier (also known as the “wall”, “security fence”, etc.). Israel had constructed the barrier in response to a series of violent threats and attacks from Palestinian groups during the Second Intifada which broke out in 2000.
In its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (the “Wall Opinion”), the ICJ controversially rejected Israel’s argument that it was relying on the right to self-defense against terrorist attacks in constructing the barrier (paragraph 139). The Court also made a number of pronouncements on the issues above.
The ICJ recognized that the Palestinian people had the right to self-determination (paragraph 118). It the ICJ considered that the construction of the wall, along with the measures taken previously, “severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right” (paragraph 122). The ICJ also opined that “the territories situated between the Green Line… and the former eastern boundary of Palestine under the Mandate”, including East Jerusalem, were territories under belligerent occupation and Israel had the status of occupying power (paragraph 78).
Furthermore, the ICJ reached the conclusion in its advisory opinion that Israeli settlements in “the Occupied Palestinian Territory (including East Jerusalem)”, had been established in breach of Article 49(6) of the Fourth Geneva Convention (paragraph 120). Clearly, this conclusion is contested by Israel and several international lawyers.
The 2005 withdrawal from Gaza
With regard to other territories such as the Gaza Strip and the Golan Heights, concepts of belligerent occupation remain relevant though their application has been disputed. Israel unilaterally disengaged and withdrew from the Gaza Strip in 2005, after having controlled and administered the territory for nearly 40 years. As a result, Israel considers that it is no longer the occupying power of the Gaza Strip. However, the UN disagrees and takes the position that the Gaza Strip is still under belligerent occupation, citing various factors such as Israel’s land, air and sea blockade of the Gaza Strip, periodic military incursions and regulation of the economy, taxes and customs duties over the Gaza Strip.
Sovereignty over the Golan Heights
The UN, Syria and other states similarly hold that the Golan Heights are part of Syria’s territory, and that the Golan Heights have been under Israel’s belligerent occupation since 1967. Israel disagrees, and its position was confirmed by Israeli Prime Minister Netanyahu in 2019 who explained that “Israel won the Golan Heights in a just war of self-defense and the Jewish people’s roots in the Golan go back thousands of years.” Similarly, on 25 March 2019, President of the United States of America, Donald J. Trump, proclaimed that the United States now recognizes the Golan Heights as “part of the State of Israel”.
Conclusion
International law is constantly in a state of development and flux. International law experts, academics and politicians often debate and disagree on what the applicable principles and rules under international law are, and how they apply to particular facts. As we can see from the summaries of various issues above, the answers to these questions can at times be very unclear, or may reflect various political positions that are highly subjective in nature.
For more discussion on each of these issues, please refer to the following articles:
