«« Affaires internationales
`Illegal occupation' highly misleadingThe notion diverts attention away from the shameful neglect of the
Palestinian people by their own leaders
Harold Waller and Howard Gerson
Toronto Star 3.5.2002
OPINION - `ILLEGALLY OCCUPIED Palestinian territories." That is the mantra
that is repeated with such regularity by Arab spokespersons. Even U.N.
Secretary-General Kofi Annan, speaking on March 12, called upon Israel to "end
the illegal occupation." The term brings to mind what was often labelled the
"Holy Roman Empire," which was neither holy, Roman nor an empire.
Similarly, since the signing of the Oslo Accords in 1993, much has been
made of Israel's alleged "illegal occupation" of the West Bank of the Jordan
River, territory often referred to erroneously as "Palestinian lands."
This fallacy remains in use notwithstanding the reality that Israel's
administration of these disputed lands commencing in 1967 was neither an
"occupation" as the term is understood legally, "illegal" under well settled
international practice, nor exercised over "Palestinian lands."
Still, the language of "illegal occupation" remains prominent and forms
an integral part of a highly misleading discourse on the continuing conflict.
More disconcerting is that this story continues to be uncritically received even
in the period following Oslo, which witnessed an end to the Israeli military
administration and the creation of a Palestinian Authority that was given
complete administrative control over the most densely populated parts of the
Long before the outbreak of the Palestinian uprising in 2000, 98 per cent
of the Palestinian population in the West Bank and Gaza Strip was under the
administration of the Palestinian Authority. This caused legal counsel to the
International Red Cross to conclude that the Red Cross had no reason to monitor
Israeli compliance with the Fourth Geneva Convention, which only applied to an
Under Article 6 of the Fourth Geneva Convention (1949), for territory to
be considered "occupied," one state must first exercise legally recognized
sovereignty over the territory and it is only when that territory has come under
the control of a second state through force that the territory can properly be
considered occupied. Once occupation has been established, it may be legal or
illegal depending on the circumstances.
For example, it is well settled international practice that territory
taken in a defensive war may be legally occupied until suitable arrangements,
such as a peace treaty, are made to terminate the hostilities on a permanent
In cases where mere de facto control of territory has been taken away
from a state whose sovereignty over the territory was never recognized (such as
Jordan's rejected claim to sovereignty over the West Bank between 1948 and
1967), the territory is not properly described as occupied, but rather is
disputed territory until its status is resolved through negotiations.
In most recent international conflicts
over land, the term occupied territory has not been employed. Examples include
Kashmir, Nagorno-Karabakh, the Western Sahara, Zubarah, the Kurile Islands, and
Abu Musa. Therefore, applying correct legal principles, it is fair to say that
the present Israeli-Palestinian conflict involves disputed rather than occupied
Respecting the true legal situation, U.N. Security Council Resolution
242, still the operative formula for peace, does not require a complete Israeli
withdrawal to the pre-1967 borders, but rather a withdrawal "from territories"
to "secure and recognized boundaries free from threats or acts of force."
Implicitly the Security Council acknowledged that to enhance its security,
Israel is entitled to retain part of the territory that came under its control
during the Six Day War in the context of a permanent peace settlement.
Jordan's grab of the West Bank during Israel's 1948 War of Independence
was never recognized internationally. Then in 1967, Israel, defending itself
against an attack from Jordan, gained control of the territory. The nature of
Israel's position in relation to the territories taken from Jordan in that war
was accurately described by former U.S. State Department Legal Adviser Stephen
Schwebel in 1970 when he stated: "Where the prior holder of territory had seized
that territory unlawfully, the state which subsequently takes that territory in
the lawful exercise of self-defence has, against that prior holder, better
While the term "occupation" is generally recognized legally as applying
to territory and not to populations, if the Palestinians are indeed "occupied"
in this latter sense, the culprit since at least 1995 is the Palestinian
Authority and not Israel. Indeed the notion that the Palestinian people are
"illegally occupied by Israel" is a smokescreen to divert attention from the
shameful neglect of their interests by a Palestinian Authority that has
encouraged terrorism, pursued policies that inhibit economic growth and social
development, and which evaded a commitment to hold elections in 1999.
In fact, since its establishment in 1994, the Palestinian Authority has
been the greatest oppressor of the very people it was supposedly intended to
liberate. It has redirected funds from outside donors that were destined for
humanitarian purposes into the development of a terrorist infrastructure.
Corruption is rampant with funds from the international community often
ending up in private bank accounts. Kangaroo courts and summary executions are
used to punish those suspected of co-operating with Israel. The spectacle of
several victims of Palestinian justice being dragged through the streets
recently was widely observed.
The egregious policy of deliberately locating terrorist installations and
personnel in densely populated urban areas is a Palestinian Authority practice
that not only exposes its own people to grave risk but also violates the 1977
Geneva Conventions. This practice is referred to as "perfidy" under the laws of
war and is considered a war crime by authorities on international law. In sum,
the Palestinian people have been suffering terribly at the hands of the
The present conflict involves disputed
rather than occupied territories
This begs the question: Why are there so
many in the international community who are so eager to accuse Israel of
humanitarian violations but who would never consider such accusations against
the effective occupier, the Palestinian Authority?
One reason is the widely held false belief that at the root of the
conflict is an "illegal occupation" — a term that resonates with an almost
surreal power given its association with the evils of the Nazi occupation of
Europe and with European colonialism. Indeed, the unrelenting misuse of the term
as an accusation to describe Israel's actions has served the ends of those who
would seek to isolate Israel.
Why are so many so eager to accuse
Israel of humanitarian violations
Harold Waller is a professor of political science at McGill University.
Howard Gerson practises law in Toronto.