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`Illegal occupation' highly misleading

The 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 disputed lands.

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 occupying power.

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 basis.

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.

The present conflict involves disputed rather than occupied territories

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 territories.

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 title."

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 Palestinian Authority.

Why are so many so eager to accuse Israel of humanitarian violations

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.

Harold Waller is a professor of political science at McGill University. Howard Gerson practises law in Toronto.