Status of territories occupied by Israel in 1967

During the 1967 Six-Day War, Israel occupied the Gaza Strip, the West Bank, the Golan Heights, and the Sinai Peninsula. The Sinai Peninsula was returned to full sovereignty of Egypt in 1982 as a result of the Egypt–Israel peace treaty. The United Nations Security Council and the International Court of Justice (ICJ) both describe the West Bank and Western Golan Heights as "occupied territory" under international law, and the Supreme Court of Israel describes them as held "in belligerent occupation", however Israel's government calls the West Bank "disputed" rather than "occupied"Disputed territories – Forgotten facts about the West Bank and Gaza strip, Israeli Ministry of Foreign Affairs, 1 Feb 2003. Retrieved 16 Feb 2009. and argues that since Israel's unilateral disengagement plan of 2005, it does not militarily occupy the Gaza Strip, a statement rejected by the United Nations Human Rights Council and Human Rights Watch because Israel continues to maintain control of its airspace, waters and most of its borders.HRW: Israel: 'Disengagement' Will Not End Gaza Occupation, Human Rights Watch website.

In July 2024, the ICJ concluded that Israel's occupation of Palestinian territories violated international law and that Israel should cease settlement activity in the West Bank and East Jerusalem and end its illegal occupation of these areas and the Gaza Strip as soon as possible.

Views Occupied territories

In early 2023, the ICJ accepted a request from the UN for an advisory opinion on the legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory including East Jerusalem. The court published its opinion in July 2024. The court declared in its landmark opinion that the Israel's occupation of Palestinian territories violated international law, adding that Israel should cease settlement activity in the West Bank and East Jerusalem and end its "illegal" occupation of these areas and the Gaza Strip as soon as possible.

In their decisions on the Israeli West Bank barrier, the International Court of Justice and Supreme Court of Israel have both ruled that the West Bank is occupied. The US State Department also considered the West Bank and Gaza Strip occupied prior to Israel's 2005 disengagement from Gaza.Israel and the occupied territories, Country Reports on Human Rights Practices – 2001, Bureau of Democracy, Human Rights, and Labor, U.S. State Dept., March 4, 2002.

The ICJ outlined the legal rationale for the supporters of this view in its advisory opinion of 9 July 2004. It noted: ...under customary international law as reflected (...) in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907 (hereinafter “the Hague Regulations of 1907”), territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised. The territories situated between the Green Line (see paragraph 72 above) and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories, as described in paragraphs 75 to 77 above, have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.

On the application of the Fourth Geneva Convention, the Court noted: ...for the purpose of determining the scope of application of the Fourth Geneva Convention, it should be recalled that under common Article 2 of the four Conventions of 12 August 1949:“In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."(...) the Court notes that, according to the first paragraph of Article 2 of the Fourth Geneva Convention, that Convention is applicable when two conditions are fulfilled: that there exists an armed conflict (whether or not a state of war has been recognized); and that the conflict has arisen between two contracting parties. (...) The object of the second paragraph of Article 2 is not to restrict the scope of application of the Convention, as defined by the first paragraph, by excluding therefrom territories not falling under the sovereignty of one of the contracting parties. It is directed simply to making it clear that, even if occupation effected during the conflict met no armed resistance, the Convention is still applicable.

In its June 2005 ruling upholding the constitutionality of the Gaza disengagement, the Israeli High Court determined that "Judea and Samaria [West Bank] and the Gaza area are lands seized during warfare, and are not part of Israel."Chronological Review of Events Relating to the Question of Palestine , Division for Palestinian Rights, MONTHLY MEDIA MONITORING REVIEW.

Disputed territories Israel's position that the West Bank and the Gaza Strip are disputed territories took time to formulate.

The 1948 Israeli Declaration of Independence did not declare set borders. David Ben-Gurion, soon to become Israel's first Prime Minister, preferred that they be determined by the realities of conflict, and peace agreements with Israel's neighbors. This complicates later application of the definition of occupation, since occupation is only applicable to territory outside the occupant's own borders.

After the Six-Day War, Israel's Attorney General Meir Shamgar adopted a legal argument first articulated in 1968 by law professor and diplomat Yehuda Zvi Blum on the juridical status of Judea and Samaria (i.e. the West Bank). The argument concluded that valid title to the territories did not arise from either the 1948 attacks by Egypt and the Kingdom of Transjordan (contrary to Article 2(4) of the UN Charter), or any of the armistice agreements of 1949, or by Jordan's 1950 purported annexation of the West Bank. As a result, Blum concluded, no other nation (such as Jordan) had better title to the territories than Israel.

In 2004, the Israeli Supreme Court, in its ruling on the legality of the West Bank barrier, stated that Israel held the West Bank in "belligerent occupation" and, in 2005, made the same determination with regard to the Gaza Strip.

In 2012, the Israeli cabinet created a three-member advisory committee to investigate the legal status of unauthorized West Bank settlements. The ensuing report, called the Levy Report, concluded that "the classical laws of 'occupation' as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in [the West Bank]", and "Israel has had every right to claim sovereignty over these territories", but opted instead "to adopt a pragmatic approach in order to enable peace negotiations". Furthermore, Israel allows Israelis "to voluntarily establish their residence in the territory [...], subject to [...] the outcome of the diplomatic negotiations".

The arguments in favor of Israel's official position—that the territories should be called disputed, rather than occupied—is explained by the Jerusalem Center for Public Affairs and Israeli government websites as outlined below.Israeli Settlements and International Law, Israel Foreign Ministry website, 30 Nov 2015, accessed 29 July 2024. (Scroll down to paragraph which begins "In legal terms, the West Bank is best regarded as...") Beginning of occupation According to Article 2 of the Fourth Geneva Convention, only "the territory of a High Contracting Party" can be "occupied" by another High Contracting (i.e., legitimate and recognized sovereign) party. This does not apply to the West Bank and Gaza Strip, since they had never been the legal territories of any High Contracting Party prior to the Six-Day War. (Although Jordan purportedly annexed the West Bank in 1950, this was only recognized by two countries, so it did not confer sovereign title onto Jordan.)"The Geneva Convention", Israel and the Palestinians, BBC News As a counterpoint, it can be argued that the Palestinian right to self-determination implies the Palestinian people were sovereign of West Bank and Gaza prior to 1967. No borders have been established or recognized by the parties. Armistice lines do not establish borders, and the 1949 Armistice Agreements in particular specifically stated (at Arab insistence) that they were not creating permanent or de jure borders."Occupied Territories" to "Disputed Territories" by Dore Gold, Jerusalem Center for Public Affairs, January 16, 2002. Retrieved September 29, 2005. End of occupation Even if the Fourth Geneva Convention had applied at one point, it certainly did not apply once the Israel transferred governmental powers to the Palestinian Authority in accordance with the 1993–1995 Oslo Accords, since Article 6 of the convention states that the Occupying Power would only be bound to its terms "to the extent that such Power exercises the functions of government in such territory....". The Jerusalem Center for Public Affairs has argued that not only have the Oslo Accords diminished the extent of the occupation, but that, since the remaining Israeli presence is by agreement, "that presence should no longer be viewed as an occupation". By contrast, Hanne Cuyckens argues that Israel still occupies the West Bank, because the Palestinian Authority (unlike the Hamas government in Gaza) is subjected to Israeli authority. Cuyckens states it is possible for an occupying power to delegate some power to local authorities in a context of a hierarchical relationship where the occupying power retains control over the local authorities. Comparative strength of claim to title Israel took control of the West Bank as a result of a defensive war imposed upon it in 1967. Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, wrote in 1970 regarding Israel's case: "Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title." Critics of this rationale argue that there is dispute whether Israel's 1967 war was defensive or offensive, and that there is nothing in the Geneva Convention which would make it inapplicable to defensive wars. At the December 1948 Jericho Conference, Palestinian leadership accepted Jordanian rule. Later, the 1964 Palestine National Charter, in effect at the time of the Six-Day War, stated in Article 24 that the PLO "does not exercise any territorial sovereignty over the West Bank [or] the Gaza Strip". International recognition United National Security Council Resolutions 242 (1967) and 338 (1973) are founded upon international recognition of the need for agreement and negotiations between the parties, including the final disposition of several issues, including allocation of the territories. This was the foundation for the 1991 Madrid Conference, and the Oslo Accords which followed.