The borders of Israel and the uti possidetis juris principle

Does Israel Really “Occupy” the West Bank? Examining the History and Law

The status of the West Bank, also known as Judea and Samaria, is one of the most contentious issues in the Israeli-Palestinian conflict. In debates on this topic, it is often claimed that Israel “occupies” this territory. But what does this actually mean from a legal and historical perspective? Let’s examine the facts.

Historical Background

Up until the early 20th century, the area comprising modern-day Israel, the West Bank, Gaza and surrounding countries was part of the Ottoman Empire. Following the empire’s defeat in World War I, its lands were divided up under the 1920 San Remo Resolution which established the ‘Mandate System’ under the supervision of the League of Nations.

The key outcome was that one mandate was created for ‘Palestine’ with the explicit purpose of establishing a Jewish national home in the region. The borders of this mandate, which was ratified by the League of Nations in 1922, encompassed all of what is today Israel, the West Bank, Gaza and Jordan. The name ‘Palestine’ was simply a label used by the Romans after their conquest of ancient Judea.

The Creation of Israel and Arab-Israeli War

In 1947, the United Nations approved a partition plan to divide the Palestine Mandate into separate Jewish and Arab states. This was a non-binding proposal, but nonetheless in 1948 Israel declared independence within the borders of the mandate per international law. Upon Israel’s founding it was invaded by five Arab armies aiming to destroy the new state. By 1949 armistice agreements had been signed, but Jordan had militarily occupied east Jerusalem and Judea and Samaria, expelling all Jewish residents.

Under international law, borders cannot be altered through military conquest. Yet the 1949 armistice lines departed from the borders of the mandate, with Jordan seizing the West Bank and east Jerusalem. When Israel captured these territories in the 1967 Six Day War, it was retaking areas recognised under international law as belonging to Israel, not unlawfully occupying foreign lands.

The Legal Status of the West Bank

Several key principles determine borders under international law. The uti possidetis juris principle holds that new states inherit the borders of the preceding administrative unit. Therefore Israel’s borders upon independence were those of the Palestine Mandate. Furthermore, defensive wars do not alter borders. So when Israel recaptured the West Bank in 1967, it was retaking its own territory according to the borders affirmed in 1920-22, not acquiring somebody else’s land.

United Nations Security Council Resolution 242 passed after the Six Day War required Israel to withdraw from territories captured, but not all territories, while recognising Israel’s right to secure borders. Judea and Samaria formed part of the Jewish homeland under the League of Nations mandates. Israel has strong historical and legal claims to this area.

Does Israel “Occupy” the West Bank?

In legal terms, ‘occupation’ refers to a temporary foreign military control of territory belonging to another country. Yet the West Bank was part of the Palestine Mandate intended for Jewish settlement, and Israel only gained control after defensive wars. Israel has also relinquished occupied land before, such as Sinai after the 1979 Israel-Egypt peace treaty.

While complex issues remain regarding governance and nationality, under international law Israel does not “occupy” the West Bank. The land was part of the borders designated for a Jewish state in 1922. Jordan’s subsequent invasion and annexation did not nullify this recognition. Israel gained control through acts of self-defence, not aggression. The legal history shows Israel has credible claims to the territory. The situation is disputed, but the “occupation” label does not accurately reflect the history or law.

The Path Forwards

In the 1990s the Oslo Accords established Palestinian Authority rule in parts of the West Bank, but negotiations since then have failed to produce a final settlement. With the Palestinians rejecting successive offers of statehood, it is unclear whether a comprehensive deal is currently feasible.

Nonetheless, the complexities warrant a careful approach. Unilateral actions could undermine the possibilities for peace. While Israel has valid historical and legal claims in the West Bank, it also has sometimes acted questionably in building settlements. There are persuasive arguments the most constructive path forward is through open dialogue, compromise and mutual understanding – not reactionary rhetoric, absolutism or exaggerations.

Examining this issue in light of the history and law reveals ambiguities on both sides. The situation remains unresolved. There are reasoned cases in support of differing views. As we consider this polarising topic, greater nuance and recognition of competing perspectives are surely needed. But the oft-repeated claim that Israel “occupies” the West Bank overlooks the substance of this long-running dispute. Reality is not so clear cut.

Editorial Comment:

Israel was founded according to international law, there was never an independent state of Palestine in the area and the name itself dates back to an ancient Greek term, from the 5th century BC, this was a term used in reference to a region, not a people, at that time, the Arabs were know as the Philistines.

The legal borders of Israel, according to international law include what is now Gaza and the West Bank, which was an area invaded by Jordon after israel was founded and as we know from the principles of uti possidetis juris, land which is ‘A war of aggression, cannot be used to change another country’s borders’ and that translates in to the West Bank, still being a legal part of Israel, along with Gaza.

As I have previously said, the hate for Jews pre-dates the formation of Israel, and despite the fact that the Israelis where willing to live in peace with their neighbours, the feeling was, is and never will be mutual.

Other Arab nations have began to move on, with the Gulf states becoming increasingly aware that they need to plan for post-oil economies, moving to tourism and investment in property, which would be hindered by ongoing hostility with Israel, however Hamas and its supporters continue to spread hate and misinformation, relying on the blind support from muslims around the world.

Israel has a legal and moral obligation to defend itself to best of its ability, for the alternative would be to capitulate to terrorism and if there is one thing that history has taught us it is, that ‘you cannot reason with a Tiger, when your head is in its mouth!’