What Occupation?

Abstract: Few subjects have been falsified so thoroughly as the recent history of the West Bank and Gaza. The history of Israel's so-called "occupation" of Palestinian lands and the ways in which Palestinians and Arabs have distorted Israeli actions in the West Bank and Gaza are discussed.

NO TERM has dominated the discourse of the Palestinian-Israeli conflict more than "occupation." For decades now, hardly a day has passed without some mention in the international media of Israel's supposedly illegitimate presence on Palestinian lands. This presence is invoked to explain the origins and persistence of the conflict between the parties, to show Israel's allegedly brutal and repressive nature, and to justify the worst anti-Israel terrorist atrocities. The occupation, in short, has become a catchphrase, and like many catchphrases it means different things to different people.

For most Western observers, the term "occupation" describes Israel's control of the Gaza Strip and the West Bank, areas that it conquered during the Six-Day war of June 1967. But for many Palestinians and Arabs, the Israeli presence in these territories represents only the latest chapter in an uninterrupted story of "occupations" dating back to the very creation of Israel on "stolen" land. If you go looking for a book about Israel in the foremost Arab bookstore on London's Charing Cross Road, you will find it in the section labeled "Occupied Palestine." That this is the prevailing view not only among Arab residents of the West Bank and Gaza but among Palestinians living within Israel itself as well as elsewhere around the world is shown by the routine insistence on a Palestinian "right of return" that is meant to reverse the effects of the "1948 occupation"-i.e., the establishment of the state of Israel itself.

Palestinian intellectuals routinely blur any distinction between Israel's actions before and after 1967. Writing recently in the Israeli daily Ha'aretz, the prominent Palestinian cultural figure Jacques Persiqian told his Jewish readers that today's terrorist attacks were "what you have brought upon yourselves after 54 years of systematic oppression of another people"-a historical accounting that, going back to 1948, calls into question not Israel's presence in the West Bank and Gaza but its very legitimacy as a state.

Hanan Ashrawi, the most articulate exponent of the Palestinian cause, has been even more forthright in erasing the line between post-1967 and pre-1967 "occupations." "I come to you today with a heavy heart," she told the now-infamous World Conference Against Racism in Durban last summer, "leaving behind a nation in captivity held hostage to an ongoing naqba [catastrophe]":

In 1948, we became subject to a grave historical injustice manifested in a dual victimization: on the one hand, the injustice of dispossession, dispersion, and exile forcibly enacted on the population .... On the other hand, those who remained were subjected to the systematic oppression and brutality of an inhuman occupation that robbed them of all their rights and liberties.

This original "occupation"-that is, again, the creation and existence of the state of Israel-was later extended, in Ashrawi's narrative, as a result of the Six-Day war:

Those of us who came under Israeli occupation in 1967 have languished in the West Bank, Jerusalem, and the Gaza Strip under a unique combination of military occupation, settler colonization, and systematic oppression. Rarely has the human mind devised such varied, diverse, and comprehensive means of wholesale brutalization and persecution.

Taken together, the charges against Israel's various "occupations" represent-and are plainly intended to be-a damning indictment of the entire Zionist enterprise. In almost every particular, they are also grossly false.

IN 1948, no Palestinian state was invaded or destroyed to make way for the establishment of Israel. From biblical times, when this territory was the state of the Jews, to its occupation by the British army at the end of World War I, Palestine had never existed as a distinct political entity but was rather part of one empire after another, from the Romans, to the Arabs, to the Ottomans. When the British arrived in 1917, the immediate loyalties of the area's inhabitants were parochial-to clan, tribe, village, town, or religious sect-and coexisted with their fealty to the Ottoman sultan-caliph as the religious and temporal head of the world Muslim community.

Under a League of Nations mandate explicitly meant to pave the way for the creation of a Jewish national home, the British established the notion of an independent Palestine for the first time and delineated its boundaries. In 1947, confronted with a determined Jewish struggle for independence, Britain returned the mandate to the League's successor, the United Nations, which in turn decided on November 29, 1947, to partition mandatory Palestine into two states: one Jewish, the other Arab.

The state of Israel was thus created by an internationally recognized act of national self-determination-an act, moreover, undertaken by an ancient people in its own homeland. In accordance with common democratic practice, the Arab population in the new state's midst was immediately recognized as a legitimate ethnic and religious minority. As for the prospective Arab state, its designated territory was slated to include, among other areas, the two regions under contest today-namely, Gaza and the West Bank (with the exception of Jerusalem, which was to be placed under international control).

As is well known, the implementation of the UN's partition plan was aborted by the effort of the Palestinians and of the surrounding Arab states to destroy the Jewish state at birth. What is less well known is that even if the Jews had lost the war, their territory would not have been handed over to the Palestinians. Rather, it would have been divided among the invading Arab forces, for the simple reason that none of the region's Arab regimes viewed the Palestinians as a distinct nation. As the eminent Arab-American historian Philip Hitti described the common Arab view to an Anglo-American commission of inquiry in 1946, "There is no such thing as Palestine in history, absolutely not."

This fact was keenly recognized by the British authorities on the eve of their departure. As one official observed in mid-December 1947, "it does not appear that Arab Palestine will be an entity, but rather that the Arab countries will each claim a portion in return for their assistance [in the war against Israel], unless [Transjordan's] King Abdallah takes rapid and firm action as soon as the British withdrawal is completed." A couple of months later, the British high commissioner for Palestine, General Sir Alan Cunningham, informed the colonial secretary, Arthur Creech Jones, that "the most likely arrangement seems to be Eastern Galilee to Syria, Samaria and Hebron to Abdallah, and the south to Egypt."

THE BRITISH proved to be prescient. Neither Egypt nor Jordan ever allowed Palestinian self-determination in Gaza and the West Bank-- which were, respectively, the parts of Palestine conquered by them during the 1948-49 war. Indeed, even UN Security Council Resolution 242, which after the Six-Day war of 1967 established the principle of "land for peace" as the cornerstone of future Arab-Israeli peace negotiations, did not envisage the creation of a Palestinian state. To the contrary: since the Palestinians were still not viewed as a distinct nation, it was assumed that any territories evacuated by Israel, would be returned to their pre-1967 Arab occupiers-Gaza to Egypt, and the West Bank to Jordan. The resolution did not even mention the Palestinians by name, affirming instead the necessity "for achieving a just settlement of the refugee problem"-a clause that applied not just to the Palestinians but to the hundreds of thousands of Jews expelled from the Arab states following the 1948 war.

At this time-we are speaking of the late 1960's-- Palestinian nationhood was rejected by the entire international community, including the Western democracies, the Soviet Union (the foremost supporter of radical Arabism), and the Arab world itself. "Moderate" Arab rulers like the Hashemites in Jordan viewed an independent Palestinian state as a mortal threat to their own kingdom, while the Saudis saw it as a potential source of extremism and instability. Pan-Arab nationalists were no less adamantly opposed, having their own purposes in mind for the region. As late as 1974, Syrian President Hafez alAssad openly referred to Palestine as "not only a part of the Arab homeland but a basic part of southern Syria"; there is no reason to think he had changed his mind by the time of his death in 2000.

Nor, for that matter, did the populace of the West Bank and Gaza regard itself as a distinct nation. The collapse and dispersion of Palestinian society following the 1948 defeat had shattered an always fragile communal fabric, and the subsequent physical separation of the various parts of the Palestinian diaspora prevented the crystallization of a national identity. Host Arab regimes actively colluded in discouraging any such sense from arising. Upon occupying the West Bank during the 1948 war, King Abdallah had moved quickly to erase all traces of corporate Palestinian identity. On April 4, 1950, the territory was formally annexed to Jordan, its residents became Jordanian citizens, and they were increasingly integrated into the kingdom's economic, political, and social structures.

For its part, the Egyptian government showed no desire to annex the Gaza Strip but had instead ruled the newly acquired area as an occupied military zone. This did not imply support of Palestinian nationalism, however, or of any sort of collective political awareness among the Palestinians. The local population was kept under tight control, was denied Egyptian citizenship, and was subjected to severe restrictions on travel.

WHAT, THEN, of the period after 1967, when these territories passed into the hands of Israel? Is it the case that Palestinians in the West Bank and Gaza have been the victims of the most "varied, diverse, and comprehensive means of wholesale brutalization and persecution" ever devised by the human mind?

At the very least, such a characterization would require a rather drastic downgrading of certain other well-documented 20th-century phenomena, from the slaughter of Armenians during World War I and onward through a grisly chronicle of tens upon tens of millions murdered, driven out, crushed under the heels of despots. By stark contrast, during the three decades of Israel's control, far fewer Palestinians were killed at Jewish hands than by King Hussein of Jordan in the single month of September 1970 when, fighting off an attempt by Yasir Arafat's PLO to destroy his monarchy, he dispatched (according to the Palestinian scholar Yezid Sayigh) between 3,000 and 5,000 Palestinians, among them anywhere from 1,500 to 3,500 civilians. Similarly, the number of innocent Palestinians killed by their Kuwaiti hosts in the winter of 1991, in revenge for the PLO's support for Saddam Hussein's brutal occupation of Kuwait, far exceeds the number of Palestinian rioters and terrorists who lost their lives in the first intifada against Israel during the late 1980's.

Such crude comparisons aside, to present the Israeli occupation of the West Bank and Gaza as "systematic oppression" is itself the inverse of the truth. It should be recalled, first of all, that this occupation did not come about as a consequence of some grand expansionist design, but rather was incidental to Israel's success against a pan-Arab attempt to destroy it. Upon the outbreak of IsraeliEgyptian hostilities on June 5, 1967, the Israeli government secretly pleaded with King Hussein of Jordan, the de-facto ruler of the West Bank, to forgo any military action; the plea was rebuffed by the Jordanian monarch, who was loathe to lose the anticipated spoils of what was to be the Arabs' "final round" with Israel.

Thus it happened that, at the end of the conflict, Israel unexpectedly found itself in control of some one million Palestinians, with no definite idea about their future status and lacking any concrete policy for their administration. In the wake of the war, the only objective adopted by then-Minister of Defense Moshe Dayan was to preserve normalcy in the territories through a mixture of economic inducements and a minimum of Israeli intervention. The idea was that the local populace would be given the freedom to administer itself as it wished, and would be able to maintain regular contact with the Arab world via the Jordan River bridges. In sharp contrast with, for example, the U.S. occupation of postwar Japan, which saw a general censorship of all Japanese media and a comprehensive revision of school curricula, Israel made no attempt to reshape Palestinian culture. It limited its oversight of the Arabic press in the territories to military and security matters, and allowed the continued use in local schools of Jordanian textbooks filled with vile anti-Semitic and anti-Israel propaganda.

Israel's restraint in this sphere-which turned out to be desperately misguided-is only part of the story. The larger part, still untold in all its detail, is of the astounding social and economic progress made by the Palestinian Arabs under Israeli "oppression." At the inception of the occupation, conditions in the territories were quite dire. Life expectancy was low; malnutrition, infectious diseases, and child mortality were rife; and the level of education was very poor. Prior to the 1967 war, fewer than 60 percent of all male adults had been employed, with unemployment among refugees running as high as 83 percent. Within a brief period after the war, Israeli occupation had led to dramatic improvements in general well-being, placing the population of the territories ahead of most of their Arab neighbors.

In the economic sphere, most of this progress was the result of access to the far larger and more advanced Israeli economy: the number of Palestinians working in Israel rose from zero in 1967 to 66,000 in 1975 and 109,000 by 1986, accounting for 35 percent of the employed population of the West Bank and 45 percent in Gaza. Close to 2,000 industrial plants, employing almost half of the work force, were established in the territories under Israeli rule.

During the 1970's, the West Bank and Gaza constituted the fourth fastest-growing economy in the world-ahead of such "wonders" as Singapore, Hong Kong, and Korea, and substantially ahead of Israel itself. Although GNP per capita grew somewhat more slowly, the rate was still high by international standards, with per-capita GNP expanding tenfold between 1968 and 1991 from $165 to $1,715 (compared with Jordan's $1,050, Egypt's $600, Turkey's $1,630, and Tunisia's $1,440). By 1999, Palestinian per-capita income was nearly double Syria's, more than four times Yemen's, and 10 percent higher than Jordan's (one of the betteroff Arab states). Only the oil-rich Gulf states and Lebanon were more affluent.

Under Israeli rule, the Palestinians also made vast progress in social welfare. Perhaps most significantly, mortality rates in the West Bank and Gaza fell by more than two-thirds between 1970 and 1990, while life expectancy rose from 48 years in 1967 to 72 in 2000 (compared with an average of 68 years for all the countries of the Middle East and North Africa). Israeli medical programs reduced the infant-mortality rate of 60 per 1,000 live births in 1968 to 15 per 1,000 in 2000 (in Iraq the rate is 64, in Egypt 40, in Jordan 23, in Syria 22). And under a systematic program of inoculation, childhood diseases like polio, whooping cough, tetanus, and measles were eradicated.

No less remarkable were advances in the Palestinians' standard of living. By 1986, 92.8 percent of the population in the West Bank and Gaza had electricity around the clock, as compared to 20.5 percent in 1967; 85 percent had running water in dwellings, as compared to 16 percent in 1967; 83.5 percent had electric or gas ranges for cooking, as compared to 4 percent in 1967; and so on for refrigerators, televisions, and cars.

Finally, and perhaps most strikingly, during the two decades preceding the intifada of the late 1980's, the number of schoolchildren in the territories grew by 102 percent, and the number of classes by 99 percent, though the population itself had grown by only 28 percent. Even more dramatic was the progress in higher education. At the time of the Israeli occupation of Gaza and the West Bank, not a single university existed in these territories. By the early 1990's, there were seven such institutions, boasting some 16,500 students. Illiteracy rates dropped to 14 percent of adults over age 15, compared with 69 percent in Morocco, 61 percent in Egypt, 45 percent in Tunisia, and 44 percent in Syria.

ALL THIS, as I have noted, took place against the backdrop of Israel's hands-off policy in the political and administrative spheres. Indeed, even as the PLO (until 1982 headquartered in Lebanon and thereafter in Tunisia) proclaimed its ongoing commitment to the destruction of the Jewish state, the Israelis did surprisingly little to limit its political influence in the territories. The publication of proPLO editorials was permitted in the local press, and anti-Israel activities by PLO supporters were tolerated so long as they did not involve overt incitements to violence. Israel also allowed the free flow of PLO-controlled funds, a policy justified by Minister of Defense Ezer Weizmann in 1978 in these (deluded) words: "It does not matter that they get money from the PLO, as long as they don't build arms factories with it." Nor, with very few exceptions, did Israel encourage the formation of Palestinian political institutions that might serve as a counterweight to the PLO. As a result, the PLO gradually established itself as the predominant force in the territories, relegating the pragmatic traditional leadership to the fringes of the political system.*

Given the extreme and even self-destructive leniency of Israel's administrative policies, what seems remarkable is that it took as long as it did for the PLO to entice the residents of the West Bank and Gaza into a popular struggle against the Jewish state. Here Israel's counterinsurgency measures must be given their due, as well as the low level of national consciousness among the Palestinians and the sheer rapidity and scope of the improvements in their standard of living. The fact remains, however, that during the two-and-a-half decades from the occupation of the territories to the onset of the Oslo peace process in 1993, there was very little "armed resistance," and most terrorist attacks emanated from outside-from Jordan in the late 1960's, then from Lebanon.

In an effort to cover up this embarrassing circumstance, Fatah, the PLO's largest constituent organization, adopted the slogan that "there is no difference between inside and outside." But there was a difference, and a rather fundamental one. By and large, the residents of the territories wished to get on with their lives and take advantage of the opportunities afforded by Israeli rule. Had the West Bank eventually been returned to Jordan, its residents, all of whom had been Jordanian citizens before 1967, might well have reverted to that status. Alternatively, had Israel prevented the spread of the PLO's influence in the territories, a local leadership, better attuned to the real interests and desires of the people and more amenable to peaceful coexistence with Israel, might have emerged.

But these things were not to be. By the mid1970's, the PLO had made itself into the "sole representative of the Palestinian people," and in short order Jordan and Egypt washed their hands of the West Bank and Gaza. Whatever the desires of the people living in the territories, the PLO had vowed from the moment of its founding in the mid1960's-well before the Six-Day war-to pursue its "revolution until victory," that is, until the destruction of the Jewish state. Once its position was secure, it proceeded to do precisely that.

BY THE mid-1990's, thanks to Oslo, the PLO had achieved a firm foothold in the West Bank and Gaza. Its announced purpose was to lay the groundwork for Palestinian statehood but its real purpose was to do what it knew best-namely, create an extensive terrorist infrastructure and use it against its Israeli "peace partner." At first it did this tacitly, giving a green light to other terrorist organizations like Hamas and Islamic Jihad; then it operated openly and directly.

But what did all this have to do with Israel's "occupation"? The declaration signed on the White House lawn in 1993 by the PLO and the Israeli government provided for Palestinian self-rule in the entire West Bank and the Gaza Strip for a transitional period not to exceed five years, during which Israel and the Palestinians would negotiate a permanent peace settlement. During this interim period the territories would be administered by a Palestinian Council, to be freely and democratically elected after the withdrawal of Israeli military forces both from the Gaza Strip and from the populated areas of the West Bank.

By May 1994, Israel had completed its withdrawal from the Gaza Strip (apart from a small stretch of territory containing Israeli settlements) and the Jericho area of the West Bank. On July 1, Yasir Arafat made his triumphant entry into Gaza. On September 28, 1995, despite Arafat's abysmal failure to clamp down on terrorist activities in the territories now under his control, the two parties signed an interim agreement, and by the end of the year Israeli forces had been withdrawn from the West Bank's populated areas with the exception of Hebron (where redeployment was completed in early 1997). On January 20, 1996, elections to the Palestinian Council were held, and shortly afterward both the Israeli civil administration and military government were dissolved.

The geographical scope of these Israeli withdrawals was relatively limited; the surrendered land amounted to some 30 percent of the West Bank's overall territory. But its impact on the Palestinian population was nothing short of revolutionary. At one fell swoop, Israel relinquished control over virtually all of the West Bank's 1.4 million residents. Since that time, nearly 60 percent of them-in the Jericho area and in the seven main cities of Jenin, Nablus, Tulkarm, Qalqilya, Ramallah, Bethlehem, and Hebron-have lived entirely under Palestinian jurisdiction. Another 40 percent live in towns, villages, refugee camps, and hamlets where the Palestinian Authority exercises civil authority but, in line with the Oslo accords, Israel has maintained "overriding responsibility for security." Some two percent of the West Bank's population-tens of thousands of Palestinians-continue to live in areas where Israel has complete control, but even there the Palestinian Authority maintains "functional jurisdiction."

In short, since the beginning of 1996, and certainly following the completion of the redeployment from Hebron in January 1997, 99 percent of the Palestinian population of the West Bank and the Gaza Strip have not lived under Israeli occupation. By no conceivable stretching of words can the anti-Israel violence emanating from the territories during these years be made to qualify as resistance to foreign occupation. In these years there has been no such occupation.

IF THE stubborn persistence of Palestinian terrorism is not attributable to the continuing occupation, many of the worst outrages against Israeli civilians likewise occurred-contrary to the mantra of Palestinian spokesmen and their apologists-not at moments of breakdown in the Oslo "peace process" but at its high points, when the prospect of Israeli withdrawal appeared brightest and most imminent.

Suicide bombings, for example, were introduced in the atmosphere of euphoria only a few months after the historic Rabin-Arafat handshake on the White House lawn: eight people were murdered in April 1994 while riding a bus in the town of Afula. Six months later, 21 Israelis were murdered on a bus in Tel Aviv. In the following year, five bombings took the lives of a further 38 Israelis. During the short-lived government of the dovish Shimon Peres (November 1995-May 1996), after the assassination of Yitzhak Rabin, 58 Israelis were murdered within the span of one week in three suicide bombings in Jerusalem and Tel Aviv.

Further disproving the standard view is the fact that terrorism was largely curtailed following Benjamin Netanyahu's election in May 1996 and the consequent slowdown in the Oslo process. During Netanyahu's three years in power, some 50 Israelis were murdered in terrorist attacks-a third of the casualty rate during the Rabin government and a sixth of the casualty rate during Peres's term.

There was a material side to this downturn in terrorism as well. Between 1994 and 1996, the Rabin and Peres governments had imposed repeated closures on the territories in order to stem the tidal wave of terrorism in the wake of the Oslo accords. This had led to a steep drop in the Palestinian economy. With workers unable to get into Israel, unemployment rose sharply, reaching as high as 50 percent in Gaza. The movement of goods between Israel and the territories, as well as between the West Bank and Gaza, was seriously disrupted, slowing exports and discouraging potential private investment.

The economic situation in the territories began to improve during the term of the Netanyahu government, as the steep fall in terrorist attacks led to a corresponding decrease in closures. Real GNP per capita grew by 3.5 percent in 1997, 7.7 percent in 1998, and 3.5 percent in 1999, while unemployment was more than halved. By the beginning of 1999, according to the World Bank, the West Bank and Gaza had fully recovered from the economic decline of the previous years.

Then, in still another turnabout, came Ehud Barak, who in the course of a dizzying six months in late 2000 and early 2001 offered Yasir Arafat a complete end to the Israeli presence, ceding virtually the entire West Bank and the Gaza Strip to the nascent Palestinian state together with some Israeli territory, and making breathtaking concessions over Israel's capital city of Jerusalem. To this, however, Arafat's response was war. Since its launch, the Palestinian campaign has inflicted thousands of brutal attacks on Israeli civilians-suicide bombings, drive-by shootings, stabbings, lynching, stonings-murdering more than 500 and wounding some 4,000.

In the entire two decades of Israeli occupation preceding the Oslo accords, some 400 Israelis were murdered; since the conclusion of that "peace" agreement, twice as many have lost their lives in terrorist attacks. If the occupation was the cause of terrorism, why was terrorism sparse during the years of actual occupation, why did it increase dramatically with the prospect of the end of the occupation, and why did it escalate into open war upon Israel's most far-reaching concessions ever? To the contrary, one might argue with far greater plausibility that the absence of occupation-that is, the withdrawal of close Israeli surveillance-is precisely what facilitated the launching of the terrorist war in the first place.

There are limits to Israel's ability to transform a virulent enemy into a peace partner, and those limits have long since been reached. To borrow from Baruch Spinoza, peace is not the absence of war but rather a state of mind: a disposition to benevolence, confidence, and justice. From the birth of the Zionist movement until today, that disposition has remained conspicuously absent from the mind of the Palestinian leadership.

It is not the 1967 occupation that led to the Palestinians' rejection of peaceful coexistence and their pursuit of violence. Palestinian terrorism started well before 1967, and continued-and intensified-after the occupation ended in all but name. Rather, what is at fault is the perduring Arab view that the creation of the Jewish state was itself an original act of "inhuman occupation" with which compromise of any final kind is beyond the realm of the possible. Until that disposition changes, which is to say until a different leadership arises, the idea of peace in the context of the Arab Middle East will continue to mean little more than the continuation of war by other means.

[Author note] EFRAIM KARSH is head of Mediterranean studies at Kings College, University of London. His articles in COMMENTARY include "Israel's War" (April 2002) and "The Palestinians and the `Right of Return"' (May 2001).

Occupied Territories or Disputed Territories?
(Dore Gold)

Last month's Palestinian draft resolution at the UN Security Council again described the West Bank and Gaza Strip as "occupied Palestinian territories." References to Israel's "foreign occupation" also appear in the Durban Draft Declaration of the UN World Conference Against Racism. This language was not just chosen for rhetorical purposes but in order to invoke specific legal claims: For example, Palestinian insistence on using the term "occupied territories" is usually connected to the assertion that they fall under the 1949 Fourth Geneva Convention. Yet, Palestinian spokesmen also speak about Israeli military action in Area A as an infringement on Palestinian sovereignty: If Israel "invaded Palestinian territories," then they cannot be regarded as "occupied"; however, if the territories are defined as "occupied," Israel cannot be "invading" them.

Israel's Traditional Definitions

Israel entered the West Bank and Gaza Strip in the 1967 Six-Day War. Israeli legal experts traditionally resisted efforts to define the West Bank and Gaza Strip as "occupied" or falling under the main international treaties dealing with military occupation. Former Chief Justice of the Supreme Court Meir Shamgar wrote in the 1970s that there is no de jure applicability of the 1949 Fourth Geneva Convention regarding occupied territories to the case of the West Bank and Gaza Strip since the Convention "is based on the assumption that there had been a sovereign who was ousted and that he had been a legitimate sovereign." In fact, prior to 1967, Jordan had occupied the West Bank and Egypt had occupied the Gaza Strip; their presence in those territories was the result of their illegal invasion in 1948. Jordan's 1950 annexation of the West Bank was recognized only by Great Britain and Pakistan and rejected by the vast majority of the international community, including the Arab states.

International jurists generally draw a distinction between situations of "aggressive conquest" and territorial disputes that arise after a war of self-defense. 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." Israel only entered the West Bank after repeated Jordanian artillery fire and ground movements across the previous armistice lines; additionally, Iraqi forces crossed Jordanian territory and were poised to enter the West Bank. Under such circumstances, even the UN rejected Soviet efforts to have Israel branded as the aggressor in the Six-Day War.

In any case, under UN Security Council Resolution 242 from November 1967, that has served as the basis of the 1991 Madrid Conference and the 1993 Declaration of Principles, Israel is only expected to withdraw "from territories" to "secure and recognized boundaries" and not from "all the territories" captured in the Six-Day War. This language resulted from months of painstaking diplomacy. Thus, the UN Security Council recognized that Israel was entitled to part of these territories for new defensible borders. Taken together with UN Security Council Resolution 338, it became clear that only negotiations would determine which portion of these territories would eventually become "Israeli territories" or territories to be retained by Israel's Arab counterpart.

The last international legal allocation of territory that includes those strategic zones of what is today the West Bank and Gaza Strip occurred with the 1922 League of Nations Mandate for Palestine which recognized Jewish national rights in the whole of the Mandated territory. Moreover, these rights were preserved under the United Nations as well, according to Article 80 of the UN Charter, despite the termination of the League of Nations in 1946. Given these fundamental sources of international legality, Israel cannot be characterized as a "foreign occupier" with respect to the West Bank and Gaza Strip.

The Impact of Oslo: Are the West Bank and Gaza
Strip "Occupied" From a Legal Standpoint?

Under the Oslo Agreements, Israel transferred specific powers from its military government in the West Bank and Gaza to the newly created Palestinian Authority. Already in 1994, the legal advisor to the International Red Cross, Dr. Hans-Peter Gasser, concluded that his organization had no reason to monitor Israeli compliance with the Fourth Geneva Convention in the Gaza Strip and Jericho area, since the Convention no longer applied with the advent of Palestinian administration in those areas. Since that time, 98 percent of the Palestinian population in the West Bank and Gaza Strip have come under Palestinian jurisdiction. Israel transferred 40 spheres of civilian authority, as well as responsibility for security and public order, to the Palestinian Authority, while retaining powers for Israel's external security and the security of Israeli citizens. These residual powers have only been employed extensively, in recent months, in response to the escalation of violence and armed attacks imposed on Israel by the decision of the Palestinian Authority.

The 1949 Fourth Geneva Convention itself (Article 6) 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...." Under the earlier 1907 Hague Regulations, as well, a territory can only be considered occupied when it is under the effective and actual control of the occupier. Thus, according to the main international agreements dealing with military occupation, Israel's transfer of powers to the Palestinian Authority under the Oslo Agreements has made it difficult to continue to characterize the West Bank and Gaza as occupied territories.

It is not surprising that at the United Nations, the U.S. has opposed the phraseology of "occupied Palestinian territories." In March 1994, U.S. Ambassador to the UN Madeleine Albright stated: "We simply do not support the description of the territories occupied by Israel in the 1967 War as occupied Palestinian territory."

Describing the West Bank and Gaza Strip as "occupied Palestinian territories" is incorrect and misleading. Israel's transfer of government functions under the Oslo Agreements greatly strengthens Israel's case that the main international conventions relevant to military occupations do not apply. Describing these territories as "Palestinian" may serve the Palestinians' political agenda but prejudges the outcome of future territorial negotiations that were envisioned under UN Security Council Resolution 242. It also serves the current Palestinian effort to obtain international affirmation of Palestinian claims and a total denial of Israel's fundamental rights in every international forum. It would be far more accurate to describe the West Bank and Gaza Strip as "disputed territories" to which both Israelis and Palestinians have claims. Additionally, UN resolutions that characterize these territories as "Palestinian" clearly undermine the foundations of the peace process for the future.

http://www.jcpa.org/art/brief1-1.htm

There is NO Israeli occupation

http://www.likud.nl/press139.html
Great Short Summary

The Zionist Organization of America News Release, March 13, 2002

The statement by United Nations Secretary-General Kofi Annan condemning what he called "the Israeli occupation" is wrong, the Zionist Organization of America points out.
In fact, there is no "Israeli occupation."

The term "occupation" was used by Kofi Annan, and is used by others, to indicate that Israel has no right to any presence in Judea-Samaria-Gaza or the Old City section of Jerusalem, and that the Israeli presence in any those areas constitutes illegal "occupation" of someone else's land.
In fact, Israel has strong and undeniable rights, under international law, to be present in those areas:

1. Israel has the strongest claim to those areas:
The territories of Judea-Samaria-Gaza and the Old City of Jerusalem were integral parts of the Jewish kingdoms throughout the biblical eras, and are explicitly mandated by the Hebrew Bible as part of the Land of Israel. All of the most important Jewish religious sites are situated in those territories. The very name "Judea" -- a term which was commonly used by the international community throughout all the centuries until the Jordanian occupation in 1949 -- is derived from the same root as the word "Jew," testifying to the deep Jewish connection to the land.
This historical-religious right was the basis for the League of Nations decision, in 1922, to endorse the Jewish people's right to all of the Holy Land, on both sides of the Jordan River.

2. There was no other recognized sovereign power in these territories prior to 1967:
Israel's capture of Judea-Samaria-Gaza and the Old City of Jerusalem in 1967 did not constitute an illegal "occupation" of someone else's land, because prior to 1967, there was no legal or recognized sovereign power there.
The Jordanian occupation Judea-Samaria and Jerusalem during 1949-1967 was illegal, having been carried out in defiance of the United Nations Security Council. The only countries in the world to recognize it were Pakistan and (in part) England.

3. Israel captured these territories in self-defense:
Israel took over Judea-Samaria-Gaza and the Old City of Jerusalem in self-defense, in response to aggression by Jordan and Egypt in June 1967. Former State Department Legal Adviser and former head of the International Court of Justice in the Hague, Stephen Schwebel, has written:
"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."

4. U.N. Security Council Resolution 242 does not require complete Israeli withdrawal from these territories:
Resolution 242 requires Israel to withdraw "from territories" captured in 1967, but the authors of the resolution deliberately left out the word 'the' before 'territories' because it was their conviction -- as articulated by then-British foreign secretary George Brown -- "that Israel will not withdraw from all the territories."
The Soviets tried to insert 'the', but that effort was specifically rejected so as not to suggest that Israel is obliged to surrender all of the territories.

5. 98.5% of Palestinian Arabs live under Arafat's rule:
The notion that the Palestinian Arabs are living under "Israeli occupation" is preposterous. As a result of Israel's territorial withdrawals following the signing of the Oslo accords, 98.5% of the Palestinian Arabs live in Palestinian Authority-controlled areas.

6. The Oslo Accords recognize Israel's right to remain in the territories, at least until a final settlement is reached:
The Oslo accords accept Israel's presence in the territories at least until an Israel-PA agreement on the final status of those areas.
Chapter 2, Article X, Clause 4, specifically recognize that in the disputed territories, "Israel shall continue to carry the responsibility for external security, as well as the responsibility for overall security of Israelis for the purpose of safeguarding their internal security and public order" until a final accord is reached.
Furthermore, the Oslo accords do not require Israel to dismantle any of the Israeli communities in Judea-Samaria-Gaza -- in effect, an acknowledgment of Israel's right to maintain those communities, at least until a final-status agreement is reached.

http://www.likud.nl/press139.html

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