QUESTION #4

Is Israel an “Occupying Power”?

This question may at first surprise some people, since it seems a given that Israel is occupying, legally or illegally, the disputed territories of the West Bank and Gaza Strip. However, when one speaks of an “Occupying Power” from a legal perspective, the definition is more precise than the popular notion of an army controlling a foreign population.

And indeed, it has been the official position of the Israeli government since the War of 1967 that it is not, in the legal sense, an Occupying Power. This is based on one of the most basic of all international legal documents which deal with the issue of occupation, the Fourth Geneva Convention (henceforth, either “the Convention” or “the 4GC”).

The first paragraph of the second article of the Convention states:

... 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.

A “High Contracting Party” is a country which has signed the Convention. The territories of the West Bank and Gaza Strip are not under the sovereignty of a High Contracting Party. Therefore, the 4GC, strictly speaking, would not seem to be applicable to the case of Israel's occupation, and hence, from a legal perspective, Israel would not be an official “Occupying Power”.

Furthermore, the second paragraph of the fourth article of the 4GC opens with the concise rule that:

Nationals of a State which is not bound by the Convention are not protected by it.

This rule comes to underscore that the 4GC does not apply universally to all people living under military occupation, but rather only to those who belong to a signatory of the Convention.

Not an Occupying Power, but still governed by the 4GC's humanitarian provisions

But if the 4GC does not apply to the West Bank and Gaza Strip, what internationally agreed upon rules should be applied to its governance of those territories?
In point of fact, Israel's Supreme Court has consistently upheld that all of the humanitarian provisions of the 4GC still apply to the West Bank and Gaza Strip, and that the only provisions which do not apply are those relating to the rights of the sovereign whose territory is occupied, since in the case of the West Bank and Gaza Strip, there is no existing legal sovereign.

The subtle issue which will challenge the International Court of Justice, as it addresses the significance of the Fourth Geneva Convention, is:

• Whether the security fence represents an encroachment on the rights of some theoretical non-Israeli sovereign, - such as Jordan or the Palestinian Authority;
  or
• Whether the legality of the fence is strictly an issue which relates to the provisions of the 4GC regulating the restrictive measures an Occupying Power may impose on the people living under its occupation.

For details on those and other provisions of the Fourth Geneva Convention, please click here to see the analysis of Question #6.

The legal consequences of the Oslo Accords

Another avenue which the ICJ ought also to explore is: how the existence of the Oslo Accords affects the notion of Israel as an occupier, whether in its legal or popular sense.

Once the Palestinian leadership signed a document which explicitly leaves Israeli forces and settlements in place, with final status to be determined in a future agreement, it would seem that the Israeli presence cannot be termed "occupation", or - at least - not "illegal occupation". For further discussion of the Oslo Accords, read the analysis of Question # 9.

 

 

Previous | Back to 10 Key Questions | Table of Contents | Next