QUESTION #5
Is the disputed territory "Palestinian", or does it
have some other status?
Many UN resolutions and documents refer to the West Bank and Gaza
Strip as “Occupied Palestinian Territory”, as does the
UN General Assembly request for an advisory on the Fence.
To term the West Bank and Gaza Strip “Palestinian”
assumes that the Palestinian Arabs have exclusive sovereign rights
to the disputed territories - a point which, if correct, would certainly
have a bearing on the ICJ's decision regarding the legality of the
security fence.
Historical ties form legal basis for claims to sovereignty
As demonstrated in the earlier analysis of the ICJ
advisory on Western Sahara, the historical ties between a people
and a land are considered a valid basis for weighing claims to sovereignty.
Both Jews and Arabs can amply demonstrate the kinds of connections
to the West Bank and Gaza Strip, which can create sufficient legal
ties for establishing claims to sovereignty.
While the United Nations is not obligated to consider such ties
from a legal perspective, the International Court of Justice must
do so, if it is to pass judgement in accordance with International
Law.
Below is a partial list of the types of claims the ICJ would have
to contend with should it attempt to determine the precise status
of the disputed territory of the West Bank:
| Israeli Jewish Claims |
Palestinian Arab Claims |
| Over 3,200 years of continual Jewish presence |
Over 1,300 years of continual Arab presence |
| Over 800 years of sovereign presence |
Over 9 years of Israeli recognized autonomy |
| Over 500 years of autonomous presence |
Majority of UN supports Palestinian sovereignty |
| Rights in WB recognized by League of Nations |
1947 UN Partition called for Arab state in WB |
| WB Jews fled/expelled in 1929-49 Arab attacks |
Numbers of WB Arabs fled/expelled in '48 & '67 Wars |
| Currently over 400,000 Jews in West Bank |
Currently over 2 million Arabs in West Bank |
| Arab town/village names corruptions of Hebrew |
Many geological sites called by Arabic name |
| Temple Mount holiest site of Jews for 3,000 yrs. |
Religious control over Dome of Rock for 9 years |
| Jews always prayed for return facing Jerusalem |
WB refugees in camps live according to village |
| Biblical claim affirmed in NT & Koran (e.g. 5:21) |
Palestinian Arab culture distinct in Arab World |
Herculean task ahead for the International Court of Justice
Needless to say, the amount of time it would take to review all
of the necessary facts, in order to test the historicity and/or
accuracy of the above claims, combined with the time it would take
to then weigh all of these factors could well lead the ICJ to declare
that it cannot determine the relative strength of each claim from
a legal perspective. And it cannot be emphasized enough that the
chart above only contains a fraction of all of the evidence which
could be presented before the ICJ.
Therefore, it is not unreasonable to surmise that the ICJ will
not attempt to rule one way or the other, but will simply view the
West Bank as disputed territory, without assigning a preference
to either Jewish or Palestinian claims, especially as it has not
been explicitly asked to do so.
However, it is conceivable that the ICJ will feel compelled to
address relative sovereignty claims, inasmuch as the UN's request
for advisory assumes that the Court will address their question
using the presumption of Palestinian sovereign rights.