Summary: The Court’s stated opinion is an undue interference in core issues of Zionism and Judaism. This opinion is based on loose facts and loose logic. It represents a malignant inability to distinguish between law and political opinions and goals. It is an attempt to elevate a one-sided political opinion to the level of International Law, rendering core beliefs and aspirations of Israelis as contrary to International Law – this before actual negotiations for an agreement have even started. 

The International Court of Justice in the Hague has convened a panel in 2004, to discuss Israel’s “Security Fence” in the West Bank. In its Advisory Opinion, Paragraph 101 says this:

“The Court considers that the Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties. Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out. The Court accordingly finds that the Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior state of those territories.”

The actual history is a bit different than described above. The state of war between Jordan and Israel started in 1948, not 1967. That state of war has ended in 1994, with the signing of a peace treaty. The Panel is referring to a war that has ended ten years before this writing. It uses that past war to explain a different conflict, the one between the Israel and the Palestinians.

The context of this decision is a yet-unsolved conflict between the Israelis and Palestinians, a dispute regarding, among other things, the legal sovereignty over the West Bank. This area is where the ancient sovereignty of the Jews existed, the land of their ancient history, described in the Bible. One part of this territory, Judea, is what gave the Jews their very name. It includes The Old City of Jerusalem, one of the key issues in Judaism and in Zionism. The Old City is home to The City of David, aka Zion. That place is the origin of the name of the ideology and the political movement that brought the Jews back to their ancestral homeland and established The State of Israel. The deep connection to this territory is one of the fundamental reasons for the advent of Zionism. The International Community after WWI had recognized that connection, and recognized Zionism and the return to Eretz Yisrael as the answer for the Jews. It was the International Community that had mandated in the 1920s that the place for the Jews is to be “Palestine”. The British Mandate was defined to be an interim regime over territory that has been designated in International Law to be (or contain) the National Home of the Jewish People.

Paragraph 101 does not refer to this directly, but some players, including official ones, are of the opinion that if the Geneva Convention is valid somewhere, then the territory in question is legally “Occupied”. One issue that is lurking here in the background is the legal sovereignty over The Old City of Jerusalem and over the ancient Jewish homeland. One potential result of the text of Paragraph 101 is that people might come to believe that before negotiations between the sides to the conflict have even started, the Jewish Holy Sites are already Occupied Palestinian Territory, and that the Zionists are foreign invaders in Zion, and the Jews have no place in Judea!

In fact, this is the an integral part of the deep meaning of what most of the World believes right now.

Israel’s position is that the West Bank is “disputed territory”. Most of the rest of the worlds rejects this term and claims “occupation”. This is done in a diplomatic setting, in which language is supposed to be mild and disagreements should be avoided. In such a setting, the meaning of the insistence on “occupation” is that there is no “dispute”. Israel has no claim to “occupied territories”. If it had any claims, then diplomatic protocol would dictate that the term “dispute” be used. This interpretation is strengthened by the idea that all Settlements are illegal: this implies that a set legal status already exists, no negotiations are expected.

The text of Paragraph 101 shows that the Panel was faced with several problems, and it shows the Panel’s solutions to these problems. This article is meant to show that the solutions were not very good. They make bad answers to bad questions. In referring this issue to the International Court of Justice ( ICJ), the UN was enlisting the ICJ to do a political job. The ICJ should have declined. Instead, it did the job, and by doing so, it apparently had raised to the level of Law, a political view that the UN wanted to impress upon the sides at that time. In fact, the ICJ is accepting the claims of the Palestinians, rejecting the position of Israel on this matter, and declaring that the Palestinian position is The Law. This action has the meaning of labeling the Jews and Zionists as foreign invaders with no legal ties to this region – a pseudo-legal affirmation of the core tenet of all those that fought against Zionism for at least the last century.

Not every problem in International Politics necessarily admits a solution based on The Law. The Israeli-Palestinian Conflict is much more complicated than a mere legal dispute. It is doubtful if there exists any other example in the World of an attempt to solve such a conflict by legal tools and/or by enforcing any pre-existing law. The order of things should be that first, politicians negotiate the solution, and only then do the lawyers step in and draw the papers. Not the other way around.

It has been claimed that the world does not behave according to the laws of Mathematical Logic. This is correct. People do not conduct themselves daily using Mathematical Logic. However, This author is claiming that at least while talking about laws and judicial rulings, people should be aware of and responsible for the logic that they are using. They do not have the liberty to disregard the logical aspect or repercussions of their discourse. Laws should be applied only where it is logical to do so. Rulings can be used only if they were made under some accepted legal procedure. No person or group can be coerced into complying with rulings that were made, if at all, under dubious circumstances, by other people.

The claim of the existence of a “legal status of Occupation” by Israel over the West Bank, logically implies that the Jews have no legal rights in The Old City of Jerusalem, in Judea and in Zion. If that is not the intention, then a different legal claim should be drafted. This is how Logic works.

Therefore, the current legal claim violates just about every rule of civilized society, but in particular it disregards logic, and it does not coincide with application of Law. In fact, it makes a mockery of International Law, and undermines the system.

Legal tools were needed in order to supply a legal framework for everyday life in the West Bank since 1967. But care must have been taken that these legal provisions and patches do not hurt the possibility of eventually solving this conflict. This apparently has not been done in this case.

To the extent that it is needed to decide what the legal status is, it is not clear if the conflict is international or in-state. The world opts to see it as international, but it might be a better fit to see it as a civil war.

Analysis of Paragraph 101 

The author is not a student of Law, and the statements made here regarding law are derived from the text by backward engineering of its logic.

For the Geneva Convention to be valid in the West Bank, there has to be an armed conflict between at least two High Contracting Parties. The Palestinians are not a state, not a party to the convention, so Jordan had to be called in to substitute for them. Otherwise, the Geneva Convention becomes irrelevant to the case. But this creates several problems.

First of all, the Palestinians and Jordan are two separate and distinct entities. They themselves insist on this. This separation is needed for stability, because uniting the two might de-legitimize the monarchy in Jordan. It might also re-introduce the possibility that the Palestinians already have a state – Jordan. That Jordan is the Palestinian State. Can they, should they, are they interested in being united for the purpose of a legal fight against Israel? The ICJ unites them on its own initiative without asking them in order to make a claim against Israel.

Second: unlike the Palestinians, Jordan wasn’t a part of the British Mandate of Palestine. It has been excluded in 1922 and gained independence in 1946. Legally it is a foreign power. The Palestinian Jews and Arabs (now called: the Israelis and Palestinians), on the other hand, were subjects of the British Mandate. The UN resolution of Partition (Resolution 181) had called for the establishment of a state for them. But Jordan had conquered the West Bank in 1948 and annexed it in 1950. Egypt conquered the Gaza Strip and held it under occupation from 1948 to 1967. This had prevented the establishment of the Palestinian state, and the settling of the 1947/8 dispute. The Jordanian annexation of the West Bank was rejected by almost all nations of the world, and recognized by only two states: Pakistan, and the UK. The UK had participated in the 1948 war in the sense that most of the commanders of the Jordanian army that took the West Bank were British army officers. So Britain was recognizing its own conquest for the benefit of a proxy state.

Thirdly, there is a troubling point of law here. The Panel pins its conclusions on the existence of an armed conflict between Israel and Jordan. But the historic fact is that in 2004 there was no armed conflict between Israel and Jordan, not in the West Bank and not anywhere else. Israel and Jordan had signed a Peace Agreement back in 1994, and the International border between them had been set along the Jordan valley. This is as far West as Jordan goes. The West Bank is outside of Jordan, and this is Jordan’s own position. How can a non-existent conflict with Jordan determine the legal status of the West Bank?

In fact, the Panel is basing rights for the Palestinians on an invasion and (actual) occupation by Jordan. This contradicts the principle cited against Israel, that military occupation does not confer rights. It is unclear who is fighting against Israel and who is supposed to have rights. What is the relation between Jordan and the Palestinians? Which of them has which rights and why? Is this conflict set inside of one state or is it between different states? If Jordan represents here the Palestinian side, then why is it needed to establish an additional Palestinian state? Again, one thing is clear: Jordan had no legal or political claim to the West Bank in 2004.

On the other hand, the Rhodes 1949 Armistice Agreements imply that Israel retains territorial claims to places beyond the Green Line, claims to be settled in a future peace agreement. if Israel is now found to be “Occupying” the West Bank, then it had lost title to these places. How? By being forced to fight in 1967: since it has won the war and conquered, or re-conquered Jerusalem in 1967, it loses all legal rights to it. Woe to the winners, hoorah to the aggressors.

We can search for clever answers to these questions, or we can conclude that the Panel’s opinion does not really make sense. Bad answers to bad questions.

Even if we assume that the conflict with Jordan is relevant, and we do not care who Israel’s enemy is, the Panel states that the conflict started in 1967. This is arbitrary and odd. If we disregard the period of the British Mandate, the conflict had started in 1948, by a Jordanian invasion of formerly- Mandatory Palestine. However, the Geneva Convention had been signed only in 1949, after the start of this conflict. So it seems that the arbitrary starting point in 1967 was chosen on purpose, and the Geneva Convention might not be applicable in a conflict that started before the Convention was signed. It could be applied only voluntarily, and Israel indeed does this, not completely but to a large extent.

The panel cites the Green Line as the dividing line between Israel and the “Palestinian Territories”. It seems that such a dividing line should be an international border. But the Green Line had been introduced into International Law in the Rhodes 1949 Agreements. These Agreements state that they do not settle issues like borders. The panel seems to be transforming the Green Line into a permanent border without actually saying this. As stated above, the Kingdom of Jordan ends at the Jordan valley.

It is pretty obvious that the Green Line should be the basis for negotiating the final borders, but this is a political statement, not a legal one. There should be a difference. This seems to this author as a clear and present problem in the International discourse over the Israeli-Palestinian Conflict. More on one of the issues involved – at the end of this writing

What, according to the Panel, is the legal status of the West Bank? The Panel calls it “Palestinian Territories”. This is problematic. The Palestinians are not a state. They probably are not an entity under International Law. They cannot have sovereignty over territories, otherwise we would have heard of Kurdish Territories, Uyghur Territories, and the armies of Turkey or China would be considered as occupying forces there. And we have not mentioned Tibet, or Chechnya, and other areas in the Caucasus. So the term above is not legal, it is political.

As mentioned above, the territory in question is the cradle of Jewish history, and the conflict over it is ongoing. Suddenly we learn that the Jewish Quarter of Old Jerusalem has become Palestinian, apparently by the fact that Jordan has conquered it in 1948 from Israel. Perhaps Israel should cede this territory to the Palestinians. Perhaps this can be done in due time, under appropriate conditions, and most importantly, under a final resolution of the conflict! Not one minute earlier, not by authority of third parties, and not over Israel’s head.

At the very least, the use of the term Palestinian Territories seems to reveal prejudice on the side of the Panel. The territory should have referred to according to a neutral legal definition, or with regard to the obvious existence of a dispute over it. E.g. “the disputed areas”. The Palestinian narrative is made King in this text, the Israeli narrative is null and void.

The Panel wrote that the West Bank was occupied by Israel in 1967. What they probably wanted to say was that it was occupied since 1967. What this author would certainly agree on is that it was conquered in 1967. The territories were conquered by Israel, but that does not mean necessarily that they are occupied by Israel in the sense of International Law. After all, Haifa and Jaffa, and many other places, have also been conquered. True, Haifa and Jaffa were conquered in 1948, and the West Bank in 1967. There is a difference. But what that difference is and what it means, should be a matter of discussion, and should not be determined by third parties. The historic and political difference between 1948 and 1967 does not necessarily have the legal implications that many people believe it has.

This inaccurate use of language enables the Panel, and many other entities, including European and

other governments, to verbally and conceptually transform an event, Israel’s conquest of the West Bank in 1967, into a continuous state, occupation. This term is then escalated from its military meaning, to a legal term. As such, it trumps the core issues of the Conflict and renders them irrelevant, at least according to reactions that this author has gotten from some European diplomats serving in Israel.

The panel goes on to say that the above false claims are enough to make it unnecessary to check the legal history of the territories. This probably means that they were aware that there are alternative legal views.

But such history exists. The legal history of the region starts in the 1920s. This author is not aware of any coherent legal theory that finds the West Bank “Occupied” without ignoring those past International resolutions regarding the legal status of Palestine. The one and only coherent legal theory regarding the legal status that this author is aware of, says that the British Mandate in Palestine has the legal consequence that the whole territory legally belongs to the future Jewish Nation State.

The Panel’s assertion that the past can be disregarded is thus quite suspicious. Apparently, it is unnecessary to check if perhaps Israel was the legal sovereign in Jerusalem even before 1967. Indeed, if Jerusalem had a legal sovereign before 1967, then Israel was and still is the only existing candidate legal entity to this title.

It seems unjust to claim that the whole territory belongs to Israel. In fact, it is unjust. However, the law does not have to be just. And Israel does recognize the need to negotiate with the Palestinians and establish their state in a part of Palestine. This would establish a different law. The negotiations and compromises are needed precisely because the current status is unjust. But people seem to confuse between the status before negotiations and after negotiations, between political and moral positions on the one hand and legal facts on the other. They call for negotiations, but assume that the current legal status already reflects their vision of the final “moral” solution. In fact, they want Israel to start the negotiations not from its opening position, but from its last position. Or perhaps even from the Palestinians’ starting position. Before negotiations have started, they want Israel to cede the legal claim to the territory that it will eventually agree to cede. They want the negotiations to start from a legal status that is the opposite of the actual Law as it has been enacted in the past by those that had the authority to do so.

Because of the deep meaning of these issues, the demand from Israel is no less than to renounce its core narrative and ethos and enter negotiations based on this renounciation. In such negotiations, it would matter little what is agrred, if anything does get agreed. The Palestinians get a strategic victory just by having Israel enter the room.

I would hazard a guess here: the law regarding occupation had been designed for wars between parties that already have established borders between them, so that the legal sovereign of any territory had been determined in the usual legal way. This is the basic assumption that dictates what the occupying force is allowed and disallowed to do. Here, there is a yet-unsolved conflict, no official borders, and no legal sovereign in the West Bank. By regarding the West Bank as “Occupied”, people are changing the situation de-facto, entering new provisions and ignoring the existence of the conflict and the need to solve it. They subject Israel to act in the disputed areas as if the dispute had already been settled in favor of the Palestinians. Once this has been done, the Palestinians are in one of the best possible worlds for them, and they have no reason to compromise. The World adopts a view that already ignores the very existence of the conflict, and the rights, wants and legacy of Israel. The Palestinians suffer, but it is for a good cause. They are the righteous side, and they are exempt from making compromises and hard decisions. Their world is

morally very simple. And if nothing ain’t broken, then why fix anything? The world is continually beating up Israel and weakening it. The Palestinian rejectionism carries no penalty. There is no rush.

In my limited experience, there are people, e.g. European diplomats serving in Israel, that think that issues like Jerusalem and the Jewish heritage should not be factors in this debate. It has been suggested to me that those are topics for after-hours chit-chats over beer. In their eyes, the event of Israel’s conquest of the West Bank trumps millenia of Jewish history and yearnings, religion, nationality, narrative. Only the Palestinians can have wants, hopes, a narrative; the Jews have a state, and their hopes, wants, narrative and national identity now count for nothing.

Other Europeans told me that they do not want to get involved in matters of narratives and such. But Europe must recognize that these issues exist. Europe’s positions have consequences in such regards. These positions have caused things to happen already, and Europe cannot ignore this. There is responsibility.

Yet another European position is that Israel is strong militarily, technologically and economically, and so it should be generous to the Palestinians. To this I say: Economy is important, but this conflict is not just about Economy. It is first and foremost about identities and about the right of Jews to self-determination. The Palestinians show no intention of recognizing that right, and the European positions show that Europe does not understand this right, and that Europe had recinded recognition of rights of the Jewish people that had been recognized by the International Community in the past.

The International System seems to have reduced perhaps the most difficult conflict ever into the wrong problem. It treats this conflict as if it were a simple, one-sided legal dispute, and it regards the deepest of topics, the core issues, as irrelevant. Europe thinks that borders should be canceled, that WWII shows that Nation States are a bad idea. But in the Middle East, borders are very important. Not just the Europeans, but also the Jews had gone through WWII, and their historical conclusions from it are that a Nation State is needed for survival.

Disclaimer: The opinions here are offered as topics for discussions, not as absolute truths. It seems that most international players have conformed to a set of beliefs that should be re-examined. It is not necessary to accept the ideas offered here, but the reader is requested to consider that these ideas do aptly describe the beliefs and actions of people involved in the conflict, and that they dictate those people’s behavior and voting patterns. Trying to address the conflict without taking these ideas into consideration, is perhaps the single most significant reason for the current stalemate in the Peace Process.

Other than this current article, there is a complete e-book of Reply to the Hague 2004 Panel:

http://www.mythsandfacts.org/ReplyOnlineEdition/toc.html 

Herzl Regev, herzl.regev@alumni.weizmann.ac.il Last revision: Apr 2017 

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