The Nature and Implications of Israeli Occupation of the Palestinian Territory: Part I

[Captain Peter S. Konchak is a Judge Advocate in the United States Army who is currently assigned to the Office of the Staff Judge Advocate for III Armored Corps and Fort Cavazos, and whose academic work is focused on matters of national security law and policy]

The views expressed in this article are those of the author and do not represent the Department of Defense, the Department of the Army, or any other entity or agency of the U.S. government.

Introduction

In a recent advisory opinion, the International Court of Justice (ICJ) held that Israel is engaged in an illegal occupation of the Palestinian Territory. (Advisory Opinion of 19 July 2024, ¶261-62). This holding was predicated upon two initial conclusions regarding the application of the laws of war to the relations between Israel and the Palestinian Territory. First, that under the jus in bello, the Palestinian Territory is subject to an ongoing, de jure belligerent occupation by Israel. (¶87). Second, that this ongoing occupation constitutes an unlawful use of force by Israel under the jus ad bellum. (¶179, 253-54).

Despite the significance of those predicate conclusions, neither was subject to extensive analysis by the ICJ. This omission is problematic. Belligerent occupation norms and the use of force prohibition only unambiguously apply to the relations between internationally recognized sovereign States. Accordingly, since Palestinian statehood is contested, those norms cannot be deemed to be inherently applicable to Israeli conduct towards the Palestinian Territory.

Instead, the formal application of those norms to Israel’s military presence in the West Bank, East Jerusalem, and the Gaza Strip is predicated upon Israel’s implicit recognition of the Palestinian Territory as a belligerent community with which it is engaged in an ongoing international armed conflict (IAC).

Part I of this article demonstrates that this legal conclusion is the consequence of the unique circumstances in which Israel’s occupation of the Palestinian Territory arose. Part II of this article then explains that this reality has significant implications for how Israel’s jus ad bellum obligations towards the Palestinian Territory must be assessed going forward.

of this article then explains that this reality has significant implications for how Israel’s jus ad bellum obligations towards the Palestinian Territory must be assessed going forward.

Israeli Belligerent Occupation of the Palestinian Territories 1967-1994

Israel first established effective control over the West Bank, the Gaza Strip, and East Jerusalem—then widely referred to as the “Palestinian territories”—during the 1967 “Six Day War,” an IAC between Israel and several Arab States, including Egypt and Jordan.

Much as today, the international legal status of those territories was ambiguous in 1967. The Palestinian territories constituted those parts of the former Mandate of Palestine that lay outside the 1949 armistice lines established after the First Arab-Israeli War—the boundaries within which Israel had been recognized as a sovereign State. Prior to the Six Day War, the Gaza Strip was under Egyptian administration, while Jordan governed the West Bank and East Jerusalem as part of its sovereign territory. Since the 1949 armistice lines were not intended to serve as permanent frontiers, however, sovereignty over those territories was disputed.

Given those realities, Israel’s military control of the Palestinian territories never constituted a classical belligerent occupation.

Under the jus in bello, a belligerent occupation exists when territory belonging to one State is “actually placed under the authority” of a hostile State’s armed forces. Since it presumes the existence of a hostile relationship between two or more States, belligerent occupation is a type of IAC that involves one belligerent exercising control over an enemy State’s territory through the employment of armed force. Under the classical conception of that doctrine, this was understood in terms of one State displacing the “legitimate sovereign” from the captured territory.

Since neither Egypt nor Jordan clearly possessed sovereignty over those territories in 1967, Israel arguably had not displaced any “legitimate sovereign” from those geographies. Instead, as Israel itself has long argued, it did not establish effective control over the sovereign territory of a hostile State, but rather in territories over which sovereignty was “indeterminate” or “in abeyance.”

Nevertheless, third States broadly recognized Israel as a belligerent occupant in the Palestinian territories following the Six Day War. This indicates that by 1967, States generally recognized that a belligerent occupation exists whenever one party to an IAC seizes territory that was controlled by an enemy State prior to the onset of hostilities, even if sovereignty over that territory is disputed. For example, the official U.S. position asserted that Israel was a belligerent occupant in the Palestinian territories because, when Israeli military forces captured the West Bank, the Gaza Strip, and East Jerusalem “[t]hose areas had not been part of Israel’s sovereign territory or otherwise under its administration.”

Israeli Occupation of the Palestinian Territory Since 1994

According to the ICJ, no events since 1967 have “altered the status of the [Palestinian territories] as occupied territories, nor Israel’s status as [the] occupying power.” (Advisory Opinion of 19 July 2024, ¶87). That proposition is supported by the widespread recognition among third States that—at least prior to its unilateral evacuation of Gaza in 2005—Israel continued to occupy all the Palestinian territories it captured in 1967.

However, that conclusion cannot easily be reconciled with the traditional norms that establish the beginning and end of a belligerent occupation.

A belligerent occupation exists exclusively in the context of an ongoing IAC. In general, therefore, the conclusion of the IAC in which the occupation arose also ends the occupation itself. As discussed, Israeli belligerent occupation of the Palestinian territories arose in the context of its IACs with Egypt and Jordan, which came to an end through peace agreements concluded in 1979 and 1994, respectively. Under a traditional conception of belligerent occupation, therefore, Israel’s de jure occupation of the Palestinian territories should have terminated alongside those agreements.

The critical implication is that if no events since 1967 changed the status of the Palestinian territories as subject to de jure Israeli occupation, the doctrinal basis of that occupation must necessarily have changed during that period. Since, after 1994, Israel could no longer be considered a belligerent occupant in the Palestinian territories based on an ongoing IAC with Egypt or Jordan, there must be a distinct doctrinal rationale for why the international community has continued to assess Israel’s presence in those geographies as a de jure occupation, which may be found in the unique way that the Israeli-Egyptian and Israeli-Jordanian IACs came to an end.

Transferred Sovereignty and Transposed Occupation

The peace treaties that terminated those IACs were concluded “without prejudice” to the status of the Gaza Strip and the West Bank. Meanwhile, amid the conclusion of the last of those agreements, Israel recognized the Palestinian Liberation Organization (PLO) as the representative of the Palestinian people and established the Palestinian Authority (PA) as an interim governmental authority with jurisdiction over the West Bank and the Gaza Strip as a single territorial entity.

According to the late Yoram Dinstein, those developments had the effect of conferring upon the Palestinian people—as represented by the PLO and the PA—the status of the displaced sovereign in the Palestinian Territory. Through the reservations in their peace agreements with Israel, Jordan and Egypt transferred whatever sovereign rights they possessed in the West Bank and Gaza to the “Palestinian people.” Meanwhile, through the Oslo Accords, Israel recognized limited internal and external sovereignty on the part of the Palestinian Territory as exercised by its official representatives in the PA and the PLO. (Yoram Dinstein, The International Law of Belligerent Occupation, 2nd Ed., p.21).

Critically, since Israeli forces remained in control of Gaza and the West Bank when this occurred—and Israel’s military presence had never been consented to by any other competing claimant to sovereignty over those areas—this transfer of sovereignty did not end Israel’s belligerent occupation of the Palestinian Territory. Instead, by assuming the position of the displaced sovereign, the Palestinian people also assumed the position of the opposing party to the IAC with Israel that began in 1967. (Id. at 61).

As one scholar put it shortly after those events took place: “Relations between Israel and the Autonomous Territories, as represented by the Palestinian Authority, are the result of [an] armed conflict whose outcome has not yet been fully and finally settled.” Since one of the features of that armed conflict was the Israeli belligerent occupation of the West Bank and Gaza, that belligerent occupation persisted with the Palestinian Territory—rather than Egypt or Jordan—as the occupied party, pending a final settlement of the conflict.

The Israeli-Palestinian Armed Conflict and Belligerent Recognition

Absent the predicate conclusion that Palestine constitutes a State, the existence of an Israeli-Palestinian IAC may seem doctrinally inapposite. Since armed conflicts are generally classified based on the status of the parties, hostile relations between Israel and the Palestinian Territory would prima facie constitute a non-international armed conflict (NIAC).

However, the existence of an Israeli-Palestinian IAC finds support in the classical doctrine of belligerent recognition. Under that doctrine, hostilities between a State and a non-State actor (NSA) are treated as the functional equivalent of an IAC when the State party to the conflict treats the enemy NSA as a State for jus in bello purposes. Such recognition causes the jus in bello norms applicable to an IAC—including the law of belligerent occupation—to govern the hostile relations between the parties.

Since 1994, Israel has repeatedly treated the Palestinian Territory—through its official representatives in the PLO and the PA—as a State for armed conflict purposes. This occurred most prominently during the “Second Intifada,” a period of major hostilities between Israel and several Palestinian militant groups from 2000 to 2005.

When those hostilities began, Israel stated that it was “engaged in an armed conflict short of war” against “a well-armed and organized militia, under the command of the Palestinian political establishment, operating from areas outside Israeli control” (emphasis added). Ian Scobbie has argued that Israel’s use of this terminology reflected its position that while the Second Intifada was not formally an IAC, those hostilities could not appropriately be classified as a NIAC either.

Critically, subsequent Israeli practice suggests that Israel adopted that view based on two interrelated aspects of those hostilities.

First, Israel recognized the Second Intifada as an armed conflict between itself and the Palestinian Territory, as represented by the Palestinian “political establishment”—the PA and the PLO. In negotiating an end to the Second Intifada, Israel concluded a ceasefire with the PA that implicitly recognized the PA as bearing responsibility for all Palestinian hostilities being conducted against Israel. In that agreement, the parties “agreed that all Palestinians will stop all acts of violence against all Israelis everywhere and, in parallel, Israel will cease all its military activity against all Palestinians anywhere.” In 2007, this was followed by the conclusion of a “joint understanding” in which Israel and the PA committed to the goal of concluding a “peace treaty” to resolve “all outstanding issues” between Israel and the Palestinian people.

Second, as an armed conflict against the Palestinian Territory, Israel treated the Second Intifada as a sui generis armed conflict—neither clearly “interstate” nor “internal” in character—because, while it does not formally recognize Palestine as a State, it does recognize the Palestinian Territory as a juridical entity distinct from the State of Israel. For example, the Israeli Ministry of Foreign Affairs explained that the 2008 hostilities between Israel and Hamas in the Gaza Strip encompassed “cross-border military confrontations” in an area that constitutes a “separate territory” from the State of Israel, but “is neither a State nor a territory…controlled by Israel.” Accordingly, as a matter of policy, Israel “applies to its military operations in Gaza the rules of armed conflict governing both [IACs and NIACs].”

Those realities suggest that, by the time the Second Intifada began, Israel had implicitly recognized the Palestinian Territory as a belligerent community with which it was engaged in an ongoing armed conflict. This recognition therefore caused the jus in bello rules of a per se IAC—including belligerent occupation norms—to become applicable, de jure, to hostile interactions between the Palestinian Territory and the State of Israel.

Conclusion

Israeli effective control over the West Bank, the Gaza Strip, and East Jerusalem was established and has since been maintained under a unique set of circumstances. By capturing those territories from Jordan and Egypt in a IACs that began in 1967, Israel initiated a formal belligerent occupation of the Palestinian Territories as areas that had been under the peaceful control of enemy states prior to the outbreak of hostilities. In the peace agreements that resolved those IACs, Jordan and Egypt transferred their sovereign rights in those territories to the Palestinian people. Contemporaneously, by entering the Oslo Accords, Israeli recognized limited internal and external sovereignty on the part of the Palestinian Territory as exercised by its official representatives in the PA and the PL 

Under international law, those realities involved Israel recognizing the Palestinian Territory as a belligerent community with which it was engaged in an ongoing IAC. Subsequent Israeli practice towards the Palestinian Territory, most prominently during the Second Intifada, has affirmed that legal state of affairs. As Part II of this article explains, those legal conclusions have significant implications for Israel’s jus ad bellum obligations towards the Palestinian Territory.