Turns out, Israel is not illegally occupying the West Bank.

The political consensus that the Jewish state is reflects the world’s animosity towards it, rather than any legal fact. The territory is disputed, and Israel’s claim to it is strong.

The Cave of the Patriarchs in Hebron in Judea and Samaria (also known as the West Bank), the city where David was anointed King of Judea (Dan Rosenstein/Unsplash)

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This is a guest essay written by Nachum Kaplan of Moral Clarity.

You can also listen to the podcast version of this essay on Apple Podcasts, Google Podcasts, and Spotify.

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The Israeli government’s recent decision to appropriate 1,976 acres in the Jordan Valley as state land, and the decision by U.S. President Joe Biden’s administration to sanction a handful of Israeli settlers, has put the issue back on the front pages.

The mainstream media has again written as though it is a fact that Israel is illegally occupying Palestinian land. This is partisan and lazy. Separating fact from opinion and propaganda is essential. A little history is helpful.

In 1948, approximately 40,000 Jews lived in the biblical heartland of Judea and Samaria (also known as the West Bank), then part of the British Mandate for Palestine, where Jews have lived for millennia. Then, Arab states attacked the newly declared State of Israel (the 1948 War of Independence or the First Arab-Israeli War).

During this war, Jordan illegally occupied the region, ethnically cleansed it of Jews through massacre and expulsion, and rebranded it as “the West Bank.” Israel then took the West Bank from Jordan in the 1967 Six-Day War, along with the Western Wall (the Kotel). It is morally revealing that the world considers Jews returning to places from which they were ethnically cleansed as illegal.

There might be political consensus that Israel is an occupying force, but no amount of consensus makes something a fact. The assertion that Israel’s presence in the West Bank is an illegal occupation is highly contestable.

While the word “occupation” has great political capital, it is a legal term that comes from the 1907 Hague Convention, specifically defined in Articles 42 and 43. These articles state that, for a territory to be considered occupied, it must have previously been under another state’s sovereign control. A Palestinian state has never existed, let alone held sovereignty over the West Bank.

Jordan’s occupation of the West Bank from 1948 to 1967 was illegal, since it was gained in an offensive war. Before 1948, the West Bank was part of the British Mandate for Palestine, which had a legal obligation to create a Jewish state in Palestine.

The customary international law concept of uti possidetis juris (Latin for “as you possess under law”) preserves the boundaries of colonies emerging as states. In other words, new states should have the same boundaries as their preceding dependencies. This means Israel has a legal entitlement to all of the British Mandate for Palestine, including the West Bank.

Uti possidetis juris is the basis of many nations’ borders, including many Arab states, most former Soviet republics, and Indonesia (which is why East Timor never considered itself part of Indonesia).

Israel’s strong legal claim to the West Bank does not mean the Palestinians have no claim. Palestinians have a claim based on the United Nations’ 1947 partitioning of the British Mandate for Palestine into an Arab state and a Jewish state, which the Jews accepted and the Arabs rejected. This is why the West Bank region is disputed, not occupied.

United Nations Security Council Resolution 242

Before we look at UN Resolution 242, it is worth remembering that the UN makes political determinations, not legal ones, and is anything but an arbiter of truth. It is a body which Israeli Foreign Minister Israel Katz recently said is “an antisemitic and anti-Israeli body that shelters and emboldens terror.”

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Side note: Katz is being too diplomatic. The UN is a bloated, corrupt, inept, antisemitic body that funds and supports terror, and teaches Palestinian children to hate Jews via UNRWA, the UN agency for Palestinian refugees.

It is a perfidious organization with zero credibility. Its moral compass is so faulty that it is a near-perfect contraindicator of what is right and wrong. It twice elected Nazi Kurt Waldheim as its secretary-general.

And it belongs in the history books next to the League of Nations, whose infamy the UN has now matched. No one should pay any attention to it.

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In any case, UN Resolution 242, which was passed in 1967 after the Six-Day War, does not make Israel’s presence in the West Bank an illegal occupation. The endless quoting of the resolution’s line calling for the “withdrawal of Israeli armed forces from territories occupied in the recent conflict” is willfully misleading.

What the (on its own) non-binding resolution set out was a framework for peace talks. It links the issues of Israel withdrawing from territories captured in the war with Israel’s right “to peace with secure and recognized boundaries free from threats or acts of force.”

In other words, these issues must be resolved together and should involve Israel returning captured land in exchange for recognition, peace, and defensible borders. It makes no mention of “Palestine” because no such state existed. It refers to “every state in the area” — meaning Egypt, Jordan, and Syria.

Israel and Egypt fulfilled their obligations when they signed a peace treaty in 1979, under which Israel returned the captured Sinai to Egypt. Likewise, Israel and Jordan did so when they signed a peace treaty in 1994, under which Israel returned 380 square kilometers of land, a share of water from the Yarmouk and Jordan rivers, and recognized Jordan’s special role in administering Muslim holy shrines in Jerusalem.

The West Bank was excluded, with terms to be settled in later negotiations. Jordan renounced its claim to the West Bank in 1998. Israel has not reached an agreement with Syria and annexed the Golan Heights in 1981. There is unlikely to be any change to that given that Syria is now a failed state ravaged by civil war, and Israel has developed the region.

Crucially, UN Resolution 242 does not require Israel to withdraw from all territories captured, recognizing that Israel’s pre-1967 borders were not final, just the armistice lines of the 1948 war. In other words, final borders were to be negotiated.

Claims that the preamble to the resolution, which references “the inadmissibility of the acquisition of territory by war,” demands Israel withdraw from the West Bank, are also specious. Preambles are non-operative, a principle established in the League of Nations and carried over to the UN.

An established principle of international law is that capturing territory in an offensive war is illegal, while capturing territory in a defensive war is legal, provided the land retained is required for a state’s security. Israel captured the West Bank in a defensive war and, since this land is high ground overlooking the region and gives Israel greater strategic depth, it clearly makes Israel more defensible.

Assertions that all territory claimed in war is now considered illegal, regardless of whether it was captured in an offensive or defensive war, make no sense. It is an interpretation fabricated solely to delegitimize Israel. It is never made in any other context. It would incentivize aggression by allowing a country to attack another country, lose land as a result, and then claim that land back as if it had done nothing.

The issue of retaining captured land being legal for security purposes intersects with the issue of Jewish settlements in the West Bank. Security was the original reason Israel established settlements. (The messianic settlers came later.)

Settlements push the frontier further from Israel’s heartland, and it is harder to mount an attack on Israel from a Jewish settlement. This is why some on the Israeli Right, somewhat implausibly, think more settlements are a path to peace. The mainstream media rarely reports this function of settlements, seeing them only as a land grab.

Even if Israel was occupying the West Bank, that in itself would not prohibit Jews from settling there. The International Criminal Court has issued rulings about Indonesian-occupied East Timor, Turkish-occupied northern Iraq, and Moroccan-occupied Western Sahara — all of which it had jurisdiction over — without ever saying that people moving into these territories was illegal.

Thus, it seems to be yet another case where rules are different for Israel and Jews. Oh dear!

Furthermore, Arab Israelis who buy property in the West Bank spark no controversy, showing that it is not territory that the Palestinians care about, but having Jewish neighbors. This is the real (and underrated) obstacle to peace.

Contrary to many media reports, most Israeli settlements, while on disputed territory, are built on empty land and do not displace anyone. However, there are Jewish outposts that encroach on Palestinian privately owned land, and these are unquestionably illegal, including under Israeli Law.

Israel should reign them in more aggressively and not legitimize them. Settlers’ aggressive actions towards their Palestinian neighbors should also be properly policed, though they are often victims of Palestinian attacks, too.

At the same time, Israel’s settlements are controversial and are political dynamite. They may be detrimental to chances of peace, just as Palestinian terror attacks certainly are, but that is a separate point about whether they are part of an illegal occupation.

The International Court of Justice is now deliberating on whether Israel is illegally occupying the West Bank, and is likely to rule that it is. The UN asked the court to hear the case after the Palestinian Authority successfully lobbied the UN as part of its “lawfare” campaign against Israel.

It is a Big Red Kangaroo court, and all performative because the International Court of Justice can issue only an advisory ruling, not a legally binding one. For that, both parties must accept the court’s jurisdiction, and Israel does not. Israel did not even turn up.

The media is fond of writing that the International Court of Justice’s advisory opinions carry, to use the court’s own words, “great legal weight and moral authority.” That means nothing. Moral authority can come only from the quality of argument and reasoning.

The argument presented to the International Court of Justice is that Israel’s occupation of the West Bank is illegal because — wait for it — the UN and most countries think so. I wish I were making this up. It then listed the usual discredited lies about genocide, apartheid, and ethnic cleansing.

The Geneva Convention

It is often argued that Israeli settlements in the West Bank violate the Fourth Geneva Convention, which prohibits the forcible transfer of people, from one state to another, that it has occupied during war.

This is incorrect. Firstly, it applies only to occupied territory, not disputed territory. Secondly, it is irrelevant because the Israeli government is not forcing anyone to move into the West Bank. Jewish settlers moved there voluntarily, often returning to where their ancestors lived and were expelled from.

The West Bank is disputed territory, and Israel has a strong legal claim to it. The Palestinians have a claim, too. We live in a system of competing nation-states, many of which are hostile towards Israel.

In this climate, politics matters more than law, so a peace agreement can trump all legal determinations. Hence why direct talks between Israel and the Palestinians — as opposed to a third-party imposed Palestinian state — is the only way to resolve this issue and hopefully achieve a mutually beneficial outcome.

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