The Law of Occupation: What Led to the Formation of the Current Legal System in the West Bank?
There has never been a modern, autonomous Palestinian state. Since the 16th century, Palestinians have been subject to Ottoman and then to British rule. After the establishment of the state of Israel and the 1948 war, the Palestinians in the West Bank and Gaza Strip remained under Jordanian and Egyptian rule, respectively. In the 1967 Six-Day War, Israel conquered the territories of the West Bank and Gaza, more than tripling the area it controlled, from 8,000 square miles to 26,000 square miles. Overnight, about one million Palestinians, previously under the control of Egypt or the Kingdom of Jordan, became subject to a new legal system. This was not the legal system of the state of Israel, but a temporary system of military courts created within the requirements of the international law of occupation.
The international law of occupation says that an occupying army is responsible for the order and welfare of the residents of an occupied area. The duties of an occupying power are detailed in the cornerstones of international humanitarian law: the 1907 Hague Regulations (articles 42-56), as well as the Fourth Geneva Convention and the provisions of Additional Protocol I. Within their interpretation of these laws, the Israeli military has since issued thousands of orders to Palestinians living under occupation and tried hundreds of thousands of them in military courts. Although the law of occupation does not require it, Palestinians wishing to challenge such military orders, judgments of the military court system or any other action taken by the occupying forces have been given the right to petition the Israeli Supreme Court.
The legality of military occupation by any nation is regulated by the United Nations charter and the law known as jus ad bellum, "the law of war." International law states that "occupation is only a temporary situation" (as in the Allied occupation of Germany and Japan following World War II.) This temporary status of occupation (as opposed to annexation, in which an area is absorbed into another state) exempted Israel from the requirement to grant Palestinian residents of the West Bank and Gaza citizenship. Israel's long-term occupation of the West Bank is without precedent in international law, and opinions vary as to whether it is legal or sustainable. Indeed, the official position of the Israeli government is that the West Bank is, from the perspective of international law, not occupied. Legally speaking, a territory can only be occupied if it was previously under the sovereignty of another state, whereas the international community never recognized Jordan's prior hold over the territories. Therefore, Israel argues, it is a legal administrator of a territory whose status has not been determined. Critics of the Israeli occupation, however, dispute this interpretation of the law, arguing that the territories are indeed occupied and that the continued Israeli administration of the West Bank has undermined the internationally accepted definition of "occupation" and has created a generation of Palestinians who are not regarded as citizens of any state.
Sources:
» Benvenisti, Eyal. The International Law of Occupation. Princeton: Princeton University Press, 2004.
» Hajjar, Lisa. Courting Conflict: The Military Court System in the West Bank and Gaza. Berkeley: University of California Press, 2005.
» International Committee of the Red Cross. "Annex to the Convention."
» International Committee of the Red Cross. "Occupation and International Humanitarian Law: Questions and Answers."
» Kretzmer, David. The Occupation of Justice. Albany: State University of New York Press, 2002.
» United Nations. "United Nations International Meeting on the Question of Palestine."
» Woolf, Alex. The Arab-Israeli Conflict. Milwaukee: World Almanac Library, 2005.