Professor Louis Rene Beres -- The Myth Of The "Occupied" Territories

The following article was written by Professor Beres in June 1992.

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Media references to territories administered by Israel since the June 1967 war now routinely describe them as "occupied." Yet, this description conveniently overlooks the pertinent history of these lands, especially the authentic Israeli claims supported by international law, the unwitting manner in which West Bank and Gaza fell into Israel's hands after sustained Arab aggression and the overwhelming security considerations involved. Contrary to widely disseminated but wholly erroneous allegations; a sovereign State of Palestine did not exist before 1967 or 1948; a State of Palestine was not promised by authoritative UN Security Council Resolution 242; indeed, a State of Palestine has never existed.

As a nonstate legal entity, Palestine ceased to exist in 1948, when Great Britain relinquished its League of Nations mandate. When, during the 1948 - 1949 war of independence, the West Bank and Gaza came under illegal control of Jordan and Egypt respectively, these aggressor nations did not put an end to an already-existing state. From the Biblical Period (ca. 1350 BC to 586 BC) to the British Mandate (1918 - 1948), the land named by the Romans after the ancient Philistines was controlled only by non- Palestinian elements.

Significantly, however, a continuous chain of Jewish possession of the land was legally recognized after World War I at the San Remo Peace Conference of April 1920. There, a binding treaty was signed in which Great Britain was given mandatory authority over Palestine (the area had been ruled by the Ottoman Turks since 1516) to prepare it to become the "national home for the Jewish people." Palestine, according to the treaty, comprised territories encompassing what are now the state of Jordan and Israel, including West Bank (Judea and Samaria) and Gaza. Present day Israel, including West Bank and Gaza, comprises only twenty-two percent of Palestine as defined and ratified at the San Remo Peace Conference.

In 1922, Great Britain unilaterally and illegally split off 78 percent of the lands promised to the Jews -- all of Palestine east of the Jordan River -- and gave it to Abdullah, the non-Palestinian son of the Sharif of Mecca. Eastern Palestine now took the name Transjordan, which it retained until April 1949, when it was renamed as Jordan. From the moment of its creation, Transjordan was closed to all Jewish migration and settlement, a clear betrayal of the British promise in the Balfour Declaration of 1917 and a contravention of its Mandatory obligations. On July 20, 1951, a Palestinian Arab assassinated King Abdullah for his hostility to Palestinian aspirations and concerns.

Several years prior to Abdullah's killing, in 1947, the newly-formed United Nations, rather than designate the entire land west of the Jordan River as the Jewish national homeland, enacted a second partition. Ironically, because this second fission again gave unfair advantage to the Arabs, Jewish leaders accepted the painful judgment while Arab states did not. On May 15, 1948, exactly one day after the State of Israel came into existence, Azzam Pasha, Secretary General of the Arab League, declared to a tiny new nation founded upon the ashes of the Holocaust: "This will be a war of extermination and a momentous massacre...." This declaration, of course, has been at the very heart of all subsequent Arab policies toward Israel.

In 1967, almost twenty years after Israel's entry into the community of nations, the Jewish State -- as a result of its stunning military victory over Arab aggressor states -- gained unintended control over West Bank and Gaza. Although the idea of the inadmissibility of the acquisition of territory by war is enshrined in the UN Charter, there existed no authoritative sovereign to whom the territories could be "returned." Israel could hardly be expected to transfer the territories back to Jordan and Egypt, which had exercised unauthorized and generally cruel control since the Arab-initiated war of "extermination" in 1948-49. Moreover, the idea of Palestinian self-determination was only just beginning to emerge after the Six Day War, and was not even codified in UN Security Council Resolution 242, which was adopted on November 22, 1967. For their part, the Arab states convened a summit in Khartoum in August 1967, concluding: "No peace with Israel, no recognition of Israel, no negotiations with it...."

Resolution 242 has been generally misinterpreted. The formula advanced by the Resolution is patently one of "peace for land," not "land for peace." The Resolution grants to every state in the Middle East "the right to live in peace within secure and recognized boundaries." It points, therefore, to peace before territorial withdrawal to "recognized boundaries."

Security Council Resolution 242 is a balanced whole. The right of self-determination of the Palestinians does not appear in the Resolution; an international conference is never mentioned; the parties referred to include only states, not insurgent/terror organizations; and the phrase "territories occupied" is neither preceded by "the," nor is it followed by "on all fronts."

These have been the essential historic reasons why the territories are not "occupied." Israel's right to reject this improper description also stems from its incontrovertible legal right to security and self- defense. Because transformation of West Bank (Judea/Samaria) and Gaza into an Arab state of Palestine would threaten the very existence of Israel, the Jewish State is under no current obligation to relinquish control. Its rights, in this regard, are peremptory.

International law is not a suicide pact. Anyone who takes the trouble to look at a map of the region will discover that Israel and the territories, comprising an area less than half the size of San Bernadino County in California, cannot afford to yield its already minimal "strategic depth." In this connection, Israel should take little comfort from the promise of Palestinian demilitarization. Indeed, should the government of Palestine choose to invite foreign armies or territories on to its territory (possibly after the original national government had been displaced or overthrown by more militantly anti-Israel forces), it could do so not only without practical difficulties, but also without necessarily violating international law.

The threat posed by an independent Palestinian state would also impact directly upon Jerusalem's nuclear strategy. For the moment, Israel -- still buffered from a hot eastern border by the West Bank -- can afford to keep its bomb "in the basement." If, however, this territory became the heart of "Palestine," Israel would almost certainly have to move from "deliberate ambiguity" to disclosure, a shift that could substantially improve the Jewish state's nuclear deterrence posture but could also enlarge the chances of a nuclear war should this posture fail.

Israel does not hold any "occupied" territories. It is critical that the Government of Israel recognize this, and that it never accept such an incorrect characterization. To do otherwise would be to degrade its very capacity to endure.

LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is author of many books and articles dealing with the Law of War. He has been a consultant on this matter in both Washington and Jerusalem. Professor Beres's columns appear often in major American, Israeli and European newspapers.

Louis Rene Beres

Professor of International Law

Department of Political Science

Purdue University

West Lafayette IN 47907 USA

E MAIL BERES@POLSCI.PURDUE.EDU