22 No. 70 JUSTICE undefined and uncertain. What territory is supposed to be Palestinian? For some it would include all of Israel; for others, it would include all of Jerusalem, but not necessarily all of Israel. No matter how the Court decides to determine Palestinian territory, there are entities that will disagree and say that the Court’s determination regarding the territory is wrong. The question is not asked with sufficient precision to be answerable. Let us assume that the Resolution refers to the West Bank, Gaza and East Jerusalem, and that East Jerusalem does not refer to something east of the current Jerusalem, but rather the eastern component of the current Jerusalem. On its face, this territory does not look occupied. There were no Israeli forces in Gaza before the Israeli response to the Hamas attack of October 7, 2023. There were Egyptian and Israeli forces at the border of Gaza. Border control does not render a state an occupier of the neighboring territory. After Israel unilaterally withdrew from Gaza in 2005, there were many statements by Hamas leaders that Gaza had been liberated, and that the occupation of Gaza had ended.6 The West Bank, according to the Oslo accords, is divided into three components – Area A under civil and security control of the Palestinian Authority; Area B under Israeli security control and Palestinian civil control; and Area C under Israeli civil and security control.7 The phrase “Occupied Palestinian territory” on its face refers to areas that the Palestinian Authority claims as its territory but does not control. That could be Area C, yet even Area C is controlled by Israel because of the mutually agreedupon Oslo Accords. It is not occupied against the will of the Palestinian Authority. If “Occupied Palestinian Territory” is meant to refer to the West Bank and Gaza, in practice, it would appear to refer to a null category. The Government of Israel recognizes East Jerusalem as part of Israel. Proponents of the resolution would say that Jerusalem’s place within Israel’s borders is the result of wrongful annexation. Whether wrongful annexation took place is a different issue from whether there is a current occupation. The claim of occupation is even more puzzling when one considers the history of the West Bank and Gaza. Except for basic human rights standards, which require certain minimum treatment and rights for everyone, the Geneva Conventions on the Laws of War only apply to international armed conflict. The existence of an occupying power requires the existence of a sovereign state. This is why the Fourth Geneva Convention uses the phrases “Occupying Power” and “Occupied State,” not “Occupied Territory,” or “Occupied Future State.” A protocol to the Geneva Conventions relating to the protection of victims of international armed conflict recognizes the possibility of the occupation of a people.8 Israel, however, is not a party to the Protocol, and since treaties bind only signatory states, Israel cannot be bound by its terms. Before the Six Day War in 1967, the West Bank and Gaza were under the control of Jordan and Egypt. Today, neither Jordan nor Egypt lay claim to the West Bank and Gaza. In fact, they have signed peace treaties with Israel that assert no continuing claim to the West Bank and Gaza. Therefore, the notion that the territory transformed to “Occupied Palestinian Territory” the moment it shifted from one controlling state to a different controlling state is untenable. If the West Bank, Gaza and East Jerusalem were not occupied Palestinian territory before 1967, they should not be considered occupied Palestinian territory after 1967 merely because the state controlling the territories has changed. When the ICJ rendered its advisory opinion on the Israeli security barrier, it identified Jordan as the original occupied power of the West Bank.9 The judgment moved on from this legal reasoning to labelling the West Bank as Palestinian occupied territory rather than Jordanian occupied territory. This labelling was based on the ethnic composition of the West Bank and not on its legal status. The notion that territory can be considered occupied if the residents of that territory form a people and claim a right to self-determination is not a component of international law. If it were, then it would apply to a wide range of peoples and regions such as Tibet, Xinjiang and Mongolia in China; Tigray in Ethiopia; Tamil Eelam in Sri Lanka; Chin, Kayin and Rakhine states in Myanmar; and Kurdistan in Iraq, Syria and Turkey. ICJ Judge Pieter Kooijmans, in his separate reasoning which forms part of the advisory opinion on the Israeli security barrier, called the West Bank before 1967 Jordanian controlled territory or territory under the authority of Jordan; he never called the West Bank “Occupied Palestinian 6. Investigation report no. BI 613, Australian Communications and Media Authority, p. 16, available at https://www. acma.gov.au/publications/2022-07/report/bi-613investigation-report-abc-radio-national 7. The Israeli Palestinian Interim Agreement on the West Bank and Gaza Strip: Annex I (Sept. 28, 1995), available at https://www.jewishvirtuallibrary.org/oslo ii annex i 8. Protocol I Additional to the Geneva Conventions of 1949, Jun. 8, 1977 (Protocol I), art. 1(4). 9. Supra note 4, at para. 101.
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