45 Fall 2025 9. Israeli control over the West Bank in 1967 and Security Council Resolutions 242 and 338 In June 1967 (the “Six Day War”), acting in self-defense,189 Israel acquired control over significant territories outside of Israel’s sovereign areas, including the West Bank, and passed legislation applying Israeli law over the whole of Jerusalem. Although the status of the West Bank as occupied territory has been the subject of debate and contention amongst Israel and the international community, Israel has administered the West Bank according to the international law of belligerent occupation, holding the position that the treaties on such law do not apply de jure.190 Irrespective of whether the West Bank is occupied territory as a matter of general international law, Israel’s longstanding claims in that territory, and the fact that sovereignty over it remains in abeyance, are unaffected, as belligerent occupation does not invalidate any pre-existing claims to the territory concerned. Furthermore, claims that the West Bank is occupied territory do not determine its disposition after the occupation has ended.191 A few months after the Six Day War, the Security Council passed Resolution 242.192 Under the terms of the resolution, the establishment “of a just and lasting peace” in the Middle East requires the application of the two following principles: (i) withdrawal of Israel “from territories” gained in the Six Day War,193 and (ii) “Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to exist within secure and recognized borders free from threats or acts of force.” In practice, this language was understood to mean that Israel was not required to withdraw from territories that came under its control during the Six Day War in the absence of an agreement incorporating the principles set forth by the resolution.194 189. See Statement to the Security Council by Foreign Minister Eban, Ministry of Foreign Affairs (June 6, 1967), https:// www.gov.il/en/Departments/General/19-statement-to-the-security-council-by-fm-eban-6-june-: “But as time went on, there was no doubt that our margin of general security was becoming smaller and smaller. Thus, on the morning of 5 June, when Egyptian forces engaged us by air and land, bombarding the villages of Kissufim, Nahal-Oz and Ein Hashelosha we knew that our limit of safety had been reached, and perhaps passed. In accordance with its inherent right of self-defence as formulated in Article 51 of the United Nations Charter, Israel responded defensively in full strength.” 190. See generally, Meir Shamgar, The Observance of International Law in the Administered Territories, 1 ISR. YB HUM. RTS, 262 (1971). 191. This finding was made specifically in the context of the West Bank by International Criminal Court Judge Péter Kovács; see Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, ICC-01/18-143, ¶ 268-281, Partly Dissenting Opinion by Judge Kovacs P (Feb. 05, 2021), https://www. icc-cpi.int/court-record/icc-01/18-143-anx1 (“…I find unpersuasive the Prosecutor’s argument implicitly suggesting that the call for retreat and the condemnation of the occupation automatically and ipso facto mean the confirmation of Palestine’s legal title over the occupied territory and, moreover, the whole territory according to the 1967 lines. The reference to a general right to self-determination and to the right to self-determination of the Palestinian people, also recognized by the ICJ in its advisory opinion on the Wall, and which is uncontested, is not helpful in determining an existing and recognized legal state-boundary in 2021.”). 192. S.C. Res. 242, U.N. Doc S/RES/242 (Nov. 22, 1967). 193. For a consideration of the interpretation of Resolution 242 as regards to the term “territories”, see State of Israel Office of the Attorney General, supra note 22. 194. The Cornerstone of the Arab-Israeli Peace Process, Ministry of Foreign Affairs (Nov. 9, 2015), https://embassies. gov.il/tbilisi/NewsAndEvents/Pages/48-years-since-Resolution-242.aspx; Statements Clarifying the Meaning of Resolution 242, Ministry of Foreign Affairs (Mar. 8, 1999), https://www.gov.il/en/Departments/General/2-statementsclarifying-the-meaning-of-resolution-242-8-mar-1999.
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