The Myth of "Occupied" Territories

One of the most misused, misapplied, and misunderstood definitions in
the dictionary of the Arab-Israeli conflict is the term "occupied
territories." The vast majority of people simply do not know the facts
or misinterpret them, thus completely distorting the real picture of the
land distribution between the Arabs and the Jews.

Contributing Author

OpEds לבן ריק
לבן ריק
One of the most misused, misapplied, and misunderstood definitions in
the dictionary of the Arab-Israeli conflict is the term "occupied
territories." The vast majority of people simply do not know the facts
or misinterpret them, thus completely distorting the real picture of the
land distribution between the Arabs and the Jews. The truth of the
matter is that, according to international law, the Jews have the
complete and unquestionable right to settle the territories of Judea,
Samaria and Gaza (collectively known as Yesha). Not a single
enforceable international document exists that forbids them from
settling the lands of Yesha.

On the contrary, the only existing enforceable document actually
encourages Jewish settlement. This document was created on April 24,
1920 at the San Remo Conference when the Principal Allied Powers agreed
to assign the Mandate for the territory of Palestine to Great Britain.
By doing so the League of Nations "recognized the historical connection
of the Jewish people with Palestine" and established "grounds for
reconstituting their national home in that country." Article 6 of the
Mandate "encouraged ? close settlement by Jews on the land," including
the lands of Judea, Samaria and Gaza (Yesha).

There is nothing whatsoever in the Mandate that separates Yesha from
the rest of the mandated territory. That means that the right of the
Jews to settle the land spreads to the whole of Palestine. As a side
note it is worth mentioning that the 76% of the territory of Mandated
Palestine known today as Jordan, were not permanently exempt from
settlement by the Jews either. Article 25 only allowed to "postpone or
withhold application of [this] provision."

With the disbanding of the League of Nations, the rights of the Jews to
settle the territories of Palestine, including Yesha, were not diminished.
When in 1946 the United Nations was created in place of the League of
Nations, its Charter included Article 80 specifically to allow the
continuation of existing Mandates (including the British Mandate).
Article 80 stated that "nothing ... shall be construed in or of itself
to alter in any manner the rights whatsoever ? of any peoples or the
terms of existing international instruments to which Members of the
United Nations may respectively be parties."

Then in November 1947 came time for Resolution 181, which recommended
the Partition of Palestine. Like all UN Resolutions pertaining to the
Jewish-Arab conflict it was not enforceable. It was simply a
recommendation, and the Arab countries rejected it. As the Syrian
representative in the General Assembly stated:

"In the first place the recommendations of the General Asembly are not
imperative on those to whom they are addressed? . The General Assembly
only gives advice and the parties to whom advice is addressed accept it
when it is rightful and just and when it does not impair their
fundamental rights" (1).

If the resolution had been implemented maybe it would be possible to
argue that it replaced the San Remo Conference resolution, which had
legitimized the rights of the Jews to settle in any place in Palestine.
However, it was not only rejected by the Arabs, but in violation of the
UN Charter they launched a military aggression against the newly reborn
Jewish state thus invalidating the resolution. By the time of the
cease-fire at the end of the War of Independence, there was still no
other enforceable document pertaining to the rights of the Jews to
settle Eretz Yisrael - they remained intact.

Now we approach the most misunderstood aspect of the scope and
application of international documents. In order to resolve the puzzle
of the "occupied" territories, one must clearly distinguish between the
different types of resolutions passed by the United Nations.
Misconceptions about the issue led to the question of a double standard
that was constantly raised by the Arabs after the Persian Gulf War. The
Arabs were unable to understand why from Iraq the UN demanded compliance with the decisions of the international body, while Israel was not
forced to comply with UN resolutions.

On April 3, 1998 Swedish Foreign Minister Lena Hjelm-Wallen, well known
for championing the Arabs' position, in an interview with the London
al-Quds al-'Arabi, gave an explanation of this "paradox." She was
asked, "What about the double standards that the United States and
Europe adopt when it comes to Arab issues?" She answered,

"I understand this view, which is common in many Arab countries.
Nevertheless, the UN resolutions passed on Iraq are different, because
they are binding for all nations according to Article 7 of the UN
Charter. Meanwhile, the resolutions passed against Israel are not
subject to Article 7 of the Charter."

To better understand the way UN resolutions work, it is worth reading
an open letter by Uri Lubrani, coordinator of Israeli activities in
Lebanon, addressed to Lebanon's Foreign Minister Faris Buwayz and
published on February 27, 1998 in the Paris newspaper al Watan
al-'Arabi. Although the letter was written regarding Resolution 425, it
talks about all resolutions pertaining to the Arab-Israeli conflict.
Uri Lubrani wrote the following,

"?There are two types of resolutions in the Security Council. The first
type are resolutions passed on the basis of Chapter Six of the UN
charter that relates to the settlement of disputes through peaceful
means. Such resolutions are considered recommendations. They are not
binding, and they do not require immediate implementation? . The second
type of resolutions are based on Chapter Seven of the UN charter?
This chapter grants the UN Security Council resolutions an
implementative authority and commits the international community to use
force if necessary to implement these resolutions. ?None of the UN
Security Council resolutions pertaining to the Arab Israeli conflict,
including Resolution 425, were passed on the basis of Chapter Seven.
They were passed on the basis of Chapter Six of the UN charter, which is
the basis also of UNSC Resolutions 242 and 338."

Since no mandatory UN Resolution exists pertaining to the Arab-Israeli
conflict, we are left with the San Remo Conference decision that governs
land ownership in Palestine. That means that not a single enforceable
internationally valid document exists that prevents or prohibits the
Jews from settling anywhere in Judea, Samaria, Gaza and all the rest of
Eretz Yisrael. Or, to put it differently, from the standpoint of

This conclusion was confirmed not long ago by an unexpected (for
Israel) source. It is hard to argue with the fact that James Baker,
former US Secretary of State, was not the best friend of the Jewish
state. However, he categorically rejected the mislabeling of the lands
of Yesha. This happened at the Middle East Insight Symposium in
Washington on May 4, 1998. Hoda Tawfik, from the newspaper Al Ahram
asked him, "What do you think is right? That these are occupied Arab
territories and not disputed territories?" Baker replied, "They're
clearly disputed territories. That's what Resolutions 242 and 338 are
all about. They are clearly disputed territories."

All of this means that when the Jews build settlements in Yesha, they
are not building them on "occupied" territories. If one wants, one may
call them "disputed" territories, as Baker did. However, this will
still not change the fact that from the standpoint of international law
it is the very land where the Jews were encouraged to settle.

And as a final note, it should not be surprising that the San Remo
Conference plays such an important role in this particular case. The
majority of the other players in the conflict: Egypt, Syria, Iraq,
Lebanon, Jordan, etc. gained sovereignty over their territories based on
the decisions of exactly the same conference. The Jews finally deserve
to settle freely on their territories as well. It is time to stop
labeling them "occupied".

1. Abba Eban. Voice of Israel. Horizon Press, New York, 1957.

Boris Shusteff is an engineer. He is also a research associate with the
Freeman Center for Strategic Studies.