Borders and Territory of Israel
Where, in legal terms, Israel’s borders run and by what they are established
General remarks on argumentation in disputes on this topic
At present, the official position expressed in UN General Assembly resolutions, in documents of the International Court of Justice, the International Criminal Court, and even the Supreme Court of Israel—and adhered to by the overwhelming majority of international lawyers—is that Israel is currently occupying certain “Palestinian territories.” These usually refer to the West Bank of the Jordan River, East Jerusalem, and the Gaza Strip.
However, despite the fact that hundreds of documents employ the firmly established stamp “Occupied Palestinian Territory, including East Jerusalem” and “Israel, the occupying Power,” it is very difficult to find any genuinely legal analysis explaining why these territories are “occupied” and where, in fact, Israel’s borders run under international law.
On the whole, one may state that the tactic of those who argue that Jerusalem, the West Bank, and Gaza are under occupation consists in using, as frequently and in as many documents as possible, the expressions: “occupation,” “occupied territories,” “Israel, the occupying Power.”
In this way, the frequency of repetition creates the impression that we are dealing with something long established and universally recognized, and therefore requiring no substantiation.
Particularly characteristic in this regard is the argument put forward by representatives of the Palestinian National Authority before the ICC in case ICC-01/18, when the Court considered whether “the West Bank, including East Jerusalem, and Gaza” are the territory of Israel or, rather, territory of the “State of Palestine” occupied by Israel:
“The West Bank, including East Jerusalem, and the Gaza Strip have, consistently, been referred to by the international community, including the UN General Assembly and the UN Security Council, as occupied Palestinian territory, leaving no doubt as to who is entitled to that specific territory.”
(See para. 34 of the ICC Pre-Trial Chamber decision of 5 February 2021.)
Such is the “legal” argument: because everyone constantly calls this territory “occupied Palestinian territory,” there is therefore no doubt as to whom the territory belongs.
And it is with precisely this argument that the ICC in The Hague agreed: on 5 February 2021, the ICC issued a Decision that the Court’s jurisdiction extends to the territories of Gaza and the West Bank—including “East Jerusalem”—“occupied by Israel.” On 3 March 2021, the ICC Prosecutor opened an investigation regarding war crimes committed in those territories, and on 21 November 2024 issued warrants of arrest for Israel’s Prime Minister and Minister of Defense.
In reality, this manner of argumentation is not legal. It is not legal even when employed by people in judicial robes.
The legal approach consists in formulating general legal norms applicable to the situation and, on their basis, drawing conclusions from the established facts. Moreover, a “legal norm” means that the norm operates in analogous situations; that is, if we are discussing borders and occupation, then we must first determine the rules generally applicable to borders and occupation—not only with respect to Israel, but in general.
Applicable norms of international law
Accordingly, following a genuinely legal approach, we shall first formulate the legal norms and principles, and then derive conclusions from them.
As can be seen, this approach is radically different from the approach currently taken.
And these principles, despite their apparent simplicity and self-evidence, lead to conclusions that are contrary both to the position taken by most UN documents and to the position of the Supreme Court of Israel.
The principles are as follows:
(1) The territory of a state is the territory within that state’s borders.
(2) A boundary treaty between neighboring (contiguous) states establishes the boundary line between them. Ratification of a boundary treaty renders superfluous the adoption of domestic laws establishing that same boundary.
(3) A situation of "belligerent occupation" can be recognized only where a state’s armed forces occupy territory outside that state’s borders.
(4) The desire—even a very strong one—and even if supported by broad segments of world public opinion—to create one’s own state on the territory of another state is not, in itself, a ground for considering that territory “occupied,” and does not change existing state borders.
Each of these principles, in our view, should be regarded as a norm of international law within the meaning of Article 38(1) of the Statute of the International Court of Justice, and, as our experience of professional discussions on this topic shows, even lawyers who are staunch opponents of Israel cannot reject the correctness of any of these four principles.
Applying these principles to the question of where Israel’s borders run—taking into account the operative international treaties—leads to the conclusion that both the Gaza Strip and what UN documents call “the West Bank of the Jordan River, including East Jerusalem,” are undoubtedly the territory of Israel, and not “occupied,” and not even any sort of “disputed territory” (["disputed territory"])(https://en.wikipedia.org/wiki/Territorial_dispute)
Let us examine this question in more detail and answer: where, precisely, do Israel’s borders run, and what is it that Israel in fact “occupies.”
History
The League of Nations Mandate for Palestine
Since 1922, the territory of Palestine (including the territory of present-day Jordan) was under the administration of Great Britain pursuant to the League of Nations Mandate.
The text of the Mandate itself stated that all of this territory—including that on which the present-day Kingdom of Jordan is located—was initially placed under such administration “in favour of the establishment in Palestine of a national home for the Jewish people.”
Then, on 16 September 1922, the Trans-Jordan memorandum (Trans-Jordan memorandum) was adopted, excluding the territory of present-day Jordan from the areas designated for Jewish settlement. And on 25 May 1946, the Hashemite Kingdom of Transjordan established in that territory attained independence.