Where Are Israel's Borders and What Is Israel Actually Occupying
Applicable Norms of International Law
In the following discussion, we will proceed from principles that, despite their apparent simplicity and obviousness, when applied to the situation we are examining, lead to conclusions opposite to those held by the majority of UN documents and the position of the Supreme Court of Israel.
These principles are as follows:
(1) The territory of a state is the territory within its borders.
(2) A border treaty between neighboring (adjacent) states establishes the boundary line between them.
(3) Occupation can only be considered the occupation by the armed forces of a state of territory located beyond its borders.
(4) The desire, even a very strong one, to create one's own state on the territory of another state is not, in itself, a basis for considering that territory as occupied.
Each of these principles, in our view, should be considered as a "principle of law recognized by civilized nations," in the sense in which this term is used in Article 38, Paragraph 1 of the Statute of the International Court of Justice.
Our experience of discussions on this topic among lawyers shows that even those who are ardent opponents of Israel cannot but agree with these four principles themselves.
However, applying them to the consideration of the question of where Israel's borders lie—taking into account existing international treaties—leads to the conclusion that both the Gaza Strip and what UN documents customarily refer to as "the West Bank of the Jordan River, including East Jerusalem," are undoubtedly territories of Israel, not "occupied," and not even "disputed" territories.
Let us examine this issue in more detail, including answering the question: what is Israel actually occupying?
History
League of Nations Mandate for Palestine
Since 1922, the territory of Palestine (including the territory of present-day Jordan) was under British administration, in accordance with the Mandate of the League of Nations, which provided that all this territory—including what is now Jordan—was originally entrusted to such administration for the establishment of a national home for the Jewish people ("in favor of the establishment in Palestine of a national home for the Jewish people").
Then, on September 16, 1922, the Transjordan Memorandum was adopted, excluding the territory of present-day Jordan from the territories intended for Jewish settlement. On May 25, 1946, the Hashemite Kingdom of Transjordan, established on this territory, gained independence.
The UN Partition Plan for Palestine and the So-Called "1947 Borders"
On November 29, 1947, the UN General Assembly adopted Resolution No. 181 "Future Government of Palestine", which recommended the creation of two independent states—one Arab and one Jewish—on the territory of Palestine that was still under British administration.
In discussions about current events, one sometimes hears that the State of Israel is allegedly an occupier because it occupies territory that was designated for the creation of an Arab state in that resolution.
For example, in the corresponding Wikipedia article "1947–1949 Palestine War", with reference to the UN document "The Origins and Evolution of the Palestine Problem", it is stated:
As a result of the war, about half of the territories allocated for the Arab state and West Jerusalem were occupied by Israel.
However, this is incorrect.
It must be taken into account that the Arab side at that time officially rejected this resolution by a joint statement of the League of Arab States on May 15, 1948 (i.e., the day after Israel declared independence), and began a war against Israel, in which Egypt, Syria, Lebanon, Transjordan, Saudi Arabia, Iraq, and Yemen took direct part.
Then, when the war was lost and it became clear that Israel could not be destroyed by military force, some on the losing side took the position: "Let's recognize the UN resolution."
But it should have been recognized in 1947, not after the crushing military defeat in 1967.
This is akin to Germany, after losing in 1945, saying: "Let's still implement the provisions of the Munich Agreement of 1938 and establish borders as provided by that agreement."
Thus, the aforementioned UN resolution, which was, however, recommendatory in nature and contrary to the original tasks of the Palestine Mandate, but nonetheless recognized by Israel (see the Declaration of Independence of Israel), was relevant only until May 15, 1948, i.e., until its official rejection by the Arab states and the beginning of the war against Israel. Any demands to consider it as a basis for establishing borders after that date are unlawful
The "Green Line" 1949 (or "Pre-1967 Borders")
In 1949, under the auspices of the UN, negotiations took place between Israel and all the aggressor states, except Iraq, resulting in agreements on armistice lines (1949 Armistice Agreements).
The line of separation of forces after the conclusion of the armistice became known as the Green Line, and was differed significantly from the border provided for in the aforementioned 1947 UN General Assembly resolution. The Gaza Strip was captured by Egypt and included in its territory, and Jerusalem and the West Bank of the Jordan River were included in the territory of Jordan (Transjordan). This line defined the de facto borders of Israel until the Six-Day War of 1967.
This line is also sometimes referred to as the "pre-1967 borders" or "1967 borders."
For example, in the UN General Assembly Resolution of December 13, 2019, it speaks of "preserving the principle of two states living side by side within pre-1967 borders." Although, of course, the modern territory of Israel before 1967 was divided not between two states but among three: Israel, Egypt, and Jordan (Transjordan).
The Six-Day War 1967
During the Six-Day War of 1967, Israel captured the Sinai Peninsula, the Gaza Strip, the West Bank, East Jerusalem, and the Golan Heights.
The Sinai Peninsula was later returned to Egypt under the 1979 treaty, but the other territories captured in 1967 remain under Israeli control to this day.
Legal difference between territories captured in 1948-49 and 1967
Contrary to widespread belief, there is absolutely no legal difference between the territories of the former Mandate for Palestine (excluding the Sinai Peninsula and the Golan Heights) that came under Israeli control in 1967 and those captured in 1949.
In both cases, Israel's control over the former territory of the Mandate for Palestine, originally designated for the establishment of a Jewish state, was achieved as a result of war.
Modern Borders and Territory of Israel
What Are State Borders and State Territory
A state border is a line and the vertical (imaginary) surface passing along this line, defining the limits of the state territory (land, waters, subsoil, and airspace) of a particular state — that is, the spatial limit of the state's sovereignty.
The territory of a state is the territory within its borders.
As a general rule, borders are established by treaties on borders between neighboring (bordering) states.
Contrary to popular assertions, borders are not registered with the UN or any other international body.
The Gaza Strip and the Border Between Israel and Egypt
According to Article II of the Egypt–Israel Peace Treaty of 1979:
The permanent boundary between Egypt and Israel in the recognized international boundary between Egypt and the former mandated territory of Palestine, as shown on the map at Annex II, without prejudice to the issue of the status of the Gaza Strip. The Parties recognize this boundary as inviolable. Each will respect the territorial integrity of the other, including their territorial waters and airspace.
The key issue here is the interpretation of the phrase "without prejudice to the issue of the status of the Gaza Strip" There are opinions that this phrase itself defines a certain status. But in fact, quite the opposite: it means that the status at the time of the conclusion of the treaty is in no way defined or affected by this treaty.
That is, if in a treaty it is stated that the parties have agreed that a fence will be built between them, but "without prejudice to the issue of the color of the fence," this in no way means that the parties have agreed that the fence will be green; on the contrary, the parties have emphasized that the treaty contains no provisions regarding the possible color of the fence.
So why was the Gaza Strip specifically mentioned? Because the treaty included an additional agreement "concerning the establishment of full autonomy in the West Bank and the Gaza Strip" (Letter Agreement 1 Additional to The Treaty of Peace of March 26, 1979, between Egypt and Israel, concerning the establishment of full autonomy in the West Bank and the Gaza Strip), in which the parties agreed to begin negotiations on the modalities for establishing the elected self-governing authority (administrative council). It should be emphasized that the parties only agreed to begin negotiations on the possible creation of self-governing bodies, not on their creation, and that the subject of the negotiations was defined as granting autonomy with the creation of self-governing bodies, but in no way depriving Israel of its territory or creating any other sovereign state on it.
Therefore, from the moment this treaty came into force, the border between Egypt and Israel runs where the border between Egypt and Mandatory Palestine ran; accordingly, on one side of the border is the territory of Egypt, and on the other — the territory of Israel.
The Gaza Strip, previously part of Egypt, is thus located on the Israeli side of the border, that is, on the territory of Israel.
The treaty specifically states that Israel has no obligations to Egypt regarding the status of the Gaza Strip arising from this treaty, except the obligation to participate in negotiations on the possible creation of self-governing bodies.
The Judea and Samaria District ("West Bank") and Jerusalem, the Border Between Israel and Jordan
According to the Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan dated October 26, 1994, the approved border between Israel and Jordan was established along the riverbeds of the Jordan and Yarmouk rivers (a tributary of the Jordan), and it was agreed that if the riverbeds change naturally, the border will follow the new course.
A map is attached to the treaty showing the border between Israel and Jordan. Regarding the border line on the map, it is stated:
"This line is the administrative boundary between Jordan and the territory which came under Israeli military government control in 1967. Any treatment of this line shall be without prejudice to the status of that territory."
Some anti-Israel opponents argue that the phrase "without prejudice to the status of that territory" means that this territory is endowed with some special status, which means that although this territory is on the Israeli side of the border, it is not part of Israel's territory.
However:
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Such an opinion contradicts the very concept of a "state border" as a line dividing the territories of adjacent states.
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As noted above regarding the effective treaty between Israel and Egypt of 1979, and using the example of a hypothetical agreement on the color of a fence, the phrase "without prejudice to the status" does not establish any specific status.
Thus, according to the treaty between Israel and Jordan of 1994, to the east of the Jordan River lies Jordanian territory, and to the west — the territory of Israel.
The Oslo Accords
On September 28, 1995, the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip), informally known as "Oslo II," was signed in Washington.
This agreement did not provide for changes to the border between Israel and Jordan established by the aforementioned treaty between them.
That this agreement does not affect existing borders is directly indicated in Article XXXI, Paragraph 5 of the Agreement, which states that the issue of borders is a matter for future negotiations, not this agreement.
Thus, this agreement did not alter the borders of Israel's territory. Consequently, it provided for the creation of a self-governing entity on the territory of Israel.
It did not provide for the creation of a sovereign state for the Arabs living in this territory, nor, moreover, the extension of its sovereignty over part of Israel's territory, and expressly prohibited such actions unilaterally, see Article XXXI, Paragraph 7 of the Agreement:
"Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations."
Accordingly, actions by the leadership of the Palestinian National Authority representing attempts to call themselves "a state" ("State of Palestine") without Israel's consent or to act as an independent state are a direct and clear violation of the Oslo Accords, and, accordingly, from the point of view of these Accords are legally null and void.
Thus, at present, the border between Israel and Jordan still runs along the Jordan River, and the Palestinian National Authority functions on the territory of Israel in accordance with the Oslo II Agreement, despite the fact that this agreement has been violated by the PNA on a number of points, and Israel has every reason to declare it no longer in force.
Annexation
Annexation in international law is, by definition, the unilateral incorporation of the territory of another state—that is, the incorporation of the territory of another state without its consent.
Since the establishment of Israel's borders with Jordan and Egypt was carried out by concluding treaties with these countries, Israel cannot be said to have annexed the territories that passed to Israel under these treaties.
The Golan Heights
Israel annexed the Golan Heights, as it incorporated them (see the Golan Heights Law) without the consent of Syria, to which they previously belonged.
An agreement was signed with Syria only on the separation of forces (Separation of Forces Agreement Between Israel and Syria; May 31, 1974), but the parties remain in a state of war, as the agreement itself stipulated that it is not a peace agreement ("This agreement is not a peace agreement").
In this regard, it is also worth mentioning UN Security Council Resolution 497 of December 17, 1981.
On the one hand, the assertion contained in this resolution that "the acquisition of territory by force is inadmissible, in accordance with the Charter of the United Nations, the principles of international law and relevant Security Council resolutions" is incorrect.
The acquisition of territory through aggression is inadmissible. But, the forcible taking of territories from an aggressor is permissible from the point of view of international law; for example, after World War II, Germany and Japan lost their territories.
In this case, the aggressor was Syria. And, accordingly, the annexation of the aggressor’s territory is legitimate
On the other hand, despite the fact that this resolution contains an obvious legal error, under Article 25 of the UN Charter, since this resolution has not yet been revoked, UN members, including Israel, are obliged to comply with its requirements.
That is, Israel indeed must rescind the annexation and consider the Golan Heights as occupied rather than annexed, but may retain control over them by virtue of the provisions of the aforementioned agreement with Syria on the separation of forces (see the Map of the Area of Separation).
Occupation
A multitude of documents and publications, including UN documents, speak of Israel's "occupation" of certain territories, which are defined differently but essentially boil down to Israel occupying Jerusalem.
One might suppose that it is the fear of recognizing that the return of the people of Israel to Jerusalem is already a historical fact that underlies the desire to argue that Jerusalem does not belong to Israel or belongs to it only temporarily.
The UN
Thus, the UN, in numerous documents, uses the expression "Israel, the occupying power."
It is also worth noting in particular the Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, July 13, 2004.
In Paragraph 78 of the aforementioned Advisory Opinion, it is asserted that the signing of a peace treaty between Israel and Jordan did not alter the fact that this territory is occupied by Israel.
Legally, this is, of course, complete absurdity and is equivalent to asserting that "nothing can change the fact that this territory is occupied" or "never and under no circumstances, and despite any treaties, can it be recognized that this territory belongs to Israel."
Alas, we must state that Advisory Opinions of the International Court of Justice (which, moreover, are not binding) can be erroneous.
The Supreme Court of Israel (Bagatz)
The Supreme Court of Israel has never considered the question of whether the borders established in Israel's treaties with Jordan and Egypt constitute Israel's borders with Jordan and Egypt.
As noted in the publication by Professor David Kretzmer "The Law of Belligerent Occupation in the Supreme Court of Israel" (Kretzmer, David. (2012). The Law of Belligerent Occupation in the Supreme Court of Israel. International Review of the Red Cross):
The de facto acceptance by the authorities that the applicable law in the occupied territories was the law of belligerent occupation freed the Court from having to decide what the constituent elements of occupation are. The Court did, however, relate to these questions during the Israeli presence in Lebanon in 1982. It later also discussed whether Israel remains an Occupying Power in Gaza after removal of its forces and settlements there.
That is, the Supreme Court of Israel never proceeded from the premise that the borders of Israel's territory are delineated by its treaties with Egypt and Jordan.
Thus, in the art. 14 of the decision in the case of Mara’abe v. The Prime Minister of Israel dated September 15, 2005, the Supreme Court of Israel, under the chairmanship of Aharon Barak, wrote:
The Judea and Samaria areas are held by the State of Israel in belligerent occupation. The long arm of the state in the area is the military commander. He is not the sovereign in the territory held in belligerent occupation (see The Beit Sourik Case, at p. 832). His power is granted him by public international law regarding belligerent occupation. The legal meaning of this view is twofold: first, Israeli law does not apply in these areas. They have not been "annexed" to Israel. Second, the legal regime which applies in these areas is determined by public international law regarding belligerent occupation (see HCJ 1661/05 The Gaza Coast Regional Council v. The Knesset et al. (yet unpublished, paragraph 3 of the opinion of the Court; hereinafter – The Gaza Coast Regional Council Case). In the center of this public international law stand the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations). These regulations are a reflection of customary international law. The law of belligerent occupation is also laid out in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention).
This reasoning gives the impression, to a lawyer, not of a legal conclusion but of a propaganda document: mentioning international conventions alongside the conclusion about the occupied status of the specified territories is clearly intended to create the appearance that the thesis about occupation is substantiated by norms of international conventions.
However, in reality, the court should first have decided whether the given territory at the time of consideration of the case is the territory of Israel or the territory of some other state, and if it is the territory of some other state, then resolve the question of whether Israel is occupying it. If it is occupying it, then establish whether both the occupying and the occupied states are parties to the relevant conventions, when they acceded to them, and whether any reservations were made upon accession.
Article 2 of the Hague Convention establishing the "Regulations respecting the Laws and Customs of War on Land" states that the provisions ot the Convention, "do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention"
Israel has not ratified this Hague Convention to this day, and the Palestinian National Authority only in 2014 made a declaration of accession to the Convention (see list of parties to this Convention). But the court, mentioning this convention in its decision, somehow "modestly" remained silent about this.
So the court was not in vain making the reservation "these rules reflect customary international law." One might assume that the judges understood that according to its Article 2, the Hague Convention was not directly applicable to the situation under consideration, even if an occupation had taken place.
For some reason, the court wanted to advance the thesis that Gaza and the West Bank are occupied, and to create the impression that this thesis is based on norms of international law.
The Levy Commission Report
Report on the Legal Status of Building in Judea and Samaria also known as Levy Report was written upon request by Israeli Prime Minister (Benjamin Netanyahu) and Minister of Justice (Yaakov Neeman) and published in 2012 by the commission headed by former Israeli Supreme Court justice Edmund Levy.
The report contained a section "The Status of the Territories of Judea and Samaria According to International Law". The commission came to the conclusion that the territory in question should not be considered occupied for two reasons:
(1)
"the most reasonable interpretation of those provisions of international law appears to be that the accepted term “occupier” with its attending obligations, is intended to apply to brief periods of the occupation of the territory of a sovereign state pending termination of the conflict between the parties and the return of the territory or any other agreed upon arrangement. However, Israel’s presence in Judea and Samaria is fundamentally different: Its control of the territory spans decades and no one can foresee when or if it will end"
(2)
"the territory was captured from a state (the kingdom of Jordan), whose sovereignty over the territory had never been legally and definitively affirmed, and has since renounced its claim of sovereignty; the State of Israel has a claim to sovereign right over the territory"
In our opinion, the first argument of the Levy commission is not sufficiently substantiated. In international law, there are no specific time limits after which an occupation ceases to be considered an occupation, just as the intention of the occupying party to end the occupation or the lack thereof is not a criterion for recognizing or not recognizing a territory as occupied.
As for the second argument, it must be emphasized that at this point it is not important whether Jordan had rights to these territories before the conclusion of the border agreement between Israel and Jordan 1994, what is important is that by concluding this agreement it renounced them and recognized these territories as being on the Israeli side of the state border.
General Remarks on Argumentation in Disputes on This Topic
In general, it can be stated that the tactic of those arguing that Jerusalem, the West Bank, and the Gaza Strip are occupied consists of using expressions such as "occupation," "occupied territories," "Israel, the occupying power" as often and in as many documents as possible.
Thus, the frequency of repetitions creates the impression that we are dealing with something long-established, universally recognized, and therefore not requiring any justification.
Very characteristic in this regard is the argument presented by representatives of the Palestinian National Authority in the International Criminal Court in case ICC-01/18 when making a decision on whether "the West Bank, including East Jerusalem and Gaza" is the territory of Israel or the occupied territory of the "State of Palestine":
"The West Bank, including East Jerusalem, and the Gaza Strip are consistently 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 has title to this specific territory."
(See par. 34 of the ICC Decision of February 5, 2021)
Here is such a legal argument: everyone constantly calls this territory occupied Palestinian territory, therefore there is no doubt as to whom this territory belongs.
With which argument the International Criminal Court in The Hague agreed: on February 5, 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," and on March 3, 2021, the ICC Prosecutor opened an investigation into war crimes committed in these territories.
Conclusions
As can be seen from the above, in reality both the Gaza Strip, and the Judea and Samaria District (the West Bank of the Jordan River), and Jerusalem are located on the territory of Israel, within its legally established borders, defined by effective treaties with neighboring states (Egypt and Jordan, respectively), and thus cannot in any way be considered occupied.