The Legal Status of Land Taken in 1967
1) Israel's Legitimate Claims:
Some parts of the West Bank would have been part of Israel as defined by the UN Partition Plan, but were overrun in 1948. There were Jewish communities such as Kfar Etzion, not to mention the Old City of Jerusalem, that fell in the fighting of 1948. Jews were either killed or expelled from these areas conquered by invading Arab armies.
The League of Nations Mandate explicitly recognized the right of Jewish settlement in all territory allocated to the Jewish national home in the context of the British Mandate. The British Mandate covered the area that is currently Israel, all the disputed territories (and even what is now Jordan). These rights under the British Mandate were preserved by the United Nations, under Article 49 of the UN Charter.
2) Defensive War:
Military control of the West Bank was clearly the result of a defensive war. According to Dr. Dore Gold, Director of the Jerusalem Center for Public Affairs:
International jurists generally draw a distinction between situations of "aggressive conquest" and territorial disputes that arise after a war of self-defense. Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, wrote in 1970 regarding Israel's case: "Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title."
3) Forced Transfer of Civilian Populations:
There are mistaken claims that Israel's control of these territories violates the Fourth Geneva Convention. The Fourth Geneva Convention was adopted August 12, 1949 by the international community in response to Nazi atrocities during World War II. It outlaws the resettlement by an occupying power of its own civilians on territory under its military control, specifically "individual or mass forcible transfers."
The only forced mass transfers were against Jewish communities in 1948. After the Six Day War, Israel did not expel a single Arab community from land it now controlled.
The "Occupying Power" may also not "deport or transfer parts of its own civilian population" to territories taken in conflict. Israel has never forced Jews to move to the territories. However, there is no obligation for Israel to prevent voluntary settlement by its civilian population.
4) United Nations Security Council Resolution 242
After the war, there were many opinions as to what a peace agreement should require of the parties. The view of the Soviet Union and Arab bloc was that Israel should be forced to withdraw from all lands taken in the war. However, this view did not prevail in the United Nations.
According to the American Israel Cooperative Enterprise:
The most controversial clause in Resolution 242 is the call for the "Withdrawal of Israeli armed forces from territories occupied in the recent conflict." This is linked to the second unambiguous clause calling for "termination of all claims or states of belligerency" and the recognition that "every State in the area" has the "right to live in peace within secure and recognized boundaries free from threats or acts of force."
The resolution does not make Israeli withdrawal a prerequisite for Arab action. Moreover, it does not specify how much territory Israel is required to give up. The Security Council did not say Israel must withdraw from "all the" territories occupied after the Six-Day war. This was quite deliberate. The Soviet delegate wanted the inclusion of those words and said that their exclusion meant "that part of these territories can remain in Israeli hands." The Arab states pushed for the word "all" to be included, but this was rejected. The Arab League then rejected the entire resolution. Nonetheless, it was approved by the Security Council.
The resolutions clearly call on the Arab states to make peace with Israel. The principal condition is that Israel withdraw from "territories occupied" in 1967, which means that Israel must withdraw from some, all, or none of the territories still occupied. Israel withdrew from 95% of the territories when it gave up the Sinai and then Gaza. It has already partially, if not wholly, fulfilled its obligation under 242.
In addition, the Arab reaction to the resolution was not to make peace but instead the "Three No's" of the Khartoum Conference of August 1967:
Khartoum Conference of August 1967:
No peace with Israel
No recognition of Israel
No negotiation with Israel
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