With the recent claims of who own parts of the West Bank - What is the legal status of the WB & GS

[nicoll]

Recently there have been claims by a group in Israel that a large proportion of the land that Jewish settlements are built on is actually privately owned Palestinian land. To counter this the settlers have said that they have a right to be on the land. I know there have been two threads on this - one on the claim that a settler land is actually privately owned Palestinian land and one on the settler's response. I want to go deeper on than this and want to establish what the actual legal status of the West Bank and Gaza Strip are in there entirety.

Does the land belong to any individual country?

Is it Arab Land?

Is it Jewish land?


What was the purpose of the so called "Arab land" when it was partitioned in December 1947?

What was the purpose of the land (WB & GS) when it was originally partitioned in 1967 by the UN?

Is the status of the land similar to the status of the land (Israel + West Bank + Gaza Strip) before the Israeli declaration of Independence? With this I mean international land that does not belong to any individual country? The time frame for this would after the British left but before the Israeli declaration of Independence.

The legal status of all the West bank and Gaza Strip is much more important to establish when debating the Israel Palestine conflict than privately owned land there. Just with exchanging responses with the participants of the forum I have seen differing views on the status. There can be only one legal status of the West Bank and Gaza Strip and I would like it defined as to what it is. The questions might seem simple to answer, but from my experience of debating in this forum people interpretation of facts and legal status are different. This is self defeating in the goal of finding a possible solution to the conflict and a clearly agreed upon status of the land is required (WB & GS).The reason I want to do this is because there is a thread that I want to do, but I need the participants of this forum to agree on the actual legal status of the WB and GS before I can do it. Otherwise it will just go round in circles with people disputing what the legal status of the land is.

When the moderator reads this thread I hope that he/she will allow it to continue even though it is similar to two threads that have already been posted on the conflict. I believe it is important to clarify the legal status of the West bank and Gaza Strip because this is really the land that is under dispute between Israel and a possible Palestinian state. If it could be clearly defined and agreed upon it would greatly increase the speed and efficiency of any possible future debates on the West Bank or Gaza Strip or to that matter any topic on the Israel Palestine conflict.

[ayeshahaqqiqa]

1. Doing some research

I found this from the Israeli Ministry of Foreign Affairs
http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/2003/2/DISPUTED%20TERRITORIES-%20Forgotten%20Facts%20About%20the%20We


The West Bank and Gaza Strip are disputed territories whose status can only be determined through negotiations. Occupied territories are territories captured in war from an established and recognized sovereign. As the West Bank and Gaza Strip were not under the legitimate and recognized sovereignty of any state prior to the Six Day War, they should not be considered occupied territories.

From a 2001 Human Rights Watch report-not much on legal status of WB & Gaza, but one sentence reveals something:

http://www.hrw.org/wr2k1/mideast/israel.html

More than 90 percent of land in Israel is state land, much of it expropriated from Palestinians.

Relief Web has an article about the legal status here:
http://www.reliefweb.int/rw/RWB.NSF/db900SID/EVIU-69HJYR?OpenDocument

From the outset, one should note that all parties agree that the situation in the OPT falls, at least to some extent, under the legal regime governing occupation. There are, however, substantive disagreements about which international legal instruments are applicable to the OPT. In particular, Israel does not recognize the overall de jure applicability of the Fourth Geneva Convention to the OPT, even though the Israeli High Court of Justice does admit the applicability of certain of its provisions as representing customary international law. This position has been strongly criticized by the rest of the international community. (For a discussion of Israeli objections to the applicability of the Geneva Conventions, the reader should consult the policy brief on the Application of International Humanitarian Law (IHL) to the OPT.)

Despite its objections to the overall application of the Fourth Geneva Convention to the OPT, Israel does, however, recognize the application to the OPT of the rules on occupation contained in the Hague Regulations, on the grounds that the Hague Regulations are now part of international customary law. Finally, since Israel ratified neither Additional Protocol I to the Geneva Conventions nor the Rome Statute of the ICC, these instruments are not formally applicable to the OPT (albeit only to the extent that various provisions therein do not form a part of international customary law).

And from B'Tselem-Israeli information center for human rights in the occupied territories:
http://www.btselem.org/English/Publications/Summaries/200205_Land_Grab.asp

Israel has used a complex legal and bureaucratic mechanism to take control of more than fifty percent of the land in the West Bank. This land was used mainly to establish settlements and create reserves of land for the future expansion of the settlements.

The principal tool used to take control of land is to declare it "state land.” This process began in 1979, and is based on a manipulative implementation of the Ottoman Lands Law of 1858, which applied in the area at the time of occupation. Other methods employed by Israel to take control of land include seizure for military needs, declaration of land as "abandoned assets,” and the expropriation of land for public needs. Each of these are based on a different legal foundation. In addition, Israel has assisted private citizens purchasing land on the "free market.”


Hope these sources help.

[Douglas Carpenter]

2. According to the International Court of Justice 14-1 decision of 9 July 2004

The entirety of the West Bank, The Gaza and East Jerusalem is Occupied Palestinian Territory -- link:

http://www.icj-cij.org/icjwww/idocket/imwp/imwp_advisory_opinion/imwp_advisory_opinion_20040709.htm

According to the International Committee of the Red Cross -- all settlements in the Gaza, The West Bank and East Jerusalem are in violation of the fourth Geneva Convention - link:

http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLDPJ

________________

I found this official statement from the BBC interesting also:

link: http://news.bbc.co.uk/newswatch/ukfs/hi/newsid_6040000/newsid_6044000/6044090.stm#occupied

"SETTLEMENTS
Settlements are residential areas built by Israelis in the occupied territories. They are illegal under international law: this is the position of the UN Security Council and the UK government among others - although Israel rejects this.
When writing a story about settlements we can aim, where relevant, to include context to the effect that "all settlements in the West Bank, including East Jerusalem, are considered illegal under international law, though Israel disputes this".


OCCUPIED TERRITORIES/OCCUPATION
The general phrase "occupied territories" refers to East Jerusalem, the West Bank and strictly speaking the Golan Heights. However, it is not usually understood to refer to the Golan Heights (unless it is in a story specifically on the 1967 war or Syrian-Israeli relations).
It is advisable to avoid trying to find another formula, although the phrase "occupied West Bank" can also be used.

Under international law, Israel is still the occupying power in Gaza, although it no longer has a permanent military presence there. See that section for our use of language.

Try not to confuse the phrase "occupied territories" with Palestinian Land or Palestinian Territories. (See those sections for the reasons why.)

The Israeli government's preferred phrase to describe the West Bank and Gaza Strip is "disputed territories" and it is reasonable to use this when it is clear that we are referring to or explaining its position.

[nicoll]

3. I sent you the message Mr Carpenter

I am not sure if went though so will do again. From reading the two posts from this thread my asumption was correct. The West Bank and Gaza Strip does not belong to any state. I did not know about the fact that this meant that it could not be classed as an ocupied teritory though. I will now refer to the them has the disputed teritories. Just in case the message did not get through to you I will paste it to this reply:

I posted a thread today to establish the actual legal status of the West bank and Gaza Strip, but have only had views and no replies. The reason I posted it was to establish what the legal status is and what people actually think it is.

To my understanding the West Bank and Gaza Strip does not actually belong to any country, but is under control by Israel who is the occupying force in the W B and G S. Does this mean that the land has the same status as all of the partitioned land immediately after the British left and just before the Israeli declaration of Independence? To my understanding it does. This being the case if the Palestinians followed the same rules as the Jewish people did in making their declaration of independance for the state of Israel it should be accepted by the international community as being valid. The declaration of Independence of the Israeli state in 1947 sets the bench mark for what the Palestinians need to do to declare their own state out of the West Bank and Gaza Strip.

I have tried to find the exact amount of land the Jewish state laid claim over in 1947 with the declaration of Independence of the state of Israel. Of course the boundaries of which were clearly defined in december of 1947 by the UN anyway. The Palestinian leader has said that he wants Eastern Jerusalem all of the West Bank and Gaza Strip to make up a newly formed Palestinian state. The main obstacle for him doing this is the 400,000 Jewish settlers living in Eastern Jerusalem and parts of the West Bank. This seems like a mission impossible for him to achieve as Israel wants to keep a large proportion of it settlers there. This can be achieved but through the back door so to speak - when you have an obstacle instead of stopping just go round it to solve it. With this I mean that he does not have to have the Jewish settlers leave the West Bank and Eastern Jerusalem to be able to establish a Palestinian State out of all of the West Bank, Gaza Strip and Eastern Jerusalem. All he needs to do is change the status of the Jewish Settlers.

In 1947 there was anything up to 1,000,000 Arabs living on the land that was to be partitioned in december 1947 and there status could be said to be the same as the Jewish settlers living now in Eastern Jerusalem and on parts of the west Bank. Both on land that does not belong to any individual country or state and such international land. Who is to say that a Palestinian state has to be just for Arabs. Habbas could offer the Jewish settlers the choice to be able to stay in a newly formed Palestinian state has Palestinian citizens (or to have joint Israeli/Palestinian citezenship). There are approx 1,000,000 Arab Israeli's residing in Israel at present. The settlers would be given the same right as the Arab Palestinian citizens. The thing is he would be offering a choice to the settlers to remain in their homes and villages. It would be their choice to stay as Palestinian citizens or to leave. When saying about bench mark decisions you have to look at the declaration of independance of Israel and the UN partition of land to form the state of Israel in december 1947. The arab villages were spread out over practically all of the soon to be partitioned land. Both had Arabs living on the land at the time who might well have objected to the state of Israel being formed on top of there existing homes. I do not know when Arabs living in Israel were offered the choice to have Israeli citenship, but they were - so the same should be allowed to be offered to the Jewish settlers in the West Bank and Eastern Jerusalem. If they do not want to then of course they would have to leave, but then it would be their choice in doing this. An international force could be set up to protect the Jewish settlers from any form of attack as well as Palestinian authority troops, becasue all Israeli troops and IDF members would officily have to leave a newly formed Palestinian state. The majority of the world comunity wants a Palestinain state to be established in the Middle East and an end to the conflict. Habbas should use this to his advantage and just go round the problem of Jewish settlers in the West Bank and Eastern Jerusalem. Can you give me two responses - one whether you think it can work and one whether it is actually legally possible to do.

1) Regonistion of the right of Israel to exist within the borders of the 1967 UN partition plan.

2) Declaration not to attack the state of Israel and to actively stop any such attacks from possible militant factions from within the newly formed state of Palestine.

3) To offer the right of choice to Jewsih settlers residing in the West Bank and Eastern Jerusalem to have joint Palestinan/Israeli citenship. They would have equal status along side the Arab Palestinian Citezens, but would have to abide by Palestinian law and not Israeli law as they would be now residing in Palestine has Jewish Palestinian citizens.

4) To protect the safty of any Jewish Palestinian Citizens residing within the newly formed state of Palestine.