Last Friday, the United Nations Security Council passed a resolution claiming that Judea and Samaria (also known as the West Bank) and Eastern Jerusalem are "occupied Palestinian territory" and that Israel's policy of building communities in that territory is illegal under international law. Thanks to Samantha Power, the UN Ambassador famous for challenging American policy on genocide while completely ignoring the Islamic State's treatment of the Yazidis and the Syrian Civil War, the United States chose to forego its veto power and allowed the resolution to come to fruition. The resolution further calls upon Israel to "immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard."
From the perspective of someone who does not understand international law or the history of the Arab-Israeli conflict, this resolution tells the story that Israelis have trampled over Palestinian lands illegally and decided to build houses on them in a fit of colonial aggression. Unfortunately for them, that is nonsensical and false. The entire argument rests upon the false premise that Israel is "occupying" Palestinian land and that Israel has no legitimate claims to the lands in question. For those who wish to understand Israel's legal rights to the land, Daniel Horowitz wrote a magnificent piece yesterday in Conservative Review outlining them under United Nations Charter Article 80, the League of Nations 1922 Mandate on Palestine, and the San Remo Conference.
That still begs the question of whether Israel is "occupying" Palestinian land in the first place. The answer is no, and that is clearly codified in how international treaties define occupation. It is important to recognize that in international law, a treaty represents the persuasive authority of an international legal question. Contrary to the "soft laws" of customary international law and jus cogens, treaties serve the same purpose and legal power as a contract between two parties. Anyone who signs an international treaty is obligated to follow the specific words dictated between all of the nation-states that helped draft and agree upon the terms.
The legal definition of "occupation" comes out of the 1907 Hague Convention, some of the first treaties governing international laws of war and war crimes. The definition of an occupation can be found in Articles 42 and 43 and can also be summarized in the following sentence: Possession of the territory of the legitimate power by the occupying power.
Here is the text of Article 42:
Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised.
Here is the text of Article 43:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
Both of these articles supplement each other in creating the legal definition of an "occupation." Avinoam Sharon, a former military lawyer for the Israel Defense Forces, encapsulated the meaning of these two articles best in a an article published by the Jerusalem Center for Public Affairs:
First, the area is under the actual control of the hostile army. Second, the area was previously the sovereign territory of another state. Third, the occupier holds the area with the purpose of returning it to the prior sovereign.
The second precondition stating that the territory must have been part of a sovereign state highlights a critical question that the United Nations, most world governments, and anti-Israel groups like J Street refuse to answer honestly: Has there ever been a legitimate, sovereign state of "Palestine"? The answer is no. Before 1948, the region commonly known as Palestine did not have a sovereign nation controlling the territory. Instead, the British Empire controlled the territory as part of its mandate following the First World War. In 1948, the only sovereign nation that was established in the land was Israel. However, Israel did not possess Judea, Samaria, or Eastern Jerusalem by then and it never had control over the territory until 1967. Instead, that territory was illegally occupied by Jordan, who annexed the territories despite widespread international rejection of its decision. There was no sovereign state of "Palestine" in those lands. In fact, the Palestine Liberation Organization, a terrorist group now masquerading as the representative of the Palestinian-Arab population, was not founded until 1964, three years before Israel captured the disputed territories in a defensive war against Jordan.
However, people tend to claim that with the foundation of the Palestinian Authority in Areas A and B of Judea and Samaria following the 1995 Interim Agreement and Hamas controlling Gaza in 2006, Israel is still "occupying" Palestinian land. This line of reasoning suggests that the Palestinian-Arabs now have a legitimate power representing them and if Israel conducts operations in their territory, then it counts as an occupation. However, neither the Palestinian-controlled territories in Gaza or in Judea and Samaria constitute a state, and thus cannot be considered a "legitimate power" that is undergoing an occupation.
According to Article 1 of the Montevideo Convention on the Rights and Duties of States of 1934, there are four qualifications for one to constitute a nation-state in international law: 1) a permanent population; 2) a defined territory; 3) government; and 4) capacity to enter into relations with the other states. Neither the areas controlled by the Palestinian Authority nor Gaza under the control of Hamas meet the standard to constitute statehood.
In Judea and Samaria, there is a permanent population of Palestinian-Arabs, a government, and that government has a capacity to enter relations with other states. However, it does not have any defined territory since the PA still needs to acquire final territorial boundaries through direct negotiations with Israel. In Gaza, Hamas possesses the first three qualifications but it does not have the capacity to enter relations with other states since most of the international community not only does not recognize Hamas as the representative authority of Gaza, but Western states list it as an international terrorist organization.
Since there has never been a sovereign state of "Palestine" prior to 1948 or 1967 and since there is still no legitimate state of "Palestine" today, there cannot legally be an "occupation of Palestinian lands" by Israel according to the Hague Convention of 1907. Since there was no legitimate Palestinian state and Israel already has legal claim to Judea, Samaria, and Eastern Jerusalem, Israel has the right to build Jewish communities in disputed territory in Area C until a final peace agreement is signed with the Palestinian Authority, if that is still possible at this point...