It is generally taken for granted, even among Israel’s friends, that the territories acquired from Jordan in 1967 are under “occupation.” Israel itself even applies to the West Bank the laws of the Geneva Convention regarding occupied territory. But, argues Eugene Kontorovich, it does so in error. (Interview by Sarah Haetzni-Cohen.)
In international law, there is a clear rule regarding the establishment of new countries: a country’s borders are determined in accordance with the borders of the previous political entity in that area. So what was [in Israel’s territory before statehood]? The British Mandate. And what were the borders of the British Mandate? From the Mediterranean Sea to the Jordan River. The UN General Assembly’s declaration on November 29, 1947 was a recommendation for partition, rather than an operative resolution. What actually defined the situation was what the Mandate did, and it neither accepted the recommendations nor put them into force.
During the 1948-49 War of Independence, Jordan and Egypt conquered territories from Israel illegally, and it was almost universally agreed that neither Jordan nor Egypt had any legitimate claim of sovereignty over Judea, Samaria, or Gaza. But Israel did. When Israel liberated the territories in 1967, it renewed its control over lands that it had sovereignty over based on the Mandatory borders.
Today, the prevalent approach is that even though the land did not belong to Jordan, it was “Jordanian enough,” and therefore the laws of occupation and the Geneva Convention apply to it. This is nonsense, because even if we assumed this was correct, the Geneva Convention no longer applies when there is a peace treaty, and there has been a peace treaty with Jordan since 1994. . . . These are not occupied territories.
At the same time, Kontorovich advocates extending Palestinian self-rule in the West Bank:
The basic [goal should be] Palestinian self-government within a defined territory. They already have something like this today. It doesn’t mean [Palestinians should be in a position to put Israel] in danger, but they can govern themselves. The second stage is the dissolution of Israel’s military rule in Judea and Samaria. Some of the area would be under regular Israeli law (and the Palestinians living there would be offered citizenship). Israel should not use the term “annexation,” because when you annex something, it is not yours.