It was reported in the press (22.3.05) that the Israeli state has rejected settlers’ appeal against the uprooting because the state argues that the areas of Judea, Samaria and Gaza (Yesha) have been held by Israel since the Six Day War and until today in “belligerent occupation”. The argument is that since belligerent occupation is by definition temporary, the settlers could have anticipated that one day they could be uprooted.
This is manifestly incorrect. After 1967, Israel had to decide how to proceed with specific and practical questions on the ground. Even though Israel had the right according to international law to annex and declare sovereignty on any part of Western Palestine, it delayed its annexation. To deal with concrete practical problems, it voluntarily decided to apply a complex mix of the rules of belligerent occupation and municipal law. Indeed as long as the territory is not annexed and sovereignty declared, there are no other legal frameworks available.
The de facto usage that Israel made of aspects of Belligerent Occupation Law is akin to the Americans voluntarily using aspects of the Human Rights law involved in the Geneva Convention for prisoners of war for her prisoners in the Guantanamo Bay but they are not considered to be prisoners of war. After all they had to find some rules with which to treat these prisoners. Similarly, the de facto adoption of some rules of belligerent occupation to solve local problems by Israel does not imply that the settlers’ rights are governed by the law of belligerent occupation.
Think-Israel features essays and commentaries that provide a context for current events in Israel. We aim to make sense of what’s going on.