Legal Status of Israel's Border and its Defensive Barrier:

Below is a list of statements of law and fact regarding Israel's border, and its right under international law to build a defensive wall. I invite commenters to advance the discussion on these issues in terms of international law. I don't claim to be an expert on the issues of international law raised below, so comments from readers with expertise would be particularly welcome. Please do not use the comments to re-argue general issues about Zionism etc.

1. In November 1947, the United Nations partitioned the British mandate of Palestine. The partition gave the Jews only territories which were already owned by Jews, or which belonged to the British crown.

2. Many Palestinians began a war against Israel as soon as the partition was announced.

3. In May 1948, Israel declared its independence. In response, five Arabs nations immediately declared war on Israel.

4. In 1949, Israel and Jordan signed an armistice which specifically stated that the armistice lines were "without prejudice to future territorial settlements or boundary lines." Jordanian-Israeli General Armistice Agreement, April 3, 1949, Art. VI, sect. 9.

5. In 1967 Israel was attacked by Jordan, which at the time ruled the West Bank and East Jerusalem. Israel had no obligation, under international to vacate any territories until its foes entered into a meaningful peace agreement.

6. Later in 1967, the United Nations Security Council adopted Resolution 242, Notably, the resolution calls for Israel to withdraw from "territories" (not "all territories" or "the territories") as part of a peace agreement by which Arab states would end their belligerence against Israel. Today, most Arab states remain in a declared state of war against Israel.

7. Having acquired the West Bank in a defensive war, Israel later began building settlements on the West Bank. The settlements were built solely on land belonging to the Jordanian government, and not land belonging to individual Arab owners.

8. As a general rule, international law forbids the permanent annexation of territory, even after a defensive war. However, Israel's settlements did not violate this rule, because they were built in areas where no internationally-agreed international border existed. (See points 4 and 6).

9. Later, Jordan signed a peace treaty with Israel, and renounced all claims to the West Bank and East Jerusalem. Jordan's renunciation of the West Bank necessarily included a renunciation of all claim to West Bank land which had been owned by the Jordanian government. The renunciation therefore perfected Israel's legal ownership of the former Jordanian government lands in the West Bank.

10. Even if the last sentence of point 9 is incorrect, a nation has no obligation under international law to surrender control of territory to an entity which is in a state of war with the nation. The constitution of the PLO and the Hamas charter both explicitly call for the destruction of the state of Israel. Accordingly, Israel has no international law obligation to give any territory to a government controlled by the PLO or Hamas. (Had the PLO followed through on its promises in the Oslo Accords, and actually ended its war against Israel, the legal situation might be different.)

11. Under international law, including the Fourth Geneva Convention, nations may build defensive structures in enemy territory which the nation has captured. The defensive structures may be maintained as long as the enemy remains in a state of belligerence.

12. Israel's right to build a defensive barrier in the West Bank is clear under item 11, since the wall is being constructed while the enemy (PLO/Hamas) is in a declared and actual state of war against Israel. (A temporary truce, subject to unilateral revocation, does not end a state of war.)

13. Israel's right to build the barrier is even stronger under international law, since (pursuant to points 4 and 6 above), the barrier does not extend beyond a legal international border, because the 1949-67 armistice line is not a legal border.

14. International law forbids the permanent annexation of enemy territory, but this point is irrelevant to the defensive barrier, for the reasons listed in items 4, 6, and 13.

15. If and only if the 1949-67 armistice line were a legal border, then Israel's construction of the barrier would be illegal under international law if the purpose of the barrier were for annexation. The barrier would not be illegal if the purpose were for defense (item 11).

16. The Israeli Supreme Court ruled that the barrier is primarily for defense, and accordingly, legal. The International Court of Justice--in a purely advisory and non-binding opinion--stated that the barrier is for annexation, and therefore illegal. The ICJ opinion was defective as a matter of law because it did not properly consider Israel's defensive rights under the laws of war, nor did the opinion acknowledge the legal implications of Security Council 242, which refutes the notion that the 1949-67 armistice line is a permanent, legal international border.

Again, I'm not claiming expertise on the subject-matter of this post, and one major purpose of this post is find out if there are any flaws with the above reasoning, in terms of international law. In your comments, please focus on international law; this means, inter alia, don't waste time by citing UN General Assembly resolutions, statements by diplomats, or other sources which (while important from a policy sense) do not have the authority to create binding international law. Please focus on clear, relevant international law, such as treaties which have been ratified by Israel, or Security Council resolutions.

Related Posts (on one page):

  1. Is Israel in Violation of International Law?
  2. Legal Status of Israel's Border and its Defensive Barrier:
Is Israel in Violation of International Law?

Last week I blegged for information about this question, set forth my preliminary understanding of the issue, and enjoyed reading many excellent comments, pro and con, on the topic. I would now like to ask commenters for more analysis on two precise issues.

It seems to me that the strongest argument that Israel is in violation of international law is based on United Nations Security Council Resolution 446. Passed 12-0 (with the U.S. abstaining), the 1979 Resolution tells Israel to stop building settlements in the West Bank and Gaza. (The latter were abandoned in 2005, are so are now irrelevant to my question.) Arguments can be made that the Resolution is predicated on a defective reading of the Fourth Geneva Convention, but there is a good counter-argument that even if the Security Council's resolution is wrong, the resolution is still binding, as a matter of international law.

To be precise, Security Council resolutions adopted under Chapter VII of the U.N. Charter are binding, whereas resolutions adopted under Chapter VI are not. Resolution 446 does not state its source of authority; Wikipedia's discussion section contains some pro/con arguments on whether 446 is a Chapter VII resolution.

A second international law argument against Israel is that the West Bank settlements and the defensive barrier both violate the Fourth Geneva Convention. A key weakness in this argument, though, is that the Convention by its own terms applies only "between two or more of the High Contracting Parties." Israel is a High Contracting Party, but there appears to be no other High Contracting Party which can claim that Israel's West Bank policies violate the Party's Geneva Convention Rights. (Jordan is exercised sovereignty in the West Bank from its 1948 invasion of Israel until Jordan attacked Israel again in 1967, and was thrown out of the West Bank. Jordan later abandoned all claims of sovereignty to the West Bank.)

Israel has unilaterally said that it will follow parts of the the Fourth Geneva Convention regarding the West Bank, and Israel contends that it is following the Convention; but this argument seems less relevant, legally speaking, than whether Israel is legally obliged to obey the Fourth Geneva Convention.

The arguments that Israel has a legal obligation to do so seem extremely weak. For example, some people cite Article 1 of the Convention ("The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.") as if it makes a nullity of Article 2's specific deliniation of the only circumstances in which the Convention is legally applicable.

The article Laurence E. Rothenberg & Abraham Bell, Israel's Anti-Terror Fence: The World Court Case (2004), seems to make a quite persuasive case that the Fourth Geneva Convention is not legally applicable to the West Bank, even though I do not find every single argument in the article to be persuasive.

So I am asking commenters for legal analysis of whether Sec. Res. 446 is a binding Chapter VII resolution, and whether the Fourth Geneva Convention is legally applicable in the West Bank. Please focus on the legal issues, rather than pro/con arguments about Zionism etc. Most commenters for my previous post did a good job of keeping a legal focus, except for one repeat-offender ranter who had to be barred.

Related Posts (on one page):

  1. Is Israel in Violation of International Law?
  2. Legal Status of Israel's Border and its Defensive Barrier: