The case for sovereignty: Israel's claim to Judea and Samaria

The question of sovereignty over Judea and Samaria, commonly referred to as the West Bank, is a central issue in the Israeli-Palestinian conflict. Israel's claim to this territory is grounded in well-established principles of international law, particularly the doctrine of uti possidetis juris. This principle holds that newly established states inherit the borders of the previous administrative units that governed their territory. Combined with the historical and legal framework of the British Mandate for Palestine, this provides a compelling case for Israel's sovereignty over Judea and Samaria.

The doctrine of uti possidetis juris is a foundational principle in international law, particularly in cases of decolonization and the dissolution of empires. It ensures stability and continuity by preserving the administrative boundaries of former colonial territories as they transition to statehood. This principle has been applied in numerous contexts, including the dissolution of the Spanish Empire in Latin America and the breakup of the Soviet Union and Yugoslavia in the 20th century.

In the case of Israel, the principle of uti possidetis juris applies to the territory of the British Mandate for Palestine, which was established after the collapse of the Ottoman Empire following World War I. The Mandate's boundaries, which included Judea and Samaria, were internationally recognized and were intended to serve as the basis for the future state of Israel. When Israel declared independence in 1948, it inherited the borders of the Mandate, including Judea and Samaria, under the principle of uti possidetis juris.

The British Mandate for Palestine, formally enacted by the League of Nations in 1923, is the legal cornerstone of Israel's claim to sovereignty over Judea and Samaria. The Mandate explicitly recognized the historical connection of the Jewish people to Palestine and called for the establishment of a "national home for the Jewish people" in the territory. The boundaries of the Mandate included all of what is now Israel, Judea and Samaria (the West Bank), and Gaza.

The Mandate's legal authority was derived from the League of Nations, and its provisions were binding under international law. The Mandate not only allocated the territory for the Jewish national home but also established the administrative framework for the future state of Israel. When the Mandate ended in 1948, Israel declared independence within the borders of the Mandate, inheriting the territory of Judea and Samaria under the principle of uti possidetis juris.

The 1948 Arab Israeli War marked a turning point in the history of Judea and Samaria. During the war, Jordan (then Transjordan) seized control of the territory by force. This occupation was not recognized as lawful under international law, as it was achieved through aggression and was not sanctioned by the United Nations or the international community. In 1950, Jordan formally annexed Judea and Samaria, but this annexation was only recognized by two countries: Britain and Pakistan. Even the Arab League opposed Jordan's unilateral action, and the annexation was widely regarded as illegal.

The Armistice Agreements of 1949, which ended the fighting between Israel and its Arab neighbors, established ceasefire lines but explicitly stated that these lines were not to be construed as political or territorial boundaries. Jordan's control of Judea and Samaria from 1948 to 1967 was, in effect, an occupation without legal legitimacy.

In June 1967, during the Six-Day War, Israel gained control of Judea and Samaria from Jordan. This event reshaped the geopolitical landscape of the region and reignited the debate over the legal status of the territory. Israel's position is that it did not "occupy" Judea and Samaria in the legal sense because the territory was not lawfully held by Jordan. Instead, Israel argues that it took control of territory that was part of the British Mandate for Palestine and was designated for the Jewish national home.

Israel maintains that it cannot be considered an "occupier" of its own territory, as defined by the Mandate borders, and that Judea and Samaria are disputed territory rather than occupied territory. This view is supported by the fact that Jordan's prior control of Judea and Samaria was never recognized as lawful by the international community. Israel's capture of Judea and Samaria in 1967 did not constitute an occupation of foreign territory but rather a reassertion of control over territory that was part of the Mandate for Palestine.

The Israel-Jordan Peace Treaty, signed in 1994, provides further insight into the legal status of Judea and Samaria. The treaty establishes the international boundary between Israel and Jordan, but it explicitly states that the boundary is defined "without prejudice to the status of any territories that came under Israeli military government control in 1967." This includes Judea and Samaria.

The treaty's language is significant because it does not resolve the sovereignty issue of Judea and Samaria. Instead, it leaves the status of the territory unresolved, consistent with the view that Judea and Samaria are disputed territory. The treaty also includes a disclaimer on the maps (Appendix III) indicating that the administrative boundary between Jordan and the territory under Israeli military control since 1967 does not affect the status of that territory. This reinforces the idea that the treaty does not take a position on the legal status of Judea and Samaria.

The debate over whether Judea and Samaria are "occupied" or "disputed" territory is closely tied to interpretations of international law. Critics of Israel's position often cite the Fourth Geneva Convention, which governs the treatment of civilians in occupied territories. They argue that Israel's control of Judea and Samaria constitutes an occupation under international law and that the Convention applies.

Israel, however, disputes this interpretation. It argues that the Fourth Geneva Convention does not apply because Judea and Samaria were not lawfully held by any sovereign state prior to 1967. Jordan's occupation of Judea and Samaria from 1948 to 1967 was not recognized as lawful, and therefore, Israel's control of the territory does not meet the legal definition of occupation. Instead, Israel maintains that Judea and Samaria are part of sovereign Israel.

The principle of uti possidetis juris is central to Israel's claim to sovereignty over Judea and Samaria. When the Ottoman Empire collapsed after World War I, the League of Nations established the British Mandate for Palestine, which included Judea and Samaria as part of the territory designated for the Jewish national home. The Mandate's boundaries were internationally recognized and were intended to serve as the basis for the future state of Israel.

When Israel declared independence in 1948, it inherited the borders of the Mandate, including Judea and Samaria, under the principle of uti possidetis juris. This principle ensures that newly established states inherit the administrative boundaries of the previous governing authority, providing a clear legal basis for Israel's sovereignty over Judea and Samaria.. Israel's claim is further supported by the fact that Jordan's occupation of Judea and Samaria from 1948 to 1967 was not recognized as lawful under international law.

Under the principle of uti possidetis juris and the legal framework of the British Mandate, Israel has a strong legal claim to sovereignty over Judea and Samaria. The international community's recognition of the Mandate and the lack of lawful sovereignty by Jordan over the territory support Israel's position that it is not an occupying power in the legal sense. The future of Judea and Samaria will depend on the ability of the parties to reach a mutually acceptable resolution, but Israel's legal claim to the territory is firmly grounded in international law.

On several occasions the Palestinians have rejected a two-state solution: The 1947 UN Partition Plan: Rejected by Arab states and Palestinian leadership. The 2000 Camp David Summit: Rejected by Yasser Arafat. The 2020 Trump Peace Plan: Rejected by the Palestinian leadership. Israel has the legal right to continue to administer the territory of Judea and Samaria according to international law. No annexation is needed.