The conflict between Israel and the Palestinians over the occupation of the West Bank and Gaza is one of the most complicated conflicts in the world. Attempts to resolve the conflict have failed in the past and a resolution seems unlikely to emerge in the near future. Partly, this is due to the fact that the situation is extremely complex and the conflict very old. History, politics and international law together with religion, nationalism and pride are entangled to form this conflict. For both sides the conflict has reached an emotional level where belief is more important than rational decisions.
Furthermore, Israel stems its legitimacy to exist from the Bible and ultimately from God. The word of God is of course holy for religious people and it is thus extremely difficult if not impossible at all to argue rationally against this destiny. It is unrealistic to assume that orthodox Jews will value international law higher than the word of God.
Even if it is not the purpose of this paper to examine the conflict in much detail but rather to examine the legality of the Israeli occupation of Gaza and the West Bank, it is worth noting the complexity of the conflict as a whole and the emotionality of the debate. Justifying or declaring the occupation of Gaza and the West Bank illegal involves engaging in the history of the conflict and the rationality of the actors. It is thus vital to have at least a broad understanding of the conflict and the actors involved.
A lot has been written about the Israel-Palestine conflict and in recent years more and more critique of Israel has emerged. This is particularly interesting as usually every criticism of its actions or policies is turned down by Israel as anti-Semitism. One thus has to be extremely careful when writing about Israel although international law seems to be relatively clear about the 1967 occupation of Gaza and the West Bank.
In order to examine the legality of the occupation, this paper will discuss the situation from both angles and look at the sources of international law relevant to this case. These are the Charter of the United Nations in general and the United Nations Security Council Resolution 242 in particular. In addition, customary international law has developed to a jus cogens, prohibiting the use of force at all for settling international disputes.
Finally, this paper shall conclude that any justification of the occupation is doubtful and there is little evidence in international law that might legitimise Israel’s actions. And even if the initial occupation could be legitimised under Article 51 of the UN Charter as an act of self-defence, the prolonged occupation would still lack any legal basis.
Looking at the Israel-Palestine conflict from both the Israeli side and the Palestinian side, gives two totally different pictures of the conflict. However, both sides claim to be absolutely right and would not change their views.
From an Israeli point of view, the occupation of Gaza and the West Bank in 1967 was totally legitimate and not at all illegal. The pro Israel historian Julius Stone writes: “International law forbids acquisition by unlawful force, but not where, as in the case of Israel’s self defence in 1967, the entry on the territory was lawful.” Israel claims that the occupation was an act of self-defence and both necessary for the security of Israel and its people and legitimate under Article 51 of the UN Charter. Furthermore, Israel has argued that it never intended to keep the occupied territories and the occupation of Gaza and the West Bank was thus never really an occupation. The so called ‘missing reversioner’ theory, put forward by Prof. Blum, has also served as a legitimising factor. Prof. Blum argues that Gaza and the West Bank did not belong to any other country at the time Israel occupied these territories and thus “Israel’s presence in the West Bank and Gaza is not an ‘occupation’ that displaces a sovereign power, but an ‘administration’ in the absence of a sovereign.”
In support of the argument the 1967 occupation being self-defence, Israel refers to Article 51 of the UN Charter, which reads as follows:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. […]
One has to note that in principle the use of force is prohibited under international law. Both the UN Charter in Article 2 (4) and customary international law strictly forbid the use of force. There are, however, exemptions and Article 51 marks one of them because it allows the use of force for the purpose of self-defence. However, Article 51 legitimises the use of force only under certain conditions, the existence of an ‘armed attack’ being one of them.
The wording of Article 51 can, however, been interpreted rather flexible. A state would also be allowed to defend itself before the armed attack actually happens and could strike pre-emptively. However, there needs to be evidence beyond reasonable doubt that an armed attack is planed and on its way in order to rightly claim legitimacy for the use of force under Article 51. And the victim state, in this case Israel, would have the burden to prove that such an attack is indeed planned.
 Musa E. Mazzawi: Palestine and the Law: Guidelines for the Resolution of the Arab-Israel Conflict, Ithaca Press, Reading, 1997, p.284
 Richard A. Falk and Burns H. Weston: ‘The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada’, in: HILJ, Vol. 32, No. 1, 1991, p.138
 Malcolm D. Evans: International Law Documents, 5th edition, Blackstone Press, London, 2001, p.16