Jewish Indigeneity and International Law in Judea and Samaria

Written By Michael Pushenko

Michael Pushenko and Gregory Rose

Michael Pushenko is a post-graduate student of international diplomacy at the Australian National University.

Gregory Rose is Professor of Law at the Australian National Centre for Ocean Resources and Security at the University of Wollongong.

Over time, repeated assertions are treated as if they were facts. Few international legal assertions are repeated with greater frequency and certainty than the claim that Israel is “illegally occupying Palestinian territory” in the “West Bank”. Repetition does not make this statement true.

The international community’s attempts within United Nations’ fora to reduce Israel’s legal claims to “Judea and Samaria” also known as the “West Bank” – to illegality are basically failures to adequately consider the prevailing law and historical facts. These attempts neglect, for example, the historical fact that, in 1948, Transjordan conquered Judea and Samaria and the legal fact that it then illegally annexed them as its “West Bank”, which it occupied for 19 years.

To do justice, legal analysis must not be simplified into slogans or disinformation. This article traces the historical and legal record of Judea and Samaria.

An Opinion of the International Court of Justice

On 19 July 2024, the International Court of Justice (ICJ) released its opinion on Israel’s alleged “illegal occupation” of Judea and Samaria. 1 This opinion followed the United Nations General Assembly (UNGA) prescriptive request for advice on this matter.2 The UN Court duly concluded that Israel was illegally occupying Judea and Samaria and that settlements and application of Israeli law were unlawful. The political complexion of the Court’s Advisory Opinion was no surprise, especially given its President, was an anti-Israel Muslim jurist, who bracketed his time on the ICJ judicial bench between duties as Lebanon’s ambassador to the UN and Lebanon’s Prime Minister. The 15-member judicial bench supported a finding that Israel was unlawfully occupying Judea and Samaria; with only Judge Sebutinde, Vice President of the ICJ, dissenting.3

The ICJ’s Advisory Opinion contains legal and historical omissions that warrant careful reconsideration. First, its recollection of historical events excludes critical facts. Second, its condemnations of Israeli policy and expansion of settlements in Judea and Samaria reflect problematic discriminatory misapplication of international law.

International law recognises several ways a State can acquire land. The first is discovery of uninhabited land – terra nullius – which is inapplicable in the long-ago discovered Middle East. The second is land acquisition through armed force. Under the 1945 Charter of the United Nations – the foundational constitutional UN document – States are prohibited from using aggressive force contrary to the UN Charter, eliminating conquest as a legitimate means to capture territory.4 The prohibition on aggressive force does not negate self-defence5 nor the acquisition of territory through self-defence, which has occurred in the form of border adjustments following armed conflict on several occasions since 1945. The third is cession, which is the wilful transfer or acquisition of land rights, such as by the sale of Egyptian islands to Saudi Arabia in 2016. A form of cession is decolonisation of territory from imperial rule, which continues to this day, as evidenced in Mauritian claims to the Chagos archipelago and Argentinian claims to the Malvinas archipelago.

The ICJ is of the opinion that Israel holds Judea and Samaria illegally through conquest. This assertion disregards ancient and recent history, and it disregards contemporary reality. Assessing the available evidence properly, it becomes apparent that Israel has strong legal claims to Judea and Samaria through prior claims based on decolonisation, acquired through its historical claim to the land and international legal agreements and through self-defence. To address these, a discussion about Israel’s history, 20th-century multilateral and bilateral agreements, and recent armed conflicts is necessary.

Indigenous Land Rights

Despite acknowledging indigenous rights in many other contexts, the UN has failed to engage meaningfully with Jewish indigeneity. The ‘United Nations Declaration on the Rights of Indigenous Peoples’ (UNDRIP) should be taken into consideration when evaluating the right to the land.6 Although the UNDRIP is not legally binding, it sets out principles for consideration of indigenous rights. If indigenous ancestral connection is relevant to territorial rights, it is difficult to explain why Jewish indigeneity to Judea and Samaria is often dismissed or excluded. The Jewish people have inhabited Judea and Samaria since 1200 BCE.

UNDRIP Article 2 states that:

“Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.”

Furthermore, there is a prohibition on the forceful removal of indigenous people from their land.7 Most importantly, Article 26 endorses the indigenous right to indigenous territory:8 

  1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

  2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

Considering the UNDRIP statement of rights, there is an indigenous claim by the Jewish people to Judea and Samaria. The Jewish indigeneity claim to Judea and Samaria provides a point of discussion that has not been engaged with by the UN.

Conversely, exclusion of Jews from access to sites of indigenous significance, such as Shechem, Nablus and Hebron, is contrary to their indigenous rights. However, the UN has adopted resolutions to remove all Jews from Judea and Samaria, contrary to the rights agreed under the UNDRIP. These resolutions amount to calls for ethnic cleansing of an indigenous people, demonstrating inconsistency in international discourse concerning Jewish historical ties to Judea and Samaria.

Jewish indigeneity is relevant and should not be ignored in discussions of competing territorial claims. The evidence for that indigeneity is manifest, extensive and persuasive.

Ancient Israel

Ancient Jewish political and religious connection to Judea and Samaria does not by itself resolve the connection to modern sovereignty but is legally relevant because that historical connection was expressly recognised and incorporated into the international agreements that shaped the territory’s modern legal status. It forms part of the historical record later recognised in modern international instruments, particularly the Mandate for Palestine, which expressly acknowledged “the historical connection of the Jewish people with Palestine” and the grounds for reconstituting their national home there. Jewish historical presence in Judea and Samaria is not merely a religious or symbolic claim.

Modern-day Israel – as the state that has existed since 1948 to the present – is located and shaped in close similarity to Ancient Israel, which existed from 1200 BCE to 587/586 BCE,9 as verified through the Hebrew Testament, archaeological findings, and historical artefacts (Figure 1).10 Ancient Israel, like modern Israel, is located across the geo-strategically important Levantine intersection between the continents of Africa, Asia and Europe. The northern province was known as Israel, the capital being Samaria. The southern Province was Judea, where Jerusalem was its capital. These are the origins of the names Judea and Samaria. Those names were used for those territories from antiquity through to Ottoman and modern British administrations. The English word Jew derives from Judean.

Map titled Palestine and the Kingdoms of Israel and Judah during the time of David and Solomon, with orange land, yellow Philistia and Phoenicia, red borders, and blue seas.
Figure 1: Kingdom of Israel11

Map of the Middle East, BCE: The Kingdom of Israel under David and Solomon

Figure 2: Kingdom of Israel in the Middle East12

Jerusalem was first declared the capital of these territories during the reign of King David, which began around 1000 BCE.13 Many details of the following millennium are recorded in the Hebrew Testament. While Kings of Israel, he and his successor, King Solomon, expanded the borders of Israel (Figure 2). About 250 years later, the Israelite tribes of northern Israel fell to Assyrian conquest, led by Sargon II in 720 BCE.14 The southern tribes, dominated by Judah, continued to rule until the Holy Temple in Jerusalem, built under King Solomon,15 was destroyed by the Babylonians around 586 BCE, 16 who had conquered the land from 598 until 538 BCE.17 Babylonian conquest resulted in a forced exile of Jews, although the Jewish people were never fully removed from the land. Soon after, the Persian empire defeated Babylon and encouraged the Jews in Babylon to return under the leadership of Ezra and Nehemiah and they accordingly rebuilt the temple in Jerusalem, which then stood for half a millennium.

When the Roman Empire took control over the strategically vital land,18 they destroyed the temple yet again, in 70 CE19 - of which only the base remains to this day. Historically, the name Palestine arose when the Romans relabelled the land Syria Palaestina, derived from Philistine – Israel’s historic opponents based in what is today Gaza – the purpose of which was to erase the connection to the land of the rebellious Jewish people. The Roman Empire transitioned into the Byzantine Empire, which disintegrated gradually. Jerusalem finally fell under the control of Arab Caliphates, followed by Crusaders and Mamluks through the Dark Ages and Middle Ages of regional history. The Ottoman Empire then ruled over the region for 400 years from 1517 until 1917, bringing us into the 20th century.20

British Mandate to Reestablish Jewish Homeland

After the 1918 defeat of the Ottoman Empire in World War I, the League of Nations was formed. It entrusted the British Empire with a legal Mandate over Palestine. Discussions concerning the re-establishment of the Jewish state had begun earlier, as indicated in the Balfour Declaration presented by British Foreign Secretary, Arthur James Balfour, to the Lord Walter Rothschild on 2 November 1917. The one-page letter urged the British Parliament to support reestablishment of a national home for the Jews in their historical land (Figure 3).21

Balfour Declaration
Figure 3: The Balfour Declaration, Ministry of Foreign Affairs, gov.il22

Britain encouraged the League of Nations, which was formed in 1919 after WW1, to accept the proposition of a Jewish national home among its mandates to decolonise post-Ottoman territories. In San Remo in April 1920, the WW1 Allied Powers met in conference and concluded that there should be “establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”23

Figure 4: British Mandate for Palestine 191824
Figure 5: British Mandate & Transjordan 192025

The 1920 San Remo conference brought about a Mandate framework, ratified on by the League of Nations on 12 August 1922, which acknowledged “the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country…”.26 This was more than a declaration or an advisory opinion, but an enforceable legal agreement, unanimously agreed upon by all members of the League of Nations – the world governing body at the time.27 The legal foundations of the Jewish national home were established, resulting in an influx of Jews relocating to the Mandate and holding onto the promise of a Jewish nation.

In September 1922, 77% of the Mandate territory was reallocated by the League of Nations, in a deal to support diverse conflicting British regional colonial interests, including support of the Hashemite Arabian dynasty. The Mandate for Palestine territory, therefore, was split into two British administrations: a Hashemite Emirate of Transjordan – known in Arabic as East Jordan, east of the Jordan River – and the remaining 23% of the British Mandate for a Jewish homeland – west of the Jordan River. The San Remo conference and League of Nations resolutions were met with antagonism from the Arab populations living in and around the British Mandate of Palestine. Arabs in the region incited violence against the Jewish people and British troops, leading to an Arab revolt in 1936 and the establishment of the Peel Commission that year by the British Cabinet, looking to resolve the hostilities. On 12 March 1937, Winston Churchill – three years before becoming Prime Minister of the United Kingdom – presented before the Commission. In his testimony, he confirmed the desire to recreate the Jewish national home and to implement the League of Nations Mandate. He explained: 

“We said there should be a Jewish Home in Palestine, but if more and more Jews gather to that Home and all worked from age to age, from generation to generation, with justice and fair consideration to those displaced and so forth, certainly it was contemplated and intended that they might in the course of time become an overwhelmingly Jewish State.”28

Ultimately, the Peel Commission, under pressure from the collapse of the British Empire, Arab violence, and the need for stable supply of Middle East oil, introduced the Palestine Partition Plan. This would divide the remaining land west of the Jordan River into a Jewish nation and an Arab nation. Despite the League of Nations holding greater international legal authority than a national Commission's advice, British discussions shifted towards this partition. However, the Arabs rejected any partition for any Jewish homeland, while Zionist leaders agreed and discussed next steps with the British government.29 In 1939, as World War II broke out, the British Empire introduced an infamous ‘White Paper,’ limiting Jewish migration into the British Mandate to only 75,000 Jews over five years, in direct breach of its Mandate obligations.30 In implementing this 5,000 person annual limit, the British became complicit in the Holocaust, preventing millions of European Jews from obtaining refuge and knowingly sending refugees back to be imprisoned and murdered.

UN Negotiations 1947-1948

At the end of WWII (1945), the League of Nations was dissolved due to its failure to prevent WWII, and the United Nations Organisation was established in its place. The UN inherited much of the League of Nations’ work, including its approach towards the British Mandate. On 18 April 1947, the United Nations endorsed the League of Nations Mandate, in UN General Assembly document A/292:

"The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions. It shall also encourage, in cooperation with the Jewish agency referred to in Article 4, close settlement by Jews on the land. This includes State lands and waste lands not required for public purposes."31

Resolution A/292’s ‘Preamble’ acknowledged the “historical connection of the Jewish people with Palestine.”32 Furthermore, Article 80 of the UN Charter required the enforcement of “international agreements”, unless legally altered by another agreement, thereby preserving Jewish rights under the Mandate framework.

The UN, nevertheless, contained significant newly independent Arab states as members and opened discussions concerning ways of dividing the land, largely disregarding the Mandate from San Remo. In May 1946, the British-administered Emirate of Transjordan became independent, as the Kingdom of Transjordan. Deliberations continued over the boundaries for new Arab and Jewish states in the area west of the Jordan River. The UNGA introduced Resolution 181, published on 29 November 1947, which proposed a map dividing the Mandate area into an Arab state and a Jewish state (Figure 6).33 These states were to be formed of six discontinuous districts, three Arab and three Jewish, with an internationally administered condominium for Jerusalem and Jaffa. While the Jewish people accepted this proposition, Arab leaders refused to accept any coexistence with a Jewish state. 

On 7 April 1948, the UN discussed the implementation of the partition plan. It acknowledged two issues: The first was the unwillingness of Arab representatives from the west of the Jordan River — now known as Palestinians — to attend the discussion or to agree to any establishment of the Jewish State. The second was that there were “Powerful Arab interests, both inside and outside Palestine” who were “defying the Resolution of the General Assembly and are engaged in a deliberate effort to alter by force the settlement envisaged therein.” 34 The British situation – largely of its own making – was untenable. Consequently, the British Government announced its unilateral withdrawal from administration of the Mandate, effective from midnight on 14 May 1948.

United Nations Partition Map, 1947
Figure 6: Resolution 181 Partition Plan, United Nations 35

Modern Israel Re-Established 1948

On 14 May 1948, the Jewish leadership in the Mandate area declared the Jewish State re-established. The next day, Egypt, Iraq, Lebanon, Saudi Arabia, Syria and Transjordan – in addition to militaries from as many more surrounding Arab nations – joined forces to attack the newly born Jewish nation. After 18 months, they were still unsuccessful in destroying the newly created Jewish state. Nonetheless, Egypt had taken Gaza, and Transjordan had taken Judea and Samaria, as well as East Jerusalem.36 All Jews previously living in these areas were murdered or expelled. Neither Egypt nor Jordan recognised any right for separate local Arab statehood in the areas under their control.

After this 1948-1949 War of Independence, armistice agreements with Israel were adopted by its immediate neighbouring invaders: Egypt, Syria, Jordan and Lebanon. Despite agreeing to suspend hostilities, the agreements did not establish peace or agreed-upon borders.37 Israel sought peace and the opportunity to develop. It held swamp lands and ruins that remained from millennia of Levantine conflicts. However, the Hashemite Kingdom of Transjordan formally annexed Judea, Samaria and East Jerusalem in 1950, authorised Arabs living in these regions to obtain Jordanian citizenship, changed its own name to Jordan and renamed Judea and Samaria as its ‘West Bank’.38 During the 19 years of Jordanian control over Judea, Samaria and East Jerusalem, only two nations acknowledged Jordan’s sovereignty – the United Kingdom and Pakistan.39

In Gaza, Egypt organised local “fedayeen” to engage in guerrilla and terror attacks across the border inside Israel. In Cairo in 1964, the Palestinian Liberation Organisation (PLO) was established as a representative body for Palestinians to fight the Jewish state. In deference to Egypt and Jordan, the PLO founding Charter specified it had no sovereignty over Gaza, Judea and Samaria and conceded to conduct only political, organisational and financial activities there. As set out in Article 24 of the original PLO Charter:

“This Organization does not exercise any territorial sovereignty over the West Bank in the Hashemite Kingdom of Jordan, on the Gaza Strip or in the Himmah Area. Its activities will be on the national popular level in the liberational, organizational, political and financial fields.”40

Thus, it made no demand for a separate Arab state in those areas, focusing instead on the dismantling of the Jewish state.

Rule of Uti Possidetis Juris

The 1923 San Remo Agreement enshrined legal obligations upon the British Mandate to give effect to Jewish rights to a homeland in Palestine. These binding rights activated the uti possidetis juris rule, which is the customary international legal right of a new or successor state to align national territory boundaries along the same lines as its predecessor. For example, newly independent countries in East Africa, such as Kenya and Uganda, kept the borders that they had had as British colonies, and newly independent Eastern European and Central Asian republics kept the borders that they had when part of the Soviet Union.

Uti possidetis juris is customary international law, established since Roman times41 and continues to apply to nations achieving independence from an imperial power, keeping their borders from when they were under the previous ruler. This promotes political stability in establishing borders post-colonial imperial control.42

This uti possidetis juris rule applies to the area of the British Mandate and its successor state, Israel. Following the division of the original British Mandate to excise Transjordan, the revised Mandate of Palestine was the rump area west of the Jordan River. The only successor state that arose there was Israel. Under the 1923 San Remo Agreement, this area included Judea and Samaria43 and the Gaza Strip.44 Consequently, the entirety of Gaza and West Bank should be considered Israeli, under the principles of uti possidetis juris.45

The relevance of the San Remo Agreement, the Mandate area and the uti possidetis juris rule persist under the UN Charter. Article 80 of the UN Charter specifies that, unless another agreement is reached or concluded, nothing can be done to act inconsistently with “existing international instruments”.46 The significance of the San Remo Agreement continues, as it has never been negated by any treaty transferring sovereignty over Judea and Samaria to another state. The area of the Mandate remains under the San Remo Agreement, and the uti possidetis juris rule continues to apply to the borders of the successor state, called Israel.

Judea and Samaria Restored in the 1967 Six-Day War

Despite signing armistice agreements in 1949, the Arab states sought again to annihilate the Jewish state in 1967. In June, they mobilised their militaries towards Israeli borders and declared war. On 5 June 1967, in ‘Operation Moked’, Israel pre-emptively struck Egyptian forces, thwarting Egypt’s attack plan.47 Jordan launched attacks that day, as did Syria. The Israeli Defence Force combatted them, pushing all hostile forces back beyond their borders, capturing the Golan Heights, Sinai Desert, Judea, Samaria and East Jerusalem.48 The war ended after six days, as Israel dealt fast and decisive blows to the three Arab aggressor states, with miraculous success. Following its victory in the war, Israel’s area of control was largely expanded. Israel sought to establish talks to achieve peace in exchange for the return of lost Arab territories. However, the Arab League countries adopted their “three-Nos”: No Negotiation, No Recognition, No Peace with Israel.

Following the Six-Day War, on 22 November 1967, the UN Security Council adopted Resolution 242, which called for Israeli withdrawal from the territories occupied in the 1967 war, and for every state in the area to live in peace within secure and recognised boundaries.49 The 2024 opinion of the majority in the International Court of Justice discussed Resolution 242, quoting the demand for Israel to return land acquired after the war but not the remainder of the resolution. The Court ignored Resolution 242’s requirement for all states to acknowledge the “sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognised boundaries free from threats or acts of force.”50 This additional criterion still has not been satisfied by all Israel’s neighbours. By its deliberate omission of the second half of the resolution, the ICJ did not appropriately address the meaning of Resolution 242.

Following Resolution 242’s adoption, Lord Caradon, who wrote and presented Resolution 242 to the Security Council in 1967, was questioned about its contents. He explained that the Resolution must be read and applied in its totality. Removing or extracting from it would be problematic. Lord Caradon acknowledged that the enforcement of peaceful relationships and borders are as important as the withdrawal from some of the occupied lands. Furthermore, he reinforced that the Resolution did not demand that Israel withdraw from all the land captured during the Six-Day War.51

This was reinforced by the Secretary of State for Foreign and Commonwealth Affairs in the United Kingdom, Michael Stewart. When questioned about the Resolution and Israeli withdrawal, he said:

"No, Sir. That is not the phrase used in the Resolution. The Resolution speaks of secure and recognized boundaries. These words must be read concurrently with the statement on withdrawal… the omission of the word ‘all’ before the word ‘territories’ is deliberate.”52

The position, therefore, was that the Arab states were obligated to ensure secure, recognised Israeli borders as a condition for Israeli withdrawal. Furthermore, there was no Israeli obligation to withdraw from ‘all’ of the territories Israel had control over after 1967 until this condition was met at the borders. In fact, 1949 armistice lines were not mentioned in Resolution 242, and there was no international specification of armistice lines as the approved final boundaries. Rather, there had to be negotiations concerning boundaries that would be secure.53

Former President of the ICJ, Stephen Schwebel, explained in his analysis of the legal denouement of the Six-Day War that:54

  1. “A state acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense.

  2. As a condition of its withdrawal from such territory, that state may require the institution so security measures reasonably designed to ensure that the territory shall not again be used to mount a threat or use of force against it of such a nature as to justify exercise of self-defense.

  3. Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.”

Applying Schwebel's framework, Israel's control of Arab territories arose from lawful self-defence, and its consent to withdrawal was properly conditioned on receiving credible security guarantees — which the surrounding states would not provide. Further, Israel held a better title than Transjordan to Judea and Samaria.

Renewed Jewish Presence in Judea & Samaria

Despite widespread condemnation of Jewish settlement in Judea and Samaria, the claim that Israel’s presence beyond the 1949 armistice lines is illegal is incorrect. Israeli civilians voluntarily moving to live there does not violate the Geneva Conventions. Article 49(6) of the Fourth Geneva Convention prohibits an occupying power from deporting or transferring parts of its own civilian population into occupied territory.55

Article 49(6) was drafted to prevent forcible transfers of the kind seen during the Second World War. This is evident from the wording of Article 49 and is confirmed by a clear departure from its wording within the 1998 Rome Statute, which was devised half a century later to address Jewish settlement in Judea and Samaria explicitly and to criminalise in the International Criminal Court conduct that was not otherwise previously considered illegal. Many legal scholars challenge the misapplication of Article 49(6) to Israeli civilian presence in Judea, Samaria and Jerusalem. Moreover, Article 49(6) is irrelevant to Israeli military presence, which remains legal.

Furthermore, there was/is no undisputed sovereign over Judea and Samaria whose sovereign territory was occupied by Israel.56 The Fourth Geneva Convention assumes the existence of a displaced sovereign, but this was not the reality when Israel took control of Judea and Samaria in 1967. It did not displace a prior Palestinian sovereign, and Jordan’s own claim was weak and widely condemned. Israel did not invade the sovereign territory of a Palestinian state but, rather, assumed through self-defence control over territory with contested and unresolved legal title.57

The law of military occupation requires the exercise of a foreign military authority over a region owned by another state. The assertion that Israel is occupying Judea and Samaria is problematic because Israel did not occupy the land from any other country with sovereign title. No Palestinian Arab state was ever established in Judea and Samaria, and Jordan’s risible claim has since been abandoned by it. To the contrary, Israel holds the strongest legal title.

Competing Palestinian Claims to Judea and Samaria Post-1967

Two Arab states neighbouring Israel eventually concluded peace agreements: Egypt and Jordan, in 1979 and 1994, respectively.  Syria and Lebanon still refuse to acknowledge the Jewish nation, recognise Israeli borders or make peace.58

Israel withdrew from the Sinai desert in exchange for the 1978-9 Camp David peace agreement with Egypt. In 1988, Jordan’s King Hussein, for internal political reasons, publicly ceded Jordanian sovereign claims to the “West Bank” and Jerusalem, stating that Jordan was “dismantling the legal and administrative links between the two banks.”59 This enabled Jordan to adopt an advantageous peace agreement with Israel and also enabled the PLO then to amend its charter and to claim Palestinian Arab sovereignty over Judea and Samaria in place of Jordan.

Oslo Accords

In 1993, following the shift in Arab claimant title from Jordan to the PLO, Israel and the PLO met to negotiate and adopt the Oslo Accords. The Oslo Accords were the first Israeli recognition of the PLO as a governing body for Palestinian Arabs. Oslo I accepted a PLO right of governance in the ‘West Bank’ and ‘Gaza’.60 Oslo II set out that “The aim of the Israeli Palestinian negotiations within the current Middle East peace process is, among other things, to establish a Palestinian Interim Self-Government Authority…”.61  

Under the Accords, Israel enabled the Palestinian Authority, as a PLO non-state governing body. The Accords established a division of Judea and Samaria into three categories of zones: Area ‘A’, the urban zones fully administered by the Palestinian Authority; Area ‘B’, urban zones civilly administered by the Palestinian Authority but with shared security control with Israel due to their sensitivity for Israeli security; and Area ‘C’, which is largely uninhabited by Arabs and is fully administered by Israel. The Oslo Accords, therefore, set up a system of differing interests and levels of authority over various parts of Judea and Samaria. This three-way division remains in place to this day (Figure 7).

Area ‘C’ comprises 60% of Judea and Samaria. Israeli law applies there by default, including civil planning and property laws. Therefore, Israeli governmental approval of civilian development in Judea and Samaria is fully consistent with the Oslo Accords. This formula under the Oslo Accords was agreed by the PLO and Israel as main parties, and by the EU, Russia, the UN and the USA as secondary parties. Under it, the PLO agreed to Israeli authority in Judea and Samaria as an internationally recognised legal right.

Areas A-B-C
Figure 7: Division of Judea and Samaria into Areas A, B, and C under the Oslo Accords, The Bridge to Israel 62

Palestinian Autonomy Negotiations

The Oslo Accords did not resolve sovereignty over Judea and Samaria. To the contrary, the Accords institutionalised the territory’s interim and unresolved legal status. The agreed framework left the most difficult issues of borders and sovereignty to future “final status” negotiations. Judge Sebutinde, in her dissenting opinion in the 2024 ICJ Advisory Opinion case, stated that:

“As can be seen … the relevant organs of the United Nations have consistently envisaged a permanent resolution of the Israeli-Palestinian conflict based on good faith negotiations between Israeli and Palestinian representatives working towards the achievement of a just and sustainable two-State solution. A solution cannot be imposed from outside, much less through judicial settlement. This context must be kept in mind in assessing the current General Assembly’s request for an Advisory Opinion.”63

In 1998, under the efforts of President Clinton, Israeli Prime Minister Benjamin Netanyahu and PLO Chairman Yasser Arafat signed the Wye River Memorandum. It established a phased plan for implementing outstanding commitments under the Oslo process. Israel agreed to transfer 13% of Area C to the Palestinian side – 1% to Area A and 12% to Area B – and a further 14.2% of Area B was to be reassigned as Area A.64 In return, the Palestinian side undertook increased security obligations, including measures to prevent terrorism, crime and hostilities, combat terrorist organisations, collect illegal weapons, prevent incitement, and cooperate with Israel and the United States on security matters. Furthermore, the PLO was to modify its charter, which still called for the destruction of the Jewish state. 65 The Wye River Memorandum obliged both parties to continue “final status” negotiations after the agreement was signed, reaffirming the obligation set out in the Oslo Accords, that the status of Judea and Samaria would remain unchanged until ‘permanent status negotiations’ were finalised.66 Israel implemented the transfers of land to the PLO’s control, but observed that the PLO fell short on all other requirements.67

Concerning final status negotiations, in 2000, the Israeli Prime Minister, Ehud Barak, met with the PLO Chairman, Yasser Arafat, in discussions facilitated by the United States. Israel offered the PLO statehood as well as 94% of Judea and Samaria. Arafat rejected these propositions, aligning with the ‘three-No’s’ policy. Soon after, the PLO launched the second intifada, killing over 1,000 Jews and injuring thousands more in Israel.68

Six years later, Israeli Prime Minister Ehud Olmert, and President of the Palestinian Authority Mahmoud Abbas, reinstated discussions to resolve the ongoing conflict and status of Judea and Samaria.69 Despite being offered the most generous land offer to date, Abbas refused the offer.70 The Palestinian Authority never returned to the negotiation table, despite Israeli invitations.

Instead, the Palestinian leadership sought international intervention, trying to supersede previous agreements. This is a politically feasible strategy because the largest voting caucus within the UN, which is the 57-member Organisation of Islamic Cooperation, leverages a reliable additional 60 votes from neighbouring African, Asian and fossil fuel import-dependent countries to secure consistent majorities in favour of its anti-Israel positions. Arab coercive control through oil supply was demonstrated in 1973, when the Middle Eastern nations imposed an embargo on countries sympathetic to Israel, limiting oil exports to them, created an oil shortage and triggered an international energy crisis.71 These coercive measures resulted in changes in policies towards Israel for many nations, particularly in Europe. Their new political positions disregarded Hebrew historical indigeneity and contemporary Jewish legal claims to the land, deliberately.

Conclusion

There is only one Jewish people, and only one country that they hold sacred through indigenous, historical, religious and legal claims. Judea and Samaria are central parts of that country.

Judea and Samaria are not territories susceptible to the usual idea of military occupation of foreign territory by the Jewish people. Jordan’s illegal annexation lacked legitimacy, and no Palestinian state ever exercised sovereignty over the territory. The Mandate instead called for close Jewish settlement there and it was never legally superseded.

Whether one ultimately accepts Israel’s legal position or not, the legal status of Judea and Samaria remains far more complex than contemporary discourse often suggests. The discreditable 2024 Advisory Opinion of the International Court of Justice misleadingly treated these complexities as settled. They are not.

Historical legal instruments, the law governing territorial succession, the absence of a displaced sovereign, the negotiated framework established by the Oslo Accords and the unresolved requirements of Resolution 242 all indicate that sovereignty over Judea and Samaria is contested and that Israel has by far the strongest claim to legal title.

Efforts in the United Nations to remove the legal rights of the Jewish people to that land through lawfare are abuses of voting bloc power that disregard international law and disdain fundamental principles of humanity. To delegitimize Israel’s legal rights in Judea and Samaria, international law is not merely deployed but also increasingly misused and subverted. Inevitably, such cynical lawfare corrodes the international legal order and rots international political relations. In that ploy, everyone can lose and none succeed. It is a folly to be avoided.

Among the factors to be weighed in the negotiated settlement that has long been contemplated as the only durable resolution to the conflict in Judea and Samaria, Jewish self-determination and indigenous land rights, informed by tested historical evidence and by international law applied honestly and consistently, must be included and considered.

Notes

  1. Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (Advisory Opinion) [2024] ICJ Rep.↩

  2. Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied Palestinian Territory, Including East Jerusalem, GA Res 77/247, UN Doc A/RES/77/247 (30 December 2022) [18].↩

  3. Julia Sebutinde, Dissenting Opinion in Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (Advisory Opinion) [2024] ICJ Rep (19 July 2024).↩

  4. United Nations Charter, Art 2(4).↩

  5. United Nations Charter, Art 51.↩

  6. United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (13 September 2007) <https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf>.↩

  7. Art 10, United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (13 September 2007).↩

  8. Ibid Art 26.↩

  9. ‘Books of the Hebrew Bible’ (Encyclopædia Britannica, Web Page) https://www.britannica.com/topic/Hebrew-Bible/Books-of-the-Hebrew-Bible.↩

  10. Mark, Joshua J, ‘Kingdom of Israel’ (Web Page, 26 October 2018) World History Encyclopedia <https://www.worldhistory.org/Kingdom_of_Israel/>.↩

  11. ‘Palestine’ (Encyclopædia Britannica, Web Page) https://www.britannica.com/place/Palestine.↩

  12. Maps of the Middle East, BCE: The Kingdom of Israel under David and Solomon (Web Page) Jewish Virtual Library <https://jewishvirtuallibrary.org/map-of-the-kingdom-of-israel-under-david-and-solomon>.↩

  13. ‘David’ (Encyclopædia Britannica, Web Page) https://www.britannica.com/biography/David.↩

  14. Andrea Squitieri, ‘Assyrian Conquest and Ruralization: Unveiling Territorial Dynamics in the Provinces of Magiddû and Samerina’ (2024) 56(2) Levant 239.↩

  15. ‘Solomon’ (Encyclopædia Britannica, Web Page) https://www.britannica.com/biography/Solomon.↩

  16. ‘Temple of Jerusalem’ (Encyclopædia Britannica, Web Page) https://www.britannica.com/topic/Temple-of-Jerusalem.↩

  17. ‘Babylonian Captivity’ (Encyclopædia Britannica, Web Page) https://www.britannica.com/event/Babylonian-Captivity.↩

  18. ‘Temple of Jerusalem’ (n 16).↩

  19. Ibid.↩

  20. ‘Ottoman Empire’ (Encyclopædia Britannica, Web Page) https://www.britannica.com/place/Ottoman-Empire.↩

  21. The San Remo Conference (Web Page, April 19-26, 1920) Jewish Virtual Library <https://jewishvirtuallibrary.org/the-san-remo-conference>.↩

  22. The Balfour Declaration (Web Page, 29 October 2017) State of Israel <https://www.gov.il/en/pages/the-balfour-declaration-29-0ct-2017>.↩

  23. Mandate for Palestine - Text - English (1922) (Web Page) Economic Cooperation Foundation <https://ecf.org.il/media_items/291>.↩

  24. Map of Pre-1948 Palestine: Jewish National Home Determined by San Remo Conference (Web Page) Jewish Virtual Library <https://jewishvirtuallibrary.org/map-of-jewish-national-home-determined-by-san-remo-conference-1920>.↩

  25. Mandatory Palestine JewishWikipedia.info <https://www.jewishwikipedia.info/israel_britishmandate.html>.↩

  26. Mandate for Palestine - Text - English (1922) (Web Page) Economic Cooperation Foundation <https://ecf.org.il/media_items/291>.↩

  27. Covenant of the League of Nations, Art 22 <https://avalon.law.yale.edu/20th_century/leagcov.asp>.↩

  28. Winston Churchill in Camera Testimony (Web Page) ebrary <https://ebrary.net/239620/education/winston_churchill_camera_testimony>.↩

  29. Weizmann and the Peel Commission (Web Page) State of Israel <https://www.gov.il/en/pages/weitmann_peel_commission>.↩

  30. British White Paper Restricts Jewish Immigration and Land Purchase (Web Page, 17 May 1939) Center for Israel Education <https://israeled.org/white-paper/>.↩

  31. Art 6, Mandate for Palestine (League of Nations, 24 July 1922) <https://digitallibrary.un.org/record/829707?v=pdf>.↩

  32. Ibid Preamble.↩

  33. United Nations General Assembly, Res 181, Future Government of Palestine (29 November 1947) <https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/A%20RES%20181%20(II).pdf>.↩

  34. United Nations Palestine Commission – First Draft – Special Report to Second GA Special Session (Working Paper, 7 April 1948) United Nations <https://www.un.org/unispal/document/auto-insert-211068/>.↩

  35. Liora Chartouni, ‘70 Years after UN Resolution 181: An Assessment’ (Web Page, 29 November 2017) Jerusalem Center for Foreign Affairs <https://jcfa.org/article/70-years-un-resolution-181-assessment/>.↩

  36. The War of Independence – Introduction (Web Page) State of Israel <https://www.gov.il/en/pages/the-war-of-independence-introduction>.↩

  37. Ibid.↩

  38. History of Jerusalem: Jordanian Annexation of the West Bank (Web Page) Jewish Virtual Library <https://jewishvirtuallibrary.org/jordanian-annexation-of-the-west-bank-april-1950>.↩

  39. Ibid.↩

  40. Palestine National Charter (1964) (Web Page, 28 May 1964) <https://palestina-komitee.nl/wp-content/uploads/2017/11/Palestine-National-Charter-1964.pdf>.↩

  41. Abraham Bell and Eugene Kontorovich, 'Palestine, Uti Possidetis Juris and the Borders of Israel' (2016) 58(3) Arizona Law Review, 635.↩

  42. Ibid, 643.↩

  43. Ibid, 675.↩

  44. The Hague Statement of Jurists on the Israel-Palestine Conflict (The Hague Initiative for International Cooperation, 31 October 2017) 3.↩

  45. Abraham Bell and Eugene Kontorovich, 'Palestine, Uti Possidetis Juris and the Borders of Israel' (2016) 58(3) Arizona Law Review, 633, 681.↩

  46. Repertory of Practice of United Nations Organs, ch XII, art 80 (United Nations) <https://legal.un.org/repertory/art80.shtml>.↩

  47. Israel Defense Forces, 'Operation Moked (1967)' (Web Page, Israel Defense Forces) https://www.idf.il/en/mini-sites/wars-and-operations/operation-moked-1967/.↩

  48. 1967: The Six-Day War and the Historic Reunification of Jerusalem (Web Page) State of Israel <https://www.gov.il/en/pages/1967-the-six-day-war-and-the-historic-reunification-of-jerusalem>.↩

  49. United Nations Security Council, Res 242, The Situation in the Middle East (22 November 1967) <https://digitallibrary.un.org/record/90717?v=pdf>.↩

  50. SC Res 242, UN Doc S/RES/242 (22 November 1967).↩

  51. Statements Clarifying the Meaning of UN Security Council Resolution 242 (Web Page) State of Israel <https://www.gov.il/en/pages/statements-clarifying-the-meaning-of-un-security-council-resolution-242-22-nov-1967>.↩

  52. Ibid.↩

  53. Wolfgang Bock, Andrew Tucker and Gregory Rose, 2023, “Two States for Two People” The Palestinian-Israeli Conflict, International Law and European Union Policy, 125-126.↩

  54. Stephen M. Schwebel, 'What Weight to Conquest?' (1970) 64(2) American Journal of International Law 344, 345–6.↩

  55. Art 49(6), Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950).↩

  56. Edmund E. Levy, Tehiya Shapira and Alan Baker, The Levy Commission Report on the Legal Status of Building in Judea and Samaria (21 June 2012) 7-8.↩

  57. Yehuda Z Blum, The Missing Reversioner: Reflections on the Status of Judea and Samaria, Israel Law Review, Vol 3 , Issue 2, April 1968, pp. 279 - 301 < https://www.cambridge.org/core/journals/israel-law-review/article/abs/missing-reversioner-reflections-on-the-status-of-judea-and-samaria/F61F4D40B648EA14D3EE8C6CA2AECAD3 >.↩

  58. United Nations Security Council, Res 242, The Situation in the Middle East (22 November 1967) <https://digitallibrary.un.org/record/90717?v=pdf>.↩

  59. Speech by Jordanian King Hussein on Jordan’s Separation from West Bank (31 July 1988) Center for Israel Education <https://israeled.org/wp-content/uploads/2019/10/8-1988-7-July-31-Speech-by-Jordanian-King-Hussein-on-Jordan’s-Separation-from-West-Bank.pdf>.↩

  60. Declaration of Principles on Interim Self-Government Arrangements (‘Oslo I’) (Israel–PLO, signed 13 September 1993), Art 3 < https://avalon.law.yale.edu/20th_century/isrplo.asp >.↩

  61. Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo 2) Preamble, (28 September 1995) Economic Cooperation Foundation <https://israeled.org/oslo-accords/>.↩

  62. Areas A, B, and C (Web Page) The Bridge to Israel <https://tbtnisrael.com/areas-a-b-and-c/>.↩

  63. Sebutinde (n 3) [35].↩

  64. Wye River Memorandum, Israel–Palestine Liberation Organization, 23 October 1998, Art I(A) <https://ecf.org.il/issues/issue/221>.↩

  65. Ibid, Art II.↩

  66. Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo 2) Art XXXI(7), (28 September 1995) Economic Cooperation Foundation <https://ecf.org.il/media_items/624>.↩

  67. Letter from the Permanent Representative of Israel to the United Nations to the Secretary-General, UN DocS/1999/105 <https://www.un.org/unispal/document/auto-insert-176306/>.↩

  68. The Second Intifada 2000 (Backgrounder, 18 May 2022) Anti-Defamation League <https://dc.adl.org/resources/backgrounder/second-intifada-2000>.↩

  69. Prime Minister’s Office (Israel), ‘PM Olmert Meets with Palestinian Authority President Abbas’ (Press Release, 23 December 2006) <https://www.gov.il/en/pages/pm-olmert-meets-with-pa-president-abbas-24-dec-2006>.↩

  70. Raphael Cohen-Almagor, ‘Annapolis and the Abbas-Olmert Direct Negotiations: A Critical Analysis’ (2026) Cooperation and Conflict (advance online publication) DOI: 10.1177/00108367251397783.↩

  71. Roy Licklider, ‘The Power of Oil: The Arab Oil Weapon and the Netherlands, the United Kingdom, Canada, Japan, and the United States’ (1988) 32(2) International Studies Quarterly 206.↩

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