Nicholas Kristof was correct when stating several years ago in The New York Times that “many international legal scholars suggest that Israel’s occupation of the territories is not itself illegal.” One such scholar, George P. Fletcher, the Cardozo Professor of Jurisprudence at Columbia University School of Law, also writing in The New York Times, asserted that “it is not illegal for victorious powers to occupy hostile territory seized in the course of war until they are able to negotiate a successful peace treaty with their former enemies.”
Noam Lubell, formerly of B’tselem and currently a professor and Head of School at the University Essex School of Law, put it as follows in his BBC-commissioned report on international law in the Arab-Israeli conflict: “The term ‘unlawful occupation’ can be a misguided and confusing term, as it conflates the question of the resort to force with the rules of conduct, and obscures the distinction between the two.”
After critically exploring, and then rebutting, various arguments floated in favor of calling the occupation illegal, Lubell concluded that “the term ‘unlawful occupation’ is not a helpful term, and while there may be reasoning for using it – particularly on account of the link to denial of self-determination – this term is highly debatable.” (A couple of paragraphs earlier, Lubell quoted Alain Pellet, who Lubell calls “a notable expert on international law” and who, like Lubell, is a sharp critic of Israel, saying: “Even if the deprivation of its right to self-determination infringes an imperative norm of international law, occupation remains a legal institution, governed by the rules of law.”
Correction: October 14, 2015
An earlier version of this article referred incorrectly to the Golan Heights. While most of the world officially considers it to be occupied, and the settlements there illegal, there is no consensus that the occupation itself is illegal. The same error appeared in an earlier version of a caption with the accompanying slide show.