Professor Michael Lynk, of Western University Law school, is the UN Special Rapporteur on human rights in the Occupied Palestinian Territories. In his most recent report, he recommends to the UN General Assembly that it examine whether the Israeli occupation of Palestinian territory is still legal after 50 years. Read more…
Most of the media attention over Professor Michael Lynk’s most recent report to the UN as special rapporteur for the Occupied Palestinian Territories, has concentrated on the strong words he has used to describe the deteriorating situation in the West Bank and Gaza urging the Western countries to intervene. He has been denounced by US Ambassador to the UN for urging that Western countries apply sanctions on Israel.
However, mostly overlooked has been the most innovative and potentially explosive element in the report – his recommendation that the UN examine the legality of Israel’s 50 year occupation of the Palestinian territories.
Contrary to the belief of many, occupations of one country’s territory by another are legal under international law. The US occupations of Germany and Japan after WWII, were legal. But under international law, occupations are meant to be temporary, and must follow accepted rules around what can, and cannot be done by an occupying power. Many of those rules are embodied in the 4th Geneva Convention.
Since 1967, Israel has been repeatedly criticized by the international community for its violations of the 4th Geneva Convention. For example, UN Security Council 2334 condemned illegal construction of Israeli settlements in the West Bank and Jerusalem.
But all of those condemnations assumed that the occupation itself was legal.
However, in his most recent report, UN Special Rapporteur Michael Lynk has raised an interesting issue – when does an “occupation” become an “annexation”? After 50 years, is the Israeli occupation of the West Bank, really no longer an occupation, but an attempt to seize territory by force which is expressly forbidden by international law.
He recommends to the UN General Assembly that it commission a study to determine whether the occupation itself has now become illegal under international law.
The entire report is available from the UN here but here are a few excerpts:
The Legal Framework of Occupation
- In June 2017, Israel’s occupation of the Palestinian territory – the West Bank, including East Jerusalem, and Gaza – marked its 50th anniversary. This is the longest-running military occupation in the modern world.[1] Notwithstanding insistent calls by the international community, most recently in 2016, that the Israeli occupation must come to a complete end,[2] and that many of its features are in profound breach of international law.
The Test as to Whether a Belligerent Occupation Remains Lawful
- As the Israeli occupation of the Palestinian territory has lengthened in time, and with many of its features found to be in flagrant violation of international law, some international legal scholars have raised the issue of whether an occupation that was once regarded as lawful can cross a tipping point and become illegal.
The Prohibition against Annexation
- Israel’s formal annexation of East Jerusalem in 1967 and 1980, and its de facto annexation of significant parts of the West Bank, are intended to solidify its claim for sovereignty. This constitutes a flagrant breach of the absolute prohibition against annexation and violates Israel’s obligations under international law.
Recommendations
- The Special Rapporteur recommends that the United Nations General Assembly:
- Commission a United Nations study on the legality of Israel’s continued occupation of the Palestinian territory;
- Consider the advantages of seeking an advisory opinion from the International Court of Justice on the question of the legality of the occupation;
Will it matter? It is not clear whether the UN will, in fact, act on Lynk’s recommendations. (Israel denies it is occupying Palestinian land despite repeated determinations by world bodies to the contrary.)
However, Lynk’s argument takes the discussion about Israel’s violations of the 4th Geneva Convention to another level. Instead of criticizing Israel for specific violations of the legally accepted rules governing an occupation, Lynk calls into question whether the occupation has become de facto an annexation of a territory by force, which is explicitly forbidden by the constitution of the United Nations itself. If so, Israel’s right to be a member of the UN would be called into question. In fact, under Chapter 7 of the UN Charter, it might even require collective action by the UN members to stop an illegal act.
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Canada Talks Israel/Palestine 
Smart man, Michael Lynk.
Israel desperately need the external pressure required to convince Israelis that they will be better off without the West Bank and the 2.4 million Palestinians who lives in that area.
I’m surprised to know that the occupation of the West Bank is currently considered legal by the UN.
I can’t see how a future resolution by the UNGA that changes the legal status of the occupation will have any effect on the Israeli public opinion, and that is only thing that matters.
@Ahik
Given that Israelis seem unable to tell, how do you know that Israelis would be better off without the West Bank?
@CD, After looking into that matter for nearly four decades, learning fluent Hebrew, rudimentary Arabic, talking to many Israelis, Jews, Muslim, Druz and Christian, spending some time on the ground in Israel, Gaza, the WB, I think I know what’s best for Israelis and Palestinians, and that is the two state solution.
@Ahik
Israelis also speak fluent Hebrew look int the matter and talk to Israelis, Muslims, Druze and Christians. They have also spent time on the ground. So why do you think they are unable to see what you do?
@CD host, my views are well within the spectrum of Israeli public opinions, in fact a majority among Israelis with university degree who served in the army believe that Israel will be better off without the West Bank (minus few border corrections)
Some Israelis might be affected by a moral or ethical argument. But I think most Israelis (like most Canadians or Americans) will go about their daily business until they find they can’t any more.
If a UN resolution leads to economic sanctions on Israel, for example, then people will have to start rethinking their options. If something like that doesn’t happen, then i don’t think things will change much
Obviously the UN probably isn’t the best venue for this. But there are some aspects of the case which if reopened could challenge the assumptions about the conflict.
1) There is the issue of partition. Since the 1930s the policy is one of partition. Given that Palestine never formed it could be the case that Israel is recognized as the successor government to the British Mandate in all of Palestine.
2) If the territory is occupied from whom is it occupied? What government is the claimant to it?
3) The inadmissibility of territory as the result of war is a weird doctrine. It is unclear what this even means. Nor is it evenly applied.
4) Were Israel to simply pull out of the non-Greenline Israel you’d have a situation very similar to the Bosnian Serbs in the West Bank.
5) It is permissible for peoples living in a territory to ask to be governed by a neighboring state. The UN has so far rejected the claim of Area-C residents to this right but that becomes worth discussing.
As for throwing Israel out of the UN that’s a terrible idea that leftists fantasize about. Let’s assume you get your wish and it happens. Israel is no longer a state and the Knesset is not the body in control of a government. The entire territory of the British mandate is now legally Palestine. The IDF is no longer a national army but a militia operating within Palestine. It becomes the obligation of the government of Palestine (Hamas? the PA?) to constrain the IDF, not the other way around. For fairly obvious reasons they are going to be unable to do that. And before someone objects with UN peacekeepers, 3000 lightly armed troops from Bangladesh in blue helmets aren’t going to last an hour against the IDF even if you magically teleported them into the territory. So the Palestinians are just going to lose what is now a civil war. During a civil war the standards for permissible violence go way up. I don’t see how that play works out well for the Palestinians.
Or heck they leave them officially in charge Now you want to accuse Israel of being an apartheid state is the Palestinians who are at fault. Its their government. Can’t blame the knesset faction governing nor IDF militia for how the state of Palestine under Abbas (Khaled Mashal) is governed.
A situation where you have two entities:
A: is able to make binding arrangements with other states, can exercise military control of a territory, is capable of administering civil law, can enforce judgements of the courts in the territory,
B: which can do none of those things but is called “the government”
is rather destabilizing. There is a good chance that Israel are going to get into in Syria. And if this gets ugly a lot of civilians are going to be killed. Do you really want the PA and the Assad Alawites being the ones responsible for coordinating the well being of those civilians or do you want to deal with the entities that actual can change the situation on the ground Israel and Iran?
Israel isn’t pretending to be the government of the West Bank, it is the government of the West Bank. The UN is the one pretending here. Increasing the degree to which the UN lives in the land of makebelieve doesn’t help the situation.