The ICJ Opinion on the Separation Barrier: Designating the Entire West Bank as “Palestinian Territory”

The UN General Assembly is a political body. It is not a global legislature that creates international law through its resolutions. Thus its designation of the whole of the West Bank as “Palestinian” must be seen as a political act and not as a legal determination.

The UN did not attempt to resolve the dilemma of how the West Bank could be defined as occupied “Palestinian” territory when its status as occupied territory presumably derived from Israel’s seizure of the area from Jordan, and a Palestinian state had never previously existed there, or anywhere. Since 1967 this territory has been essentially disputed land with the claimants being Israel, Jordan, and the Palestinians.

In March 1994, U.S. Ambassador to the UN Madeleine Albright stated, “We simply do not support the description of the territories occupied by Israel in the 1967 war as occupied Palestinian territory.”

The International Court of Justice (ICJ) Opinion says absolutely nothing about the fact that the League of Nations Mandate referred to “the establishment in Palestine of a national home for the Jewish people” and that this injunction was understood at the time by the League of Nations and by the British Mandatory Power as applying to the whole of Palestine west of the River Jordan, that is, including the present-day West Bank.

Israel may take comfort from the fact that, by implication, the ICJ Opinion invalidates objections by Arab states to the legitimacy of Israeli sovereignty on the Israeli side of the “green line.”