Rephael Stern, Boston University School of Law, has posted Inventing Israel's Legal Space, which is forthcoming in the University of Pennsylvania Journal of International Law:
The law of belligerent occupation has long taken center stage in legal debates concerning Israel/Palestine. In the nearly sixty years since Israel occupied the West Bank and Gaza during the June 1967 Arab-Israeli War, influential scholarship has examined an array of legal questions arising out of this ongoing military occupation. Unwittingly, however, this focus on the territories occupied in 1967 has precluded a thorough examination of earlier instances in which the law of belligerent occupation was at issue in Israel/Palestine.
This Article focuses on one prior pivotal instance: the 1948 Arab-Israeli War. Using original archival research, this Article sheds light on Israeli debates concerning the applicability of the law of belligerent occupation during this earlier foundational episode. It recounts how in the months following the establishment of the state of Israel in May 1948, Israeli government lawyers and politicians grappled with legal questions that arose as they attempted to govern the territories in former Mandate Palestine that were beyond the borders of the Jewish state that had been proposed in the United Nations 1947 Partition Plan. This Article shows how these officials shifted their views about the applicability of the law of belligerent occupation. Initially, they argued that these territories should be governed in accordance with the 1907 Hague Convention’s law of belligerent occupation. Eventually, however, they reversed course and recast these territories as “administered territories”—not “occupied territories”—thereby knowingly crafting a legally novel category outside the scope of the conventional international legal framework.
This Article makes two primary contributions. First, it both illuminates the contingency of Israel’s definition and redefinition of its legal and jurisdictional space and sheds light on the beginning of a now familiar pattern of simultaneous engagement and evasion that often characterizes Israel’s relationship with international law. Second, it demonstrates that the legal arguments deployed in 1948 served as a template for claims made after 1967 regarding Israel’s occupation of Palestinian territories. Understanding 1948 thus provides essential context for comprehending how Israel came to understand and justify its relationship to occupied territory—a relationship that has proven enduring and deeply controversial.
--Dan Ernst
