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During this spring's election campaign in Israel, Ehud Olmert was candid about his Kadima party's plan for disengagement from the West Bank. His message was simple: with no one to talk to on the Palestinian side, Israel would have to act unilaterally to define and secure its borders.

Kadima's plan for “realignment” mainly amounted to withdrawing at least 60,000 settlers into blocs adjacent to the so-called Green Line (the ceasefire line established in 1949 at the end of Israel's War of Independence) and declaring a permanent border. Olmert was careful not to describe the exact contours of this settlement evacuation, but he made clear that it would bring all the settlers within Israel's yet-to-be-completed security barrier, which has been under construction since 2002. An estimated 193,000 Israelis already live in the 8 percent of Judea and Samaria that is between the projected route of the barrier and the 1949 boundaries.

Given that the government of the Palestinian Authority (PA) is now controlled by the terrorists of Hamas, the Bush administration has gently indicated that, while it prefers a negotiated deal with the Palestinians, it is open to supporting Israel's unilateral drawing of borders to include limited amounts of territory gained in the Six-Day war of 1967. As Secretary of State Condoleezza Rice put it, employing a delicately diplomatic double negative, “I would not on the face of it just say absolutely that we don't think there's any value in what the Israelis are talking about.” When newly elected Prime Minister Olmert visited Washington in May, President Bush gave a similarly positive, if ambiguous, response, praising the Israeli leader for his “bold ideas.”

Other elements of the international community, however, have wasted no time in decrying Israel's effort formally to incorporate small parts of the West Bank. Speaking to the European Parliament in April, Javier Solana, the European Union's top foreign-policy official, lamented the “lack of dialogue with the Palestinian people in determining Israel's borders.” Not to be outdone, former President Jimmy Carter, writing in USA Today, condemned Kadima's program as a naked “land grab,” a violation of international law that no “objective member of the international community could accept.” On May 25, the New York Times chimed in, denouncing the idea of Israel's setting its own borders and lumping together Hamas, the government of Israel, and Bush as “two culprits and an enabler.”

In the view of Solana, Carter, the Times editorial board, and many other “objective” observers, the boundary between Israel and its Arab neighbors that prevailed between 1949 and 1967 is not just a historical baseline; it is a legitimate and well-established international border, one that the Jewish state has now ignored for nearly four decades. Such borders cannot be altered by force. As these critics see it, the Six-Day war of 1967 resulted in Israel's “occupation” of the West Bank (as well as of the Gaza Strip, Golan Heights, and East Jerusalem). Much as that action might have been required by the exigencies of the time, it gives Israel no ongoing title to those lands. Indeed, in the view of the critics, it makes Israel's long-term presence there nothing less than an ongoing crime.

But are these claims supported by the history of Israel's conflict with its Arab neighbors, to say nothing of the standards of international law? In the West Bank, is Israel, in fact, an “occupier”?

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With respect to Jewish settlement on the West Bank, the first document of any legal consequence dates from the San Remo Conference of 1920, where the victorious allied powers of World War I assigned the League of Nations mandate for Palestine to Great Britain. In doing so, they recognized, in the words of the mandate, “the historical connection of the Jewish people with Palestine” and the “grounds for constituting their national home in that country.” Article 6 of the document even “encouraged close settlement by Jews on the land,” land very much including the modern West Bank. ¹

Though the League of Nations ceased to exist after World War II, the established right of Jews to live in the territories of Palestine remained in force. When the United Nations was created in 1946, its charter specifically preserved the existing mandates of the League. A year later, in Resolution 181, the UN, facing Great Britain's withdrawal from its mandate, recommended the partition of Palestine. Though the resolution, like all actions of the General Assembly, lacked legislative authority—and thus did not vest territorial rights in the region's Jews or Arabs—it did express the wishes of the international community.

Or, at any rate, most of the international community. For partition of Palestine was rejected from the start by the Arab states. As Israel prepared to claim its independence, the forces of Egypt, Iraq, Lebanon, Syria, and Saudi Arabia made ready to invade, hoping to strangle the Jewish state in its cradle. Though this act of aggression failed, it did result in Jordan's forcible acquisition of the West Bank, in direct violation of the UN partition resolution and of the UN Charter. Jordan went so far as to purport to have annexed the area, but between 1949 and 1967, only two UN member states (Great Britain and Pakistan) recognized its sovereignty there. Indeed, even while asserting its claim over the West Bank, Jordan insisted that the dividing line established in 1949 was not an international border but rather, in the words of the armistice agreement, a provision “dictated exclusively by military considerations.”

What did all this mean for the West Bank's legal status? According to Sir Elihu Lauterpacht, editor of Oppenheim's International Law, one of the field's authoritative reference works, no state had sovereignty over the West Bank at the onset of the 1948-49 war. Jordan certainly could not then lay legitimate claim to the territory after acquiring it through armed aggression. ² Nor could the UN, since its partition proposal was merely hortatory—a recommendation—and in any event the organization's charter contains no authorization for it to assume territorial sovereignty anywhere. In these circumstances, Lauterpacht concludes, the British withdrawal from the territory of the mandate resulted in a lapse or vacancy of internationally recognized sovereignty. The West Bank was, in legal jargon, res nullius: a thing belonging to no state. In such a case, sovereignty in international law may be acquired by any state in a position to assert effective and stable control without resort to unlawful means—a situation that would not exist until 1967.

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It was with the Six-Day war of 1967 that Israel first came into possession of the West Bank, bringing down upon itself the now familiar charge of being an illegal “occupier” there. But a charge does not acquire moral or legal force simply through repetition over time, even if such repetition establishes it as conventional wisdom. Like the notion that Jordan or the UN or some other entity held valid title to the West Bank after 1949, the related notion that Israel's presence in the territory constitutes an “occupation” is utterly specious.

On May 15, 1967, President Gamal Abdel Nasser of Egypt sent his troops into the Sinai peninsula and massed them near the Israeli border. Syrian troops simultaneously assembled in the Golan Heights. A week later, Egypt closed the Straits of Tiran to Israeli shipping and blockaded the port of Eilat, thus halting the flow of oil to the Jewish state from its main supplier, the Shah's Iran. Under intense pressure from Nasser, Jordan's King Hussein signed a “defense pact” with the Egyptians. Algeria, Iraq, Kuwait, and Saudi Arabia also contributed troops and arms to the build-up.

About the purpose of these military measures there could be no ambiguity. Hafez al-Assad, then the defense minister of Syria, exultantly declared his forces ready “to explode the Zionist presence in the Arab homeland.” Nasser stated that “our basic objective is the destruction of Israel,” adding that the Arabs “will not accept any coexistence with Israel.” The Iraqi president, Abdur Rahman Aref, seconded these bloodthirsty sentiments in terms recently echoed by the current president of Iran: “The existence of Israel is an error which must be rectified. . . . Our goal is clear—to wipe Israel off the map.”

For Israel, these actions and statements constituted an unambiguous casus belli. Availing itself of the customary rights of international law, as well as the specific provisions of Article 51 of the UN Charter, the Jewish state set out to defend itself.

Surrounded on all sides and with its survival in the balance, Israel launched a remarkable series of air strikes on the morning of June 5, destroying the Egyptian and Syrian air forces while their pilots slept or ate breakfast. Simultaneously, Israeli armored units engaged Egyptians in the Sinai, while a small unit of the Israeli Defense Force (IDF) heroically held off Syrian troops entrenched on the Golan Heights and then pushed them back. That same day, Israeli Prime Minister Levi Eshkol sent a message to King Hussein of Jordan, promising that Israel would not attack if Jordan stayed out of the fight. But Hussein, convinced that the Arabs would win, rejected the offer, and the Jordanian Legion began shelling West Jerusalem. Jordan also made thrusts westward, including the occupation of Government House in Jerusalem, which had been used by UN observers. Israel retaliated, and within two days the IDF had routed the Jordanians and achieved, miraculously to the mind of Israelis, the reunification of Jerusalem. No less fatefully, the Jewish state, having initially planned to remain purely defensive on the Jordanian front, had now overrun Jordanian positions throughout Judea and Samaria—that is, the West Bank.

After six days of fighting, Israel might easily have marched on to Cairo, Damascus, and Amman. Under the traditional laws of war, it certainly would have been justified in doing so, with the aim of neutralizing its bellicose enemies. But having no desire to wage offensive war, Prime Minister Eshkol and his cabinet yielded to American wishes and on June 10 accepted a unilateral ceasefire. At this point, a series of diplomatic and juridical maneuvers took place, the consequences of which are still relevant today.

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