A second question

November 16, 2011

Re “Analyst: Int’l law protects guerrilla warfare,” November 9

In an otherwise accurate summary of my remarks in Princeton on international law and the battle against terrorism, a condensation of one aspect of my comments badly distorted what I said by leaving out the context (“Analyst: Int’l law protects guerrilla warfare,” Nov. 10). I did not say that for legal purposes the West Bank is occupied territory.

A member of the audience asked me to comment about the status of Gaza and the West Bank as occupied territory under the Geneva Conventions. I explained that for purposes of the Geneva Conventions there are two distinct criteria in determining whether territory is occupied. The first is whether the “occupier” actually exercises effective military control over territory. Plainly, Israel exercises no such control in Gaza. Equally plainly, Israel does exercise effective military control over the West Bank, and hence, in this sense, it is “occupied.” But that conclusion does not inevitably lend to an assumption that, for Geneva Conventions, the West Bank is occupied.

As I pointed out, there remains the second question about occupation: whether the West Bank was captured by Israel from a nation signatory to the Conventions. There is a dispute between Israel and others whether this element is satisfied with regard to the West Bank. I did not express any view about the correct resolution of this dispute.

Marc D. Stern
Associate General Counsel
American Jewish Committee