23 Berkeley J. Int'l L. 551 (2005)
Illegal Occupation: Framing the Occupied Palestinian Territory

handle is hein.journals/berkjintlw23 and id is 559 raw text is: Illegal Occupation: Framing the Occupied
Palestinian Terrority
By
Orna Ben-Naftali, Aeyal M. Gross & Keren Michaeli
... If all time is eternally present
All time is unredeemable.
What might have been is an abstraction
Remaining a perpetual possibility
Only in a world of speculation.
T.S. Eliot, Burnt Norton
I.
INTRODUCTION
A. The Missing Question of the Legality of an Occupation
Is the continued Israeli occupation of the Palestinian territory conquered in
1967 legal or illegal?1 We explore this question in this Article. Curiously,
amongst the wealth of legal writings on various aspects of this occupation, most
concern Israel's compliance or noncompliance with its obligations as an occupy-
Orna Ben-Naftali is a senior lecturer at the Law School, The College of Management, Academic
Studies in Tel-Aviv; Aeyal Gross is a senior lecturer at Tel-Aviv University Law Faculty; and Keren
Michaeli is a senior research fellow at the Law School, The College of Management, Academic
Studies in Tel-Aviv. Earlier versions of this paper were presented in the following conferences, and
the authors wish to thank their participants for their helpful comments: the Inaugural Conference of
the European Society of International Law (International Humanitarian Law Agora) (Florence, 13-15
May 2004); the Heinrich Boll Foundation, Annual Foreign Policy Conference on the Role of Inter-
national Law and the United Nations (Berlin, 24-25 May 2004); and the Conference on Democracy
and Occupation, held at the Concord Center for the Interplay Between International Law and Na-
tional Law, the Law School, The College of Management Academic Studies in Tel-Aviv (6-8 June
2004). The authors are grateful to Yuval Shany for his comments on an earlier draft of this article.
The authors also wish to thank the editors of the Berkeley Journal of International Law, and in par-
ticular Robert da Silva Ashley, Thomas W. Walsh, Alessandra Pelliccia, and Andrea Lindemann, for
their helpful work on this article.
1. In August 2005, Israel pulled out its settlements and military forces from the Gaza Strip.
The question whether this amounts to the end of the occupation in this area remains open and its de-
termination depends on factual and legal considerations relating to the notion of effective control,
which are beyond the scope of this article. Even if one assumes that Gaza is no longer occupied, our
discussion applies to the rest of the Palestinian territory, which Israel continues to occupy, i.e. the
West Bank including East Jerusalem, which constitutes a far more substantial area both in terms of
territory and the extent of Jewish settlements.

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