{"id":12205,"date":"2026-06-02T08:53:54","date_gmt":"2026-06-02T08:53:54","guid":{"rendered":"https:\/\/www.kohelet.org.il\/?post_type=article&p=12205"},"modified":"2026-06-02T08:53:58","modified_gmt":"2026-06-02T08:53:58","slug":"applying-the-israel-antiquities-law-in-judea-and-samaria-legal-memo","status":"publish","type":"article","link":"https:\/\/www.kohelet.org.il\/en\/article\/applying-the-israel-antiquities-law-in-judea-and-samaria-legal-memo\/","title":{"rendered":"Applying the Israel Antiquities Law in Judea and Samaria \u2013 Legal Memo"},"content":{"rendered":"\n

General Background<\/strong><\/p>\n\n\n\n

First, we must address the question of whether the international laws of occupation apply to Judea and Samaria, and if so in what manner.<\/p>\n\n\n\n

The State of Israel has never declared it would treat Judea and Samaria as occupied territory under the international law of armed conflict. To the contrary, Israel has repeatedly maintained that the area is not under occupation.<\/p>\n\n\n\n

Israel’s official position was formulated by Meir Shamgar, who served as the Military Advocate General in 1967 and later as Israel’s Attorney General. His position was first articulated in 1967 in Hebrew, and later in English as well, in an essay published in 1971. Shamgar argued that regarding the application of the Fourth Geneva Convention, Israeli governance in Judea and Samaria is a special case, sui generis. <\/em>These territories, along with the Gaza Strip, formed part of the British Mandate over the Land of Israel, and were seized by Jordan and Egypt in an illegal act of aggression. Shamgar distinguished between the aspects of the Fourth Geneva Convention intended to protect the rights of the original sovereign and restore its control over the territory – rights that are nonexistent in this case – and the humanitarian articles therein that Israel committed to observe in practice.<\/p>\n\n\n\n

To reiterate: the Israeli government has never declared the territory under occupation. As recently as July 19, 2024, the Prime Minister declared<\/a>: “The Jewish people are not occupiers in their own land, including in our eternal capital Jerusalem nor in Judea and Samaria”.  Moreover, Israel has carried out actions that would have been impermissible if the territory was considered occupied \u2013 such as applying Israeli law in Jerusalem and constructing housing for hundreds of thousands of citizens residing in the territory.  <\/p>\n\n\n\n

What Israel has done is to voluntarily apply the humanitarian provisions laid out in the laws of occupation. Although this has generated some confusion about Israel’s position, it in fact clarifies it: if the territory were occupied, there would be no possibility of voluntary or partial application of the relevant laws. The Israeli Supreme Court has accordingly made a point of stating, on several occasions, that the government’s position limits the application of the laws of occupation to the humanitarian articles, on a purely voluntary basis.[1]<\/a>  <\/p>\n\n\n\n

The peace agreement signed with Jordan in 1994 unequivocally ended the state of belligerency. This effectively laid to rest any remaining argument for applying the laws of armed conflict to the territory, even for those who had previously maintained their applicability. Accordingly, the United States recognized the legality of Jewish settlement in Judea and Samaria,[2]<\/a> and relocated its embassy from Tel Aviv to Jerusalem, in an area that came under Israeli control in 1967. The United States furthermore labels Israeli products from Judea and Samaria as “Made in Israel”, in contrast to the European approach. More broadly, after Israel’s position regarding the legal status of its control over Judea and Samaria being for many years a solitary one, it has now gained some degree of international validation – such as the full affirmation of Israel’s sovereign rights in Judea and Samaria in a minority opinion at the International Court of Justice. (Of course, the majority opinion in that ruling has no bearing on Israeli law.)[3]<\/a><\/p>\n\n\n\n

For Israeli bureaucrats to adopt the position that fully applies the laws of occupation to the State of Israel within the Israeli legal system, nearly 60 years on, is to take an unreasonable and extraordinary step.<\/p>\n\n\n\n