Editorial: The Legality of the Israeli Annexation – Redux

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Once the American Administration recanted its long standing position as regards Israeli settlements, one could expect, as day follows night, that a shift on annexation would also follow, much to the delight of the Israeli government. It played well to the internal political agenda of both governments. In the case of settlements the State Department at least issued a halfhearted legal justification. In the case of the annexation not even this. The fact that it may be seen as part of the American so called “Deal of the Century” (The Trump Peace Plan) does not in and of itself constitute a justification under international law.

Most observers, both within and without Israel, consider both annexation of, and most settlements in, the West Bank as blatant violations of international law, and rightly so. The establishment of settlements violates the prohibition on the transfer of the civilian population of the occupying power into the occupied territory, embedded in Article 49 of the fourth Geneva Convention, whereas annexation violates the UN Charter prohibition on the use of force. Additionally ― and of special significance should the matter of Israeli occupation end up before the ICC ― both annexation and most settlements contravene the duty of Israel to maintain the status quo in the occupied territory, embedded in customary humanitarian law; undermine the right of the Palestinian people to self-determination; and pose a threat to a range of basic human rights of the Palestinian population, including the right to private property and the right to freedom of movement. For although formally, annexation and settlement are two different acts – the former entailing the application of Israeli law, administration, and jurisdiction in the occupied territory and the latter involving the transfer of Israeli citizens into the territory without changing its legal status as occupied, from a realist perspective settlements may be seen as a form of “creeping” or de facto annexation, which is intended to ultimately lead to de jure annexation.

As noted, the Israeli and US governments do not consider it necessary to refute these arguments or to otherwise justify the annexation plan in legal terms, though it has become noticeable that there are some second thoughts in the American camp (and perhaps also in the Israeli camp) and they may be struggling to push the toothpaste back into the tube. This should come as no surprise when so much Governance is by Tweet. 

But, as expected, the blogosphere and the social media are exploding with a variety of legal justifications, which we would like to address briefly. For the most part, these arguments resurrect the legal analysis developed mostly 50 years or so ago in the period after the Six Day War and associated principally with the names of some distinguished international lawyers such as Julius Stone, Dean Eugene Rostow, World Court Judge Stephen Schwebel and most notably Professor Yehuda Blum, former Israeli Ambassador to the UN. More recently, these arguments were reiterated in the report on settlements submitted to the Israeli Government by the Levi Committee.

The arguments are not specious but were considered esoteric when originally presented, and have been rendered increasingly irrelevant by ensuing developments. The first argument is that Israel is entitled to sovereign rights in Judea and Samaria (that is, the West Bank), because this area forms part of the historical homeland of the Jewish people, and given that no other State or sovereign power had valid title when it was occupied by Israel during its lawful self-defense war in 1967 (The Doctrine of the Missing Reversioner). Although Israel has so far refrained from formally annexing the West Bank (with the exception of East Jerusalem), it has, so the argument goes, never lost its right to do so.

A second argument made sometimes is that even if Israel’s status is that of a Belligerent Occupier it is allowed to establish settlements in the occupied territories. According to this view the fourth Geneva Convention does not apply to the Israeli occupation of the West Bank because Israel did not occupy the West Bank from another Member State, and even if the Convention does apply, Article 49 prohibits only forced transfers of population into occupied territories, not voluntary transfers. Now, if the settlements are deemed legal, so should be the annexation of settlements to Israel, for what else can you do with the hundreds of thousands of settlers who live there?

However, most international lawyers reject these arguments. Strong refutations were first published shortly after the Six Days War, notably by Israeli scholars such as Yoram Dinstein, a former Dean of the Law Faculty and President of Tel Aviv University and considered by many to this day the ‘Doyen’ of Israeli public international lawyers. Today, there is a broad consensus among mainstream international lawyers, in Israel and abroad, both friendly and hostile to Israel, that though Israel legitimately occupied the Territories in a war of Self-Defense and as such the Occupation is not per se illegal, Israel’s status rests as a Belligerent Occupier pending an agreed peace settlement. Such status bestows neither sovereignty over, nor permanent title to, the Territories. It entails that Israel is not allowed to establish settlements in the occupied territories let alone to annex them. This is also the position of the World Court and that of most States in the world, friend and foe.

For a long time this has also been the formal position of Israeli governments of both Right and Left as well as of the Supreme Court of Israel. In countless cases the Court has operated under the premise that the West Bank is held by Israel under belligerent occupation, and in some cases it stated explicitly that since the occupation of the territory is temporary the settlements are also temporary.

In addition, in the intervening years a similarly broad legal consensus has developed among international lawyers and States, including Israel, which recognizes the Palestinians as a people with the attendant right to self-determination to be vindicated in the Territories. This legal status, too, militates against any kind of annexation – de facto or de jure.  

Resolution 242 of the Security Council adopted in the aftermath of the Six Day War is accepted by most States, including Israel, as the political and legal “cornerstone” for efforts to resolve the conflict. It balances Israel’s right “to live in peace within secure and recognized boundaries free from threats or acts of force” (which opens the possibility of security-driven boundary adjustments in any peace treaty) with “the inadmissibility of the acquisition of territory by war” and the principle of “[w]ithdrawal of Israeli armed forces from territories occupied in the recent conflict.” There have been attempts to construe the formulation “from territories” rather than “from the territories” as indicating an Israeli right to either hold on to the bulk of, and/or act as sovereign in, the Territories. The late Nathan Feinberg, the founding Dean of the Law Faculty of the Hebrew University in Jerusalem, and acknowledged widely during his lifetime as the greatest authority on the legal aspects of the Arab Israeli conflict, characterized that argument as being “… without a firm legal foundation … unconvincing, not helpful to peace and one that does not add honor to Israel.” And so it remains.

The continued settlement project and the open talk of annexation of parts of the West Bank have some consequences unintended by the Israeli government. It becomes more and more difficult to accept the claim that, since occupied legally, the remaining, non-annexed parts of the West Bank may be held by Israel pending a peace agreement. That proposition embodies an implicit assumption of good faith, otherwise it would just turn into an empty means for an unending occupation. It is not too difficult to find numerous instances where the good faith of both parties can be called into question. But annexation discourse, so egregiously in violation of international law generally and of resolution 242 more specifically, points the finger at the Israeli government and it is not surprising that an increasing number of States, not all belonging to the usual anti-Israeli crowd, are threatening full recognition of Palestinian statehood, effectively calling into question the per se legality of the Occupation and not just the violations of the law of belligerent occupation by the occupying power. Indeed, already for some time, one might have had the impression that the formal Status of the Territories as being subject to the law of belligerent occupation was but convenient lip service not matched by action. This last move has served to push many over the fence with what might be an interesting state practice regarding the good faith requirement mentioned above. Be that as it may, in a further application of the law of unintended consequences, the widespread condemnation by the international community of the Annexation plan will have served to entrench even further the inviolability of the principle of non-acquisition of territory by force, even force used in self-defense, a principle called into question by the Trump Peace Plan. 

There has been much comment on the recent decision of the Israeli Supreme Court to strike down the “Law for the Regulation of Settlements in Judea and Samaria”, which attempted to retroactively ‘regularize’ the confiscation of private Palestinian lands by Settlers (see, for example, here and here). This Law represented an egregious attempt in broad daylight directly to apply a law enacted by the Israeli Knesset to the occupied Territories, challenging the well-entrenched view that the legislative power in these territories rests with the Israeli Military Administration. The Court has thwarted this attempt by asserting that the Law violates the Israeli Basic Law on Human Dignity and Liberty and should therefore be deemed unconstitutional.

From a result point of view this decision was of course welcomed by liberal public opinion within and outside Israel. But the reasoning and legal foundations of the decision, as has been pointed out by some, is more complex and problematic. The Court’s choice to evade the preliminary question of whether a Knesset law can apply in the Territories, and to examine instead whether the Law’s infringement of Palestinians’ property rights is compatible with Israeli constitutional norms, can be seen in some paradoxical way as ‘annexationist reasoning’ that involves the de facto application of Israeli constitutional law to Palestinians in the Territories. It would have been better, in our opinion, had the Supreme Court relied exclusively on the norms of public international law – the law of belligerent occupation in particular – and struck down the offending law on that basis, thus reaffirming the occupied status of the Palestinian territories as well as the commitment of Israel to administer them in accordance with the international legal norms applicable to such territories.

The law of unintended consequences may operate in yet another way. In recent times Israel’s very legitimacy has come under increasing attack reminiscent of the early years of the State. Legally speaking, to destabilize the internationally accepted status of Israel’s recognized pre- 1967 boundaries, inextricably linked to the international consensus on the status of the Territories, could in the long term amount to a deep self-inflicted wound opening up and calling into question far more than the question of the Territories.

JHHW & MS

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Natasha Hausdorff says

June 29, 2020

The authors entirely disregard the impact of the principle of uti possidetis juris to claims of sovereign legal title arising at the critical date of independence of 14 May 1948. The principle, which is universally applied to delineate the borders of states emerging from pre-existing administrative entities, operates to provide stability and certainty at the birth of new states by upgrading pre-existing administrative lines into international borders. Israel was and indeed remains the only state to have emerged in the territory after termination of the British Mandate in May 1948.

The division of the British Mandate from the administrative unit of Transjordan clearly ran along the Jordan River southward to the Red Sea. When Israel assumed this as its border in 1948, that sovereign territory included East Jerusalem and the West Bank. Jordan’s subsequent occupation of that territory, until it was recovered by Israel in 1967, did not alter the territory’s legal status under international law, which had crystallised in 1948. Since then there has, as yet, been no final agreement with respect to borders or territory to alter the legal starting point in 1948.

To disregard the customary legal principle of uti possidetis juris and its impact in this case reflects a double standard. But then, so does the implication that claims Israel’s very legitimacy as a state might be uniquely impacted as a result of pressing its claim, as suggested by the authors in the final paragraph.

Michal Saliternik says

June 29, 2020

Thank you Natasha for your important comment.
Applying the principle of uti possidetis does not, in my view, lead to the conclusion that Israel has sovereign title to the West Bank. This is so for many reasons, including the fact that even if, in and of itself, the principle of uti ossidetis suggests that Israel’s sovereign rights extend to the Jordan River (and I doubt that this is so), in the case of conflict between the principle of uti possidetis and human rights, including the right to self-determination, the latter should prevail (whether on the basis of normative hierarchy or on the basis of flexible interpretation of uti possidetits, which has increasingly been adopted in recent years, notably by the ICJ in the 2013 Burkina Faso/Niger case).
These and other considerations relating to the application of uti possidetis to the Israeli-Palestinian dispute deserve separate discussion. In any event, if we adopt the view that in accordance with the uti possidetis principe Israel has a sovereign title to the West Bank and is allowed to annex it, than it cannot do so without granting citizenship to the local Palestinian inhabitants. Since the Israeli government has no intention to do so – the current governmental plans seem to be more in the direction of Palestinian Bantustans – I think the problem of double standard rests with the Israeli government, not with us.

Natasha Hausdorff says

June 30, 2020

Thank you Michal for taking the time to engage with my comment.
The application of uti possidetis juris in 1948 can only be informed by the legal and factual context at that time (the intertemporal rule). The subsequent human rights considerations you outline certainly inform how we should aim to progress these issues, and any political settlement, but they do not effect the legal starting point at Israel’s independence. The Intertemporal rule is material; even as late as 1986 in Frontier Dispute (Burkina Faso/Republic of Mali) the ICJ upheld uti possidetis juris against self-determination.

Where Israel has sovereign title, the proposals to alter the temporary administration and apply civilian law can on no account be termed “annexation”. I must disagree with the assumption of “Bantustans”, which is in and of itself agenda driven phraseology. Your suggestion is certainly contrary to the model applied in East Jerusalem, where those affected became residents with the option of citizenship. We will of course have to wait and see what the proposals actually entail.

REMACHA J.R. says

June 30, 2020

It is unsual to have the chance of finding clear texts and arguments on the Palestinian conflict. The difficulty is because most of them are writen from one or either side of the conflict. Arguments produced in the Israeli side do not in general take into account the Human Rights dimension of the problem. While the Palestinian view very often has a lack of realism.
This Talk deserves applause. It is positive for the sake of International Law, very much in danger in the Palestine conflict. To say nothing of the Middle East.