By Dr. Matthijs de Blois, Senior Fellow, thinc.
Introduction
International storms over the establishment of the US Embassy in Jerusalem, the US recognition of Israeli sovereignty on the Golan Heights and the legality of the settlements have died down recently, without real damage on the ground. Now a new real tempest is in the offing. The new Israeli government intends to extend Israeli sovereignty to parts of Judea and Samaria (West Bank), more specifically the Jewish settlements and the Jordan Valley. Prime Minister Netanyahu told the Knesset when presenting his new government on 17 May 2020: “These regions are the cradle of the Jewish people. It is time to extend Israel’s law over them. This step won’t bring us further away from peace, it will get us closer. The truth is, and everyone knows it, that the hundreds of thousands of settlers in Judea and Samaria will always stay put in any future deal.”[1] According to the coalition agreement concluded by the leaders of the main parties, Likud (Netanyahu) and Kahol Lavan (Blue and White) (Gantz), the government can begin moving towards the application of Israeli sovereignty to settlements and the Jordan Valley after the first of July 2020. These intentions were immediately met with fierce criticism. Palestinian President Abbas threatened to end the security cooperation with Israel. The Arab League supported the Palestinian position. The Jordanian King Abdullah warned that the Israeli “annexation” would lead to a massive conflict with the Hashemite Kingdom of Jordan. Condemnations were also voiced by the UN Special Mideast envoy Mladenov, the EU High Representative for Foreign Affairs and Security, Borrell Fontelles, and the Russian Foreign Minister Lavrov, while Archbishop Callagher, on behalf of the Vatican, and the World Council of Churches joined the choir.
The intentions of the Israeli government are brought to the fore at a time that the disputed territories of Judea and Samaria (West Bank) are already at the center of the preoccupation of lawyers, politicians and activists. Think of the Vision presented by the US Administration to move forward a peaceful solution of the Israeli/Palestinian conflict, the territorial proposals of which show similarities with the plan of the Israeli government.[2] Think also of the procedure started by the Prosecutor of the International Criminal Court (ICC) to investigate the situation in ‘The State of Palestine’.[3] The Prosecutor is convinced that the territories concerned (the West Bank including East Jerusalem) are to be considered part of the ‘State of Palestine’ for the purpose of the jurisdiction of the ICC under article 12(2)(a) of its Statute. She has not changed her mind on this, notwithstanding the observations of renowned scholars in the field of international law, and a number of States Parties, all arguing in their submissions before the Court that there is under international law no such thing as a ‘State of Palestine’ and as a consequence that the territory claimed by the Palestinians is not a territory of a State Party in terms of the Statute, with respect to which the Prosecutor could start her investigations. We have to wait for the Pre-Trial Chamber of the ICC to take a decision on the territorial aspects of the jurisdiction of the Court.
Is annexation at issue?
It is interesting to note that the term ‘annexation’ is not used by Israeli officials, but only by those who denounce the new move of the Israeli government. The terms used in the statement of Netanyahu are ’to extend Israel’s law over them [the Jewish settlements]’. This terminology reminds us of the approach chosen in 1967 when after the outcome of the Six Day War Israel united Jerusalem. The Knesset at that time adopted legislation, the Law and Administration Ordinance (Amendment No. 11) Law, 1967, to ensure the application of Israeli law in both parts of the City. The Israeli government did not at that time use the term ’annexation‘ either,[4] but the legal measures taken by Israel made it clear that it considered Jerusalem to be part of the State of Israel.[5] It is at the same time also clear why the critics insist on using the term ‘annexation’ because this is generally seen as being contrary to international law, more specifically the principle referred to in UN Security Council Resolution 242 (1967) of “the inadmissibility of the acquisition of territory by war”.
In order to clarify the legal aspects of the Israeli intentions it makes sense first to explore whether the proposed move can be qualified as annexation in terms of international law. According to the Oxford Public International Law online encyclopedia:“Annexation means the forcible acquisition of territory by one State at the expense of another State. It is one of the principal modes of acquiring territory (…). Annexation presupposes the effective occupation of the territory in question and the clear intention to appropriate it permanently (corpus et animus). Either parts of another State or its entire territory can be annexed.”[6]
If we reflect in this light on what happened in 1967, when after the Six Day War Israel acquired control over the areas in Judea and Samaria (West Bank) that are at issue in the new Israeli plans, it is impossible to qualify this as “the forcible acquisition of territory by one State at the expense of another State”. Israel did not occupy the territory of another State. The areas concerned were part and parcel of the territory to which the Mandate for Palestine applied, the Mandate that imposed the duty, in Article 2, to establish in Palestine a Jewish national home: “The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.”
The continuing legal validity of the Mandate for Palestine
Note that the Mandate envisioned a national home for the Jewish people, which within the framework of the Mandates system of the League of Nations was supposed to emerge into an independent Jewish State. Arab aspirations for self-determination were met in other Mandates (Syria and the Lebanon, Mesopotamia) and in the Arab Emirate, separated from of the Mandate territory east of the Jordan River. The Palestine Mandate provided for the protection of the civil and religious rights of the non-Jewish inhabitants; purposely political rights were not included. In addition to the central obligation of Article 2 the Mandate included Article 6 which provided that “The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage (…) close settlement by Jews on the land, including State lands and waste lands not required for public purposes.” The land refers to the whole territory which under the Mandate was destined for the establishment of the Jewish national home, and as a consequence for the settlement of Jews. After the separation in 1921 of the Mandate territory east of the Jordan River to create Transjordan, the land that remained for establishment of the Jewish homeland included all of the geographical area of Palestine from the Jordan River to the Mediterranean – that means also the territories of Judea and Samaria, including the Israeli side of the Jordan Valley that is at issue in the Israeli plans.
After Israel declared its independence on 14 May 1948, it was attacked, inter alia, by Trans-Jordan, which occupied Judea and Samaria, including ‘East-Jerusalem’ illegally, as the outcome of an aggressive war. All Jews were expelled and their synagogues were destroyed. (Trans-)Jordan annexed the territories in 1950, an annexation which was only recognized by the UK, Pakistan and Iraq. This means that Israel in 1967 acquired the control of territories to which the Jewish people was entitled under the Mandate. This entitlement is still valid, having regard to international law as it stands in 2020. Article 80 of the UN Charter, the transitional arrangement between the Mandate system and the UN Trusteeship system, provides that, as long as there is no trusteeship agreement in respect of a former Mandate territory – there has never been made one in respect of Palestine – “nothing in this Chapter shall be construed (…) to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.” This so-called “Palestine clause” undergirds the sovereign title of Israel to the territory of the former Mandate and it protects the rights of the Jewish people under the Mandate to “close settlement” in the Mandate territory. Moreover, if we apply the principle uti possidetis juris, we have to concludethat the administrative borders of Palestine at the time of Israel’s independence were the boundaries of the Mandate as they had been demarcated by the parties in their boundary agreements.[7] As a consequence of the application of this principle, the entire Mandate territory became the territory of the newly independent State.[8]
No ’annexation’
In the light of all this the proposal of the Israeli government is rather modest. It only intends to extend its sovereignty to parts of the former Mandate territory, primarily the areas where Jews have established themselves in accordance with their right of close settlement. And, finally, it is having regard to the foregoing appropriate for the State of Israel not to use the term ‘annexation’ for the extension of its law to an area in respect of which it already possess a valid title.
The Oslo Accords
The question may be posed whether the proposal of the Israeli government is in conformity with the Oslo Accords. According to Article V of the Declaration of Principles (1993) permanent status negotiations shall cover inter alia issues like settlements and borders. Moreover, Article XXXI (7) of the Interim Agreement (1995) provides that: ” Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.”
There is more than one possible answer to this question. First we can reason that the status of the West Bank (and Gaza, but that is not relevant, having regard to the proposal of the Israeli government) as a matter of principle has been determined by the Mandate for Palestine, meaning that the territory concerned was legally the territory of the State of Israel as from 1948. That remained true even if it at that time Israel could not exert sovereignty in respect of the territory later called (by Jordan) the “West Bank”, due to the occupation by Jordan. When Israel brought the territory under its control in 1967, nothing changed as to its status as sovereign territory of the State of Israel. Also the Oslo Accords did not change that status. They only provided a framework for negotiations on the future status of the territories (‘borders’) and its inhabitants (‘settlements’). The parties can agree to change the status of (parts of) the West Bank. As a sovereign State, Israel may freely decide in the course of negotiations to terminate its sovereignty over a part of its territory and transfer it to another State.
PLO first to breach the Oslo Accords
Even if the foregoing is sound, there is a problem. Israel has so far – with the exception of East Jerusalem – not officially claimed an exclusive right to sovereignty in respect of Judea and Samaria (the West Bank). If it now does so this may be seen as a ‘change of the status of the West Bank’, which is excluded by Article XXXI (7) of the Interim Agreement. But even that does not necessarily lead to the conclusion that the proposal of the Israeli government contravenes international law. It is clear that the other party to the Oslo Accords, the PLO as representative of the Palestinian people, has violated the Accords in various ways, taking into account that the actions of the Palestinian Council – established under the Agreement as the representative of the Palestinian population of the West Bank and Gaza – can be imputed to the PLO as a contracting party to the Oslo Accords. An obvious example is Article IX (5) of the Interim Agreement, which provides that the Palestinian Council – established under the Agreement as the representative of the Palestinian population of the West Bank and Gaza – has no powers in the sphere of foreign relations, including the establishment abroad of embassies, consulates or other types of foreign missions and posts, or permitting their establishment in the West Bank or the Gaza Strip. What we see however is that ‘Palestine’ has established representations in many states that exert the functions of an embassy, while many States have established their representations and missions in Ramallah. Moreover, the Oslo Accords provide that the PLO may only enter into international agreements to a limited extent. Notwithstanding this prohibition, ‘Palestine’ has acceded to many international treaties in various fields far beyond that limited extent. Think only of its accession to the Rome Statute establishing the International Criminal Court, and its applications before this Court concerning presumed crimes committed in the West Bank. Furthermore we observe that ‘Palestine’ has purported to become a Member State of a number of international organizations, thereby pretending it is a State. All these examples show that Palestine is acting on the international level as a State with the West Bank and Gaza as its territory, which has the effect of changing the status of these territories contrary to Article XXXI (7). Such a violation of the Interim Agreement permits the other party – Israel – in terms of Article 60 (1) of the Vienna Convention on the Law of Treaties (1969) not to comply with (a part of) its obligations: “ A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.” Even if we may assume that the Vienna Convention is not applicable to the Oslo Accords in a technical sense – as they are not treaties between states, but agreements between a Sate and a non-state entity[9] – it may be safely held that the underlying general principle of law, the exceptio non adimpleti contractus, is applicable.
Closing remarks; Jordan and the EU
Our purpose has been a first brief analysis of the Israeli extension of its law to parts of Judea and Samaria (the West Bank) leading to the conclusion that there are under international law strong Israeli claims to these areas. It is furthermore understandable that the Israeli government takes these steps having regard to the changed political environment. Nevertheless, it is faced with strong opposition from many sides. These criticisms are overhasty. Maybe the Jordanian King could reflect on the role of his Kingdom between 1948 and 1967 in illegally attacking the new State of Israel and subsequently occupying the territories that had been destined under the Mandate for the establishment of the Jewish national home. European States should have the courage to rethink their positions and take seriously the legal relevance of the birth certificate of the State of Israel: the Mandate for Palestine (1922), which is based on the San Remo resolution (1920). It may not be overlooked that both this Resolution and the Mandate itself were to a considerable extent created by European States. They could take as an example the American Vision, that explicitly recognizes the valid legal and historical claims of Israel. The adherence of the European States to the Palestinian narrative, that denies completely the historical and legal validity of Israeli claims to Judea and Samaria (West Bank), has not produced a peaceful solution in the many years that this conflict drags on. It is time for a change. They should realise that for Israel it is not – as we have seen – a question of to annex or not to annex. Rather, having regard to the serious threats to its security and the alarming worldwide growth of antisemitism, it is for the Jewish State a question of to be or not to be.[10]
[1] Quoted in The Times of Israel, 20 May 2020.
[2] Peace to Prosperity. A Vision to Improve the Lives of the Palestinian and Israeli People.
[3] ICC-01/18.
[4] Ruth Lapidoth, Jerusalem, past, presentand future (Jerusalem, reflexions d’ordre juridique sur son passé, son présent et son futur), Revue internationale de droit comparé, 1-1996, pp. 9-33, at pp. 16-17.
[5] See for a different view Ian S. Lustick, Has Israel annexed East Jerusalem?, Middle East Policy, Vol. V. No. 1. January 1997, pp. 34-45.
[6] Oxford Public International Law https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1376
[7] Abraham Bell and Eugene Kontorovich, ‘Palestine, Uti Possidetis Juris, and the borders of Israel’, Arizona Law Review, Vol. 58, 2016, pp. 633-692.
[8] Land, Island and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua intervening), 1992 I.C.J. 351, 42 (Sept. 11, 1992) – the Court noted here that one of the purposes of uti possidetis juris is to avoid that there is a territory without a sovereign (terra nullius).
[9] Article 1 Vienna Convention on the Law of Treaties
[10] Shakespeare, Hamlet, Act III, Scene I.
