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The West Bank settlement of Ma'ale Ephraim in the hills overlooking the Jordan Valley,  February 18, 2020. (AP Photo/Ariel Schalit)
Ariel Schalit/AP Photo. This February 18, 2020 file photo shows a view of the West Bank settlement of Ma'ale Efraim in the hills overlooking the Jordan Valley.
Interview

A former top IDF law expert questions the benefits of annexation

Pnina Sharvit Baruch led the unit that handles Israel’s rights and responsibilities in the West Bank. The PM’s plan, she says, could make everything, including building, harder

Haviv Rettig Gur is The Times of Israel's senior analyst.

Main image by Ariel Schalit/AP Photo. This February 18, 2020 file photo shows a view of the West Bank settlement of Ma'ale Efraim in the hills overlooking the Jordan Valley.

Prime Minister Benjamin Netanyahu’s West Bank annexation bid, slated to begin July 1 under the coalition agreement with Defense Minister Benny Gantz, is just around the corner.

Opponents have multiplied as the date approaches. Will it be the final curtain for the two-state solution, ushering in a single-state reality of inequality and the ultimate collapse of the Jewish state into permanent conflict, as the left warns? Will it, as many settlement leaders insist, limit Israel’s claims to the West Bank and deliver over 70 percent of the land to a new Palestinian state constructed on the hollow shell of a failed, incompetent, terror-supporting Palestinian Authority that becomes a permanent threat to Israel’s coastal metropolises?

So much remains unclear about the plan that most critics in the Israeli public debate are more confused than concerned. The extent of the move could cover as little as 3 percent of the West Bank, including only the built-up areas of Israeli settlements, or as much as 30%, covering the settlements, the lands they administer, and the entirety of the Jordan Valley.

Proponents and opponents can’t even agree on what to call the move. Is it “annexation” or “applying sovereignty?” Use one and someone angrily retorts that it’s the other.

To make sense of the debate, The Times of Israel turned to one of Israel’s top experts on the legal and policy questions that arise from Israel’s control of the West Bank. Pnina Sharvit Baruch offers a unique perspective. Her knowledge of the many-layered problems Israel has encountered — and created — in the West Bank, questions of occupation, settlements, annexation and the Palestinian demand for self-determination, flows not from mere academic study: Col. (res.) Sharvit Baruch, a 20-year veteran of the Israel Defense Forces’ International Law Department, and the department’s head from 2003 to 2009, was for years one of the key policymakers and advisers on those very questions to Israel’s top civilian and military leaders. She now heads the law and national security program at the Institute for National Security Studies at Tel Aviv University.

Col. (res.) Pnina Sharvit Baruch of the Institute for National Security Studies at Tel Aviv University. (Courtesy)

The interview has been edited for brevity and clarity.

The Times of Israel: Let’s start with the difference between the terms. Why is “annexation” different from “applying sovereignty” or “applying civil law?”

Pnina Sharvit Baruch: The terms are not mutually exclusive. Applying Israeli civil law is just the technique. The territory itself never belonged to any other state, so there’s a logic to opposing the term “annexation,” because it implies we’re annexing something that belonged to another country. Israel has claims there, so those supporting the move contend that Israel is just applying sovereignty to a place to which it has legitimate rights.

But “annexation” doesn’t necessarily require under international law that another country previously have owned the area. It only requires that you take control of territory that wasn’t yours. The act of applying sovereignty to territory that wasn’t yours beforehand is annexation.

Could it have been ours beforehand? Just as an example, the right often mentions the San Remo conference 100 years ago, when in the wake of World War I, European powers divvied up the Ottoman Empire and set aside this area for Jewish self-determination. There’s a legal argument then — never mind historical or religious for the moment — according to which it’s ours, they suggest.

Is it ours? It depends on whom you ask. There are those who say that it’s ours historically and nobody else has rights there. Others say that it belongs to the Palestinians. The world talks about “Occupied Palestinian Territory,” and if Israel annexes even some of it then it’s annexing Palestinian territory.

The Bedouin Palestinian village of Sussiya in the southern West Bank. (Har Hebron Regional Council)

There’s a middle ground, and I’m there. It’s disputed territory. Not all of it is ours, not all of it is theirs. I do think the Palestinians who live there have a right to self-determination in the territory. But that doesn’t necessarily mean that this right must be implemented on all the territory. The Green Line [that determines the boundaries of the West Bank] isn’t a recognized border. It’s a line originating from the armistice agreement with Jordan from 1949. The armistice agreement even explicitly states that the line won’t be considered a border.

The question of where the border should pass isn’t a legal question. It’s not that any annexation is necessarily annexation of Palestinian land. But if annexation removes their ability to realize their right of self-determination, then it amounts to breaching this right.

What about occupation? If the territory is under occupation, can it be legally annexed? Is it under occupation?

Occupation is a factual question. If a state takes control over territory during an armed conflict, it’s considered occupied territory.

After [UN Security Council] Resolution 242 [in the aftermath of the 1967 Six Day War], the UN stipulated that that’s the situation in the West Bank, and that Israel’s capture of land by war doesn’t grant it sovereignty. It comes under “belligerent occupation,” translated in Hebrew as tefisa lohamtit [technically “captured by war”].

The Hague Regulations of 1907, which Israel has always applied to the West Bank, and the Fourth Geneva Convention [of 1949], that Israel has adhered to de facto, set down the rules [of belligerent occupation] when it comes to the responsibilities of the occupier towards the inhabitants of the territory, known as the “protected persons.” The aim of these rules is to ensure there’s no lacuna or gap in rights. They respect private property, welfare, public order, and so on. The occupier has duties toward the residents. Israel has in fact applied the protections of the laws of belligerent occupation to the Palestinians.

An Israeli policeman on a hilltop overlooking the West Bank Bedouin village Khan al-Ahmar on January 1, 2019. (Hadas Parush/Flash90)

The law of occupation also has rules aimed at protecting the status of the previous sovereign. The occupier is the trustee of the previous sovereign until they agree in negotiations what to do with the territory. These are less relevant to the West Bank, since there was no previous recognized sovereign. The annexation of the West Bank by Jordan was not recognized by any state except the UK and Pakistan, and Jordan itself retracted its annexation.

So the world says we have to make those arrangements with the Palestinians, not because they were ever sovereign there, but because they have the right to self-determination there.

Self-determination is an important principle in international law, and has become more important over time. You can’t say the Palestinians have no rights. But a right to the territory drawn from self-determination, as opposed to a right drawn from past sovereignty, doesn’t mean they have a right to all of the territory.

So if we annex, the world will ask by what right we’re doing it. Israel can’t base its right on the mere occupation of the territory, since there is an acknowledged principle of the inadmissibility of acquisition of territory by force. A unilateral step of annexation of occupied territory does not change the status of the territory. For the world, it will remain “Occupied Palestinian Territory.”

That’s the situation today with East Jerusalem. We applied Israeli law there in 1967, and then clarified in later laws that that meant applying sovereignty. The world hasn’t recognized it. Even the American recognition [by the Trump administration in 2018] was vague on that point. That’s what will happen with this annexation.

There’s also a prohibition on the occupier to change the situation on the ground and a continued applicability of the law on occupation with regard to the rights of the residents of the occupied territory.

Illustrative: IDF soldiers at a checkpoint in the West Bank. (Wisam Hashlamoun/Flash90)

So even if one can argue that there’s no prohibition per se of annexation [in international law], it is quite clear under the law that it does not change the status of the occupied territory. Even if you do it, it doesn’t reduce your responsibilities as occupier. The occupied remain protected persons.

Why should we care what international law says? There’s no real enforcement, no real hope of equal treatment for Israel or any other small country. International law hasn’t done a whole lot for the Palestinians either. Many Israelis feel that international law doesn’t really exist, that it’s just geopolitics with a more respectable façade. Why does any of this matter?

The answer has many layers.

It exists. There are norms of international law. We can interpret and understand them differently. But there is this thing that exists. There are treaties whose state parties are committed to them. And international customary law that countries must behave according to.

It’s not invented by each country for its convenience.

And countries that want to be considered part of the developed and respected international community [like Israel] have an interest in appearing to abide by international law. There’s a global order composed of international law and an expectation that states obey it.

The United Nations General Assembly during a vote on the US-imposed embargo on Cuba on November 7, 2019. (Evan Schneider/UN)

If a state decides not to observe it, then first it hurts its image. But it also becomes relevant to how certain states and bodies relate to that state.

The common denominator of European Union member states is international law. It’s very central, and everything is checked according to its standards. If a state doesn’t obey international law, it puts itself in a position in which EU states won’t easily deal with it.

At the UN, international law is deeply political, but if a country violates it, the UN is capable of taking many steps in various bodies against them, including at the Security Council. Iraq, Iran, South Africa, North Korea all faced such steps.

Then there are the courts. The ICJ, or International Court of Justice, has authority only if the country agrees. It can, however, give advisory opinions. In 2014, it gave an advisory opinion at the request of the UN General Assembly about the security fence. The opinion states, among other things, that annexation is illegal.

That opinion isn’t binding on Israel, but it has been used by various bodies and forums, boycott activists and the like, against Israel.

The body with real teeth is the International Criminal Court, the ICC, which is relatively new. It will likely open an investigation of Israeli “war crimes,” including the “war crime” of settlements. Annexation could make things more difficult for Israel in that arena too.

International Criminal Court chief prosecutor Fatou Bensouda addresses the 18th session of the ICC Assembly of States Parties, The Hague, December 2, 2019. (Courtesy International Criminal Court)

Clearly the way states act with regard to the application of international law is political. Countries commit clear violations of international law, for example China, Turkey and Libya with their new territorial waters claims, Iran, etc. In the end, the consequences they face are a question of politics.

We will definitely pay a price [for annexation]. Sometimes there are cases when it’s worth it. There are those who say that our bombing of the nuclear reactors in Iraq and Syria were violations of international law. We responded, “Okay, we’ll absorb that. This is too important for us not to do it.”

But if you break the law and get nothing — for example, if we announced that our territorial waters were now 16 miles [from our shores, instead of the 12 defined by the 1982 United Nations Convention on the Law of the Sea], and then fought with all the world over it, the question we should be asking is, is there something there that’s worth the cost? If there isn’t, why do it?

Finally, if we don’t meet our responsibilities to the Palestinians and ignore their human rights, the problem isn’t just international law, but what I view as a more important consideration: violating our own domestic law and morals.

How exactly would annexation make Israel more vulnerable to international legal repercussions?

The ICC, which can only try individuals, is probably going to open a “war crimes” investigation against Israel in the West Bank. If annexation includes land expropriation or otherwise hurts Palestinian rights, it could be added to the list of potential crimes being raised in the court.

The International Criminal Court, in The Hague, Netherlands, November 7, 2019 (AP Photo/Peter Dejong)

If an arrest warrant is issued against an Israeli official, all member countries of the court must obey the warrant — almost all of Europe, Canada, South America, Australia, New Zealand, Japan and many more countries would become inaccessible to them.

Beyond the court, I know the Europeans are now seriously looking at ways to exact a cost from Israel through our agreements. Agreements already in force are hard to cancel. But they’ll reconsider future agreements. It’ll start small, because the existing agreements will keep running, but future agreements could be compromised.

The EU is also considering cutting its funding of the PA. We might be forced to start funding the Palestinians ourselves if the PA collapses economically, with all our budget troubles.

A Biden presidency could also impose new limits on our relationship with the US.

Annexation is seen as a very contrarian step for Israel to take, a step that flies in the face of international law as most of the world interprets it and is opposed to the fulfillment of the two-state solution that most of the world believes in.

Having said that, exactly how intensive this blowback will become depends on geopolitics. But it definitely complicates our international maneuvering room.

Palestinians protest against Israel’s plans to annex parts of the West Bank, at Rafah in the southern Gaza Strip, on June 11, 2020. (Said Khatib/AFP)

Let’s turn to the West Bank. The West Bank is run under a mishmash of Ottoman, Jordanian, Mandatory and military law, and it’s hard to get anything done. Won’t annexation bring some desperately needed law and order to the area, for both Israelis and Palestinians?

The Israelis who live in the settlements live mostly under Israeli law. They’re regarded as residents of Israel, under Israeli legislation. And the military orders [that establish laws in the territory] have adopted by reference most of the relevant Israeli civil law to the settlement areas: municipal law, health, education, welfare, etc.

It’s cumbersome, that’s true. It takes time for a new law passed in the Knesset to be translated into a military order that takes effect for the settlements, but there have been efforts to streamline that process. It’s gotten better.

However, when it comes to land, real estate, infrastructures, planning and zoning, Israeli law doesn’t apply. There it’s a complicated overlap of Ottoman, Mandatory, Jordanian and military law. It’s also complicated because the state requires lots of approvals to do anything, in part as an effort to control what’s happening there [beyond the easy reach of Israeli civil law].

Then there are the Palestinians. They aren’t subject to the Israeli law that applies to Israelis, whether by the formula of “Israeli residents” in Israeli law or by applying it to settlement areas. The Palestinians live under that mix of Mandatory, Jordanian, Ottoman and military law — and in Palestinian-controlled areas A and B [together comprising the 40% of the West Bank’s land, where most of the Palestinians live], also Palestinian law.

Palestinian law also applies to them in Area C, but only on issues that apply to the person, not linked to infrastructure, like education or health. The PA has no authority there on infrastructure.

Palestinians protest against US President Donald Trump’s Mideast initiative in the West Bank city of Ramallah, February 11, 2020. (Majdi Mohammed/AP).

I don’t know of a way of applying law to a territory without it applying to the people there. So if there are Palestinians living in the annexed areas, Israeli law will apply to them.

There are two kinds of Palestinians potentially affected by annexation. Those who live in the territory where Israeli law is applied will inevitably become Israeli residents. If you’re a permanent resident of Israel you gain [legal] residency in Israel. That’s what happened in East Jerusalem and the Golan. They’ll get social welfare, enjoy freedom of movement in Israel and also have the right to ask for citizenship. In East Jerusalem they made it very hard and complicated to actually get the citizenship, but many do succeed. And all of them can vote in municipal elections.

As for those who don’t live in the territory, but who will see their lands annexed, or will see the annexed land block them in — they won’t be Israeli residents, but Israel will have a responsibility as an occupier toward them. For example, we can’t limit their access to their land. If every exit from a village means going into Israel — which requires an entry permit — we’ll need to find a solution that lets them in.

But there’s more, and you saw it in the High Court ruling that struck down the Regulation Law [earlier this month].

Until now, the High Court rulings on the West Bank applied the protections [of belligerent occupation] to the Palestinians, not the rights of Israeli constitutional law. So there was no constitutional right to equality, for example, which is internal to Israeli law.

Anyone who becomes a resident in Israeli territory will see Israel’s Basic Laws apply to them.

The entrance to the East Jerusalem neighborhood of Issawiya, November 5, 2019. (Yonatan Sindel/Flash90)

The Regulation Law ruling says so explicitly. The Basic Law: Human Dignity and Liberty includes the right to equality [recognized by the court as an outgrowth of the right to dignity]. Even Justice [Noam] Sohlberg, the dissenting judge, agreed that the Regulation Law violated the Palestinians’ right to equality.

It won’t be possible to legalize retroactively illegal building by an Israeli but not by a Palestinian.

The judgment makes it clear that applying Israeli law will limit the possibility of land expropriation “for public need” of Palestinian lands for settlements. Those kinds of expropriations [of Palestinian land] hurt their constitutional rights to property and equality.

Does the army support annexation? As an institution it’s obviously worried about potential violence that may result, but does it see upsides?

I’m not in the army any longer. I know the army is always preparing for the fallout from these things. There’s a lot of uncertainty now.

There’s an old joke in the army from the peace negotiations, when the military was always trying to figure out what the different sides’ offers would be and what they would mean for the army. The joke was that our intelligence had one big hole — the Israeli position. We had good intelligence on what the other side was planning to offer but had no idea what our politicians were going to do.

IDF chief of staff Lt. Gen. Aviv Kohavi, second left, visits the scene of a terror attack near the Israeli settlement of Dolev in the West Bank on August 23, 2019, in which an Israeli teenage girl was killed and her father and brother were seriously wounded. (Israel Defense Forces)

Wouldn’t applying a unitary, coherent Israeli civil law help the military manage the territory?

It will only complicate. Inside Israel there are more limits on IDF actions than in the West Bank.

For example, the army isn’t supposed to arrest anyone inside Israel; that’s the job of the police. Unless there’s an emergency like the coronavirus, the army isn’t supposed to work closely with civilians. The rules of arrest — like the time before a lawyer must be called and so forth — are stricter inside Israel. With the exception of some terrorism situations, there are strict limits. So the move would give the army no new powers and add many restrictions.

We’ve covered the effects of the move for Palestinians and the IDF. What about the settlements? Will they be hurt or helped by the move?

The laws for zoning and planning are much more complicated and bureaucratic inside Israel than in the territories, and all of them will now apply to the settlements. The objections process [in Israeli civil law, which allows the public to file objections to zoning and municipal development plans] will become open to the Palestinians.

The application of these laws and rules will make it more difficult to build.

Buildings under construction in Mishor Adumim, an Israeli industrial zone adjacent to the settlement of Maale Adumim, in the West Bank east of Jerusalem, June 16, 2020. (Ahmad Gharabli/AFP)

It will also make it more difficult to withdraw from annexed areas.

There’s a referendum law [passed in 2014, that requires 80 MKs’ support or a national referendum to withdraw from Israeli territory] that would now apply to the territory annexed. If Israeli law is applied just to the major blocs adjacent to the Green Line, that’s one thing. But if law is applied according to the Trump peace plan map, with lots of tiny enclaves, it creates a situation in which we’ll need a national referendum to agree on arrangements handing over to the Palestinians even isolated outposts surrounded by a large Palestinian population.

In the final analysis, you’re opposed to annexation?

I don’t understand the great advantage of this move. It makes it harder to build, harder to withdraw, and harder to ensure our security.

The goal may be none of those. It may be just to put your foot down and say, “This is ours and we’re not leaving.”

It also sends a message to the Palestinians — which may not be a bad thing — that time isn’t on their side. That’s not enough of a goal in its own right, but it’s a reasonable part of the rationale.

But in the end, it doesn’t remove our responsibility to find a solution that gives the Palestinians answers, places legal limits on ourselves and offers a vision for how we separate.

And when you add in the effect on our relations with Arab states, the international law fallout and so forth, what’s the benefit that justifies all the costs?

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