Israel’s annexation bid contradicts its past stance, without legal explanation
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Analysis

Israel’s annexation bid contradicts its past stance, without legal explanation

PM Begin wanted to leave question of sovereignty over West Bank open, Oslo barred sides from unilaterally changing territory’s status. What justifies the change, and is it legal?

Raphael Ahren

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

Prime Minister Benjamin Netanyahu, right, greets students as they wave Israeli flags during a ceremony opening the school year in the settlement of Elkana in the West Bank Sunday, Sep. 1, 2019. (Amir Cohen/Pool Photo via AP)
Prime Minister Benjamin Netanyahu, right, greets students as they wave Israeli flags during a ceremony opening the school year in the settlement of Elkana in the West Bank Sunday, Sep. 1, 2019. (Amir Cohen/Pool Photo via AP)

The Jewish people have an undeniable religious and historical connection to the Land of Israel. But can the State of Israel claim a legal right to unilaterally apply its sovereignty to parts of the West Bank, as Prime Minister Benjamin Netanyahu has vowed to do as soon as July 1?

“Ever since Moses led the people of Israel out of Egypt, through the Sinai desert and to the Land of Israel, returning to the land that God had promised Abraham, Jews have lived and exercised sovereignty in the Promised Land,” Israel’s Ambassador to the United Nations, Danny Danon, told the Security Council on Wednesday.

“Even when the Romans destroyed the Second Temple in 70 CE, and the Jews were exiled from their home, Jewish communities survived in Jerusalem and elsewhere in our homeland,” he added in a bid to justify Israel’s possibly imminent annexation.

Jews have undoubtedly lived in the holy land for millennia, but the modern State of Israel has never realized its sovereign claims, as understood by international law, over the entire area from the Mediterranean to the Jordan River.

A historic insistence on negotiations

Israel became a sovereign country in May 1948 and was admitted to the United Nations as a member state a year later. Its unofficial borders were delineated by the Armistice Lines of 1949 — what is known today as the Green Line.

A view of the Jerusalem neighborhood of Ramot, most of which lies over the Green Line. (Yonatan Sindel/Flash90)

In the Armistice Agreement with Jordan of April 1949, Israel stressed that it was not giving up any territorial claims it might have, but it did not actually realize sovereign title over any territory beyond the Green Line until 1967, when it captured and incorporated the eastern part of Jerusalem. In 1981, the Knesset passed a law applying Israeli law, jurisdiction and administration on the Golan Heights, a move widely understood as an act to acquire sovereignty.

However, for decades successive Israeli governments argued that the rest of the West Bank, which it had captured in a defensive war, was territory over which sovereignty was disputed or undetermined, and that the last power that legitimately held sovereignty over it was the Ottoman Empire.

Before the 1990s, Jerusalem simply held that the West Bank currently had no sovereign and proposed to leave competing claims over the territory unanswered.

“Israel stands by its right and its claim of sovereignty to Judea, Samaria and the Gaza district. In the knowledge that other claims exist, it proposes, for the sake of the agreement of the peace, that the question of sovereignty in these areas be left open,” prime minister Menachem Begin’s so-called self-rule plan of 1977 stated.

In the more recent past, up until the present day, Israel — while officially maintaining its legal claim — has been committed to the position that the final status of the West Bank must be determined in future negotiations.

“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,” according to article 31(7) of the 1995 Oslo Accords.

Rabin and Arafat sign maps prior to the Oslo II signing ceremony at the White House, as US president Bill Clinton, Egypt’s Hosni Mubarak and Jordan’s King Hussein look on, September 28, 1995 (photo credit: GPO)

This remained Jerusalem’s position over the years.

The government continued to consider its presence in the territory a belligerent occupation, despite officials eschewing this term. While there was vehement disagreement over whether Israel was allowed to build settlements in the West Bank, there was little question that legally the status quo was considered temporary and could only be altered by an agreement between the parties.

In January 2017, Jerusalem rejected a French peace conference that sought to galvanize support for the internationally accepted parameters of an Israeli-Palestinian peace treaty, dismissing it as “an attempt to circumvent the route of direct negotiations between the parties.”

Later that year, the Foreign Ministry, in pamphlets with talking points on the Israeli-Palestinian conflict, again underlined its position that competing claims over the West Bank must be resolved in peace talks.

Agreements signed between Israel and the Palestinians “specifically provided that the issue of [West Bank] settlements is reserved for permanent status negotiations, reflecting the understanding of both sides that this issue can only be resolved alongside other permanent status issues, such as borders and security,” the brochure about settlements read.

Oslo’s prohibition against unilaterally altering the status of the territories “was agreed upon in order to prevent either side from taking steps which purport to change the legal status of this territory (such as by annexation or unilateral declaration of statehood), pending the outcome of permanent status negotiations,” the booklet quotes the Foreign Ministry’s formal position.

Then-deputy FM Tzipi Hotovely in Kibbutz Kfar Etzion, June 7, 2017. (Gershon Elinson/Flash90)

Ironically, perhaps, these pamphlets were commissioned by then-deputy foreign minister Tzipi Hotovely — the current minister for settlement affairs and long a strong advocate for unilateral annexation.

In December 2019 — three months after Netanyahu first announced his intention to unilaterally annex the Jordan Valley — Attorney General Avichai Mandelblit reiterated that, “sovereignty over the West Bank and the Gaza Strip is presently in abeyance [i.e. territory over which sovereignty claims have yet to be determined], with current Israeli-Palestinian agreements explicitly enumerating ‘borders’ among those issues to be settled through bilateral permanent status negotiations.”

So what has changed?

What explanation has Netanyahu’s government provided for its sudden about-face? What changed that would allow Jerusalem to violate its own position that says that the territorial dispute with Ramallah must be solved in bilateral talks and cannot be determined by the whims of either side?

The answer may be found not in international law or regional developments, but mainly in the American political calendar. US President Donald Trump has given a green light, at least in principle, to Israeli annexation, and Netanyahu is aware that this light will turn red if a Democrat wins the White House in November.

“We face a historic opportunity to apply sovereignty to areas of Judea and Samaria,” the prime minister said earlier this month.

Prime Minister Benjamin Netanyahu, left, US Ambassador to Israel David Friedman, center, and then-Tourism Minister Yariv Levin during a meeting to discuss mapping extension of Israeli sovereignty to areas of the West Bank, held in the Ariel settlement, February 24, 2020. (David Azagury/US Embassy Jerusalem)

To be sure, there are also some legal arguments in favor of immediate annexation. Advocates of annexation argue that Israel has longstanding valid claims to the territory and, after exhausting several efforts to reach an agreement with the Palestinians, is finally realizing its rights.

“Israel already governs the territory in question, as it has since 1967,” Eugene Kontorovich, the director of the Center for the Middle East and International Law at George Mason University, wrote this week in the Wall Street Journal.

“But at that time Israel didn’t fully apply its domestic laws there, leaving it under military administration. Israel expected the Arab states to sue for peace after the Six-Day War, and it was prepared to transfer some of the land to them. There was no point in hurriedly applying Israeli law to territory that might not remain Israeli after a peace settlement.”

Israel’s occupation of the West Bank was meant to be temporary, but the Palestinians rejected various Israeli overtures that would have led to Palestinian statehood. Meanwhile, nearly half a million Israelis have moved to settlements in the West Bank, where they are “still governed by an odd patchwork of military regulations,” according to Kontorovich. “As a result, property is governed by obscure Ottoman land law. Permission for infrastructure projects is difficult and burdensome. Most Israeli environmental regulations don’t apply.”

Therefore, he reasoned, after 53 years of Palestinian rejectionism, “it is hard to argue that the legal regulation of these communities must remain in limbo until a far-off peace deal is signed.”

Applying Israeli civil law to Jewish settlements should not be considered an annexation of Palestinian land but rather “a long overdue recognition of Israel’s legal and moral rights, a step that can no longer be deferred by the Palestinian refusal to make peace,” he concluded.

Oslo is still relevant, according to Mandelblit

There are also potential arguments to dismiss Israel’s commitment under the Oslo Accords not to unilaterally change the status quo on any of the final status issues. For instance, Israel can point to several violations of the agreement by the Palestinian Authority, primarily its efforts toward international recognition of Palestine as a sovereign state.

But does a violation of a bilateral agreement by one side entitle the other side to carry out violations as well? International law knows a concept called “countermeasures” that a state can take if another country violates a bilateral treaty. Could an Israeli annexation be explained as an appropriate countermeasure to Ramallah’s statehood bid or other Palestinian violations of Oslo?

Mandelblit in December appeared to suggest that his answer would be no.

Attorney General Avichai Mandelblit speaks at the 17th annual Jerusalem Conference of the ‘Besheva’ group, on February 24, 2020. (Olivier Fitoussi/Flash90)

“Despite the repeated breaches by the Palestinians, the bilateral Israeli-Palestinian agreements continue to form the applicable legal framework governing the conduct of the parties,” he wrote in a paper arguing that the International Criminal Court does not have criminal jurisdiction over the West Bank, East Jerusalem and Gaza.

“This has repeatedly been acknowledged by the parties, including most recently and in writing, despite isolated political statements to the contrary by some Palestinian officials,” Mandelblit wrote.

Either way, most of the international community considers unilateral annexation illegal under international law, due to the inadmissibility of acquisition of territory by force, a principle anchored in the UN charter. The argument that Israel is no longer bound by the agreements it struck with the PA in the 1990s does not take Israel very far, as such a move would still be unlawful, with or without Oslo.

Still, the attorney general would not necessarily oppose annexation on legal grounds, or even refuse to defend it in court, as some in the Hebrew press have suggested.

True, Mandelblit opposed the so-called Regulation law, which sought to retroactively legalize settlements built on private Palestinian land, but he did this because he insists such legislation violates Israel’s existing property laws.

A Palestinian woman points to the land she claims belongs to her family before Israel established the West Bank settlement of Amona in 1996, November 2016 (Raphael Ahren/TOI)

But whether he would reject annexation is a more complicated issue. While such a move would be widely seen as a violation of international law, it is unclear if it violates Israeli domestic law — which is the question that may matter before Israeli courts.

The attorney general might make the case for the legality of annexation, or he might argue that it violates customary international law, which is seen as part of Israeli domestic law. However, this obstacle could possibly be overcome if annexation was advanced through specific legislation, as domestic laws would outweigh Israel’s international legal obligations.

Still, the legal waters Israel would find itself in if Netanyahu proceeds with his annexation plan appear more than murky, as the gambit contradicts Israel’s own past positions without any legally sound explanation. Many questions — about how Israel would justify this decision, and which legal implications it would have domestically and internationally — remain unanswered. And Netanyahu’s target date is just a few days away.

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