As Israel moves forward with plans to legally anchor its control over parts of the West Bank, those in favor of the controversial step speak of the application of “Israeli sovereignty” or of “Israeli law” over the territory. They abhor the term “annexation,” because, they argue, it has connotations of an illegal land grab when they believe Israel has a rightful claim to these areas.
Perhaps surprisingly, Israel’s head of state does not appear to have any qualms with this a-word, which is generally defined as the acquisition of territory by force. In a statement urging a more civil discourse about the plan issued earlier this month, President Reuven Rivlin repeatedly used the term “annexation.”
Prime Minister Benjamin Netanyahu has recently been more careful about nomenclature, speaking about his desire to “apply sovereignty to areas of Judea and Samaria.” But he, too, has occasionally been heard uttering the word “annexation” (sipuah in Hebrew).
So is it acceptable to call Israel’s plan to apply its law over the Jordan Valley and all settlements in the West Bank an annexation? Or did Rivlin — who is in favor of annexing the entire West Bank with full citizenship for Palestinians — unwittingly play into the hands of those who believe Israel is about to unlawfully seize territory that does not belong to it?
Discussing fateful questions – and the question of annexation is indeed a fateful one – must take place. It must take place in every country that wants the best for its people. Each person has their own view of the world. This is the stuff of Israeli democracy.
— Reuven Rivlin (@PresidentRuvi) June 4, 2020
“The word annexation is just the wrong word,” US Ambassador to Israel David Friedman said on January 29, one day after President Donald Trump presented his Israeli-Palestinian peace plan, which forms the basis of Israel’s planned move. “It’s not the word that would apply to this; it’s the application of Israeli law,” he insisted.
Others, however, say the terms “annexation” and “application of sovereignty” can be used interchangeably. “From a legal perspective, ‘application of sovereignty’ and ‘annexation’ are one and the same,” analysts Udi Dekel and Noa Shusterman wrote in a paper published by Tel Aviv University’s Institute for National Security Studies.
“Nonetheless, the phrase ‘application of sovereignty’ bears a political resonance and connotation of legitimacy, as opposed to the negative connotation of unilateral annexation, which is commonly deemed illegal by international law.”
A history of ‘annexation’
The word annexation, which comes from the Medieval Latin annexiationem, appeared first in the 17th century. It initially merely meant “adding to the end, or adding a smaller to a greater,” like an annex referring to an additional section at the end of a treaty.
In the context of international relations, annexation has come to describe “the addition of an area or region to a country, state, etc,” according to Merriam Webster. But those arguing that the term has a negative connotation do have a point, since many dictionaries define it as an act done “usually by force or without permission.”
According to Encyclopaedia Britannica, annexation is a “formal act whereby a state proclaims its sovereignty over territory hitherto outside its domain. Unlike cession, whereby territory is given or sold through treaty, annexation is a unilateral act made effective by actual possession and legitimized by general recognition.”
And the Max Planck Encyclopedia of Public International Law says annexation means the “forcible acquisition of territory by one State at the expense of another State.”
Article 8.2(a) of the Rome Statute, the International Criminal Court’s foundational document, defines “any annexation by the use of force of the territory of another State or part thereof” as a crime of aggression that “constitutes a manifest violation of the Charter of the United Nations.”
Annexation is defined as the ‘forcible acquisition of territory by one State at the expense of another State’ — but does the West Bank belong to any state?
Whether Israel’s planned moves in the West Bank are defined as annexation is not just about semantics. Annexation is illegal under international law and in certain circumstances even considered a “crime of aggression,” which may serve as the basis for possible sanctions against Israel.
“The norm prohibiting unilateral annexation of territory acquired by force has come to be universally recognized as a basic rule of international law,” read a recent open letter to Israeli leaders signed by 240 international law professors.
The professors, some of whom are known as staunch supporters of Israel, maintain that the partial unilateral annexation of the West Bank that Netanyahu has declared he intends to carry out from July 1 would violate the status of the territory as occupied, pending a negotiated settlement, and the principle of the inadmissibility of the acquisition of territory by force.
This principle “applies to all territories occupied by force, even if it is claimed that force was initially used in an act of self-defense,” according to the letter.
It thus doesn’t matters whether Israel calls it an annexation, extension of sovereignty or extension of law, the letter went on. “De facto annexation entails the same legal consequences as de jure annexation.”
The Israeli government’s position
Jerusalem has long argued that the West Bank currently has no sovereign and that Israel has legitimate historical and legal claims over the territory, based on previous international treaties. Therefore, Israeli officials posit, applying sovereignty over it should not be called an annexation, and certainly not a crime but rather the realization of a right.
Many pro-Israel advocates cite the 1920 San Remo Declaration in this context. It charged the British mandate with implementing the Balfour Declaration, which three years earlier had endorsed “the establishment in Palestine of a national home for the Jewish people.”
Annexation as understood by most scholars of international law is a negative thing, agreed Dore Gold, a former director-general of the Foreign Ministry and currently the president of the right-leaning Jerusalem Center for Public Affairs.
“Indeed, annexation resulting from aggression is unacceptable. The Turkish invasion of Cyprus was an act of aggression. The Russian invasion of Crimea was an act of aggression,” he said in a recent lecture about the issue. “Israel in the West Bank is an entirely different story.”
In addition to recalling Jewish rights to the land as guaranteed by the San Remo Declaration, Gold went on, it is important to stress that Israel captured the West Bank in a war of self-defense in 1967. “That makes all the difference. The great British authority on international law, Sir Elihu Lauterpacht, drew a distinction between unlawful territorial change by an aggressor and lawful territorial change in response to an act of aggression.”
Hence, Gold argued, the term annexation doesn’t apply to Netanyahu’s plan, which would see Israel extending its sovereignty now to the 30 percent of the West Bank — covering all the 132 settlements and most of the Jordan Valley — allocated to Israel under the Trump Administration’s “Peace to Prosperity” plan. Rather, it should be referred to as “the application of Israeli law to parts of the West Bank.”
But most legal scholars reject this argument, claiming that sovereignty over disputed territory cannot be determined unilaterally. They point to Israel’s consistent position that the West Bank is indeed disputed territory whose future needs to be determined by negotiations.
How do you apply Israeli sovereignty? By applying Israeli law
While “applying law” may sound better to liberal ears than “annexation,” some scholars also argue that there is a substantive difference. A state could apply its laws to a territory in order to better administer and govern the area without necessarily applying sovereignty over it, possibly in order not rule out the possibility of future withdrawals, they suggest.
Others disagree, saying the best way for a country to formally acquire sovereignty over a certain territory — or annex it, if you will — is the application of its laws to it.
In 1982, for instance, Israel passed a law applying Israeli “law, jurisdiction and administration” over the Golan Heights. The phrase was deliberately chosen by the government of Menachem Begin to avoid the a-word and to leave a door open for future negotiations with Syria.
Still, Israel’s Golan move was widely seen as a bona fide annexation, even though Israel never formally declared sovereignty over the area. Last year, when the US moved to recognize Israeli sovereignty over the Golan, Israel did not claim any distinction between applying its law and applying sovereignty over the territory.
If the government goes ahead with its controversial plan, the passionate debate over the appropriate nomenclature may prove meaningless. As the Golan case showed, Israeli leaders and pro-Israel advocates insisting on a certain terminology is unlikely to influence international legal opinion.
Netanyahu may insist that he’s merely applying Israeli law, jurisdiction and administration to parts of the West Bank, the Biblical Judea and Samaria, where Israel has historic and modern claims. But much of the world will still look at it, and look at it critically, as an annexation.