The False Premise Sustaining Israel’s West Bank Claim – Part I

[Victor Kattan is a Senior Research Fellow of the Middle East Institute at the National University of Singapore where he heads the Transsystemic Law Cluster. He is also an Associate Fellow of NUS Law. This is the first part of a two-part post.] 

One of the concerns that arose from US President Donald Trump’s Proclamation recognising the occupied Golan Heights – captured from Syria in the June 1967 War – as part of the state of Israel, was whether it could serve as a precedent for the future annexation of parts of the West Bank, such as Area C, the major settlement blocks around Jerusalem, the Jordan Valley, or some combination. This issue cannot be more timely, as just this weekend Benjamin Netanyahu pledged to annex Jewish settlements in Palestinian territories if he wins tomorrow’s election.

But what would be the legal argument in favour of annexation? The Israeli Government did not appear to give this much thought when Prime Minister Netanyahu met President Tump in the Oval Office on 25 March where Trump announced that his government now considered the Golan Heights to be part of Israel. In the Security Council debate that followed, Israel’s representative introduced a new argument to retain the Golan Heights when he told the Security Council that: “The Jewish people’s roots in the Golan Heights go back thousands of years. The Golan is mentioned in the Tanakh—the Bible—multiple times.” To articulate such a view in the twenty-first century is rather worrying. Not only is the Bible now being invoked by Israel to annex Jerusalem and the West Bank, it is also being invoked to annex the Golan Heights.

There is, however, another argument that is specific to the West Bank, which does not involve the Bible. It has been around for many years, but was mentioned recently by professor Eugene Kontorovich, the director of international law at the Kohelet Policy Forum, an NGO based in Jerusalem, when he told The New York Times that Israel did not need to claim “defensive conquest” to retain the West Bank and Jerusalem, as it had done in respect of the Golan Heights. (The “defensive conquest” thesis was first advanced by former ICJ Judge Stephen Schwebel). This is because Israel has long claimed that the West Bank and Jerusalem were not recognized as sovereign Jordanian territory before 1967, unlike the Golan Heights and the Sinai Peninsula, where Syria and Egypt had sovereignty. While Israel may consider giving away parts of the West Bank for diplomatic reasons, Kontorovich explained that “there is no other sovereign claimant”.

The argument that there is no other sovereign claimant to the West Bank appears to have been advanced to distinguish the situation in the West Bank from the Sinai Peninsula, which Israel withdrew from following the peace treaty with Egypt, and the Golan Heights, from which Israel might decide to withdraw from following the conclusion of a peace treaty with Syria. The West Bank is different, so the argument goes, as no state had sovereignty over it before to 1967, in contrast to the Sinai Peninsula and the Golan Heights, where Egypt and Syria had sovereignty. Accordingly, Israel can stay in the West Bank without having to annex it.

One of the reasons why Israel has not annexed the West Bank to date is because of its large Palestinian population. Despite this, annexation has been discussed in Israel by Gideon Sa’ar, Yuli Edelstein, Naftali Bennet, and other Israeli politicians, some of whom are mentioned as potential successors to Netanyahu, who is facing elections tomorrow. The YESHA council put forward a concrete proposal for the annexation of Area C back in 2006, highlighted in this map. More recently, annexation has been put forward in Knesset bills and ministerial proposals. Area C has less Palestinian inhabitants than Areas A and B of the West Bank, which makes it more attractive to annex, given that there are more settlers in this area than Palestinians.

To be sure, there has been pushback against these annexation proposals from within Israel, most notably from the “Commanders for Israel’s Security (CIS)”, a group that describe themselves as “a non-partisan movement comprising the overwhelming majority of available retired IDF generals and their Mossad, Shin Bet (Security Agency) and Police equivalents”. In a recently published study, the CIS warned that even partial annexation could “lead to the termination of security coordination and the dismantling of the PA [Palestinian Authority], leading to the occupation by the IDF of the entire West Bank and the imposition of a Military Administration, possibly culminating in the annexation of the entire area and the absorption of its 2.6 million Palestinian inhabitants”. In their view, “The damage to Israel’s interests in the security, diplomatic, economic, legal, and domestic spheres will be unprecedented”.

The argument that no other state (apart from Israel) has better title to the West Bank has been around for decades, but in recent years it has been articulated with increasing vigour to buttress Israel’s claim to the West Bank as the calls to establish a Palestinian state get stronger.

The origins of Israel’s claim to the West Bank

Israel’s claim to the West Bank was first articulated by Hebrew University Law professor Yehuda Blum in 1968, one year after East Jerusalem fell to Israel, before it was adopted as government policy by Meir Shamgar, then Israel’s Attorney General. As Joseph H. H. Weiler argued more than twenty years ago, the policy outlined in Blum’s thesis was deliberately ambiguous and had the advantage of allowing Israel to exercise control over the West Bank as belligerent occupant while denying the inhabitants political rights since they did not become citizens of the occupying state. The genius of Blum’s argument, Weiler explained, was that “legally you get the land without the people”. To achieve this objective, Israel did not have to annex the West Bank.

Central to Blum’s argument was the suggestion that no other state could make a claim that was equal to that of Israel’s. His argument was principally about denying Arab claims to sovereignty, in order to retain the West Bank, rather than about imposing Israeli sovereignty.

You would think that Blum’s argument would have been refuted by the Palestinian side by now, given that it has allowed Israel to perpetuate the occupation. Yet, the argument continues to go unchallenged in the public sphere. When an argument is not challenged, no matter how specious it may be, there is always the danger that it takes on a life of its own.

The Levy Commission

That moment arrived in 2012, when Blum’s argument was given a new lease of life by a Commission, headed by Edmund Levy, a former Supreme Court Judge, to examine the legality of Israel’s settlements. In its report, the Commission articulated an updated version of Blum’s thesis to authorise the establishment of new “outposts” on Palestinian land. In its view, the classical laws of occupation “cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria”.

The conclusion that the establishment of settlements in occupied territory was not unlawful was criticised in a widely commented post on EJIL: Talk! by international law professor Iain Scobbie, now of Manchester University. One issue that Scobbie did not address in that post, which was raised in the Levy report, and which has been frequently repeated since then, is that there was no other sovereign claimant of the West Bank before Israel captured it in June 1967.

Accordingly, the argument that Israel has better title to the West Bank than any other claimant continues to go unchallenged. This argument goes beyond the law of occupation and touches upon Palestine’s statehood claim, which is currently before the International Court of Justice in Palestine v United States of America.

An exercise in deception

The Levy Report made several factual assertions, which I shall briefly summarize before I address them below. These include the claim that the West Bank “was captured from a state (the Kingdom of Jordan), whose sovereignty over the territory had never been legally and definitively affirmed and has since renounced its claim of sovereignty” (p. 8). The report also claimed that the 1947 UN Partition Plan “did not secure a foothold in international law after the Arab states rejected it”. Accordingly: “The Jewish state was established within the territory that was acquired in the war. On the other hand, the Arab state was not formed, and Egypt and Jordan controlled the territories they captured” (p. 11). In April 1950, “Jordan annexed the territories of Judea and Samaria, unlike Egypt, which did not demand sovereignty over the Gaza Strip. However, Jordan’s annexation did not attain legal standing and was opposed even by the majority of Arab countries, until in 1988, Jordan declared that it no longer considered itself as having any status over that area” (pp. 11-12). Accordingly, “Israel has had every right to claim sovereignty over these territories, as maintained by all Israeli governments” (p. 12).

The argument that there was no other sovereign claimant to the West Bank prior to 1967 articulated in the Levy Report, by Kontorovich, and others, is misleading for what they do not say. So, while it is true that Jordan renounced its sovereignty claim in 1988, it did so in favour of another claimant. Nor is it correct to say that Jordan’s sovereignty over the West Bank (as opposed to East Jerusalem) was not recognised between 1950 and 1988. East Jerusalem, like West Jerusalem, was part of the corpus separatum that was outlined in the UN Partition Plan, which most states refuse to recognise, even following Trump’s 6th December 2017 recognition.

When Jordan was admitted to membership of the UN in 1955, no state challenged the legality of Jordan’s union with the West Bank. This was in stark contrast to the debates on Israel’s application for membership of the UN that was debated in the UN Security Council in 1948 and in the Ad Hoc Political Committee of the third session of the UN General Assembly in 1949. In the debates in the Security Council and the General Assembly, repeated references were made by Security Council members (see here, here, and here) and the members of the Ad Hoc Committee of the General Assembly (see here, here, here, here, here, and here) to the necessity of establishing the Arab state outlined in the UN Partition Plan, reaching an agreement for the return of the displaced refugees, and taking measures to preserve the special status of Jerusalem.

A proper reading of the major diplomatic moments between 1947, when the United Kingdom announced it withdrawal from Palestine, and 1967, when Israel captured East Jerusalem, the West Bank, and the Gaza Strip, as well as the Golan Heights and the Sinai Peninsula, reveal that the Palestinian people had in fact established an organization that claimed sovereignty over the remnants of the Palestine mandate prior to June 1967. That claimant was the Palestine Liberation Organization. In 1988, King Hussein would recognise the claim of this organization to secede from the Kingdom of Jordan to establish an independent state.