Annexation in the Shadow of the Law–Part I

Annexation in the Shadow of the Law–Part I

[Nathaniel Berman is the Rahel Varnhagen Professor of International Affairs, Law, and Modern Culture at Brown University. This is the first part of a two-part post.]

Israel may be on the brink of formally annexing large swaths of the West Bank. Ever since Trump’s victory in 2016, the pro-settler Israeli right has sensed a historic opportunity to secure its cherished goal: annexing lands it believes rightfully belong under Israeli sovereignty, on the grounds of religion, security, or both. Opponents of annexation span a broad range: from liberal Zionists and international jurists to European statesmen and Palestinian nationalists. Beyond their many differences, most anti-annexationists argue that such a step would flagrantly violate international law, destroy the dream of a Palestinian State, and enshrine in Israeli law a dual legal regime based on ethnicity. Such a dual legal regime, they argue, would be comparable to South African apartheid or classical European colonialism. A third camp, long in developing but only now emerging fully in public debate, dismisses concerns about annexation “from the Left” (henceforth “FTL”). The FTL camp believes that formal annexation will merely proclaim honestly in law what has long been true in fact: that Israeli withdrawal from the West Bank is an unrealistic prospect, that de facto annexation has long ago occurred, and that struggles for justice should focus on equality among all inhabitants of the “land from the River to the Sea,” whether called Israel or Palestine or some novel name. In this essay, I argue for the vital importance of standing up for the international legal prohibition on annexation, even while buttressing certain aspects of the FTL argument.

Annexation would, first and foremost, be an act of law. The difference between a territory that is “occupied” by a State and one that is “annexed” by that State is a legal distinction, whether or not that distinction brings in its wake economic, political, religious, or other consequences. Fifty-three years after conquering the West Bank, Israel may be about to make a legal proclamation, embodied in parliamentary legislation, of formal annexation. Such an annexation proclamation would either consist of a declaration that part or all of the West Bank forms an integral part of Israel, as Israel did in relation to East Jerusalem in 1980, or that “Israeli law applies” to the area, as it did in relation to the Golan Heights in 1981. In either case, the transition between “occupation,” the international legal rubric now governing the West Bank, and “annexation” would be effected by an act of law.    

Nonetheless, we must immediately remember that such an act of law would, at the same time, be illegal under international law. There is an overwhelming international legal consensus that Israeli annexation, by whatever method, would violate the cardinal principle of the “inadmissibility of the acquisition of territory by force.” All international legal bodies who have considered the issue, including the International Court of Justice, as well as the near-totality of international legal experts, hold this position. There have been a small number of exceptions to this consensus, mostly current or former officials of the Israeli government and a handful of ideologically-defined legal writers. I have elsewhere explained the basis for this unequivocal consensus that a State cannot legally annex territory acquired by force. We thus face the paradox that annexation would be both a purely legal event (in Israeli law) and would have no legal effect (in international law).

After reviewing just a few of the possible consequences of any purported Israeli annexation, I will here argue that its illegality should be vigorously upheld. International legal voices should affirm that any political struggle about the future of the “land between the River and the Sea” take place under the long shadow of this principle, that of right over might. People of good will may reasonably disagree about the proper outcome of the political struggle. But the shadow cast by the prohibition on annexation might help to orient that outcome towards justice.  

What legal effects will the purported annexation bring about, beyond constituting an international law violation? This is somewhat unpredictable. From the perspective of Israeli, rather than international, law, the legal effects of annexation would partly depend on which areas were annexed (“A,” “B,” or “C,” in the jargon of the Oslo Accords). Palestinian society, formerly governed by the mixture of Ottoman, British, and Jordanian law that prevailed in the area prior to 1967, along with law promulgated by the Palestinian Authority since Oslo, could now simply become governed by Israeli law. Alternatively, Israel could maintain a modified version of the current system in which the governing law and the jurisdictional authority of courts depend on ethnicity – as described in the crucial work of Michael Karayanni.

The former route, the unitary imposition of Israeli law, would inevitably result in much economic and social disruption due to the abrupt shift in legal frameworks. Even beyond such disruption, many Palestinians would likely resist this imposition. Such resistance could stem from many motivations, including a principled refusal of Israeli norms, the professional disadvantage to Palestinian lawyers not trained in Israeli law, economic or moral objections to particular rules, bias in Israeli courts, and so on. The second route would resemble the current situation: a dual legal system based on ethnicity. As Karayanni has shown, this system subordinates Palestinian law and courts to Israeli legal supremacy. Annexation would formally institutionalize this regime, familiar in recent history from settler colonial regimes such as French Algeria.  

A second key set of issues concerns political rights, especially voting rights. An important obstacle to Israeli desires for annexation over the past half-century has been the disturbingly named “demographic fear”: the fear that if all Palestinians in the occupied territories were to become Israeli citizens, they would outnumber or at least equal the number of Jews in the expanded State of Israel. If these Palestinians were to vote at the same rates as their Jewish counterparts, they could legislate dramatic changes in the character of the State. Given the delicate balance of electoral politics in Israel, as demonstrated over the past two years, an influx of millions of Palestinian voters could radically alter Israeli society. 

Of course, it is by no means certain that annexation would transform all, or even most, Palestinians into Israeli citizens. If Israel were to make this option available, many Palestinians would reject it on grounds of political principle. Many would see it as flagrantly opposed to the longstanding Palestinian aspiration for national self-determination in an independent State – a right unequivocally recognized by international law. Moreover, as the experience with East Jerusalemites has shown, Israel might place all manner of practical and procedural obstacles in the path of Palestinians acquiring Israeli citizenship – even if the option is formally available.

If Israel did not make citizenship available to the Palestinians in annexed territory, annexation would formally enshrine in law a two-class population, divided by ethnicity. Such a system would resemble classical colonial regimes in which colonized people were “subjects” of the colonial State, but not its “citizens.” Again, French Algeria provides a particularly apt analogy, since the French considered Algeria an integral part of France, rather than a “colony.” France granted citizenship to a very small percentage of native Algerians, those it called by the quintessentially racist/colonialist term “évolués.” The vast majority of Algerians remained mere “subjects” of France in the putatively democratic French Republic. The analogy to Israel, which considers itself “the only democracy in the Middle East,” is quite striking. 

As I noted at the outset, the “from the left” (FTL) argument dismisses the significance of annexation, both for law and for its effects on the ground. It brushes off even the more sinister versions of the legal consequences I have just described: i.e., dual legal systems, non-citizenship, and so on. It contends that these supposed consequences will merely be versions of the current situation, which it views as “de facto annexation.”   

The most compelling FTL argument concerns the detrimental effects of the international legal rubric of “occupation.” It specifically focuses on the fact that that this rubric keeps the West Bank in a separate legal status from “Israel proper.” This separation, FTL’ers contend, serves to deepen Israeli subjugation of Palestinians and the establishment of an apartheid-like situation. International law itself would thus itself be part of the problem, facilitating inequality between the Palestinian population of the West Bank and the citizenry of Israel, especially its Jewish citizenry – an inequality most obvious in the privileged legal treatment of Jewish settlers in occupied territory, though not limited to that.

It is, indeed, true that international law requires an “occupier” to preserve the legal system that prevailed prior to the occupation, unless absolutely prevented by security considerations. It thus prohibits an occupier from governing the population of the occupied territory as it does its own population. Such provisions assume that occupation will be temporary. International law views the occupier as a kind of trustee on behalf of either the former sovereign or the population of the territory. The illegality of settlements, and even more so of annexation, are corollaries to this notion that the occupier must preserve the occupied territory in a legal status distinct from its own territory.

However, if occupation becomes permanent, these provisions, humanitarian in intent, may well become a legal cover for subjugation, colonialism, and apartheid. Keeping a population in a separate status can thus only be justified if that status is truly temporary. Some, like Aeyal Gross, have suggested that an occupation conducted in a way that violates basic international legal principles thereby becomes illegal, whether or not it began as an act of legitimate self-defense. Settlements, in particular, can transmogrify an arguably legal “occupation” into an illegal colonial or apartheid regime.

In its most provocative version, some in the FTL camp affirmatively welcome annexation because it would undermine the complacency of liberals, especially among Israeli and American Jews. It would render impossible the notion that the two-state solution is just around the corner, and that there is thus no need to oppose settlements and other occupation policies too forcefully. By ending the fiction that the occupation is temporary, annexation would also undermine the notion that Israel is a democracy, rather than an “ethnocracy.” If Palestinians no longer live in a territory with a distinct legal status from “Israel proper,” then there is no justification for dual-legal systems and deprivation of political rights. Only once this reality appears in the full light of day, so the FTL camp proclaims, can the true struggle for justice begin. That struggle would consist in the fight for legal and political equality among all inhabitants of the “land between the River and the Sea.”

Troublingly, the FTL argument also brushes aside concern that annexation would destroy Palestinian aspirations for national self-determination in an independent State. The FTL position is that there is no realistic chance for the realization of these aspirations. To the extent that the FTL argument is advanced by non-Palestinians, this dismissal potentially re-enacts a paternalistic stance towards a subjugated people, an argument recently made by Tamar Hostovsky Brandes. Such a stance is somewhat reminiscent of those French Communists in the early stages of the Algerian independence struggle who condemned Algerian nationalists as reactionaries – calling upon them, instead, to join a general proletarian revolution in all of “France,” including Algeria.

[In Part Two of this essay, I will critique the underlying assumption of the FTL position – that formal annexation will not hurt, and may even help, the struggle for justice in the Middle East – especially in the context of the current global ascendancy of fascist-like forces.]

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Courts & Tribunals, Featured, General, International Criminal Law, International Human Rights Law, International Humanitarian Law, Middle East, Organizations, Public International Law, Use of Force
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Jonathan Turner

In this post Professor Berman sets up an Aunt Sally, that the extension of Israeli law to parts of Judea and Samaria would be an acquisition of territory by force, which he then knocks down as incompatible with international law. But the extension of Israeli law to parts of Judea and Samaria can be based on Israel’s entitlement to sovereignty over this area on two other grounds, whose compatibility with international law is logically unassailable. The first is that Israel, as the national State of the Jewish people, is entitled to exercise the rights granted to the Jewish people by the League of Nations mandate for Palestine to reconstitute their national home throughout the territory west of the Jordan river/Arava valley. These rights continue in accordance with Article 80 of the UN Charter and the Opinions of the International Court of Justice on South West Africa (1950) and Namibia (1971). The second is that when Israel was established in 1948 as the only new State west of the Jordan at the end of the British regime, it inherited the existing boundary along the Jordan river/Arava valley in accordance with the principle of uti possidetis juris. This principle has been universally… Read more »