The Annexation of Land in Occupied Palestine: Time for International Action

[John B. Quigley is Emeritus Professor of Law at Moritz College of Law, The Ohio State University.]

The annexation, now under consideration by Israel, of land in occupied Palestine is aimed, in part, at bringing many of Israel’s settlements into the territory of Israel. Annexation, however, may bring the unintended consequence of the loss of those very settlements. Much of the land on which the settlements have been built is owned by Palestinians. The use of that land has been taken from the owners as settlements have been built. The rationale under the law of belligerent occupation has been that the land is needed for a purpose connected to maintaining military control.

Under the law of belligerent occupation, title to land may not be taken by the occupant. The use of land, however, may be taken for purposes related to the occupation. Use of (but not title to) land may be taken, for example, to billet soldiers of an occupying army. Residence by civilians brought in under the auspices of a belligerent occupant does not relate to military needs. But even if that rationale is valid, the use right may be taken only so long as there is a need related to the belligerent occupation. Once occupation ends, the rationale falls away. The sovereignty that would be claimed with annexation does not divest owners. The use right automatically reverts to the owner, who will have a solid basis for evicting the settlers. If an owner files for eviction in an Israeli court, the court will face a stark choice of following the law or giving in to the aims of the Israeli Government.

Prime Minister Benjamin Netanyahu has not indicated how he plans to deal with this problem. He obviously aims to benefit the settlers, not dispossess them. Israel’s Knesset is aware of the problem and has been trying to find a way to override the property rights of the Palestinian owners once annexation begins. In 2017 it adopted a “Settlements Regularization Law,” to concentrate the use rights in the hands of a military officer in charge of government property until there is a “political resolution regarding the status of the area and settlement in it.” The officer would turn the use right over to the settlers, who, according to this Law, would be granted immunity from any legal action that might be taken by the owners. The Law does not say how a “political resolution” would impact property rights. The evident expectation, however, is that once annexation is a fact, settlers would be protected.

The Settlements Regularization Law, however, has been successfully challenged in the Supreme Court of Israel. Two separate petitions were filed against it. One was filed by the Legal Center for Arab Minority Rights in Israel, the Jerusalem Legal Aid Center and Al Mezan Center for Human Rights, on behalf of 17 Palestinian municipal councils in the West Bank. A second  was filed by Yesh Din and 12 other human rights organizations, 23 council heads of Palestinian villages in the West Bank, and four Palestinian landowners who are potentially affected. The Government of Israel, defending against petitioners, was represented by private counsel because Attorney General Avichai Mandelblit, who normally argues for the Government, thought that the Settlements Regularization Law violated the rights of Palestinian landowners.

On June 9, 2020, in Silwad Municipality, et. al. v. The Knesset, et. al, High Court of Justice Nos. 1308/17 and 2055/17, the Supreme Court invalidated the Settlements Regularization Law on the ground that the Knesset has no business legislating for occupied territory. Sitting as the High Court of Justice, the Supreme Court questioned “the Knesset’s authority to enact laws that are directly applicable in the region,” as well as its “imposition of such legislation on the rules of international law applicable in belligerent occupation.” The occupied West Bank is outside Israel, hence beyond the Knesset’s reach, the Supreme Court said.

The Supreme Court based its analysis on Israel’s status as belligerent occupant in the West Bank. Interestingly, it cited in regard to the law of belligerent occupation the Geneva Civilians Convention (Fourth Geneva Convention) of 1949, to which Israel is a party, but which has not been incorporated into the domestic law of Israel. Israel in principle follows the British approach that a treaty must be incorporated by the legislative branch before it enters into domestic law.

The Supreme Court nonetheless said that West Bank Palestinians are “protected persons” under Geneva Civilians Convention Article 4, which defines the circle of persons whose rights are protected by the Convention. It referred as well to Article 27, which protects personal integrity and honor. Protection of private property against confiscation is assured by Article 46 of the Hague Regulations of 1907.

Palestinian owners of land on which settlements have been built have already been deprived of use of their land for many years. In Silwad Municipality v. The Knesset, the Supreme Court gave figures to indicate the scope of the problem. By its count, 3455 buildings in West Bank settlements sit on land owned by Palestinians.

Under international law – even if the use deprivation to date is lawful – continued use of the land for settlements cannot be justified once occupation ends. The use right reverts to the owner. Despite the Supreme Court’s accurate analysis in Silwad Municipality v. The Knesset, it is unclear what the Supreme Court might say if annexation is carried through. It is also unclear what the Knesset might do. Once Israel deems the annexed areas to be under its sovereignty, other legislation might be passed that the Supreme Court would validate. Protection of the Palestinian landowners may well not come in the domestic legal system of Israel.

The Palestine Government has no clear legal mechanism available to it to challenge Israel on this issue. Annexation is doubtless unlawful under the Charter of the United Nations.

In its Resolution 242 of 1967, adopted in the wake of Israel’s occupation, the UN Security Council referred to “the inadmissibility of the acquisition of territory by war” and cited Article 2 of the Charter. Annexation would constitute an “acquisition” of the territory in question. No obvious jurisdictional base exists, however, for a suit in the International Court of Justice.

As a matter of individual criminal liability, Article 8bis of the Rome Statute of the International Criminal Court defines as one form of the crime of aggression “any annexation by the use of force of the territory of another State or part thereof.” Articles 15bis and 15ter, however, preclude prosecution of nationals of states that are not party to the Rome Statute absent a referral by the Security Council. Israel is not a party. While the Palestine Government has not been reluctant to approach the International Criminal Court, jurisdiction would lie there only upon a Security Council referral. And prosecution of individual officials would not impose obligations on Israel as a state.

The courses of action open to the international community are far from ironclad but should be pursued. Under Article 1 of the Geneva Civilians Convention, “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” The states party thus bear a collective responsibility to ensure compliance. They convened, in fact, in July 1999 in Geneva, at the call of the Government of Switzerland, to consider Israel’s violations as belligerent occupant in the occupied Palestine territory. That session was adjourned at the request of Palestine President Yassir Arafat to facilitate direct negotiations with Israel, but it could readily re-convene. A conference of the states parties could consider landowner rights, the legality of settlements, and the legality of annexation.

The Security Council, of course, could consider these matters as well, particularly in light of the cited Resolution 242, which would be openly flouted by annexation. Israel also stands in violation of the prohibition on transferring civilians into settlement in occupied territory, as said by the Security Council in Resolution 2334 of 2016, and previously by the International Court of Justice in its Advisory Opinion of 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.

And finally – beyond the illegality in regard to ownership rights, settlements, and annexation – lies a more fundamental illegality that the Security Council ducked when it drafted Resolution 242, namely the jus ad bellum question in regard to the 1967 hostilities that led to Israel’s occupation of the West Bank. In a briefing I was asked to give on settlements at a Security Council meeting on May 9, 2019, I pointed out that the occupation of the West Bank was unlawful from the outset because Jordan, then in control of the West Bank, had come to the aid of Egypt in an act of collective defense after Egypt was attacked by Israel. Israel’s troop entry into the West Bank therefore was unlawful.

The violation of Palestinian ownership rights sits on top of underlying elements of illegality. The failure of the international community to deal with them has let Israel proceed from one unlawful act to another, perpetuating a conflict whose end is not in sight. It is more than high time for effective international action.