21 May 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.]
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 applied in other cases of new States emerging from mandates, colonial rule or larger entities.
I defy anyone to demonstrate a logical error in either of these grounds. The real objection is the ideological one that, if fully applied, they lead to a conclusion which may be politically unattractive. Which is why there needs to be a negotiation to reach a more acceptable resolution than that which would result from the logical application of the legal rules.
Thanks for your interest in my essay. As I say explicitly in this essay, I did not undertake a demonstration of the illegality here. I did so in an earlier piece, which is hyper-linked in this essay. That earlier piece focused on the illegality of the settlements, but its arguments apply, a fortiori, to annexation. All the legal arguments you present here are responded to there. Here’s the link: https://www.tikkun.org/the-settlement-legality-debate-faq . As you are no doubt aware, the position you take here is rejected by the vast majority of international lawyers, the International Court of Justice, and other authoritative international bodies. The present essay takes as its point of departure this overwhelming consensus in international law about the illegality of annexation and urges that we stand up for international law here – in the face of those from the right and left who would have us disregard international law. If you have specific questions or arguments about specific parts of my earlier piece, whose URL I’ve given here, I would be happy to respond. I just saw your comment now, though I see it was posted 3 days ago, I apologize for the delayed response.
Professor Berman’s earlier article did not address uti possidetis juris at all.
It did address very briefly the other basis I mentioned, the League of Nations Mandate. He rejected that on the ground of rebus sic stantibus, fundamental change of circumstances. In doing so, he ignored the restrictive approach to this doctrine in modern international law, reflected in the Free Zones and Fisheries Jurisdiction cases and in Arts. 54, 62 and 70 of the Vienna Convention on the Law of Treaties (which is generally regarded as codifying existing customary international law).
In accordance with those provisions, even a fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty unless the change was unforeseen, the circumstances constituted an essential basis of the parties’ consent, and the effect of the change is radically to transform the extent of the obligations still to be performed; and even then, it may not be invoked if the treaty established a boundary or if the change is the result of a breach by the party invoking it. Furthermore, termination does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.
Professor Berman did not address any of these points, but argued that the establishment of the State of Israel was an over-fulfilment of the object of reconstituting the Jewish national home and that this somehow justified under-fulfilment of other terms of the Mandate.
The proposition that a supposed over-fulfilment of one object of a treaty justifies under-fulfilment of another does not appear to be based on any established rule of international law.
In any case, the very purpose of the “sacred trust” enshrined in Art. 22 of the Covenant of the League of Nations, as interpreted by the ICJ in its 1971 Namibia opinion, was the development of the benefiting peoples until they were able to stand alone as independent nations. The reconstitution of the Jewish National Home under the Mandate for Palestine necessarily contemplated its development into an independent State.
That object was fulfilled by the establishment of the State of Israel in 1948 in the parts of western Palestine then under its control, and was further fulfilled by the application of Israeli law in East Jerusalem in 1967, but has so far remained unfulfilled in other parts of the West Bank.
Professor Berman asserts that this position is rejected by the vast majority of international lawyers. But these arguments are hardly ever addressed, and even then not in a logical and coherent way. Views that are not based on the coherent application of established rules to situations within their scope are not properly classed as legal opinions.
Thank you for your continued engagement with my articles. Here is a brief response:
1) Uti posseditis juris: it is unclear to me to what end you are citing this principle. This principle holds that newly independent States should presumptively maintain their pre-independence borders. If this principle had been applied to Palestine in 1947, there would have been one State whose borders would have been identical to the entire Mandated Territory. Since Palestinian Arabs constituted a decisive majority of the inhabitants of that territory, that one State would have either been a non-ethnic democratic State or a State with a Palestinian Arab identity. Independence of that one State would have terminated any pre-independence provisions contained in the Mandate instrument. A strict application of uti posseditis juris would have resulted in no State of Israel at all.
Of course, the partition resolution, GA Resolution 181 (1947), departed from uti posseditis juris. The State of Israel cited this Resolution prominently in its Declaration of Independence, thereby consenting to this departure from uti posseditis juris. I note, in any case, that it is unclear whether uti posseditis juris had “ripened” into a general rule of customary international law in 1947. In Burkina Faso v. Mali, the ICJ stressed the role of the decolonization decades of the 50s and 60s in the ripening process. But the 1947 action of the General Assembly (even if in a non-binding resolution) and the 1948 independence declaration of the State of Israel itself renders this question moot.
2) Rebus sic stantibus: the provisions for a Jewish “national home” were incorporated in the Mandate instrument, a treaty between the League of Nations and the British Empire. In 1947, the League of Nations no longer existed and the British Empire declared its determination to withdraw from the Mandate. These changes are themselves quite a “fundamental change of circumstances.” It is true, however, that under the 1950 Southwest Africa case, the UN succeeded to the League as overseeing the conduct of the Mandate. That decision occurred in the context of a State (South Africa) purporting to continue the exercise of Mandatory authority, which, of course, was lacking in Palestine with British withdrawal.
Some attempt to construe Article 80 of the UN Charter as maintaining the rights concerning a Jewish “national home” despite the lapse of the Mandate. But remember that the Mandate made no provision for a Jewish State in the whole, or indeed part, of Mandatory Palestine. If the drafters of the Mandate had achieved a consensus that such a State was to be established, they would have so written. But they did not, carefully choosing the extremely unusual “national home” term instead. The Mandate mentions “self-governing institutions” and “local autonomy,” but these are far short of calls for an independent State. In 1919, when the Mandate instrument was written, there was certainly no consensus shared by the members of the League and Britain (the parties to the treaty) that a Jewish State was to be established at all, let alone in all of Mandatory Palestine.
I wrote in my Tikkun article that the establishment of the State of Israel more than fulfilled the promise of the Mandate instrument to establish a Jewish “national home” “in” Palestine. I stand by that assertion. Indeed, in 1919, there were even disagreements among Zionists themselves whether a Jewish State was necessarily the goal. Consensus on this goal was only achieved in 1942, in the “Biltmore Program,” in the context of the ongoing Nazi genocide perpetrated against the Jews.
The fulfillment, indeed over-fulfillment, of the “national home” provisions by the establishment of the State of Israel also constitutes a rebus sic stantibus argument for the current irrelevance of any “national home” provisions in the Mandate. The “national home” provisions were formulated at a time when Jews had no State upon whom they could firmly rely on for protection, no State that could fulfill their desire for national self-determination. The establishment of the State of Israel cured both of those problems that were the underlying motivations for the “national home” provisions. The establishment of the State of Israel thus fundamentally alters the basis of the parties’ consent to the treaty (the Mandate instrument). If further evidence were required, the declaration by the General Assembly in of favor partition, the withdrawal of Britain, the countless subsequent declarations by various organs of the UN concerning the illegality of settlements and in favor of Palestinian self-determination, all prove that the parties (including the successor to the League, the UN) view the establishment of the State of Israel as rendering any “national home” provisions obsolete. The decision by the ICJ in the 2004 Wall case seals that proof.
In view of all this, the ripening of self-determination into a right of international law makes it clear that the Palestinians who live in areas of ex-Mandatory Palestine outside the recognized borders of the State of Israel have a right to determine their own political destiny.
And the firmly established law of belligerent occupation makes it clear that Israeli annexation of territories occupied in 1967 would be a blatant violation of international law.
3) Sacred Trust: the “sacred trust” in every Mandate was for the benefit of the population. Of course, at the time of the establishment of the Palestine Mandate, the population was overwhelmingly Arab. The Jewish “national home” provisions rendered the usual meaning of “sacred trust” very difficult to apply in Palestine. In other cases, the notion that “sacred trust” implied independence could not be taken for granted except in the case of the “A” Mandates, so it is inaccurate to say that “sacred trust” necessarily entailed eventual independence in 1919. The ICJ declared much later (in 1971) that “sacred trust” had come over the years to mean self-determination. By then, the question was moot in relation to the Jews of Mandatory Palestine, since they had already established the State of Israel in 1948. The right of Palestinian Arabs to self-determination can partially be traced back to the “sacred trust” in the Mandate. But it is mainly traceable to the general right to self-determination of all non-self-governing peoples, a right that “ripened” during the decolonization decades of the 50s and 60s – as repeatedly reaffirmed by the ICJ. There simply is no plausible legal argument against Palestinian self-determination.
4) International law consensus: you claim that it is irrelevant that it is the overwhelming consensus among international courts, institutions, and jurists that Israeli annexation of occupied territory would be illegal. This claim mis-states the nature of international law, as I explained in my Tikkun article – and as also would be evident from any standard treatment of the “sources” of international law, as codified, among other places, in Article 38 of the Statute of the ICJ.