Israel Has Already Annexed the West Bank

Prime Minister Benjamin Netanyahu’s pledge to “apply Israeli sovereignty” over swathes of West Bank territory, offered just prior to his re-election last week, is more dangerous than a threat. It is a distraction.

Across what is known as Area C, which represents roughly 60% of the West Bank, Israel has already taken steps legally tantamount to annexation. Rather than wasting energy attempting to persuade the Israeli government not to formalize these measures, the international community should focus on conveying a simple message to the Israeli public: they will no longer be spared the costs of violating the foundational norms of modern international law and depriving millions of Palestinians of their human rights.

[From the Journal of Palestine Studies | And Now What? The Trump Administration and the Question of Jerusalem]

The relevant legal framework is neither complicated nor controversial. When the memory of two devastating world wars was still fresh, the international community worked to build a system of rules to prevent their recurrence. Two pillars of the system that emerged remain central to the resolution of the Palestinian-Israeli conflict: the prohibition of territorial conquest and the right of peoples to self-determination.

Conquest – that is, the acquisition of territory by force – was forbidden because the framers of the United Nations Charter recognized that lust for land was a major driver of war. Notwithstanding Mike Pompeo’s recent remarks about the Golan, conquest is prohibited regardless of whether the war in question was “aggressive” or “defensive.” As Tel Aviv University Professor Eliav Lieblich explains, that is because both labels may be opportunistically manipulated. This point is particularly relevant where there is controversy about which party was the aggressor, as was the case when Israel occupied the West Bank, Gaza Strip, Golan Heights, and Sinai Peninsula in 1967.

It bears emphasizing that occupying land is not the same thing as “acquiring” it. To acquire, or “annex” territory, as I have explored elsewhere, a state must not only exercise authority over it, but also demonstrate an intention to hold the territory in question permanently as sovereign.

There can be no question, however, that Israel has evinced such an intention. On this point, last year’s report by the UN Special Rapporteur on human rights in the occupied Palestinian territory, Michael Lynk, is worth quoting at length:

During five decades of the occupation, Israel has steadily entrenched its sovereign footprint throughout the West Bank. The infrastructure of the territory – the sewage connections, the communication systems and the electrical network – has been completely integrated into Israel’s domestic system. The West Bank’s water system, with its plentiful mountain aquifers, have been owned since 1982 by Mekorot, the country’s national water enterprise, with the benefits flowing primarily to Israel. The highway network, which before 1967 was primarily a north-south system, has been re-configured as an east-west system to connect the settlements with each other and with Israeli cities, thereby disrupting Palestinian transportation. The West Bank economy is subject to a single customs union agreement with Israel, enabling the more powerful economy to dominate and flourish, while the weaker economy withers through de-development and dependence. The natural resources of the West Bank are largely controlled by Israel and primarily exploited for its benefit. Israeli legislation and laws have been extended by the Israeli military commander to West Bank settlers on a personal /territorial basis, while a disfigured version of occupation law, without many of its protections and guarantees, applies to the Palestinians. The allocation of ‘state land’ in the West Bank that is assigned for any use has been given almost exclusively to Israeli settlements (99.76 percent), even though the settlers make up only 12 percent of the population in the West Bank.

Based on these facts, and many others documented in his report, Lynk concludes that “Israel has effectively annexed a significant part of the West Bank and is treating this territory as its own.”

[From the Journal of Palestine Studies | Shifting Sands: Zionism & American Jewry]

This reality should remind us that this conflict is not only about the conquest of land. It is also about the dispossession and disenfranchisement of people.

As Israel continues to seize more Palestinian land, it has also transformed millions of Palestinians in the West Bank and Gaza Strip into a captive population, hemmed into dozens of non-contiguous enclaves and denied their right to self-determination, including the opportunity to participate in choosing the leaders whose decisions govern their lives. Indeed, the most striking feature of Israel’s elections last week is who was barred from voting in them – the Palestinians who reside in the territory occupied by Israel for the last half century, as well as the refugees denied the opportunity to return to their homes in what is now Israel.

The international community has repeatedly reaffirmed the Palestinians’ right to self-determination. To be sure, self-determination can mean different things in different contexts. By an overwhelming majority, the UN General Assembly concluded last year that it means that Palestinians are entitled to an independent state of their own. But it can also be realized through other measures, such as the creation of a confederal union or binational state. That said, it will not be realized through the implementation of cynical schemes to
shrink” the conflict while preserving most aspects of the status quo.

So, what should be done?

What is clear is that the course of action apparently chosen by the Trump administration is precisely what the United States should not do. By recognizing Israel’s purported sovereignty over the Golan Heights, the administration breached the United States’ legal responsibility not to recognize as lawful a patently illegal act. The same would be true about U.S. recognition of Israel’s annexation of West Bank territory, including East Jerusalem. Indeed, in commentary on its influential Draft Articles on State Responsibility, the International Law Commission offered an example of the kind of act that states should refrain from formally or informally recognizing as legal: “attempted acquisition of sovereignty over territory through denial of the right of self-determination of peoples.” A more fitting characterization of Israel’s actions in the West Bank would be hard to come by.

Because the enforcement of international law is a decentralized process, the Trump administration’s statements about the Golan, or possibly in the future about the West Bank, will have only as much influence as the rest of the international community accords them, which so far is not much. But transformative change in Israel and Palestine will not emerge from pious invocations of international law in the halls of UN Headquarters alone.

The current trajectory is propelled by an array of powerful forces steeped in both ideologies and interests. Over the last decade, Israelis have made clear that they will not be persuaded to share sovereignty over the Holy Land by Palestinian good behavior in the form of competent self-government or declining violence; by carrots extended by members of the international community in the form of a massive military aid package provided by the U.S.; by a privileged partnership with the EU worth billions of euros; or by a comprehensive peace agreement with all the members of the Arab League.

[From the Journal of Palestine Studies | Why U.S. Recognition of Jerusalem Could Be Contrary to International Law]

As Nathan Thrall has demonstrated, Israelis will not embrace change unless they are forced to.

For those of us committed to the path of nonviolence, that means that the only way forward is to enhance the reach and efficacy of civil society initiatives like boycotts and divestment. In order to be transformative, however, such steps must ultimately be complemented by collective action by governments, including the imposition of sanctions.

Accordingly, as would-be presidential contenders here in the U.S. test out positions, it is not enough for them to offer platitudes about the two-state solution or to lob a gibe at Netanyahu. We must press them to defend their opposition to BDS and to offer a credible theory of change.

Most Palestinians cannot go to the polls to effect change in Israel’s policies. But we can – and must.

About Omar Dajani 1 Article
Professor Omar Dajani, co-director of the McGeorge School of Law's Global Center for Business & Development at the University of the Pacific, is recognized as a leading expert on legal aspects of the Palestinian-Israeli conflict.