The annexation of as much as 30 percent of the West Bank, including the settlement blocs, and the Jordan Valley, is proceeding apace, with prime minister Benjamin Netanyahu announcing to the Knesset on the day he was sworn in that annexation is the realization of "the justness of our rights in the Land of Israel."
But what’s not being asked with sufficient urgency is whether this extension of Israeli law would breach international law.
Perhaps the answer is considered so obvious that it does not need elaboration. Annexation is strictly prohibited by the UN Charter. A state may not forcibly acquire the territory of another state. What more is there to say?
Well, if you are a Likudnik, it turns out there is a lot more to say.
Right-wing maximalists have long argued that only the Jewish people have a right to self-determination – by which they mean statehood – over all the territories between the Jordan river and the Mediterranean.
The San Remo resolution of 1920, according to their reading of the text, which included the Balfour Declaration, amounted to the “Magna Carta” of the Jewish people, by providing international legitimacy to the extension of Jewish sovereignty over all parts of Palestine, which prior to the 1922 "partition" (or "excision" in their terms) by the double-crossing Lord Balfour, included the territory of Transjordan.
The Likud school claim that the civil rights of the Arabs in the text of the Balfour Declaration did not include the protection of their political rights because they were objects, not subjects of international law. Only the Jewish people were accorded explicit recognition in the mandate text and therefore they have a superior right to all the land because their claim is better than anyone else’s.
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"The Arabs," according to those who espouse this view, rejected a fair settlement of the land in the 1947 UN Partition Plan, which instantaneously became a "dead letter." "The Arabs" subsequently declared war against the Jewish people in 1948, and then again in 1967, which they lost in legitimate wars of self-defense, thereby forfeiting any claim they may have had to the land. The Likudniks further claim the land has been "disputed" ever since (not occupied, it must be stressed).
The Likudniks assert that the Palestinians have rejected all the "very generous" peace offers extended to them over the years, including most recently, by U.S. President Donald Trump, in his so-called "Deal of the Century," which describes UN resolutions as indeterminate, and accepts the revisionist view that "Israel has … valid legal and historical claims … which are part of the ancestral homeland of the Jewish people."
What is more, Jared Kushner, Trump’s son-in-law, and a key architect of the Deal of the Century, is of the view that the Palestinians are not capable of governing themselves, even though they have been governing large parts of the West Bank and the Gaza Strip for more than 25 years.
The U.S. government has clarified that those parts of the West Bank over which Israeli Prime Minister Benjamin Netanyahu plans to extend Israel’s laws - where lots of Jewish Israelis live in American-style "neighborhoods" - are "not per se inconsistent with international law." And for right-wingers in both Israel and the U.S., the annexation of the sparsely populated, but strategic, Jordan Valley, which provides the tiny Jewish state with strategic depth, cannot be compared to other annexations elsewhere in the world.
They claim that there is no need to consult the Palestinians about the purported annexation because they are just an aggregate of disparate Arabic-speaking peoples that are not deeply rooted to the land, having migrated to Palestine in the late nineteenth century from Egypt and Syria. They are not a nation in the true sense of the word. Only the Jewish people are "indigenous" to the land.
The "Palestinian people" were "invented" in the 1960s in the Arab war against Israel, and the Palestine Liberation Organization (PLO) is "an organization of assassins" and not a national liberation movement that aims "to liquidate the State of Israel," to quote from Likud’s 1977 election manifesto.
According to a mainstream view in the Likud, there is already a Palestinian state: it’s called the Hashemite Kingdom of Jordan, and there is no need to create an additional Palestinian state west of the Jordan river that would pose a mortal threat to the Jewish people. According to this view, a sovereign Palestinian state does not exist and has never existed.
Therefore, the UN Charter, which only applies to states, is not applicable to this situation. Accordingly, Israel can take the land without the people. As Netanyahu has already made clear, the Palestinians in the areas that will be annexed to Israel will not get Israeli citizenship.
Netanyahu clearly believes that the time has come to seize the moment to declare victory over the Arabs. For his camp, there will never be a more opportune moment to fulfil the revisionist dream outlined in the Nation State Law, which describes self-determination as being exclusive to the Jewish people in "the Land of Israel." There will never be a more supportive President in the White House while he is prime minister.
This is his historic destiny – the moment he has been waiting for – and he must seize it while the world is distracted and divided.
Netanyahu has a majority in the Knesset to extend Israeli sovereignty to the West Bank, but time is not on his side. He must complete the goal before a new president is installed in the White House on January 20, 2021 and in the meantime, he must ensure that the EU is quiescent. And he may get what he wants, as the EU cannot agree on a common position to oppose the Trump vision, whose ‘plan’ is the guiding star of what will happen in Israel from July 1st.
It’s depressing enough that the revisionist narrative described above is endorsed by the Likud and the Trump White House, but it appears to have another significant backer: none other than the European Union High Representative for Foreign Affairs Josep Borell.
According to a report in Haaretz in May, Borrell was asked whether the annexation of parts of the West Bank would be similar to that of the Crimea, annexed by Russia in 2014. Israeli officials expressed much satisfaction Borell’s answer: "There is a difference between annexing territory that belongs to a sovereign state and that of the Palestinians."
In other words, Borell appears to accept that a Palestinian state does not exist, in which case, it could be claimed that Article 2(4) UN Charter does not apply. This appears to put Borell in the same camp as Netanyahu and the Trump administration — a view that I am sure to which he would object, being the good social democrat that he is.
But if Borell was reflecting a wider European view, perhaps the view of his Brussels legal advisers, for example, it may be asked on what basis he or any European official, for that matter, can threaten to impose measures to deter Israel from annexation, such as voicing "public support of proceedings currently underway in the International Criminal Court," also reported in Haaretz?
Public support for the proceedings at the International Criminal Court is not going to be enough when the Trump administration is threatening to launch a concerted effort to prevent that court from opening war crimes investigations that could see U.S. and Israeli officials in the dock.
The time has come for the EU to stand up for what it believes in, not only because it is the right thing to do, but because it has a vested interest in doing so. The European continent is home to multiple international dispute settlement bodies, from the Hague to Hamburg, Paris, and Geneva. These must be protected at all costs if the rule of law in international affairs is to have any meaning.
If the EU believes that Netanyahu is going to "annex" the West Bank, then it must also accept that the territory that will be annexed is already part of a state—a Palestinian state.
It will be recalled that in November 2012, the UN General Assembly adopted Resolution 67/19 that accorded Palestine "non-member observer State status in the United Nations." The resolution was co-sponsored by 70 states (including Palestine) and was carried by 138 votes to 9 against, with 41 abstentions.
While some of the states that already recognized Palestine voted in favor of the resolution, some new names appeared: Austria, Belgium, Denmark, Finland, France, Ireland, Italy, Japan, New Zealand, Norway, Portugal, Spain, Sweden, and Switzerland. Although some of these states qualified their votes by emphasizing that their votes were given without prejudice to their positions on the recognition of the State of Palestine; others states were very much cognizant that the resolution they voted for gave Palestine plenary powers to behave like a state.
One of the states that was silent in the vote in 2012 was Sweden. Two years after it voted in favour of the resolution, it recognized the State of Palestine. The government announcement recognizing Palestine referred to a commentary by three Swedish international law professors, including two former Principal Legal Advisors of Public International Law at the Swedish Foreign Ministry, who explained that Sweden must have regarded Palestine as a state when it voted in favor of resolution 67/19.
They explained that had it not been for Israel’s "illegal occupation," Palestine would have had effective control over its territory. They emphasized that "Israel has no international legal right that can be violated by the formation of a Palestinian state in the occupied territories or by the recognition of such a state."
The Palestinian people, just like the Jewish people, have a right of self-determination. Ever since the UN adopted its Plan of Partition on 29 November 1947, which nine European states voted in favour of (Belgium, Denmark, France, Iceland, Luxembourg, the Netherlands, Norway, Poland, and Sweden) the right of self-determination has been linked to the establishment of two states in the Holy Land. The Palestinian statehood claim is one that accords with modern international law, longstanding EU policy, and with the fundamental principle that annexation, because of armed conflict, must not be recognised, even if the territory was occupied in a war of self-defense.
If EU member states want to deter Israel from annexing further parts of the West Bank, they need to go beyond their current tepid rhetoric about "non-recognition," and recognize that the West Bank forms an integral part of the territory of the State of Palestine – just like Sweden did. If they cannot reach a common position, then a group of likeminded states can recognize Palestine.
Only then will their statements against annexation be taken seriously by the Palestinians, by the Trump administration, and by the government of Israel.
Victor Kattan is Senior Research Fellow at the Middle East Institute of the National University of Singapore and an Associate Fellow at the Faculty of Law. Twitter: @VictorKattan