The Foreign Ministry’s legal advisor claims in a legal opinion that he submitted to Foreign Minister Avigdor Lieberman that the transfer of a populated territory from one country to another, even without the consent of the population involved, is not banned by international law as long as the population obtains or retains some citizenship after the transfer.
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In support of his opinion he brings several examples of transfer of sovereignty, but these are so different from the plan proposed by Lieberman that it is hard to see their relevance. Some of them, such as the population transfers between Greece and Bulgaria in 1919 or between Denmark and Germany in 1946, preceded current international law pertaining to self-determination and human rights.
Another example relates to the Saarland region which was annexed to Germany. This involved a referendum in which the population could express its desires and exercise self-determination. Other examples such as the French departure from Algeria or the British one from Hong Kong were the termination of colonial rule. None of these examples involved a sovereign state which, in an era of self-determination and human rights, transferred some of its territory to another state without referring to the wishes of the population in this territory. The legal opinion also refers to two decisions by the International Court of Justice relating to the rights of citizens in areas in which sovereignty has been transferred. One involved El Salvador and Honduras, and the other referred to Nigeria and Cameroon.
The opinion concludes from these decisions that such transfers are legal. However, these cases involved border disputes in which the court ruled that the country holding a territory was not the legitimate sovereign there, and that it must transfer that territory to the second country, which was the rightful sovereign.
These examples thus relate to disputed territories or to colonial rule in which a court ruling or an end of colonialism changed their sovereign status. The status of the population changed following the change in the territorial status. In other cases the change came after a referendum in which the territorial change followed from the wishes of the population.
The Lieberman plan proposes something entirely different. The Foreign Ministry does not consider Umm al-Fahm a “disputed” area or an area in which colonial rule should be terminated, nor does it wish to hold a referendum among its residents. In contrast to cases in which the population moved between countries because of a territorial change, in this case the aim is to get rid of a population for demographic reasons, even if this means conceding territory. In other words, the territory will follow the population rather than the other way around.
The legal opinion mentions one other case in which the territory followed the population, notably against its will. This happened during the creation of the Bantustans in South Africa. These protectorates were used as a sophisticated method by South Africa to deny citizenship to blacks in an attempt to create a white majority. As stated in the opinion, the international community viewed this as illegitimate.
The South African case is different than the scenario envisaged by the legal opinion, in which an agreement is reached with a sovereign Palestinian state that will grant citizenship to the transferred population. This is not identical to the Bantustans, but it is certainly unlike the other examples listed in the legal opinion.
So is the Lieberman plan legal according to international law? There is no explicit prohibition of such a scenario, and if one considers the sovereignty of the future Palestinian and Israeli state as absolute one may find no reason why they could not agree to such a move. However, when one considers human rights which restrict a state’s sovereignty, one could argue that a decision to deny citizenship from a sector of its citizens on a discriminatory basis, with the purpose of reducing the number of citizens of one ethnic group, is unlawful on the basis of both international law and Israeli Constitutional law.
The legal opinion discusses a choice that may be given to this population, in which they will be able to retain Israeli citizenship either by moving to other areas that will remain in Israel or by living as Israeli citizens in Palestine. However, the opinion emphasizes that granting this choice is not required by international law. In contrast, one could argue that without this choice the plan infringes on the said population’s human rights.
Let’s imagine for a moment that a choice is given and that most of these people will prefer to remain Israeli citizens. Will Lieberman still want to go through with his plan? Probably not, proving that the whole idea is to get rid of this population by an unlawful measure. No legal formalism of a legal opinion or comparisons to other cases can hide this fact. This is wrong not only from a legal perspective. There is great value in living in a diverse society that does not wish for ethnic homogeneity.