ANNEXATION: YES OR NO?

V DONALD TRUMP’S “deal of the century” contains a conceptual map demarcating a small Palestinian state alongside a larger Israel gaining 30 per cent of the occupied West Bank.

Israel’s Prime Minister, Benjamin Netanyahu, took this as a green light to propose a unilateral annexation of the area. In an effort to force his hand, some Knesset members introduced an annexation bill last week. Such an action would be unlawful under Israeli legal commitments and international law.

The West Bank is the area to the east of the Green Line, which marked the armistice agreements at the end of the War of Independence in 1948-9. This was land that the 1947 United Nations partition plan had allocated to the Arab Palestinian state. By 1949 it was occupied by Jordan which unlawfully annexed it a year later. Israel, in its Declaration of Independence, made the commitment that the new state was “prepared to cooperate

Israelis in a recent protest against the West Bank annexation plans

with the agencies and representatives of the United Nations in implementing the [partition] resolution”. Given the implacable opposition of the Arab world to the creation of the Jewish state, this aspiration went unfulfilled. However, it indicates that Israel did not consider the West Bank as part of its territory and at no time during the Jordanian occupation did Israel make any claim to it — not even to the Jewish Quarter of the Old City.

When Israel came into occupation

of the West Bank following the 1967 Six Day War, it was effectively treated as occupied territory. For example, the existing civil law continued to operate as required by the law of occupation.

It has to be remembered the 1967 war was fought in self-defence and, although it is permissible to temporally enter another’s territory in order to militarily defeat an attack, you can only do so for the purpose of selfdefence and for no ulterior motive, such as seizing territory.

This was underlined by Security Council resolution 242, adopted after the war, which “emphasises the inadmissibility of the acquisition of territory by war”. Under the 1993 Oslo agreements, Israel pledged that a permanent settlement with the Palestinians would be based on the implementation of resolution 242. It would appear that Israel has accepted that it is “impermissible” for it to acquire the West Bank.

It’s true that in 1980 Israel annexed East Jerusalem (and some surrounding areas). This was declared “null and void” by the United Nations Security Council. However, even Israel has appeared to question the permanence of its annexation as it agreed to negotiate the status of Jerusalem as a result of its commitments in the Oslo Agreements.

While successive Israeli governments have claimed that the status of the West Bank is “disputed”, as can be seen, the legal obligations that Israel itself has accepted contradict that claim.

In 2004 the International Court of Justice issued its advisory opinion on the Wall making it clear that there was a distinction between the “territory of Israel itself” and the land to the east of the Green Line which “remain occupied territories and Israel has continued to have the status of the occupying power.” Advisory opinions are legally authoritative, and it is an error to think that the law on which they are based is optional.

Israel rejected the advisory opinion which called on it to dismantle the wall built in the West Bank and compensate Palestinians affected. The court did not object to Israel building a security fence on its own territory, but it could not treat Palestinian Occupied Territory as its own.

That court also reiterated the Palestinian people’s right to selfdetermination and drew attention to the obligation of states not to take any “forcible action” to prevent the exercise of self-determination. The court reflected the international legal consensus and the will of the international community, certainly since 1947, for a two-state solution. The original UN allocation of land for the two states was frustrated by Arab intransigence and British refusal to implement partition in the last months of mandate. As a result, Arab Palestine is left with half the area that it could have had in 1947. Despite its size the West Bank and Gaza would constitute a viable Palestinian state. Encroaching on that territory would undermine the Palestinian legal right to self-determination.

From 1897 the Zionist movement sought to achieve its aims through “Public Law”. Jewish national rights have been recognized by the League of Nations and the United Nations. International law has helped shape and secure the Jewish state; indeed the 2004 International Court’s Advisory Opinion contains a ringing endorsement of Israel’s legitimacy, sovereignty and territorial integrity.

The rule of international law has served Israel well and provides the best framework for its international relations.

The tradition of seeking Jewish emancipation through law has been wise and successful. Annexing Palestinian land would be unwise and unlawful.

The ICJ has reiterated the Palestinians’ right to selfdetermination

John Strawson is Co-Director of the Centre on Human Rights in Conflict at the University of East London