In what has been called a Hundred Years’ War on Palestine by Rashid Khalidi, we are seeing a new development every week now. From Prime Minister Netanyahu’s promise of formal annexation to the Israel – UAE deal (Abraham Accords) and the UAE-Bahrain deal, each with the ability to shape the future of the Palestinians. Nevertheless, it inevitably comes down to the International Community to come together now and support the cause of a two-nation solution and the realization of the Palestinians’ right to self-determination.
In this article, we discuss the factors that could lead to the de facto annexation of parts of the occupied territory, what the threat of annexation means in terms of international law violations and its impact on the Palestinians’ right to self-determination, and finally the responsibility of the international community as endowed upon them by law.
The establishment of settlements in the occupied territory by the Israeli authorities has long been viewed as a de facto annexation of these territories. We very often come across this particular term when reading about Israeli activities in the Occupied Palestinian territory. Even the ICJ in its Israeli Wall Advisory Opinion considered that:
The construction of the wall and the associated regime create a “fait accompli” on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.
The pertinent question then is, which even the Court did not venture into, what is de facto annexation?
Omar Dajani, in his article Israel’s Creeping Annexation, answers this particular question. He refers to two elements that were considered pertinent to determine whether de-facto annexation had occurred (when the conquest was considered a lawful means of acquiring territory) firstly, whether effective possession of territory had taken place and secondly, whether the conquering state manifested its intention to hold the territory permanently under its dominion.
The latter may be signaled by a state’s exercise of the kinds of governmental functions typically reserved to a sovereign. This would include the passage of Basic Law: Jerusalem Capital of Israel on December 30, 1980, declaring, “The complete and united Jerusalem is the capital of Israel.” Another signal of an intention to hold the territory permanently is the establishment of civilian settlements upon the territory. Statistics reveal that Israel has established over 132 settlements in the occupied territory with over 4 lakh Israelis living in the area. Since the settlements were established as a result of a government decision, with its assistance and encouragement, they shall qualify as a transfer of the population.
This is in gross violation of Article 49(6) Geneva Convention IV, under which an occupying power shall not transfer part of its civilian population into the territory it occupies. Multiple Security Council resolutions (242, 446, 1435, and 2334) have stated that Israeli settlements are unlawful and called on Israel to end its occupation. A transfer of population of this kind could also qualify as a war crime as it is classified under Article 8 (2) (b) (viii) of the Rome Statute. The nuances are deeprooted in multiple violations of international criminal law.
The sheer extent of these settlements, the building of the Israeli Separation Wall, and the new Jerusalem Road (also called the American Road) that aims to link the settlements, are all together reflections of the intention of the Israeli authorities to annex the territory without any formal declaration of the same.
In May 2020, Israel swore in its new government after negotiating a power-sharing agreement between Prime Minister Netanyahu and his political rival Benny Gantz. The agreement polemically called for the annexation of a significant portion of the West Bank. It is pertinent to note here that although the formal threat of annexation is recent, the governments of Israel have for the longest time interfered with the functioning of the occupied territory in a manner to annex the territory in due time. The deal recently brokered between the UAE and Israel has led to a temporary suspension of annexation plans, or so it is believed. All that has temporarily been suspended is de jure annexation; Israeli authorities continue to circumvent international legal principles to acquire parts of the occupied territory. This also explains why Palestinians have vehemently opposed the deal.
Annexation is no longer a valid mode of acquisition of territory. Article 2(4) of the UN Charter and also the Friendly Relations Declaration (1970) emphasizes that no territorial acquisition resulting from the threat or use of force would be recognized as legal. In its judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua, the ICJ held that the principles as to the use of force incorporated in the Charter reflect Customary International Law. In its Israeli War Advisory opinion, it further observed that the same is true of its corollary entailing the illegality of territorial acquisition resulting from the threat or use of force. However, the prohibition under international law has not deterred Israel. Their constant attempts to annex parts of the occupied territory have indeed made them a dominant party in the region.
Under such circumstances, it is pertinent to note that annexation, whether de jure or de facto, is bound to stifle the rights of Palestinians. Most significantly, it would lead to the demise of Palestinians’ right to self-determination. A right that has been enshrined in the UN Charter as well as the Friendly Relations Declaration. The ICJ in East Timor asserted that the right of people to self-determination has evolved from practice and the UN Charter is irreproachable. The Court has indeed made it clear that such a right of people to self-determination is today a right erga omnes. The UNGA, through Resolution 67/19, reaffirmed the right of the Palestinian people to self-determination and independence in their State of Palestine. In the Israeli Wall Advisory opinion, the Court ‘observed that the existence of a Palestinian people is no longer in issue’ and that their rights include the right to self-determination. The court also noted that de-facto annexation of land interfered with territorial sovereignty and, consequently, the right of Palestinians to self-determination. Thus, any move by the Israeli government to infringe on this right is contrary to the fundamental principles of international law.
Beyond the possible international law violations by Israel, it is essential to note that such circumstances endow “All States” with a certain responsibility. In its Israeli War Advisory opinion, the ICJ held that “All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by the construction.” It also held that all state parties to the Fourth Geneva Convention have an additional obligation to ensure international humanitarian law compliance by Israel as embodied in that Convention. Thus, the stance taken by the USA, and other countries supporting Israel in its plans of annexation expresses flagrant disregard for international law.
Given the present situation, the decision of the Pre-trial Chamber of the ICC deciding the territorial jurisdiction of the Court regarding the Situation in the State of Palestine is much anticipated. Prosecutors, in her preliminary examination, were satisfied that war crimes had been committed in the West Bank and the Gaza Strip. Any interference akin to annexation by Israel is bound to curtail any hopes of peace in the region severely.
Looking back, in 1993 and 1995, a set of two separate agreements signed between the Palestine Liberation Organization (PLO) and the Israeli Government came to be known as the Oslo Accords, which marked the start of a peace process. The plan envisaged Israel withdrawing from Jericho, Gaza, and the West Bank in a phased-out manner and allowing the PLO to administer self-governance in these areas, leading to a step closer to Palestinian statehood. Instead of furthering this plan, the Israeli government has consistently attempted to strengthen its grip on the occupied areas much in contravention of international law. The UNSC Resolution 242, fundamental to the resolution of the conflict, also called for “the withdrawal of Israeli armed forces from the territories occupied in the recent conflict.” While the Arab Peace Initiative of 2002 envisaged the formation of a Palestinian state, the recent UAE-Bahrain deal breaks away from the initial stance of the UAE founded by the API. The Abraham Accords signed recently, require Israel to only temporarily suspend the annexation plans and further doesn’t make mention of Palestinian territory. Whether or not Netanyahu executes the annexation, the international community must actively fight for the realization of a Palestinian state since, with every passing year, the de facto annexation is crippling the chances of Palestinians ever experiencing the freedom they have dreamed of. The settlement of these disputes is pivotal to the realization of peace in the region.
Jay Malwade and Pooja Mehta are third-year law students pursuing B.A. LL.B. (Hons.) from Gujarat National Law University (GNLU), India.
Suggested Citation: Jay Malwade and Pooja Mehta, Israel’s Threat of Annexation: Turning a Blind Eye To International Law, JURIST – Student Commentary, October 1, 2020, https://www.jurist.org/commentary/2020/10/malwade-mehta-israel-annexation/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
