"Annexation Has a Precise Meaning in International Law" (Updated with video)

That's what international relations expert Eugene Kontorowich tells us here, warning us not to believe current widespread  "hype" regarding the so-called "annexation" of the West Bank.

Inter alia [emphasis added, as elsewhere below] :

'.... There  are  many  misunderstandings  about  the  planned  move—starting with what to call it. It is widely described as an Israeli “annexation” of West Bank territory, also known as Judea and Samaria. But annexation has  a  precise  meaning  in  international  law:  the  forcible  incorporation by  one  state  of  the  territory  of  another  state.  The  land  to  which  Israel seeks to apply its laws isn’t legally the territory of any other state, nor has it been since Israel’s independence in 1948. Neither the U.S.  nor the European Union recognizes the existence of a Palestinian state, and Israel’s  sovereign  claim  to  the  territory  is  superior  to  any  other country’s. Putting this move in the same category as Russia’s seizure of Crimea is entirely misleading.

There is no one-word name for what Israel plans to do because it is so  technical  and  pedestrian.  Israel  already  governs  the  territory  in question,  as  it  has  since  1967,  when  it  liberated  the  land  from  a  two-decade Jordanian occupation. But at that time Israel didn’t fully apply its domestic laws there, leaving it under military administration. Israel expected the Arab states to sue for peace after the Six-Day War, and it was prepared to transfer some of the land to them. There was no point in  hurriedly  applying Israeli  law  to  territory  that  might  not  remain Israeli after a peace settlement.The  current  system  of  governance  was  intended  to  be  temporary, but  Israel  retained  it  during  decades  of  negotiations,  all  of  which resulted  in  Palestinian  rejection  of  internationally  backed  offers  of statehood.   In   the   Middle   East,   nothing   is   as   permanent   as   the temporary.

Over the past 53 years, Jews have returned to Judea and Samaria, territories from which they had been, to a man [and a woman! - D.A.], ethnically cleansed by the Jordanians in 1949. Today, more than 400,000 Israelis live in West Bank  settlements,  still  governed  by  an  odd  patchwork  of  military regulations. As a result, property is governed by obscure Ottoman land law. Permitting for infrastructure projects is difficult and burdensome. Most Israeli environmental regulations don’t apply. After five decades of Palestinian rejectionism, it is hard to argue that the legal regulation of these communities must remain in limbo until a far-off peace deal is signed.This doesn’t mean giving upon  the  possibility  of  a  diplomatic settlement.   

Past   peace   efforts   have   been   based   on   the   morally repugnant and impractical assumption that the creation of a Palestinian state  must be preceded by the expulsion of all Jews  from its territory. The  acceptance of  an  ethnic  pre-cleansing  was  one  of  the  reasons  the U.S.  had  previously  opposed  the  application  of  Israeli  civil  law:  to make  life  harder  and  more  uncertain  for  Jewish  settlers  and  thereby encourage  them  to  leave. 

President  Trump’s  peace  vision  rightly rejects this illiberal notion, which hasn’t been the basis of realized or proposed peace deals anywhere else in the world, from East Timor to Northern Cyprus.The  application  of  Israeli  law  wouldn’t  affect  the  treatment  of Palestinians. In the West Bank, they would continue to be governed by the Palestinian Authority. Israel’s Knesset wouldn’t rule over them. The  Palestinian  Authority  would  also  still  have  a  chance  to  make peace. While all evidence suggests the authority isn’t fundamentally serious about statehood, U.S. recognition of Israeli sovereignty in parts of  the  West  Bank  may  help  bring  it  to  the  table.  It  would  show Palestinian leaders that turning down negotiations weakens their hand.Some  Middle  East  experts  say  the  Israeli  move  could  lead  to violence, European sanctions or a reversal  of Israel’s  warming ties with Arab states. 

But the same predictions of doom were made before Mr. Trump’s recognition of Jerusalem and the Golan Heights, and they proved  entirely  hollow.  Critics  must  explain  why  this  one  should  be any different.Others say Israel should desist because its actions would provoke a possible Biden administration. This is heads-I-win-tails-you-lose logic: Israel  must  accept  Democratic  policies  when  Democrats  are  in  office and   also   when   they aren’t.     President Obama,    by    contrast, had   no   problem   allowing   the United  Nations  Security  Council to  pass  an  anti-Israel  resolution even  after  President-elect  Trump asked him to veto it.U.S.   recognition   of   Israeli sovereignty  in  parts  of  the  West Bank  comes  along  with  upfront  Israeli  commitments.  Israel  has agreed to a temporary building freeze in areas of the West Bank that are  under  Israel’s  jurisdiction  but  where  Israeli  law  isn’t  being extended.  

This goes beyond what the Trump administration’s Vision for Peace requires. Israel also knows that a future U.S. administration could   repudiate   support   for   Israeli   sovereignty   and   recognize   a Palestinian state anyway.Israel’s friends are right to take such concerns seriously: 

The plan isn’t without risks for Israel.  But  these  can  be  addressed  through  a formal memorandum of understanding that would commit the U.S. to recognizing Israeli sovereignty and not recognizing a Palestinian state until  the  detailed  Palestinian  prerequisites  in  the  Vision  for  Peace have   been  met  to  America’s  and  Israel’s  satisfaction.  Such  an agreement  between  the  U.S.  and  Israel  could  be  written  to  limit backsliding by the next U.S. administration.The application of Israeli civil law to Jewish settlements isn’t an annexation  or  an  imposition  on  Palestinians.  It  is  a  long  overdue recognition  of  Israel’s  legal  and  moral  rights,  a  step  that  can  no longer be deferred by the Palestinian refusal to make peace'.

A summary of points made by the distinguished Israeli Arab journalist Khaled Abu Toameh in a must-read article here:

'It is dead wrong to assume that if Israel abandons its plan, most Muslims would give up their desire to destroy Israel and replace it with an extremist Iran-style Islamic state.

[Islamic officials] are now calling on Palestinians to launch terror attacks against Israel, not because of the "annexation" plan, but in order to drive the Jews out of the "Palestinian Arab Islamic lands."

Those who are pressuring Israel not to proceed with the "annexation" plan need to hear what Islamic leaders are saying, day and night: that the conflict is not about Jewish settlements or the Jordan Valley, but the "big settlement" called Israel.'

From a host of of international law academics (see signatories at source), an open letter to the Israeli government opposing "annexation":

 ".... Such an action would constitute a flagrant violation of bedrock rules of international law, and would also pose a serious threat to international stability in a volatile region.

The norm prohibiting unilateral annexation of territory acquired by force has come to be universally recognized as a basic rule of international law. All international courts (including the International Court of Justice) and all international institutions (including the UN General Assembly and Security Council) who have considered this matter, as well as the overwhelming majority of international jurists, affirm this rule unequivocally. This prohibition applies equally to territories belonging to other states, as well as to non-self-governing territories in which peoples are entitled to determine their political fate in accordance with the right to self-determination. Furthermore, this prohibition applies to all territories occupied by force, even if it is claimed that force was initially used in an act of self-defense.

The West Bank was taken by force in 1967. It has been consistently recognized by the UN General Assembly, the UN Security Council, and the International Court of Justice as an occupied territory, in which the Palestinian people is entitled to fulfill its right to self-determination. This remains so even if bilateral negotiations could determine the details of security arrangements and final borders. Furthermore, the Israeli government as well as the Israeli Supreme Court have for decades applied the law of belligerent occupation to the West Bank. This is demonstrated in dozens of decisions by the Supreme Court of Israel, as well as in Israel’s positions before international treaty bodies, where it argues that the West Bank is not under Israeli jurisdiction for the purpose of application of human rights treaties.

It follows that unilateral annexation of any part of this territory would violate the fundamental norm prohibiting annexation as well as the right to self-determination. As such, it would be null and void, entail consequences of international wrongfulness, and – under certain circumstances –  lead to individual international criminal liability. In this context, it matters not whether such actions would be effected through “extension of sovereignty,” “extension of law, jurisdiction, and administration,” or explicit annexation. De facto annexation entails the same legal consequences as de jure annexation. Additionally, in no case can such an act lawfully bring about or justify discriminatory results, inter alia in relation to citizenship or property rights...."

 It seems more signatories are being canvassed.

Update: Meanwhile, here are the folks at Latma  (hat tip: David Singer)

David Singer: Trump Triumph Requires Direct Negotiations Between Jordan and Israel

Here's the latest article by Sydney lawyer and international affairs analyst David Singer.

He writes:

President-elect Donald Trump has used his greatest media critic – the New York Times – to reiterate his determination to broker a deal to end the 100 years old Jewish-Arab conflict – suggesting his son-in law Jared Kushner might be just the person to advance Trump's declared mission.

Trump's legendary deal-making prowess sets him apart from all preceding American presidents – from Richard Nixon to Barack Obama, Democrats and Republicans, liberals and conservatives alike – who have tried to end this intractable conflict and earn themselves an honoured place in the annals of history.

Instead, their legacy of failure remains a silent reminder that presidential power and prestige is of little value in moving Jews and Arabs to achieve a historic reconciliation.

Kushner possesses the firepower to advance Trump's agenda following this ground-breaking message from Trump's advisor Jason Greenblatt – co-chairman of the Trump campaign’s Israel Advisory Committee: 

“It is certainly not Mr. Trump’s view that settlement activities should be condemned and that it is an obstacle for peace, because it is not an obstacle for peace.”

Trump's position runs counter to the view expressed by the international community that Jews have no legal right to live in Judea and Samaria (the West Bank) – an area comprising some 4 per cent of
have no legal right to live in Judea and Samaria (the West Bank) – an area comprising some 4 per cent of the former territory of Palestine - a claim that remains untested in any court of law.

Such conclusion ignores the rights vested in the Jewish People to reconstitute the Jewish National Home in Judea and Samaria under Article 6 of the League of Nations Mandate for Palestine and Article 80 of the United Nations Charter.

To call the international community's position "a travesty of justice" is an understatement.
The harm such flawed viewpoint has caused in prolonging this long-running conflict is inestimable.

Kushner will also be fortified by the following commitment made by President Bush to Israel in his letter dated 14 April 2004  – overwhelmingly endorsed at the time by the Congress by 502 votes to 12:

"In light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949, and all previous efforts to negotiate a two-state solution have reached the same conclusion. It is realistic to expect that any final status agreement will only be achieved on the basis of mutually agreed changes that reflect these realities."

Israel's current negotiating partner, the Palestine Liberation Organisation, has consistently refused to accept the inevitability of any territorial subdivision of Judea and Samaria since the Bush-Congress pronouncement. There appears to be no chance of any change of heart by the PLO to please a Trump administration.

Trump will therefore need to find another Arab interlocutor to replace the PLO to negotiate with Israel on the allocation of sovereignty in Judea and Samaria. Sovereignty there has remained unresolved since Brexit 1948 - the year Great Britain pulled out of Palestine and left the United Nations to deal with the consequences of the invasion of Western Palestine the very next day by the armies of six neighbouring Arab States.

Jordan was the last Arab State to occupy Judea and Samaria between 1948 and 1967.

Jordan and Israel – at peace since 1994 – both enjoy longstanding American financial and diplomatic support – which can be leveraged by a deal-driven Trump to induce Jordan joining Israel as its negotiating partner on the territorial carve up of Judea and Samaria.

Without this diplomatic breakthrough Trump's dream of pulling off the deal of the century will remain just a dream.

David Singer Assails The EU's Egregious & Duplicitous West Bank Blunder

Here is the latest article by Sydney lawyer and international affairs analyst David Singer.  It is entitled "European Union Causes Peace Process and Quartet Meltdown".

Writes David Singer:

Revelations that the European Union (EU) has been acting illegally in funding and facilitating the construction of more than 400 unauthorised buildings in areas in the West Bank (Judea and Samaria) under exclusive Israeli control signals the end of:

* negotiations between Israel and the Palestine Liberation Organisation under the 1993 Oslo Accords and the 2003 Bush Roadmap and

* the role of the Quartet - America, Russia, the United Nations and the European Union - as mediator in those negotiations

The Daily Mail – in exposing the EU’s bizarre behaviour – reported on 6 February that: 

“Official EU documentation reveals that the building project is intended to ‘pave the way for development and more authority of the PA over Area C (the Israeli area)’, which some experts say is an attempt to unilaterally affect facts on the ground. Locally, the villages are known as the ‘EU Settlements’, and can be found in 17 locations around the West Bank. They proudly fly the EU flag, and display hundreds of EU stickers and signs. Some also bear the logos of Oxfam and other NGOs, which have assisted in the projects.” 

The EU through its spokesman, Shadi Othman, attempted to justify such conduct by reiterating the EU’s unilateral opinion as to the final outcome of the currently stalled negotiations:

"We support the Palestinian presence in Area C. Palestinian presence should not be limited Areas A and B. Area C is part of the occupied Palestinian territory which eventually will be Palestinian land.”

Why Israel's approval was not first sought before the EU surreptitiously undertook such activity remains unexplained.

Representatives of the Quartet – Russian Foreign Minister Sergey Lavrov , United States Secretary of State John Kerry, European Union High Representative for Common Foreign and Security Policy Federica Mogherini and UN Deputy Secretary General Jan Eliasson (representing UN Secretary General Ban Ki-Moon)  met in Munich on February 8 – two days after the European Union's illegal actions were exposed – but no mention was made of the EU’s devious conduct nor was there any call for it to be immediately halted.

The remaining three Quartet members have – by their silence – clearly signalled they condone such illegal conduct by the EU and support its continuation.

Hypocritically, the Quartet Representatives declared: 

“Pending the resumption of negotiations, the Quartet called on both parties to refrain from actions that undermine trust or prejudge final status issues.” 

It is hard to conceive any action more likely to undermine trust or prejudge final status issues than the Quartet’s failure to condemn the EU’s own aberrant behaviour and call for an immediate halt to its illegal activities in the West Bank.

The Quartet Representatives repeated their mantra: 

“A sustainable peace requires the Palestinians' aspirations for statehood and sovereignty and those of Israelis for security to be fulfilled through negotiations based on the two-state solution.”

 The parameters under which those negotiations were being held between Israel and the PLO have now been well and truly consigned to the dustbin of history as a result of the EU’s disgraceful conduct – joining so many other failed proposals made since 1920 aimed at ending the Jewish-Arab conflict.

The Quartet has been found sadly wanting and is clearly out of tune – abandoning any sense of impartiality or propriety in aligning itself with one party to the dispute.

Israel's Prime Minister, Benjamin Netanyahu, has now directed that action be commenced to demolish these illegal EU structures.

The Quartet has been totally compromised – the peace process and its intricate negotiating structure irretrievably ended.

Back to the drawing board for yet another new proposal...

Settlements: "A propagandistic red-herring of monumental proportions"

Robert Harris is an Irish supporter of Israel who blogs here.

In the current issue of the online New English Review he has a hard-hitting article entitled Jewish "Settlements Do Not Impede Peace" that begins:

"Many Western narratives on the Israel-Arab/Palestinian conflict, assert that Arab-Palestinian grievances are fundamentally based upon a supposed dispossession of territory, and so peace would be obtained by returning lands gained by Israel in the defensive Six Day War.

Today this argument relates principally to Judea and Samaria, more widely known as the ‘West Bank’, a recent moniker the Jordanians applied to the area, after the Arab State’s invasion of Israel in 1948.

The existence of Jewish settlements in Judea and Samaria, and formerly Gaza prior to the unilateral 2005 Israeli withdrawal, are central to the claim that the Jewish State has instituted a 'land grab' since 1967. Settlements are the focal point of boycott campaigns, and other efforts to delegitimise Israel.

However, commentators less hostile to Israel also assert Jewish settlements are a deeply problematic phenomenon. Whilst accepting Israel is surrounded, in a hostile Arab-Islamic neighbourhood, they nonetheless advance a somewhat similar stance to anti-Israel critics, by portraying the settlement issue as one of the great obstacles of the peace process. Indeed, some act as if it is the greatest challenge, as per John Kerry’s intensive criticism of Israeli settlement policy, suggesting it will undermine a two-state solution.

Whilst Jewish settlements are seen across the world as the bottleneck that stops any peace process in its tracks, a cursory glance at some fundamental facts will suggest that that this claim is a propagandistic red-herring of monumental proportions.

Israel is regularly demonised, with the very worst of motives ascribed to its behaviour. For example, many in the Arab world suggest the Jewish State seeks to territorially dominate the Middle East. Thus, one might ask to what extent has Israel held onto the territory it gained during the Six-Day War, which constitutes the Nation’s greatest victory? Startlingly, 90% of these gains have been returned to Israel’s Arab neighbours: the Sinai, and part of the Golan Heights, with Gaza becoming a de facto independent state...."

Read the entire article here

"I Think I Recognise A Killer Argument When I See One": Former Aussie Foreign Minister Bob Carr

In today's issue of The Australian newspaper former Australian foreign minister Bob Carr insists that Israel's settlements are illegal and that Israel has known they're illegal since 1967.

Carr writes that in 1967 Israel's then prime minister, Levi Eshkol, sought advice from Israel's leading authority in international law, Theodor Meron, as to whether Israel could settle civilians in the territories that the country found itself occupying as a result of the Six Day War.  Meron's advice, according to Carr,

'was unequivocal, and today he sticks to it. He said: “Civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention.”...'

Carr continues, inter alia:

'Indeed, the Fourth Geneva Convention would appear to leave no room for argument. It states: “The occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Apologists for settlements try to argue that Article 49 bars the occupier only from “forced transfer” (my emphasis) of its civilians. This is not the interpretation accepted by the International Court of Justice or anyone else. The adjective “forced” does not appear in the convention.

I think I recognise a killer argument when I see one. The killer argument here is that Israel’s own legal authority, at the very start, told its government that settlements were illegal under international law.'

Citing the statement of frum Israeli settler leader Daniella Weiss in this week's "Four Corners" hatchet job on Israel that religious settlements are intended to thwart the creation of a Palestinian state since “this land was promised to the Jewish nation by God” Carr also cites a BBC documentary by Louis Theroux called "The Ultra Zionists":

'religious settlers declared Palestinians an inferior race. “This is the Jewish homeland and there’s never been a Palestinian people,” declared one, standing on a property formerly occupied by Palestinians. In one blast they defied centuries of priceless Jewish liberal and humanitarian instinct.'

And he warns:

"No one from the centre-Left of European politics is going to do anything other than repudiate this ultra-religious vision...."

The entire article, "West Bank settlements always illegal" (try googling that ;) ), is behind a paywall here

For arguments that settlements are in fact legal see here

David Singer On The Legal Status Of Jewish Settlements In The West Bank

"Palestine – United Nations' Perfidy Exposed,"  is the latest article, via the antipodean J-Wire service, by Sydney lawyer and international affairs analyst David Singer

Writes David Singer:

'The canard – supported by countless United Nations General Assembly Resolutions – that Jewish settlements in the West Bank are illegal in international law – has been dealt a crushing blow with the the recent release of the Levy Committee Report in Israel rebutting that claim.

The Committee comprised a retired Supreme Court Judge (Edmund Levy), a  Tel Aviv District Court Judge (Tchia Shapira),  and a former Foreign Ministry  legal adviser (Alan Baker). They were appointed by Israeli Prime Minister Benjamin Netanyahu in January 2012 to consider among other matters the legality of Jewish settlements established in the West Bank.

The San Remo Conference held in Italy in April 1920 was the Committee’s starting point.

That Conference had laid the grounds for the eventual creation of the Mandate for Palestine as part of a Mandate system involving the disposition of vast tracts of territory held by the Ottoman Empire for 400 years – but lost by it following its defeat in World War I.

Whilst Arab self-determination was to occur in 99.99 per cent of the captured territory – the right of the Jewish people to reconstitute the Jewish National Home was limited to the remaining 0.01 per cent of that territory.

The Levy Report elaborates:

"In August 1922 the League of Nations approved the Mandate which was given to Britain, and thus the Jewish people’s right to settle in the Land of Israel, their historic homeland, and to establish their state there, was recognized in international law.

To complete the picture, we’ll add that with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter"

The International Court of Justice had failed to consider the Mandate and Article 80  when it delivered its non-binding advisory opinion on 9 July 2004 that  Israel had no legal right to erect part of Israel’s security barrier in the West Bank.

That decision has since been used by the United Nations and detractors of Israel to repeatedly discredit and delegitimise Israel’s right to maintain its claim to sovereignty in any part of the West Bank and for Jews to live there.

Surprisingly it was Egyptian appointee to the International Court – Judge El-Araby – who in fact had cautioned the other 14 Justices against ignoring an examination of the legal effect of the Mandate:

"The international legal status of the Palestinian Territory (paras. 70-71 of the Advisory Opinion), in my view, merits more comprehensive treatment. A historical survey is relevant to the question posed by the General Assembly, for it serves as the background to understanding the legal status of the Palestinian Territory on the one hand and underlines the special and continuing responsibility of the General Assembly on the other. This may appear as academic, without relevance to the present events. The present is however determined by the     accumulation of past events and no reasonable and fair concern for the future can possibly disregard a firm grasp of past events. In particular, when on more than one occasion, the rule of law was consistently side-stepped. The point of departure, or one can say in legal jargon, the critical date, is the League of Nations Mandate which was entrusted to Great Britain."

Regrettably Judge El-Araby’s sage advice was ignored – as the Levy Report now makes very clear.

In one respect the International Court could be excused for failing to consider the Mandate and Article 80 – since the then Secretary General of the United Nations, Kofi Annan, had failed to include these vital documents in the dossier of 88 documents he was required to submit to the Court that were “likely to throw light upon the question” – as he was legally required to do under Article 65 of the Court‘s statute.

The International Court’s decision was fatally flawed  as a result.

If you only submit half the relevant documents – you are sure to get only half an answer.

Those persons who prepared the dossier of documents and Mr Annan himself now need explain how documents – deemed so relevant by the Levy Committee – were omitted from the dossier submitted to the International Court.

The Levy Committee – after having considered the Mandate and Article 80 – concluded:

"... we have no doubt that from the perspective of international law, the establishment of Jewish settlements in Judea and Samaria is legal"

The Levy Committee dismissed the opinion of the International Court that the legal status of this tiny sliver of land between Jordan and Israel – the size of Delaware – was solely governed by the provisions of the Fourth Geneva Convention 1949 – when stating:.

"We do not believe that one can draw an analogy between this legal provision and those who sought to settle in Judea and Samaria not as a result of them being “deported” or “transferred” but because of their world view – to settle the Land of Israel.

We did not ignore the view of those who think that one should interpret the Fourth Geneva Convention as also prohibiting the occupying state to encourage or support the transfer of parts of its population to the occupied territory, even if it did not initiate it

But even if this interpretation is correct, we would not change our conclusion that no analogy should be drawn between Article 49 of the Fourth Geneva Convention and Jewish settlement in Judea and Samaria, in light of the status of the territory under international law"

It would surely be the height of folly for the United Nations and Israel’s denigrators to continue to categorically spruik that Israel’s presence in the West Bank is illegal following the release of the Levy Report.

The United Nations needs to come clean and investigate why highly relevant documents to support the legal claim of Jews to settle in the West Bank were withheld from the International Court.

Will the egg splattered all over the United Nations following the release of the reasoned and considered Levy Report deter it from conducting such an investigation?

The continuing use of  the International Court decision and the Fourth Geneva Convention to assert that Israel has no legal right to remain in even one square meter of the West Bank must now be seriously questioned.

Ironically Judge El-Araby is now the Secretary General of the Arab League and meets with Mr Annan frequently in Mr Annan’s new job with the United Nations trying to stop the slaughter in Syria.

Maybe Mr Annan can explain the cover up to Judge El-Araby over a cup of Turkish coffee.

Don’t hold your breath waiting.'

Crossposted from here

Recent Mark Regev Interviews (videos)

Here's the Israeli government spokesman late last month talking on Al-Jazeera on West Bank settlements and peace prospects:

And here he is a few days ago talking to CNN about Palestinian prisoners in Israeli gaols: