Israel's Annexation Excuses are All Factually, Legally and Logically Wrong | Opinion

On July 1st, Israel's governing coalition has pledged to begin a process placing parts of the West Bank under Israeli sovereignty. While ideological battles are reaching a fever pitch, one point should be unambiguous. As United Nations Secretary General Antonio Guterres told the UN Security Council on June 24th, annexation would be a "most serious violation of international law." Yet beyond openly ideological arguments, annexation supporters repeatedly and brazenly employ international law justifications to support the policy.

The right-wing claim that annexation is acceptable in international law tends to rest on three main points. First, they argue that "extending sovereignty" is not annexation at all, because the West Bank was not recognized sovereign territory when captured in 1967; these arguments insist that annexation refers only to acquiring territory owned by a state. Second, annexation advocates argue that it is legal to extend Israeli law to territory captured in a defensive war. A third prominent legal argument is that the original British Mandate over Palestine, established by international agreement, afforded national self-determination rights to the Jewish people alone. Other religious communities were guaranteed only civil and religious rights.

These points are factually, legally, and logically wrong.

Few principles of international law are as important or as consistent as the prohibition on acquiring territory by force. At first glance, there is in fact a basis for the idea that the prohibition on territorial conquest applies to sovereign states. The United Nations Founding Charter, Article 2.4 states "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state..." The very notion of non-intervention generally refers to refraining from interference sovereign affairs, and the inviolability of sovereign boundaries, dating back the Treaty of Westphalia of 1648.

But the international system has evolved following the establishment of the United Nations in 1945. Article 2.4 itself continues, "...or in any other manner inconsistent with the Purposes of the United Nations." The purpose of the UN was as clear as it was audacious: "To maintain international peace and security," as stated in the first lines of the charter. These opening lines also enshrine the right of peoples and nations to self-determination, while outlawing resolution of disputes by force. In short, the UN sought to put an end to war.

In 1970, the General Assembly adopted Resolution 2625, the "Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations." The resolution states bluntly: "No territorial acquisition resulting from the threat or use of force shall be recognized as legal." It thus clarifies that the Charter's prohibition on the use of force to acquire territory is not limited to the lands of sovereign states, but applies to all territorial conquest. The resolution also outlined specific cases:

"Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States. "

"Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines..."

Notably, while the use of force is prohibited, international law does make an exception for wars in self-defense. But even if territory was occupied in a defensive war, permanent unilateral acquisition (annexation) of that territory by the occupying state is not legal. One of the main reasons is that annexation undermines self-determination. Resolution 2625 states:

"Every State has the duty to refrain from any forcible action which deprives peoples ...of their right to self-determination and freedom and independence." [All emphases are ours]

Both the West Bank and Gaza are a matter of international and territorial dispute. Forceful acquisition of territory would be taking place across armistice lines (the "Green Line" demarcating the cessation of hostilities in 1949), and as the International Court of Justice (ICJ) determined in 2004, even de facto annexation (based on the route of the separation wall) "severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel's obligation to respect that right."

A remarkable decline in warfare

Since the Second World War, the prohibition on acquiring any territory by force has become sweeping and binding. Any lingering claims that annexation "doesn't count" in previously non-sovereign areas dissolve under Security Council resolutions confirming the inadmissibility of "the acquisition of territory by war," the illegality of annexing occupied territory, and the ban on force to prevent self-determination even in non-self-governing territories, which law scholar James Crawford has called "straightforward." Numerous UNGA resolutions, have established the Palestinian people's right to self-determination in these territories. In 2004, the ICJ—the most important judicial body in the international arena—observed that the right of the Palestinian people to self-determination "is no longer in issue."

Finally, the notion that the British Mandate determines which groups enjoy self-determination, and within which boundaries, is full of pitfalls. Right-wing interpretations of the specific international decisions leading to the Mandate are already ideological and debatable. But from the legal perspective, international law simply did not end in 1922; it evolved in the directions examined above, as the world itself changed—particularly after the war.

If proponents draw on the mandate, they cannot then ignore that the purpose of international mandates in general to advance, not deny self-determination. In 1950, in an ICJ judgment regarding Namibia, the court observed that the mandate concept broadly was established "in the interest of the inhabitants of the territory," who did not yet govern themselves. The court stated that "two principles were considered to be of paramount importance...non-annexation and the principle that the wellbeing and development of such peoples form "a sacred trust of civilization'."

These developments of international law have long superseded 1922, but they far pre-date the present debate over what Israel is trying to do, and why it is wrong.

The ban on annexation was not invented to irritate Israel, but to help the world: it has contributed to a remarkable decline in conventional warfare and by some measures, a decline in conflict at large. Legal acrobatics in support of a land grab should end, and annexation proponents must be truthful: their desire to own the land in perpetuity overrides fundamental moral and legal obligations as a member of the community of nations. Those obligations are the cornerstones of international peace and security—as well as basic human decency.

Dahlia Scheindlin is a political analyst based in Tel Aviv and a policy fellow at the Century Foundation. She holds a PhD in comparative politics from Tel Aviv University, and has worked as a political strategist in Israel and in 15 other countries. Limor Yehuda is a post-doctoral fellow at the Minerva Center for Human Rights at the Faculty of Law at Tel-Aviv University. She holds a PhD in Law from The Hebrew University, and practiced human rights and international humanitarian law at the Association for Civil Rights in Israel (ACRI).

The views expressed in this article are the author's own.​​​​​

Israel's Annexation Excuses are All Factually, Legally and Logically Wrong | Opinion | Opinion