'Annexation' Is a Red Herring—Facts on the Ground Are What Count | Opinion

The debate over whether Israel should annex disputed portions of the West Bank is distorting the real issues. The word "annex" is emotionally loaded and divisive for all sides because it sounds so permanent, rigid, unilateral and legalistic. The legitimate goals Israel seeks can be accomplished without formal "annexation."

These goals have not changed very much since the late great Prime Minister Yitzhak Rabin articulated them a few months before he was assassinated for being too pro-peace with the Palestinians. Here is how Israel's current ambassador to the United States described what Rabin told the Knesset in 1995:

The Palestinians...would have "less than a state" [and] Israel would retain security control over the Jordan Valley, in the broadest meaning of that term. Jerusalem would remain united under Israel's sovereignty, and settlement blocs in Judea and Samaria would become part of Israel.

Those are Israel's legitimate goals today—25 years later.

It would be best if these goals could be achieved by agreement with the Palestinian Authority, as Israel tried to do in 2000-2001 at Camp David, through offers by then-Prime Minister Ehud Barak and then-President Bill Clinton, and in 2008 through a peace proposal offered by then-Prime Minister Ehud Olmert. But the Palestinians did not accept these offers and responded with terrorism, as they did when then-Prime Minister Ariel Sharon unilaterally left the Gaza Strip in 2005.

The Palestinian leadership now refuses even to sit down and negotiate over the recently proposed Trump administration peace plan, which would bring about a Palestinian state, though with less land than those offered by Barak and Olmert. So Prime Minister Benjamin Netanyahu has decided that Israel must end the deadlock by acting unilaterally, as former Prime Minister Levi Eshkol did with regard to Jerusalem, former Prime Minister Menachem Begin did with regard to the Golan Heights and as former Prime Minister Ariel Sharon did when he lifted the occupation of the Gaza Strip.

Sharon's mistake was not to provide for Israel's security against rocket attacks from the newly independent Gaza Strip, which could have become a "Singapore" on the Mediterranean. Instead, Hamas overthrew the Palestinian Authority in Gaza and turned the Strip into a launching pad for terrorist rockets and tunnels. Israel had to defend its citizens, and many lives were lost on both sides.

Prime Minister Netanyahu is determined not to repeat Sharon's mistake in making Israel vulnerable to terrorism or other attacks. So the Palestinian State on the West Bank must be de-militarized and the Israel Defense Forces must retain control over the Jordan Valley, where relatively few Palestinians live.

Israeli "settlement" in the Jordan Valley
Israeli "settlement" in the Jordan Valley JAAFAR ASHTIYEH/AFP via Getty Images

Putting labels to the side, the essence of what Netanyahu is proposing is not so different from the current facts on the ground. Israel will continue to control a united Jerusalem. It will continue its entirely lawful military control over the Jordan Valley—under international law, a military occupation may continue until all belligerency ends. It will apply Israeli law, with its well-developed rights and safeguards, to areas of the West Bank, most of which will remain part of Israel under any agreement. (President Abbas personally acknowledged this to me, as he has to others.)

The vast majority of people covered by these laws would be Israeli citizens; the rest would be offered Israeli citizenship or the right to relocate to Palestinian areas. This is a controversial proposal and should be debated on its own merits, without burdening the debate with the inflammatory label of "annexation." Some might argue that applying Israeli law to a disputed area is the functional equivalent of annexation, but that is not necessarily the case for several important reasons: It is less permanent, it fills a current vacuum, it is subject to future negotiation and it reflects the complex and nuanced reality on the ground in those areas. Finally, words matter, and the words "applying Israeli law" are less provocative than the loaded word "annexation."

There are other proposals as well in Netanyahu's plan, but those are the key elements. None of them require formal annexation—especially since the disputed areas are not under the sovereignty of any existing nation, as, for example, Königsberg was when the Soviet Union annexed it after World War II.

If the Palestinian leadership were to agree to negotiate a mutually acceptable resolution, the Palestinian people would obtain much in return. This includes statehood, generous land swaps and billions of dollars with which to build a thriving economy and infrastructure. But any agreement would require the Palestinians to recognize Israel as the nation-state of the Jewish people and to renounce all belligerency and claims of a "right to return" to Israel for millions of descendants and relatives of those who left or were forced out after the Arab nations and local Palestinians attacked the new Jewish state at its birth in 1948.

This will not be easy for the Palestinians to do, but as Prime Minister Netanyahu has said, peace will require "painful compromises on both sides."

So let's stop arguing about "annexation." Let's focus instead on the specific proposals offered by the late Prime Minister Rabin, and repeated in substance by the current Prime Minister Netanyahu. If the Palestinians refuse to negotiate, let the Israeli government maintain its control over a united Jerusalem, continue its lawful military occupation of the Jordan Valley and apply Israeli law to disputed areas that will inevitably remain part of Israel—with land swaps—under any peace plan.

These are the realities on the ground. They can be changed only by negotiation, but negotiation requires two parties. The red herring debate over the provocative word "annexation" is a distraction from the actual compromises that will have to be made by both sides if peace is to be achieved.

Alan Dershowitz, the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, is the author of The Case for Israel and Defending Israel.

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