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‘Annexation’, the ICC and ‘Palestine’

Andrew Tucker and Matthijs de Blois - 17 June 2020

The status of the Old City of Jerusalem, the ‘Holy Basin’ (the area around the Old City), Judea and Samaria is complex. It is gradually becoming the subject of an international dispute that could even lead to military conflict.

The recent coalition agreement between Prime Minister Netanyahu and Benny Gantz allows the Prime Minister to bring ‘the agreement which will be achieved with the United States on the imposition of sovereignty’ for approval to the cabinet and Knesset from the beginning of July. It is not clear what the government intends to do.

Many news reports use the word ‘annexation’. ‘Annexation’ applies to a situation where a state seeks to incorporate into its own territory adjacent territory that does not belong to it and has been acquired by force. Like the Nazi’s did with Austria in 1938. But the status of these territories is different.


The current status of the ‘occupied territories’

The legal regime applicable in the territories (re-)gained by Israel in 1967 (commonly referred to as the West Bank) is extremely complex and cannot be described in detail here. With the exception of Jerusalem, Israel has not incorporated them into Israel, but has encouraged Israelis to live there (ie. has facilitated ‘settlements’) and has gradually applied a complex web of civil and criminal laws and administrative measures. The whole matter is made even more complex by the complicated arrangements agreed under the Oslo Accords, dividing the West Bank into Areas A, B and C, each with different legal and administrative arrangements, and the creation of the Palestinian Authority and other Palestinian institutions.

In our view, the term ‘annexation’ is not applicable to the West Bank. This is because there are very good arguments to support the view that Israel in fact already has sovereignty over the West Bank.

This is certainly (in our view) the case in ‘East Jerusalem’, where Israel immediately applied Israeli law and jurisdiction to the whole city after the Six-Day War in 1967. It also appears to apply to Area C, that remains under full Israeli control.

However, the vast majority of states, academics and international institutions consider that none of the ‘occupied territories’ belongs to Israel – though they usually fail to explain why they think this to be the case.

The Prosecutor of the International Criminal Court (ICC), Ms Bensouda, argues that these territories belong to the Palestinian people. The Prosecutor has been ‘examining’ ‘the Situation in the State of Palestine’ for five years and recently decided she thinks that Israel’s policies of establishing ‘settlements’ in East Jerusalem and the West Bank constitutes a war crime. She has submitted two documents to the Court recently arguing that ‘Palestine’ should be considered a State, even though it does not meet the normal criteria of statehood under general international law, and that all of these territories (ie. ‘East Jerusalem’ and the ‘West Bank’) belong to this State of Palestine.


Palestinian narrative

The ICC Prosecutor portrays all Palestinians as victims – not only with respect to the alleged Israeli war crimes (settlements) but more generally in their pursuit of self- determination. She asserts that the Palestinians are the rightful sovereign owners of the land and that their ‘right to statehood’ has been and continues to be obstructed by Israel. Israel alone is the wrongdoer.

She makes no mention of Palestinian terrorism, or of peace offers that have been rejected by the Palestinians, or of the institutional Palestinian incitement to terror or the payment of salaries to Palestinian terrorists in Israeli prisons. In the eyes of the Prosecutor, the Palestinians bear no responsibility for the lack of a Palestinian state or the break-down of negotiations. Israel, on the contrary, is depicted as an Occupying Power that has no claims to sovereign title and is preventing the establishment of a Palestinian state.

The Prosecutor relies on two arguments to support the view that the Palestinian people have sovereignty over the ‘Occupied Palestinian Territory’: 1.sovereignty over all of the ‘occupied’ territories is ‘best viewed as residing in the Palestinian people under occupation’; and 2.the Palestinian people have a right to a State in the occupied territories.

These arguments are, of course, contradictory – either the Palestinian people are ‘under occupation’ or the State of Palestine exists. It cannot be both at the same time.


Territorial sovereignty: to whom does the West Bank ‘belong’?

The Prosecutor dismisses Israel’s assertion that sovereignty over the territories is ‘in abeyance’ (meaning that the sovereignty is temporarily suspended). Sovereignty lies with the Palestinian people. She states that Israel cannot claim sovereignty over the territories.
The argument that ‘sovereignty over all of the ‘occupied’ territories belongs to the Palestinian people as people under occupation’ is completely novel. Contrary to the Prosecutor’s assertion, this line of thinking is not shared by most international lawyers.
She rejects out of hand the arguments (articulated by a number of leading international law jurists) that Israel has sovereign claims to these territories based on the rights flowing from the Mandate and the legal doctrine of uti possidetis juris, which would imply that the borders of the Mandate territory have become the borders of the State of Israel.
The Prosecutor ignores the fact that the Mandate expressly was intended to ensure the ‘establishment in Palestine of a national home for the Jewish people’.

This view of sovereignty leads the Prosecutor’s to continue to fundamentally misread the Oslo Accords. She proceeds on the premise that at the time the Accords were signed Israel had no territorial or criminal law jurisdiction to transfer to the PLO. But, for the reasons given above, she fails to establish the validity of this premise.


Statehood under international law

The Prosecutor argues that international law requires a ‘case-specific application’ of the law when it comes to the determination of Palestinian statehood.

One of her main arguments is that the Palestinians have a ‘right’ to statehood. But the right to ‘self-determination’ does not automatically entail statehood. The International Court of Justice recognised the right to self-determination of the Palestinian people in its 2004 Wall Advisory Opinion but did not find that there is a Palestinian State.

The Prosecutor relies heavily on UN statements/ decisions. This overstates the normative value of UN resolutions. General Assembly resolutions are, in general, not binding under international law. Although they may provide evidence establishing the existence of a rule, this depends on factors such as its content, the conditions of its adoption, and whether states intended the rule to have a binding character. Even then, objections, explanations of vote, interpretations and public statements expressed by Member States must be considered in order to contextualise and qualify consensus or majority vote decisions.


What next?

First, concerning the ICC: it is to be hoped that the ICC will reject the Prosecutor’s flawed reasoning, and decide that ‘Palestine’ is not a state. The ICC case also shows how important it is that other states who oppose Palestinian statehood should clearly and unambiguously record their opposition to Palestinian assertions of statehood and territorial sovereignty.

Second, concerning Bibi’s proposed ‘annexation’: Israel has over the last 50 years been unclear about what it considers the status of the territories to be. Except for Jerusalem, it has not treated these territories as part of the State of Israel, yet at the same time it has gradually applied more and more Israeli laws to Israelis living in the territories. The result is a complex web of legal and administrative measures in which Israelis are treated differently from non-Israelis. All of this is clearly unsustainable in the long term. The proposed measures may bring some clarity. On the other hand, applying Israeli jurisdiction over parts of the West Bank, and not other parts. It will threaten the continued viability of the Oslo Accords, and is likely to attract much international condemnation.

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