Supreme Court, Israel

Supreme Court, Jerusalem (© Getty Images)

By Dr. Cynthia Day Wallace, Senior Fellow, thinc.

In the context of the current discussions concerning the exercise of de facto sovereignty by Israel over certain parts of Judea and Samaria, an Open Letter to the Israeli Government is being circulated asserting the following:

From the Open Letter

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.

“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.

What urgently needs to be clarified here is that, while the act of “annexation of territory acquired by force” may be universally and rightfully characterized as contrary to international law, what Israel is proposing is not “annexation” – de facto or de jure. This misrepresentation must be countered with the following facts:  

Annexation” as defined in law

1) “Annexation” is defined in Black’s Law Dictionary as: “the incorporation of newly-acquired territory into the national domain, as an integral part thereof.” [For nearly 130 years, Black’s Law Dictionary has been the gold standard for the language of law; today, it is the most widely cited law book in the world.] Neither Judea and Samaria nor the Old City (“East Jerusalem”) could be construed as “newly-acquired territory.” This territory was already designated as Israel’s “national home” under international law well before Israel declared statehood in 1948, when Great Britain ended her mandatory power underthe Mandate for Palestine, an international legal instrument unanimously approved by the 51 Members of the League of Nations in 1922.

Occupied territory” as defined in law

2) The classic and received definition of “occupied territory” in international law is laid out in Article 42 of the Hague Regulations: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. … [S]uch “occupation occurs when a belligerent State invades the territory of another state with the intention of holding the territory at least temporarily”. In the case of the “occupation” of Judea and Samaria, the invading “belligerent State” was Jordan; the “hostile army” was that of Jordan; and the invaded territory was that of the nascent State of Israel. The territory that Israel reclaimed in 1967 was never rightfully “the territory of another State,” nor did Israel obtain it by war of aggression but rather by undisputed self-defense. Indeed, it was territory that had been specifically designated for a JewishNational Home, under the legally binding League of Nations Mandate for Palestine in 1922.

Jordan’s illegal annexation of Israel

Jordan’s invasion, occupation and annexation of Israel’s territory constituted a clear violation of the international law norm prohibiting unilateral annexation of territory acquired by force, of which Israel is now being accused if she pursues her plans of applying her own laws in her own territory. Under the international law principle of ex injuria jus non oritur, illegal acts cannot create law. Thus Jordan’s illegal act did not alter the territorial status of Judea, Samaria and East Jerusalem which were an integral part of the Jewish national home established in 1922 by the Mandate for Palestine, the borders of which were retained at statehood in 1948 under the international law principle of uti possidetis juris, whereby the borders of new states emerging from such governmental or administrative forms as colonies (including mandates, trusteeships, etc.) are established on the basis of territorial frontiers at the time of independence.  

“Annexation” by any other name …

It is not contested that annexation of foreign territory (whether de facto or de jure) is “universally recognized as a basic rule of international law.” The further admonition in the above Opinion that even challenging the misuse of the term “annexation” in the present case of Israel by replacing it with terms such as “extension of sovereignty,” “extension of law, jurisdiction or administration” will not alter the ‘reality’ of what the Opinion’s author and signatories ill-advisedly perceive as illegal “annexation,” is not germane, given the recognized international law norms cited above.

Rightful exercise of legitimate sovereignty

The rightful exercise of Israel’s legitimate sovereignty over her own territory should receive the recognition and acknowledgment – starting with the Israeli Government itself – that the legal terminology has been perverted and that what is being proposed by Israel here truly is not “annexation” at all, nor is it even best characterized as the “extension of sovereignty,” but rather as the de facto and lawful exercise of full sovereignty over the State of Israel’s own legitimate territory. Even if the terms “annexation” and “belligerent occupation” were originally (and are thus perpetually) misapplied by one or more Israeli Government authorities or documents themselves, Israel should not thereby be forever held in bondage by these misguided terms, to her own eternal political and ideological disadvantage and open to be used as lawfare against her by her many adversaries.

Propagating truth through accurate legal terminology

Although the present author is under no illusion, neither can we all remain silent or simply ignore this false usage of a term that will forever condemn Israel’s legitimate sovereign right over her territory. The truth must at least be propagated that – regardless of who uses the (illegal) “annexation” terminology (even sadly the Israeli Government itself) for the exercise of Israel’s legitimate de facto sovereignty – the fact remains that this is a gross misuse of the term “annexation”, which, by all legal definition, does not apply where the country reportedly doing the “annexing” already possesses sovereignty, as is the case with Israel under international treaties (the San Remo Resolution and the Mandate for Palestine), preserved by another international treaty, the Charter of the United Nations (Article 80), and never abrogated or amended or rescinded.

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7 Comments

  1. Nonsense. The Mandate did not envision all of Palestine as a Jewish National Home. This website peddles pure propaganda and these people should be ashamed of themselves but Hasbara has no shame:; only racism and lies.

    • The Mandate envisioned that the Jewish National home would be in Palestine. You are right it does not say it must cover the whole of that territory. But it is clear that Jerusalem, and what is now called the West Bank were definitely intended to be part of the Mandate territory.

    • You are right that it has been recognized that “a national home for the Jewish people” “in Palestine” does not necessarily mean in all of Palestine. But the Jewish national home was in fact not established in all of Palestine. It was established in only about one quarter of the territory of the Mandate for Palestine which extended to both sides of the Jordan River. But as the Comment just above states, Judea and Samaria (“West Bank”) and all of Jerusalem were indisputably a part of that Jewish national home. This is not “propaganda.” This is fact.

      Indeed, I believe you have confused “propagandizing” with “propagating” the truth. Propaganda is based in lies or serious and often deliberate distortions of the truth, normally in order to form, sway or turn current popular and often ill-informed public opinion to conform to the propagandists own views or narrative. Seeking and then propagating the truth through facts is (or should be) the aim of every lawyer. Legal definitions can hardly be propaganda. Legal instruments can hardly be propaganda.

      Lawyers go after the facts to come to a conclusion. Propagandists are more likely to go after the crowd, to follow a delusion. If we, as lawyers, cannot find the truth of a matter, we have no right to be lawyers.

      It would appear that you have been exposed to lots of propaganda, as described above. It may work to fight fire with fire, but I don’t think it works to fight propaganda with propaganda.

      If you want to discover propaganda, go to the media; if you want to discover facts, go to the law. If the media captures your interest through propaganda, they are successes. If lawyers fail to provide you with true facts, they are failures. Choose your sources carefully.

      The mission of thinc. is: “the fair and just application of international law to Israel, the Jewish people, and the Israel/Palestine conflict”. We do not have to propagandize because happily the truth is on our side, because we choose the side of truth, upon intense examination of the facts. That is what we do. That is who we are.

      In the words of George Washington: “I hope I shall possess firmness and virtue enough to maintain what I consider the most enviable of all titles, the character of an honest man[/woman].”

      Thank you for being open enough to visit our site.

    • Actually, this “The Mandate did not envision all of Palestine as a Jewish National Home” but not as Eric Smithson intended it so to be.
      The British separated 75% of historic Palestine and awarded it to a Saudi Arabian Hashemite as Transjordan.
      It prohibited Jews from exercising their right to “close settlement” (Article 6) therein.
      Sunsequently, once the Arab community of Mandate Palestine rejected the 1947 Partition Plan and went to war in an act of aggression, and then lost, any and all territory was legitimately Israel’s.
      And so, when Jordan’s illegal annexation ended in 1967, and in accordance with the UN’s Article 80, all the area of Judea, Samaria and Gaza were legitimately Israel’s, to extend sovereignty to.

  2. Much of the areas being annexed by Israel does not form part of the territories granted to Israel in the treaties being refered to in the article above

    • I am afraid you are sadly mistaken or unfortunately misinformed. It would appear you have neither read the treaties referred to nor looked at the map of the Mandate for Palestine. If you had, you would have remarked that some 77% of the Mandate for Palestine was given over by the British Mandatory to the Arab population as “Transjordan” and explicitly excluded from the provisions applying to the Jewish national home. This means that essentially three and three quarters of the four Mandates determined at San Remo became Arab states, while less than one quarter of one Mandate was left for the Jewish national home, excluding even a portion east of the Jordan that had historically been home to ancient Jewish tribes. All territory that remained — west of the Jordan to the sea — (undeniably Judea & Samaria, renamed by Arab invaders as the “West Bank”) was reserved for the Jewish national home.This is simply fact.

  3. The Mandate for Palestine did contemplate that the Jewish National Home would be reconstituted in the whole of the Mandate territory west of the Jordan, constituting about 24% of the total. This is evident from Article 25 which states that application of the Jewish National Home provisions could be withheld in the Mandate territory east of the Jordan (76% of the total). It follows from this that application of the Jewish National Home provisions could not be withheld in the territory west of the Jordan.

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