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.
This article first appeared as an op ed in the Jerusalem Post of Thursday, June 18, 2020. [Subheadings added].