The annexation of territory is strictly prohibited in modern international law. Indeed, this prohibition has acquired the status of a jus cogens norm in international law, meaning that it is accepted as a fundamental principle of law by the international community, for which no exception or derogation is permitted.1 Territorial conquest and annexation are now regarded as intolerable scourges from darker times, because they invariably incite devasting wars, political instability, economic ruin, systematic discrimination and widespread human suffering.2 Although annexation has yet to be completely eradicated in the modern world, its occurrence has become much more infrequent since the birth of the United Nations, with the international community refusing to recognize annexation claims in many cases.
Yet, annexation, both de jure and de facto, remains a burning issue in the Israeli-Palestinian conflict. Israel, the occupying power, has twice formally annexed occupied territory under its control: East Jerusalem (1967, 1980) and the Syrian Golan Heights (1981).3 Its refusal to relinquish these two territories in the face of widespread condemnation by the international community has contributed to regional instability and debilitated the efficacy of international law. And, throughout the years of occupation since the June 1967 war, Israel has continuously entrenched its de facto annexation of the West Bank through sovereignty-enhancing facts on the ground: the creation of 220 settlements, populated by more than 400,000 Jewish settlers; the spatial and political enclosure of the 2.6 million West Bank Palestinians; the extension of Israeli laws to the West Bank and the creation of a discriminatory regime; the unequal access to natural resources, social services, property and lands; and the explicit statements by a wide circle of senior Israeli political leaders calling for the formal annexation of parts or all of the West Bank. These annexation trends have only intensified since the beginning of 2017. As Israeli human rights lawyer Michael Sfard has
The [Israeli] government is peeling away the last remnants of loyalty to the notion of the occupation as temporary and to any obligation
to negotiate with the Palestinians. The goal is clear: a single state containing two people, only one of which has citizenship and civil rights.4
Annexation and East Jerusalem
Several weeks after Israel’s military occupation of East Jerusalem and the West Bank (among other territories) in the June 1967 war, Israel formally extended its law and administration to East Jerusalem and 28 surrounding West Bank Palestinian villages, creating a much-enlarged Jerusalem municipality. (The 1967 annexation absorbed not only the 6,400 dunams of East Jerusalem — previously ruled by Jordan — but also 65,000 dunams in the West Bank, attaching them to the 38,000 dunams belonging to West Jerusalem). The international community, through the UN General Assembly, immediately and overwhelmingly rejected this de jure annexation.5 Israel refused to comply, and began to establish permanent demographic, structural and institutional facts on the ground to consolidate its sovereignty claim.
Subsequently, in July 1980, the Israeli Knesset enacted the quasi-constitutional Basic Law: Jerusalem, Capital of Israel, which proclaimed that Jerusalem, “complete and unified,” was the capital of Israel.6 (Notably, in both 1967 and 1980, Israel eschewed the term “annexation,” speaking instead of a “municipal fusion” and, later, the “reunification” of the city based on a biblical right.) Again, the international community, this time through the Security Council, condemned the annexation “in the strongest terms” and declared that the Basic Law was “a violation of international law” and a “threat to peace and security.” The Security Council directed that:
…all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem… are null and
void and must be rescinded forthwith.”7
The United Nations has recently reaffirmed these declarations establishing the illegality of the formal Israeli annexation of East Jerusalem.8
As part of its continuing efforts to make its de jure annexation of East Jerusalem irreversible, Israel has over the past five decades extended its national laws and civil authority to the occupied section of the city; it has issued numerous declarations of permanent sovereignty; it has transformed Jerusalem’s physical features and historic character; it has moved some of its national institutions (including the Ministry of Justice); and it has embarked upon an intensive program of creating and expanding Jewish settlements.9 Two trends in particular are evident, both of which are tied to Israel’s objective of perpetuating its annexation of East Jerusalem.
First, Israel’s consistent policy since 1967 has been to secure an overwhelming Jewish majority in Jerusalem, to be achieved through settler implantation and demographic gerrymandering. Early in the occupation, Israeli national and municipal leaders adopted two official policy objectives aimed at sustaining permanent Israeli annexation of East Jerusalem: to expand the size of the city, and thereby increase its absorptive capacity for Jewish settlement;10 and to establish a targeted “demographic balance” of 70% Jews and 30% Palestinians in the city.11 Later, in the 2000s, they added a third: to prevent the development of any national Palestinian institutions in Jerusalem, and thereby dampen Palestinian nationalist sentiment.
Notwithstanding Israel’s best efforts since, none of these objectives have met with full success. No state has formally recognized Israel’s claim of sovereignty over East Jerusalem. Demographically, Palestinian Jerusalemites in 2016 constituted 38% of the city’s population, up from 28% in 1980.12 And a 2018 poll indicated that 97% of Palestinian East Jerusalem residents “strongly object to the idea that Israel should maintain its annexation of East Jerusalem.”13
Nonetheless, in the years since 1967, Israel has taken a number of substantial steps to entrench its sovereign claim over East Jerusalem through three principle methods: 1), the creation and enlargement of 15 official Israeli Jewish settlements within the expanded boundaries of East Jerusalem, totaling 210,000 settlers, with the resulting separation of East Jerusalemite Palestinians from the West Bank;14 2) the application of Israeli laws and national authority throughout East Jerusalem, in a manner that systemically discriminates against the Palestinians in the city,15 particularly through planning laws16 and deliberate urban neglect;17 and 3) a precarious legal status for Palestinian Jerusalemites, which defines them as “permanent residents” with no secure right to remain in Jerusalem as well as considerable barriers to acquire family unification.18
The second prominent trend has the more aggressive approach taken by the Israeli political leadership in recent years to counter the growing Palestinian demographic presence in East Jerusalem and to bolster Israel’s claim of sovereignty over East Jerusalem. This trend has taken two forms. First, the route of the Separation Wall in the 2000s around Jerusalem has deliberately placed a number of Palestinian neighborhoods on the West Bank side of the wall. And second, the Knesset has adopted several pieces of legislation and is considering several other proposed statutes which seek to ensure that its annexation of East Jerusalem becomes irreversible.
The construction of the Separation Wall by Israel — which was built as a security barrier, but which also stretches deep inside the occupied West Bank in many areas — has not followed the boundaries of the expanded Jerusalem municipality. Around Jerusalem, it absorbed some West Bank territory within the Wall, while unilaterally placing several large Palestinian Jerusalem neighborhoods, including Kufr Aqab and Shu’fat, outside of the wall. These Palestinian Jerusalemites living beyond the Wall – whose population size is estimated to be 120,000-140,000 persons — officially still live within Jerusalem, they still have their “permanent resident” status, they pay taxes to the municipality, and some of them work in Jerusalem by crossing Israeli checkpoints to enter the city.19 However, the Israeli authorities have largely abandoned these neighborhoods: even in comparison to the negligible municipal services provided to the Palestinian neighborhoods within the wall, these excluded neighborhoods are almost entirely forgotten: They live without basic social services and infrastructure such as water, garbage collection, road building and sewage; there is a serious shortage of educational and welfare institutions; high crime rates persist; they suffer from housing shortages and overcrowding; and, without an effective permit-granting system, virtually all buildings are constructed without official permission.20
The minister of Jerusalem affairs in the Israeli cabinet, Ze’ev Elkin, proposed in October 2017 that the detached Palestinian neighborhoods should be removed from the Jerusalem municipality and placed under a new council administration.21 It is an inescapable conclusion that the route of the Separation Wall around Jerusalem — which includes all the Israeli settlements in East Jerusalem as well several nearby West Bank Israeli settlements, while excluding approximately one-third of the Palestinian
Jerusalemites — has been designed for demographic reasons to maximize the Jewish population in Jerusalem while seeking to substantially reduce the city’s Palestinian presence.22
Annexation and the West Bank
Israel has yet to declare its formal annexation over any part of the occupied West Bank, as it presently lacks international political support from any quarter for such a move.23 Its official position to the rest of the world is that, while it denies that the West Bank (which it refers to as “Judea and Samaria”) is occupied and it has rejected the applicability of the Fourth Geneva Convention, it remains willing to negotiate its future status with the Palestinians.24 But, in practice, Israel has taken multiple steps consistent with establishing a sovereign claim over the West Bank since shortly after the occupation began in June 1967, and these steps have escalated significantly in recent years.
The first Israeli civilian settlements in the West Bank, initially camouflaged as military camps, were established in the summer of 1967.25 Since then, Israel has built and incentivized approximately 225 settlements throughout the West Bank, inhabited by over 400,000 Jewish settlers. No country creates civilian settlements in occupied territory unless it has annexationist designs in mind, which is why the international community has designated the practice of settler-implantation as a war crime.26 The political purpose of the Israeli settlements — with its billions of dollars of public investment to construct hundreds of Jewish-only communities, a massive road and infrastructure system and an elaborate military security network of population control — has always been to establish sovereign facts on the ground and to obstruct Palestinian self-determination. In the words of the 1978 Drobles Plan which formulated the motivation for the
fledging settlement enterprise:
State land and uncultivated land must be seized immediately in order to settle the areas between the concentration of minority population [i.e., the Palestinians in the West Bank] and around them, with the
object of reducing to the minimum the possibility for the development of another Arab state in these regions.27
During the five decades of the occupation, Israel has steadily thickened its sovereign footprint throughout the West Bank.28 The infrastructure of the territory — the sewage connections, communication systems and the electrical network — has been completely integrated into Israel’s domestic system. The West Bank’s water system, with its plentiful mountain aquifers, has been owned since 1982 by Mekorot, the country’s national water enterprise, with the benefits flowing primarily to Israel.29 The highway network, which before 1967 was primarily a north-south system, has been reconfigured as an east-west system to connect the settlements with one another and with Israeli cities, and thereby disrupting Palestinian transportation.30 The West Bank economy is subject to a single customs union agreement with Israel, enabling the more powerful economy to dominate and flourish, while the weaker economy withers through development and dependence.31 The natural resources of the West Bank are controlled by Israel and primarily exploited for its benefit.32 Israeli legislation and laws have been extended by the Israeli military commander to the West Bank settlers on a personal /territorial basis, while he applies a disfigured version of occupation law, without many of its protections and guarantees, to the Palestinians.33 The allocation of “state land” in the West Bank that is assigned for any use has been given almost exclusively to Israeli settlements (99.76%), even though the settlers make up only 12% of the population in the West Bank.34
Most significantly, Israel exercises full civil and security control over Area C of the West Bank, which comprises more than 60% of the territory. A remnant of the lifeless Oslo process, Area C has been administered by Israel as an exclusive land base for its West Bank settlements: The World Bank has noted that 68 percent of Area C is designated for the Israeli settlements, 21% for closed military zones and 9% for nature reserves.35 In the 1% of Area C that remains for the approximately 180,000-300,000 Palestinian inhabitants, the Israeli Civil Administration has imposed a highly restrictive planning regime that makes permit application approval for Palestinian residential and commercial construction virtually impossible.36 While the Jewish settlers enjoy the same full range of legal rights and economic freedoms as Israelis living behind the Green Line, the Palestinians in Area C lack essential community infrastructure, a strangled economy, ubiquitous military checkpoints, lack of access to their natural resources and a steady rejection of almost all of their submitted master plans 37 — all of which amounts, according to the United Nations, to a coercive environment that is forcing Palestinians to leave.38 Other observers have drawn attention to a 2015 amendment to a 2003 military order regarding unauthorized buildings, which allows the commander of the Central Command to evict entire Palestinian communities in Area C without the previous need to acquire demolition orders for each structure.39
What was once called the creeping Israeli annexation of the West Bank by civil society organizations has now been re-labelled as leaping annexation40 and occup’annexation.41 The Israeli political leadership has perceived the current international environment — particularly its relationship with the present American administration — is conductive to its aspirations to solidify its permanent domination over the West Bank, notwithstanding the lack of support for formal annexation. As a result, there has been a flurry of soft-annexation legislation since early 2017, which appears to be laying the foundations for hard-annexation legislation in the future. In a recent editorial, Haaretz, the leading liberal daily in Israel, stated that the government has been practicing legal annexation through its recent application of “more and more Knesset laws to the West Bank while erasing the Green Line,” resulting in two different and unequal legal systems for the two peoples residing in the territory. “This phenomenon has a name,” it stated, “and Israel will no longer be able to renounce reality and deny to the international community that it is an apartheid state, with all that this implies.”42
Over the past two years, the Israeli Knesset has either enacted or considered a number of statutes that extend Israeli law to the West Bank or lays the foundation for some form of future annexation.43 Among the most significant statutes, bills and other initiatives comprising this recent legislative trend:
- The Settlement Regularization in “Judea and Samaria” Law, which allows for the retroactive legalization of outposts built on private Palestinian land. While it offers compensation to Palestinian landowners, it denies them any right to property restoration. It was passed by the Knesset in February 2017, but it remains unimplemented pending the resolution of a petition to the Israeli High Court by a number of human rights organizations challenging its legality. At the High Court, the Israeli government argued that the Knesset is not subject to international law, and it is the source of legal authority in the occupied Palestinian territory. The Israeli Attorney General, while opposing the law, has stated that existing laws already provide for the legalization of Israeli constructions on private Palestinian land in the West Bank (see A/HRC/37/43 para.16-17, with references).
- The Higher Education Law applies the jurisdiction of Israel’s Council for Higher Education — which governs post-secondary institutions in Israel — to academic institutions in the West Bank settlements. It thereby grants the same academic status to these institutions (notably, Ariel University based in the settlement of Ariel) as for all other Israeli universities. The Higher Education Law, which was enacted in February 2018, is an illustration of the direct application of domestic Israeli law to the occupied territory, which is both forbidden under international law and a clear step towards annexation.
- The Jewish Nation-State Law is a quasi-constitutional Basic Law, which means that it takes precedence over ordinary Knesset legislation. Adopted in July 2018, it proclaims that the Jewish people alone have the right to self-determination in the Land of Israel. The law also reduces the Arabic language from being an official language to having a “special status”, and enshrines the body of existing laws which give preference to the Jewish character of the country, at the expense of its Palestinian citizens. Because the Law employs the term “Land of Israel,” the Knesset apparently intends for it to apply to the West Bank; it reads, in part: “the state views the development of Jewish settlements as a national value and will act to encourage and promote its establishment and consolidation.”
As well, the Israeli political leadership has become much more uninhibited over the past two years in expressing out loud what the actions of the Israeli government have been proclaiming for years. Annexation is in the air, and intention is now being openly expressed in words as well as in deeds. One significant illustration of the changing environment was the unanimous vote on December 31, 2017 by the 1,000-member central committee of the ruling Likud party to support a non-binding resolution to
formally annex the West Bank. The resolution called upon Likud’s elected officials: “…to allow free construction and to apply the laws of Israel and its sovereignty to all liberated areas of Jewish settlement in Judea and Samaria.”44 In addition, in recent months, a number of Israeli cabinet ministers have openly embraced the formal annexation of parts or all of the West Bank, exemplified by the endorsement of annexation by Israeli Prime Minister Benjamin Netanyahu in April 2019:
“A Palestinian state will endanger our existence and I withstood huge pressure over the past eight years, no prime minister has withstood such pressure. We must control our destiny,” the premier said. “Will we move ahead to the next stage? Yes. I will extend sovereignty but I don't distinguish between the settlement blocs and the isolated ones, because each settlement is Israeli and I will not hand it over to Palestinian sovereignty.”45
A fundamental tenet of modern international law is the legal maxim ex turpi causa non oritur actio: a law-breaker cannot benefit from his or her illegal act.46 In 1967 and again in 1980, the international community clearly stated that Israel’s annexation of East Jerusalem breached international law and was null and void.47 It has also spoken decisively about the illegality of the Israeli settlement enterprise,48 which is the political and demographic engine that has transformed Israel’s occupation into an annexation. Yet, lacking in these repeated condemnations of Israel’s annexationist actions have been any meaningful steps by the international community to insist upon accountability. Despite Israel’s ongoing record of non-compliance with the directions of the international community, it has rarely paid a meaningful price for its defiance, and its appetite for entrenching its annexationist ambitions in East Jerusalem and the West Bank has gone largely unchecked. A deep-rooted problem at the heart of this conflict
has not been the clarity of international law, but the unwillingness of the international community to enforce what it has proclaimed. As Professor Victor Kattan has succinctly stated: “The problem is not international law per se, but its lack of enforcement; that in the Middle East, international law is closer to power than to justice.”49 Nothing could more effectively refute this judgment than for the international community to act on the overwhelming evidence before it, and insist that Israel either fully annull its annexations and relinquish its occupation, or be prepared to bear the full consequences of accountability for its mocking of international law.
1 R. Hofmann, “Annexation”, in Max Planck Encyclopedia of Public International Law (Oxford University Press, 2013), paras. 21 & 38.
2 R. Jennings, The Acquisition of Territory in International Law (Manchester: Manchester University Press, 1963, 2017).
3 These de jure annexations have been condemned by the United Nations Security Council (Res. 478 & 497).
4 M. Sfard, “Israel and Annexation by Lawfare”, The New York Review of Books (10 April 2018).
5 UNGA Res. 2253 (Vote: 99-0-20) (4 July 1967); UNGA Res. 2254 (Vote: 99-0-18) (14 July 1967).
7 UNSC Res. 478 (20 August 1980).
8 UNSC Res. 2334 (23 December 2016); UNGA Res. 73/99 (18 December 2018).
9 Prime Minister Ehud Barak stated in November 2000: “Maintaining our sovereignty over Jerusalem and boosting its Jewish majority have been our chief aims, and toward this end Israel constructed large Jewish neighborhoods in the eastern part of the city, which house 180,000 residents, and large settlements on the periphery of Jerusalem, like the city of Ma'aleh Adumim and Givat Ze'ev.” See: http://mfa.gov.il/MFA/PressRoom/2000/Pages/Address%20by %20PM%20Barak%20on%20 the%20Fifth%20Anniversary%20of%20th.aspx
10 Bimkom, Trapped by Planning: Israeli Policy, Planning and Development in the Palestinian Neighbourhoods of East Jerusalem (2014).
11 A. Cheshin et al, Separate and Unequal: The Inside Story of Israeli Rule in East Jerusalem (Cambridge: Harvard University Press, 1999).
12 Jerusalem Institute for Policy Research, Statistical Yearbook (2018 edition), Table III/4.
15 See generally, St. Yves, Everyone Pays the Price: Case Study of Jerusalem (2017).
16 Bimkom, Trapped by Planning: Israeli Policy, Planning and Development in the Palestinian Neighbourhoods of East Jerusalem (2014).
17 UNCTAD, The Palestinian Economy in East Jerusalem (2013).
18 Civic Coalition for Palestinian Rights in Jerusalem, Israel’s Occupation: 50 Years and Counting (2018).
20 R. Kushner, “We are Orphans Here”, The New York Times Magazine, 1 December 2016.
21 Ha’aretz, “Israeli minister to push plan aimed at reducing number of Arabs in Jerusalem”, 29 October 2017.
22 Al-Quds University: Yabous Cultural Center, Legal Brief on Jerusalem (March 2018).
25 I. Zertal & A. Eldar, Lords of the Land (Nation Books, 2007).
26 Rome Statute of 1998, Article 8(1)(b)(viii).
27 Quoted in: D. Kretzmer, “Settlements in the Supreme Court of Israel” (2017), 111 American Journal of International Law 41, at 42.
28 O. Ben-Naftali et al, The ABC of the OPT: A Legal Lexicon of the Israeli Control over the Occupied Palestinian Territory (Cambridge University Press, 2018), Chap. R.
30 Dajani, “Israel’s Creeping Annexation” (2017), 111 American Journal of International Law 51.
31 UNCTAD, Developments in the Economy of the Occupied Palestinian Territory (September 2017).
32 Al-Haq, Business and Human Rights in Palestine: A Case Study on the Illegal Exploitation of Palestinian Natural Resources (2014).
33 Association for Civil Rights in Israel, One Rule, Two Legal Systems (2014) .
34 Americans for Peace Now, Land Allocation in the West Bank – For Israelis Only (July 2018).
35 World Bank, Area C and the Future of the Palestinian Economy (2013).
36 B’Tselem, Planning Policy in the West Bank (June 2018).
39 Peace Now (Settlement Watch), Mentality of Annexation: Changes in the Interpretation of the Laws Regarding Occupation (January 2018).
40 Americans for Peace Now, From Creeping to Leaping: Annexation in the Trump-Netanyahu Era (April 2018).
41 11.11.11, Occup’Annexation: The Shift from Occupation to Annexation in Palestine (Brussels, 2017).
43 Foundation for Middle East Peace, Israel’s “Creeping Annexation” Policies – Tables (September 2018) provides an invaluable overview of recent annexation steps taken by the Knesset.
44 Ha’aretz, “Netanyahu’s party votes to annex West Bank, increase settlements” 1 January 2018.
46 H. Lauterpacht (ed.) Oppenheim, International Law (8th ed.) (Longmans, Green, 1955), at 574.
47 Supra, notes 41 and 42.
48 UNSC Res. 2334.
49 V. Kattan, From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891-1949 (London: Pluto Press, 2009), at 4.