Briefing Paper

25 June 2020

Do the Israeli government's plans

to apply its law and jurisdiction to

the Jordan Valley and settlement

blocs infringe international law?

By:

Prof. Gregory Rose

Dr. Cynthia Day Wallace

Dr. Matthijs de Blois

Mr. Andrew Tucker

Do the Israeli government's plans

to apply its law and jurisdiction to

the Jordan Valley and settlement

blocs infringe international law?

Authors:

Prof. Gregory Rose

Dr. Cynthia Day Wallace

Dr. Matthijs de Blois

Mr. Andrew Tucker

© 2020 thinc. The Hague Initiative for International Cooperation

An initiative to study the position of Israel in the international community, in order to promote

international peace and security, friendly relations amongst nations, and peaceful resolution of disputes

based on the principles of justice and international law.

For the maps used in this publication every effort has been made to trace the holders of copyright and

to acknowledge the permission of authors and publishers where necessary. If we have inadvertently

failed in this aim, we will be pleased to correct any omissions in future editions.

www.thinc.info

Do the Israeli government's plans to apply its law and

jurisdiction to the Jordan Valley and settlement blocs

infringe international law?

___

Briefing Paper

1

Executive Summary and Conclusions

The Israeli government has announced intentions to apply Israeli civil law and jurisdiction to parts of

the Jordan Valley and/or certain settlement blocs. This was agreed in the Coalition Agreement between

Israeli political parties Likud and Blue and White.

There is a lot of controversy in Israel (and worldwide) about this. The European Commission and many

others refer to Israel's plans as "annexation" that would constitute a violation of international law. In a

recent Open Letter to the government of the State of Israel, a group of international lawyers stated that

“such an action would constitute a flagrant violation of bedrock rules of international law and would

also pose a serious threat to international stability in a volatile region.”1

We have examined the question whether Israel’s actions amount to “annexation” in breach of

international law. We have carried out a study of the relevant literature and interviewed a number of

leading international law academics and practitioners.

We conclude that, contrary to the European Commission and Open Letter views, Israel’s proposed

actions would not infringe international law. In other words, such action does not qualify as “illegal

annexation” of territory.

The claim that Israel’s actions would infringe international law rely primarily on the prohibition under

international law of “the acquisition of territory by the use of force", which is a “peremptory [i.e.

absolute and binding] norm of international law”. The ordinary interpretation and consistent application

of this prohibition means that Israel’s action to incorporate part of the territory of the ‘West Bank’ into

the State of Israel would only be illegal under international law if it can be established that: (1) the

affected territory belongs to another State; and (2) the annexation follows from an illegal use of force

by the first State.

Neither of these conditions is present in the case of the ‘West Bank’. Accordingly, our view is that, on

the basis of information available, Israel’s action would not constitute “annexation” violating this

principle of international law.

There are two main reasons:

1. First, the ‘West Bank’ does not belong to another State. The Palestinian people (represented by

the PLO), on the other hand, while having a right to self-determination, have neither sovereignty, nor a

right to statehood, nor do they have a right to self-determination in all of the ‘West Bank’. A State of

Palestine also does not exist.

On the contrary, there are strong arguments that the territory of the ‘West Bank’ belongs to Israel. As

between the remaining disputants regarding the territory (Israel and the PLO), Israel has clearly the

stronger claim to sovereignty over the ‘West Bank’ under international law. Israel has:

2

a) specific legal title deriving from the Mandate for Palestine2, a binding international instrument

reflecting the historic, religious and cultural ties between the Jewish people and the territory of

Palestine (including the ‘West Bank’);

b) inherited title pursuant to the principle of uti possidetis juris;

c) de facto title through possession; and

d) legal title arising from self-defense and necessity.

The Oslo Accords do not (at least as far as Area C is concerned) limit or vitiate the prior territorial rights

of Israel.

The ‘West Bank’ does not constitute a “non-self-governing territory”. A Palestinian state has not come

into existence. The Palestinian people have a right to autonomy but the territorial scope of their right to

self-determination depends on many factors, including its compatibility with the territorial integrity and

security of the State of Israel.

Put another way, in its negotiations with the PLO, Israel is entitled to insist on keeping control and

sovereignty over territory that it rightly considers necessary to protect the territorial integrity of the State

of Israel, or which is necessary in order to ensure “secure and recognized boundaries free from threats

or acts of force” (as reflected in UNSC Res 242).

2. Second, Israel did not acquire the territory through the use of illegal force. In 1967 Jordan

attacked Israel, initiating the war with Jordan. Israel did not take Jerusalem or the ‘West Bank’ (Judea

and Samaria) by an act of aggression in 1967, rather, it was acting defensively. Article 51 of the UN

Charter preserves every State’s right to self-defense. Israel’s use of force in 1967 was thus legitimate.

The Israeli government's current proposal (to apply Israeli law and jurisdiction) also does not involve

the use of force.

We also think that Israel’s planned application of civil law and jurisdiction to these territories probably

would not breach the Oslo Accords. The Oslo Accords have been breached and denounced by the

Palestinian authorities although without formal withdrawal. Accordingly, Israel’s extension of its civil

laws is itself a justified legal response to non-implementation of the Oslo Accords by Palestinian

authorities.

The allegation is also made in the Open Letter that Israel’s proposed actions would violate the

Palestinians’ right to self-determination. That is a complex issue beyond the scope of this paper. Given

our findings below, we can tentatively say that the Palestinian people do not have a demonstrated right

to self-determination over the whole of the ‘West Bank’, nor does the right to self-determination

necessarily entail Palestinian statehood. Also, Israel is entitled to ensure the establishment of “secure

and recognized boundaries free from threats or acts of force.” Whether applying Israeli law and

jurisdiction to a specific areas in the ‘West Bank’ would infringe Palestinian rights would depend on the

specific details, and require further research.

3

Finally, we note that whether - as a political issue - Israel should take such action, and whether such

action would promote or undermine peaceful resolution of the Arab-Israel dispute, is open to debate,

and involves many other considerations. International law is only one part of the matter. But every effort

should be made to avoid distortions, misrepresentations or misapplications of the principles and norms

of international law.

4

5

Analysis

1. What is Israel planning to do?

We understand that the intention of the Israeli government is to apply Article 11b of the Israeli Law and

Administration Ordinance of 1948, which makes possible the application of Israeli civil law,

jurisdiction, and administration to territories of the land of Israel that the State of Israel controls. That is

what happened when Israel declared the united city of Jerusalem to be part of Israel, after the Six Day

War in June 1967. It involves replacing military governance under military laws with civil governance

under Israeli civil laws, i.e. treating the areas administered as Israeli domestic areas instead of treating

them as territories under military control.

The Israeli government Coalition Agreement refers to the “Peace to Prosperity” Peace Plan, proposed

by the U.S. Administration, as the basis for the planned application of Israeli law and jurisdiction to

these territories. This plan acknowledges that Israel has legitimate claims to sovereignty with respect to

the ‘West Bank’, and envisages that Israel will, under a final peace agreement, retain control and

sovereignty over about 30% of the territory covered by the Oslo Agreements (the ‘West Bank’, including

‘East Jerusalem’). However it should be noted that this plan envisages several steps and conditions.

Further, “Peace to Prosperity” Peace Plan does not in itself confer any entitlements to Israel under

international law. This is because the plan has been rejected by the Palestinian side and is thus no more

than a proposal. Thus, while the plan may provide political support to Israel, it does not provide a legal

basis for the proposed action.

The refusal of the Palestinian Authority for a quarter century to engage in dispute resolution by any

serious negotiation process, has led to the U.S. and Israeli proposal for unilateral steps. In this context,

there is no agreement by the Palestinian Authority to the application of Israeli civil law. The unilateral

Israeli action has therefore been termed ‘annexation’ by its opponents but also by its proponents – for

lack of awareness of another term better suited to the unique circumstances.

2. What is the legal status of the West Bank (including East Jerusalem)?

There is a fundamental dispute about the status of the territories that were occupied by Jordan between

1948 and 1967, and over which Israel took control in 1967. Even the names are disputed: various parts

of the ‘West Bank’, named such by Jordan when it annexed the western bank of the Jordan river in 1950,

are also historically known as “Judea and Samaria”. The area commonly referred to as ‘East Jerusalem’

also contains what is known historically as the Old City of Jerusalem.

Much confusion has arisen in the case of those territories administered by Israel since 1967, because

Israel did not (with the exception of Jerusalem, which was immediately incorporated into Israeli

jurisdiction) officially incorporate them into the State of Israel. Rather, it chose (a) to apply voluntarily

parts of the law of belligerent occupation, in order to ensure the protection of the non-Israeli population

6

of those territories, and (b) to negotiate terms of peace with its neighbors.

Israel has a different view about the territories to the Palestinian and wider Arab and Muslim political

leadership. The official Palestinian Authority perspective is supported by the Arab League and

Organization of Islamic Cooperation (OIC) as well as the EU Commission and (in varying forms and

degrees) many others in the international community. The conflicting views are discussed below.

Israel takes the position, as a matter of law, that it is entitled to treat the ‘West Bank’ as part of the State

of Israel. Israel’s historical and legal narrative is essentially as follows:

a) Israel has a valid claim to sovereignty over these territories based on the League of Nations Mandate

for Palestine, which was a legally binding treaty and whose purpose was to re-establish the Jewish

homeland in the area of the Mandate and which did not contemplate division of the Mandate

territory west of the Jordan River;3

b) Israel was the only independent State formed in the territory of the former Mandate; the

administrative boundaries of the Mandate should have become the boundaries of the State of Israel

in May 1948, under the international legal rule known as uti possidetis juris;4

c) The occupation of the territory by Jordan between 1948 and 1967 was illegal;

d) In June 1967, Jordan attacked Israel (an illegal use of force in breach of article 2 of the UN Charter)

but Israel won control of these territories during a defensive war;

e) After June 1967, Israel expressed willingness to negotiate captured territories with its neighbors in

exchange for peace, in line with UN Security Council Resolution 242, calling for the withdrawal of

Israel from “territories occupied in the recent conflict” but on condition of the establishment of

“secure and recognized boundaries free from threats or acts of force.” While still subject to differing

interpretations, this Resolution eventually led to the peace treaties with Egypt (1979) and Jordan

(1994);

f) Since 1993, Israel has formally recognized that Palestinian Arabs have self-determination claims

over parts of these territories. These claims compete with but do not negate Israel’s continuing

claims to sovereign rights over these territories;

g) The Palestinian people’s right to self-determination does not amount to a right to automatic

statehood nor does it mean they have such a right in all territories that they claim. These matters are

to be peacefully negotiated;

h) In any event, at this time, the purported "State of Palestine" is not a State in accordance with

international law as it does not fulfil the international law criteria for statehood as reflected in the

Montevideo convention;5

i) The territory concerned has not had an agreed legal sovereign since the demise of the Ottoman

Empire. Therefore, the territory is not "occupied" within the meaning of the Fourth Geneva

7

Convention, and the proposed Israeli action does not breach the law of belligerent occupation; and

j) The Oslo Accords do not affect this underlying status of the territory.

The Palestinian (PLO) historical and legal narrative is essentially as follows:

a) All of the ‘West Bank’ territory belongs to “State of Palestine”;

b) The “State of Palestine” is already in existence and the United Nations General Assembly by a

majority vote recognized “State of Palestine” as a State and gave it observer and participation status

in Resolution 67/19 of 2012. “State of Palestine” has since exercised its sovereignty by joining UN

specialized agencies and treaties and exercising rights within those bodies and under those treaties;

c) Alternatively, all of the ‘West Bank’ territory belongs to “the Palestinian people” for the exercise

of their right of self-determination;

d) The United Nations General Assembly has repeatedly recognized the aspiration and right of the

Palestinian people to exercise their self-determination through independent statehood;

e) The Palestine National Charter refers to the whole of the territory of the Mandate as Palestinian.

(The scope of the territory they claim is not clear, in some documents the Palestinians refer to the

1947 UN Partition Plan (Resolution 181), and in others to the territories outside the 1949 Armistice

Lines);

f) The “Palestinian sovereign territory” is militarily "occupied" and, therefore, Jews may not settle

there and any Jewish immigration is illegal (under Art. 49(6) of the Fourth Geneva Convention –

the prohibition on transfer or deportation of part of the occupier's population into the occupied

territory) and is a war crime (see Section 3 below);

g) Annexation of the occupied territory is similarly illegal; and

h) Israel’s extension of its civil law would breach the Oslo Accords and amount to an informal

termination of those agreements.

In order to assess the strength of these claims, the following considerations are relevant:

a) Adjudication of territorial jurisdiction or sovereignty requires the participation of all States having

claim to that territory. It requires the Court to ascertain and to weigh the competing claims. “If a

dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of

the States claiming sovereignty possesses a title… superior to that which the other State might

possibly bring forward against it.”6

b) The Mandate for Palestine was a binding treaty creating rights and obligations under international

law. Pursuant to article 80 of the UN Charter, the rights of the Jewish people under the Mandate

remained effective after the dissolution of the League of Nations and its replacement by the United

Nations.

8

c) No tribunal has made a binding or authoritative decision regarding the sovereign status of these

territories. Even the International Court of Justice (ICJ) in the Wall Advisory Opinion refrained

from making a determination on the sovereign territorial status of these territories under

international law prior to the 1967 armed conflict.7

d) General Assembly Resolution 67/19 of 2012 does not demonstrate that Palestine is a State.8 In any

case, General Assembly resolutions in themselves are not binding under international law. Rather,

they are exercises of merely recommendatory powers, pursuant to Article 18(2) of the UN Charter.

Although they may provide evidence establishing the existence of a rule or the emergence of an

opinio juris, this depends on factors such as its content, the conditions of its adoption, and whether

an opinio juris exists as to its normative character.9 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. General Assembly resolutions

concerning Palestine show an aspiration that Palestinian statehood be achieved, but do not evidence

any change in the generally applicable rules of international law.

e) UN Security Council Resolutions since 1967, for example UNSC Resolutions 476 and 478

condemning Israel’s incorporation of Jerusalem into its territory, were all passed under Chapter VI

of the UN Charter. Chapter VI resolutions and are neither binding nor conclusive evidence of opinio

juris as to a generally applicable principle of international law.

It must be concluded that the status of the ‘West Bank’ at present is as follows:

• the status of the territories of which Israel gained control in 1967 is contested;

• Israel has a very strong claim to sovereignty over the whole of the ‘West Bank’;

• That claim is strongest with respect to ‘East Jerusalem’, where Israel immediately and

unambiguously applied Israeli law and jurisdiction as soon as it regained control of the whole city

in 1967;

• while it is the intention of the international community that a Palestinian state be established, at this

time the State of Palestine does not exist;

• the parties have an obligation under international law to negotiate and ensure the achievement of

Palestinian self-determination;

• the Palestinian people have a right to self-determination, but not a right to statehood;

• it has not been established that the Palestinian people have a right to self-determination in the whole

of the ‘West Bank’;

• The ‘West Bank’ does not constitute a “non-self-governing territory”10 (i.e. it is not subject to a

“decolonization” process); rather, it is the territory of a sovereign State (Israel) upon which a people

(the Palestinians) claim self-determination, and is the subject of agreements intended to achieve

9

Palestinian autonomy;

• Israel has a right to territorial integrity and secure boundaries free from threats of use of force.

3. What is territorial "annexation" and is it illegal?

"Annexation" refers to the forcible taking of territory belonging to another State.11 The term presumes

an illegal international use of force. There is wide consensus among many scholars that the annexation

of territory conquered through an unlawful use of force is illegal under international law.

The circumstances in which annexation could be considered illegal under international law are two sides

of the same coin, separated by the time when they occur, i.e. during or after aggressive hostilities:

a) International law prospectively prohibits “the acquisition of territory by the use of force" which is

a "peremptory [i.e. absolute and binding] norm of international law". This principle is reflected in

article 2(4) of the UN Charter: “All Members shall refrain in their international relations from the

threat or use of force against the territorial integrity or political independence of any state, or in any

other manner inconsistent with the Purposes of the United Nations.”

b) Subsequent to the time of aggression, in the context of belligerent occupation,12 annexation is also

prohibited under the law of international armed conflict. This application of the general

international law principle assumes that the occupying power does not have sovereignty over the

occupied territories, as reflected in the statement of Oppenheim in 1917 that “there is not an atom

of sovereignty in the authority of the occupying power.”

The relationship between occupation arising from defensive use of force and competing claims of

sovereignty continues to be a matter of vigorous debate. While the fact of possession through occupation

cannot in itself confer sovereignty, there is no judicial authority or universal State practice that supports

a general rule that a State that is an Occupying Power cannot also have sovereign claims, or that the fact

of occupation nullifies previously held sovereignty.

Likewise, there is no precedent to be found for the idea that aggression or “annexation” are applicable

to territory that does not belong to any other state. Further, after a period of possession of territory,

disputed legal title to it may be considered as becoming consolidated under the international doctrine of

“prescription.”

It is also worth noting, though it is not decisive in this case, that there is debate as to whether territory

lost by an aggressor State to a State defending itself against aggression can be legally acquired by the

defender. Jordan and its allies were the aggressor states in 1967; Israel was defending itself against such

aggression, and took control of the ‘West Bank’ in the course of such defense. Several authorities have

written that annexation of territory acquired through a lawful use of defensive force remains an effective

means of acquiring sovereignty. For example, the use of defensive force in the Second World War

10

resulted in Russian acquisitions of Kaliningrad (Konigsberg) from aggressor State Germany and of the

Kuril Islands from aggressor State Japan. In fact, the claim that the legal use of force invalidates claims

of sovereignty is unsupported in State practice and only found in legal writings related to the case of

Israel. In our view Israel did not acquire sovereignty in the Six Day War, because it already had

sovereignty arising from the Mandate for Palestine and uti possidetis juris. Nevertheless, this strengthens

the argument that a State acquiring control during a defensive war is entitled to give expression to that

pre-existing sovereignty.

Finally, it should be noted that in addition to State responsibility, in certain circumstances associated

with the use of force, individual persons may be culpable for committing a "crime of aggression" under

article 8 bis introduced into the Statute of Rome of the International Criminal Court in 2010.13 No case

has yet been brought under this provision. Such a crime would require proof of “the use of armed force

by a State against the sovereignty, territorial integrity or political independence of another State”.

4. Would Israel's planned assertion of sovereignty infringe the prohibition of acquisition of

territory by force?

An action to incorporate territory into a State only infringes the prohibition of acquisition of territory by

force if it can be established that:

(1) the affected territory belongs to another State; and

(2) the annexation follows from an illegal use of force by the first State.

In our view, neither of these two conditions is present in the case of the “West Bank”:

a) There has not been an illegal use of force by Israel

In 1967 Jordan attacked Israel, initiating the war with Jordan. Israel did not take Jerusalem or the West

Bank (Judea and Samaria) by an act of aggression in 1967, rather, it was acting defensively. Article 52

of the UN Charter preserves every State’s right to self-defense.

The Israeli government's current proposal (to apply Israeli law and jurisdiction) does not involve the use

of force.

b) The disputed territories do not belong to another state; in fact, they belong to the State of Israel

under binding international law

There are competing claims to title over the disputed territories of the ‘West Bank’/ ‘East Jerusalem’/

‘Judea and Samaria’/ ‘Palestine’.

11

Jordan:

• Since Israel’s establishment Jordan had claimed sovereignty over the ‘West Bank’ and ‘East

Jerusalem’ but its claim was rejected by all but three other States and Jordan unilaterally

relinquished its claim in 1988.

Palestinian Authority/ PLO / “State of Palestine”:

• There is a school of thought that holds that a “State of Palestine” holds sovereignty over the territory

of the West Bank, or that the Palestinian right of self-determination gives the Palestinian people the

legal equivalent of territorial sovereignty. However, these propositions are highly contested. The

claim that “State of Palestine” is a state in international law is disputed even by many advocates for

the Palestinian cause. Self-determination is one of the most ambiguous concepts in international

law, and the claim that self-determination is legally equivalent to territorial sovereignty is not one

that is generally accepted.

• The ‘West Bank’ does not constitute a non-self-governing territory. The Palestinian people have a

right to autonomy but the territorial scope of their right to self-determination depends on many

factors, including its compatibility with the territorial integrity and security of the State of Israel.

Put another way, in its negotiations with the PLO, Israel is entitled to insist on keeping control and

sovereignty over territory that it rightly considers to be part of the territory of the State of Israel, or

which is necessary in order to ensure “secure and recognized boundaries free from threats or acts

of force” (as reflected in UNSC Res 242).

• Nor does self-determination automatically equate to statehood, as self-determination may be

expressed by many other means, such as by the Palestinian proposal for a “One-State solution”.

Israel:

• There is a considerable (though controversial) body of scholarship that claims that Israel has lawful

sovereignty over Judea, Samaria and East Jerusalem due to the doctrine of uti possidetis juris (see

Section 2 above), lawful possession of territory without a rival State claimant, and succession to a

Jewish claim of self-determination established as a matter of lex specialis under international law,

in the Mandate for Palestine.

• Under the circumstances, even the description of the Israeli government’s policy as “annexation”

is a phrasing that betrays in-built presumptions against Israeli sovereignty.

Between the remaining disputants regarding the territory (i.e. Israel and the Palestinian people), Israel

has clearly the stronger claim to sovereignty under international law. Israel has:

a) specific legal title deriving from the Mandate for Palestine, reflecting the historic, religious and

12

cultural ties between the Jewish people and the territory of Palestine (including the ‘West Bank’);

b) inherited title pursuant to the principle of uti possidetis juris;

c) de facto title through possession; and

d) legal title arising from self-defense and necessity.

We conclude that because –

• the relevant territories do not belong to another State;

• Israel has a valid claim to sovereignty with respect to these disputed territories; and

• Israel did not acquire control of the ‘West Bank’ through an illegal use of force;

the application of Israeli law to those territories would not contravene the prohibition on acquisition of

territory by force. In other words, Israel’s proposed actions would not qualify as illegal “annexation”

and should not be referred to as such.

Even if (arguendo) Israel qualified as from June 1967 as an Occupying Power, this does not mean that

its prior claims to sovereignty (based on the Mandate for Palestine, etc.) are nullified.

None of the post-1967 Israeli policies negate or vitiate Israel’s sovereign rights created prior to 1967

with respect to these territories. Successive Israeli governments have not wished to administer a hostile

Arab population, especially in ‘West Bank’ cities, which would compromise Israel’s own security.

Therefore, Israel seeks to promote Palestinian self-determination. The achievement of Arab self-

government in Palestinian-administered territories without military threat to Israel is a firmly repeated

goal of successive Israeli governments. During the 1990s, Israeli governments negotiated the Oslo

Accords that sought to reach both Palestinian self-determination and a negotiated settlement of the

territorial dispute.

5. Would Israel’s actions breach the Oslo Accords?

The Oslo Accords is a series of agreements between Israel and the PLO, as representative of the

Palestinian people. They resulted from Jordan’s withdrawal of claims to the ‘West Bank’ in 1988 and

the Madrid Conference of 1991. The Oslo Accords are intended to lead “to a permanent settlement based

on Security Council resolutions 242 (1967) and 338 (1973)”; they do not mention or explicitly envisage

Palestinian statehood. They provide for the creation of interim Palestinian self-government for a period

of five years during which permanent status negotiations would take place intended to result in a final

agreement.

13

According to Article V of the Declaration of Principles (Oslo I Accord, 1993), permanent status

negotiations shall cover issues like Jerusalem, security, refugees, settlements and borders. Article XXXI

(7) of the Interim Agreement (Oslo II Accord, 1995) provides that ”[n]either side shall initiate or take

any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the

permanent status negotiations.”

The PLO has violated the Oslo Accords in various and numerous ways, including by not renouncing the

intent to destroy and replace the State of Israel. More to the point, “State of Palestine” is acting on the

international level as a State with the ‘West Bank’ and Gaza as its territory, taking steps with the effect

of changing the status of these territories contrary to Article XXXI (7). Furthermore, the Oslo Accords

have been denounced by the Palestinian authorities on several occasions. The PLO recently announced

that because of Israel’s intentions, it considers the agreements no longer binding. However, neither the

PLO nor the Palestinian Authority have formally withdrawn from the Oslo Accords. It would appear

that the agreements still have not been fully terminated. Accordingly, the Oslo Accords are still

notionally binding on Israel and the PLO.

The territory to which Israel intends to apply its law and de jure jurisdiction are all in “Area C”, which

is under exclusive Israeli civil and security control, as set out in the Oslo Accords. Thus, it is unlikely

that Israel’s actions would “change the status” of these territories in any material sense. The area is

already under Israeli de facto legal control.

Even if Israel’s actions constitute a ‘change of the status of the West Bank’, that does not mean that the

proposal of the Israeli government contravenes international law. Israel’s extension of its civil laws is

itself a legal response to non-implementation of the Oslo Accords by Palestinian authorities. PLO

violations permit Israel not to comply with (a part of) its obligations.

In terms of Article 60 (1) of the Vienna Convention on the Law of Treaties (1969): “A material breach

of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating

the treaty or suspending its operation in whole or in part.” The International Law Commission Draft on

Responsibility of States for Internationally Wrongful Acts 2001 also states: “The wrongfulness of an act

of a State not in conformity with an international obligation towards another State is precluded if and to

the extent that the act constitutes a countermeasure taken against the latter State in accordance with

chapter II of part three.”14 This should hold true even if one of the parties is a non-state party, if such an

agreement between a state and a non-state party is even valid at all under international law.

In this regard it is relevant to note that in its decision on the Wye River Memorandum in 1998, the

Israeli government explicitly reserved its right “to take all necessary steps, including the application of

Israeli rule, law and administration to settlement areas and security areas in Judea, Samaria and Gaza,

as it sees fit” in the event the PA “seeks a unilateral declaration on the establishment of a Palestinian

state, prior to the achievement of a Final Status Agreement” (paragraph 8).

14

ANNEX 1 Important historical milestones of the “West Bank”

1514- 1923

Territory of “Palestine” was part of region of Syria within the Turkish-Ottoman Empire.

1920

San Remo – agreement by Allied and Associated Powers to create Mandates including

Mandate for Palestine to “reconstitute the national home of the Jewish people in

Palestine”

Population of Palestine at that time: 10% Jews (+/-50,000), 90% others (+/-500,000)–

Arabs, Circassians, Egyptians, Druze, Turks, Bosnians, Armenians, Algerians etc

1922-1948

Mandate for Palestine (League of Nations)

Arab nationalism recognized: Mandates for Mesopotamia and Syria, and creation of

Transjordan

Arab/Palestinian opposition to the Jewish homeland

1947

29 Nov 1947: UN Partition Plan (Arab State rejected by Arab Palestinians; Plan never

implemented)

1948

14 May 1948: creation State of Israel (uti possidetis juris)

Coordinated aggression to destroy Israel (1)

Jordan illegally occupies (later “annexes”) East Jerusalem and West Bank

1964 PLO established. Palestinian National Charter aims for destruction of Jewish State (never

amended)1.

1967

Coordinated aggression to destroy Israel (2)

UNSC Res 242

Israel chooses to (a) apply Israeli law to unified Jerusalem; (b) apply voluntarily parts of

the law of belligerent occupation, in order to ensure the protection of the non-Israeli

population of those territories, and (c) negotiate terms of peace with its neighbors (land

for peace).

Khartoum: Arab “three no’s”

1973

Coordinated aggression to destroy Israel (3)

Building of “settlements” begins

1993- 1995

Oslo accords between Israel and PLO

2000

Camp David: Arafat rejects statehood offer

1st intifada => security barrier

2020

Proposed application of Israeli law

1 As Prof. Eyal Benvenisti has stated in the ICC “Situation in Palestine” case, the provisions of the Charter denying the right of Israel to exist have never been amended or removed.

15

ANNEX 2 Boundaries of The Mandate for Palestine (1922)

In the Mandate for Palestine (1922), the 51 Members of the League of Nations unanimously recognized

“the historical connection of the Jewish people with Palestine, and the grounds for reconstituting their

national home in that country” (Preamble). The purpose of the Mandate for Palestine was “the

establishment in Palestine of a national home for the Jewish people” (art.2), safeguarding the civil and

religious rights of all the inhabitants of Palestine (art.2). [The Preamble makes it clear that “all the

inhabitants” meant all “existing” inhabitants at the time (“the civil and religious rights of existing non-

Jewish communities” [emphasis added]). It did not mean generation upon generation of an ever-

burgeoning population of “refugees” who had never lived in – or fled from – the land.] The Mandatory

(Great Britain) was obliged to “facilitate … close settlement by Jews on the land” (art.6).

Pursuant to the principle of “uti possidetis juris”, the administrative boundaries of the Mandate for

Palestine became the borders of the State of Israel upon its creation on 14th May 1948. On 14th May

1948, the administrative boundaries of the Mandate were the whole of the territory west of the Jordan

River.

16

“The principle of uti possidetis juris, in essence, dictates that the frontiers of newly independent states

are to follow the administrative boundaries of the administrative entity from which they emerge. It is

widely accepted as binding under customary international law and the indispensable starting point for

the legal demarcation of the borders of newly independent states. This principle has been applied to

determine the borders of many states, including for example the former Yugoslavia republics.” Its

primary aim is to secure respect for the territorial boundaries and territorial integrity, and to ensure a

situation of terra nullius (complete lack of a sovereign) does not arise.2

2 See: https://www.icc-cpi.int/CourtRecords/CR2020_01055.PDF

17

Notes

1 http://opiniojuris.org/2020/06/11/an-open-letter-to-the-israeli-government-condemning-annexation/ 2 The Mandate for Palestine was adopted by the League of Nations in 1922, pursuant to article 22 of the Covenant of the League of Nations. It was an international treaty, signed by all the 51 members of the League. The Mandate for Palestine appointed Great Britain as the Mandatory over the Mandate. The purpose of the Mandate was to implement the Balfour Declaration issued by Britain in 1917 and adopted by the Allied Powers in 1920 “in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country”. The League of Nations recognized “the historical connection of the Jewish people with Palestine and [to] the grounds for reconstituting their national home in that country”. Accordingly, article 2 of the Mandate stated: “The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.” 3 It should be noted that League of Nations and UN resolutions are not legally binding. Treaties are legally binding on the parties to the treaty, and may be evidence of a general principle of international law. The San Remo Resolution (1920) and the Mandate for Palestine (1922) were treaties and, as such, are legally binding. Although the Mandate for Palestine came to an end in 1948, the rights and obligations arising under the Mandate were preserved (i.e. remained in effect) under article 80 of the UN Charter. 4 “The principle of uti possidetis juris, in essence, dictates that the frontiers of newly independent states are to follow the administrative boundaries of the administrative entity from which they emerge. It is widely accepted as binding under customary international law and the indispensable starting point for the legal demarcation of the borders of newly independent states. This principle has been applied to determine the borders of many states, including for example the former Yugoslavia republics.” Its primary aim is to secure respect for the territorial boundaries and territorial integrity, and to ensure a situation of terra nullius (complete lack of a sovereign) does not arise. See: https://www.icc-cpi.int/CourtRecords/CR2020_01055.PDF. 5 There are four basic criteria of statehood. As Professor Malcolm Shaw recently noted in his observations to the ICC: “Article 1 of the Montevideo Convention on Rights and Duties of States, 1933, lays down, in a formulation which has been widely accepted as binding, that a state as an international person should possess the following qualifications: a permanent population, a defined territory, a government and the capacity to enter into relations with other states. The leading classical textbook on international law refers to “four conditions which must obtain for the existence of a state”, being the existence of a people, a territory, a government and a “sovereign government”, defined in terms of legal authority “not in law dependent on any other earthly authority”. It is further noted that sovereignty implies “independence all round”. James Crawford in his edition of Brownlie’s Principles of Public International Law, lays down the four Montevideo conditions, noting that “[i]ndependence is the decisive criterion of statehood”, defining this condition in the following manner, “the state must be independent of other state legal orders”. Further, it is noted that “a state which has consented to another state managing its foreign relations, or has granted extensive extraterritorial rights to another state, may be said not to be ‘sovereign’”. A fortiori where the claimant in question never had those competences to grant to third states.” See: https://www.icc-cpi.int/CourtRecords/CR2020_01017.PDF. 6 Island of Palmas (Netherlands v. USA), 4 April 1928, 2 R.I.A.A. 829 at 838 to 839; Legal Status of Eastern Greenland (Denmark v. Norway), 1933 P.C.I.J. (ser. A/B) No. 53 (Apr. 5) at [98]; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I. C. J. Reports 2002, p. 625 at [134]. See also James Crawford ed., Brownlie’s Principles of International Law, 8th ed. (New York: Oxford University Press, 2012) at 204 to 252. 7 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136 (“Wall Opinion”) at [101].

18

8 Prosecutor’s Request to the Pre-Trial Chamber of the International Criminal Court in the “Situation in Palestine” pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, 22 January 2020 at [8], [12], [85], [124], [184], [199] and [208]. 9 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226 at [70]. 10 Under Chapter XI of the Charter of the United Nations, the Non-Self-Governing Territories are defined as "territories whose people have not yet attained a full measure of self-government”. The General Assembly, by its resolution 66 (I) of 14 December 1946, noted a list of 74 Territories to which Chapter XI of the Charter applied. In 1963, the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (also known as the "Special Committee on Decolonization" or the "C-24") approved a preliminary list of Territories to which the Declaration applied (A/5446/Rev.1, annex I). Today, 17 Non-Self-Governing Territories remain on the agenda of the C-24. Palestine is not one of them. 11 According to Hofmann in the Max Plank Encyclopedia of International Law, "Annexation means the forcible

acquisition of territory by one State at the expense of another State. It is one of the principal modes of acquiring

territory... in contrast to acquisition a) of terra nullius by means of effective occupation accompanied by the

intent to appropriate the territory; b) by cession as a result of a treaty concluded between the States concerned

(Treaties), or an act of adjudication, both followed by the effective peaceful transfer of territory; c) by means of

prescription defined as the legitimization of a doubtful title to territory by passage of time and presumed

acquiescence of the former sovereign; d) by accretion constituting the physical process by which new land is

formed close to, or becomes attached to, existing land. Under present international law, annexation no longer

constitutes a legally admissible mode of acquisition of territory as it violates the prohibition of the threat or use

of force. Therefore annexations must not be recognized as legal."

12 “Belligerent occupation” essentially means the physical occupation by one State of the territory of another State arising during a conflict. Occupation is acceptable under international law where it is necessary as a means to keep the peace and assure the public safety. The law of belligerent occupation essentially seeks to preserve the position of the “ousted sovereign”, and protect the civilian population, for the duration of the occupation.

13 Statute of Rome Article 8 bis Crimes of Aggression

a) For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

b) For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

1. The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

2. … 14 CHAPTER II COUNTER MEASURES:

Article 49 Object and limits of countermeasures

1. An injured State may only take countermeasures against a State which is responsible for an

internationally wrongful act in order to induce that State to comply with its obligations under part two.

19

2. Countermeasures are limited to the non-performance for the time being of international obligations

of the State taking the measures towards the responsible State.

3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of

performance of the obligations in question.