International Legal “Scholars” on Annexation?

With the July 1 date approaching for the Knesset to be permitted to consider the question of annexation under the coalition agreement between Likud and Blue & White, numerous diplomatic bodies and others have been seeking to exert pressure on Israel and the United States to take no action. While I strongly support a two-state solution, and I am not necessarily a supporter of annexation, the assertions by those opposing it are poorly reasoned and, quite frankly, hypocritical.

As reported in The Times of Israel on June 11, 2020, over 100 “international law experts” sent an open letter opposing annexation of any part of the West Bank by Israel.

The article contains a link to the actual letter, titled “An Open Letter to the Israeli Government Condemning Annexation. I urge you to read it for yourself. It begins as follows: “Along with 102 of my fellow public international law scholars, I have signed the following open letter condemning Israel’s plan to illegally annex large swathes of the West Bank.”

What you’ll find in what follows is a complete and utter lack of citation to any legal authority, and that it is based on one essential false assumption that establishes that the authors have a purely political, not legal, anti-Israel reason for signing this letter. The letter is the exact opposite of legal scholarship; it is instead a classic example of improper ipse dixit – the scholars argue that we should agree with them simply because they are prominent scholars. However, because the entire premise of the assertion made by these self-styled scholars is false, it should not persuade anyone.

The premise: “The norm prohibiting unilateral annexation of territory acquired by force has come to be universally recognized as a basic rule of international law. . . . Furthermore, this prohibition applies to all territories occupied by force, even if it is claimed that force was initially used in an act of self-defense. The West Bank was taken by force in 1967.”

We will leave for another day the validity of the assertion – without citation to any authority – that sovereignty gained through an act of self-defense (that is, in a defensive war) is contrary to the norm. Suffice it to say that there is considerable doubt as to that proposition.

But for present purposes, we do not have to address that issue because the West Bank was not acquired by force – Israel, and only Israel, was entitled to sovereignty on the date that it declared independence in 1948. The only reason it did not exercise that authority until 1967 is that Jordan took control by force and was itself an illegal occupier until 1967. (See my earlier article, citing authority). Therefore, when Israel acquired control of the West Bank – yes, by force – in 1967, it was doing nothing more than, for example, France did at the end of World War II. It ended, by force, the illegal occupation of a foreign power (in the case of France – Germany; in the case of the West Bank – Jordan) and regained sovereignty over its own territory.

Thus, the entire foundation of the “scholars” letter crumbles. Since the West Bank was not acquired by force, but rather was acquired by well-recognized principles of international law valid not only at the time of Israel’s creation but still valid today, annexation would not violate “a basic rule of international law.” It would not violate international law at all.

The “scholars” assert that they must be right because the Israeli government and the Israeli Supreme Court “have for decades applied the law of belligerent occupation to the West Bank.” This too is a debunked notion, as discussed (again, and in contrast to the “scholars,” with citation to authority) in another of my earlier articles. That Israel voluntarily chose not to exercise its sovereignty over the West Bank is not evidence that such sovereignty did not exist in law. At no time has any statement by any Israeli government or the Israeli Supreme Court even hinted, much less clearly declared, that Israel is not entitled to sovereignty of the West Bank under international law.

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In recent days, political actors and analysts have urged Israel not to annex. On June 22, 2020, TOI’s founding editor, David Horovitz makes, as he almost always does, a compelling argument, this time urging that annexation is unwise from Israel’s own perspective. I cannot find fault with his logic.

Another example: Nickolay Mladenov, United Nations Special Coordinator for the Middle East Peace Process in a speech on June 22, 2020 to a Palestinian audience in the West Bank, said: “People of Palestine — never give up, never give up, never give up, because peace is what we’re all for.” Other speakers gave a similar message.

But what is missing from these statements is any basis for reaching an actual solution. Urging further bilateral talks will lead nowhere as long the Palestinians only refuse, refuse, and refuse.

I realize that I am nobody special. I’m just a Chicago lawyer who has not practiced international law. But I’ve done the homework and made an honest attempt to see all sides of these issues. Isn’t it time for all of us to demand something different – to demand a change in the status quo – to demand that both sides, not just Israel, be accountable for their actions – to demand that supposed “scholars” actually engage in scholarly argument rather than political dogma?