In early September, 2019, Benyamin Netanyahu promised to annex a part of the West Bank called the Jordan Valley if he won Israel’s election on September 17. Netanyahu did not have a clear win in that election, but that does not mean that any combination of any subsequent government of any persuasion which may be formed should not implement Netanyahu’s promise.
However, apart from the additional security layer such a move would give Israel, is it even legal for the Israelis to consider such a move?
In 2004, the International Court of Justice, a branch of the United Nations, concluded that the West Bank and Gaza Strip are “occupied” territories. Israel rejects this conclusion maintaining that the West Bank is “disputed” rather than “occupied” as Jordan’s own annexation of it in 1950 wasn’t internationally recognised and that, further, legal scholars have noted that a country acting in self-defence may seize and occupy territory when necessary to protect itself. Moreover, the occupying power may require, as a condition for its withdrawal, security measures designed to ensure its citizens are not menaced again from that territory.
The remainder of this article purports to show why that is so.
‘A country’s borders are determined in accordance with the borders of the previous legal political entity in that area. In Judaea and Samaria, that entity was the British Mandate whose borders of the stretched from the Mediterranean Sea to the Jordan River’ (Eugene Kontorovich, 2018).
Less than 24 hours after Israel declared its independence on May 15 1948, after the British absconded in confusion, the regular armies of Egypt, Jordan, Syria, Lebanon and Iraq invaded the country.
Below are the borders of the Jewish state, nicknamed the “Auschwitz borders”, as per the 1947 Partition Plan which the Jews accepted:
The fighting lasted some 15 months which claimed over 6,000 Israeli lives (nearly one percent of the country’s Jewish population at the time; 60,000 Jewish lives in 2019 numbers….).
By early 1949, an armistice was agreed upon and Israel’s borders looked like this:
It should not be forgotten that the defeated Arabs demanded that this armistice line (the “Green Line”) be recognised as a military line (could the Arabs possibly have been contemplating further military violence back in 1949?) and should not prejudice ultimate political settlement between the Jews and the Arabs (shades of Oslo accord 50 years later….).
Needless to say, “Palestinian” Arabs played no part in this scenario, and there was, of course, no mention of a “Palestinian” “state” in the agreement…..
Nevertheless, the map above shows that Egypt illegally occupied land slated for the (undeclared) second Arab state, and Jordan occupied Judaea and Samaria, land also slated for the (undeclared) Arab state in addition to Transjordan.
Between 1949-1967, the ICRC’s Hague Regulations/ 4th Geneva Convention seemed to have no problem with either Egypt or Jordan’s disregard of Article 42 of the said 1907 Hague Regulations where Article 42 of the Regulations, falling under a category titled, “Military Authority Over the Territory of the Hostile State” stated that land taken in war was illegally occupied.
In other words, the ICRC, which was quick to brand Israel’s acquisition of the territory in 1967 as an “occupation,” made no such appellation during the 19 years of illegal Jordanian rule.
That land only became “occupied” when Israel reclaimed the territory in the 1967 Six Day War!
To clarify, the 1949 armistice – and the armistice line it established – was breached by Jordan in 1967 when it attacked Israel. In legal terms, it then no longer existed.
In the course of fighting a defensive war, Israel freed Judaea and Samaria and eastern Jerusalem from an illegal Jordanian occupation.
Israel could not be an “occupier” in that Land, as 1. it was part of the original Mandate land, 2. the doctrine of customary international law in Uti Possidetis Juris states that emerging states presumptively inherit their pre-independence administrative boundaries, and 3. there was no legitimate sovereign in the land before Israel moved in ( Jordan was illegitimate and nobody had heard of the ancient “Palestinians”….).
With regard to uti possidetis doctrine, it is interesting that with the exception of the Jewish State of Israel, such a concept of international law regarding new states was applied absolutely without ANY issues to other countries.
As a rule of customary international law, it is applied to all cases of state formation, from decolonisation in Africa to the collapse of the Soviet Union to the separation of Czechoslovakia. Moreover, the doctrine trumps claims of self-determination, and any other kind of equitable objection to the former administrative boundaries. Thus, for example, the borders of Lebanon are the borders of the French Mandate over Lebanon, whether that state is largely Christian, as originally intended, or Shiite or Sunni. The borders of Jordan are the mandatory borders whether the state is Hashemite, Palestinian or otherwise (Kontorovich, 2016). https://reason.com/2016/03/10/new-research-paper-on-israels/
So, with regard to Israel’s currently proposed annexation of the settlements in the Jordan Valley, there should be no issue with any possible “criminality” re the ICC as Bob (Jerusalem Post, 11 September, 2019) has stated, because the ex iniuria principle [unjust acts cannot create law] means that Jordan has never had any legal title in the West Bank, nor does any other state even claim such title. This because, as explained above, where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. And because there was never any mention of a “Palestinian state” or “people”, Israel remained committed to the principle ensconced in UN res 242 (and reaffirmed in UN Security Council Resolution 338 of 1973), that it was the right of every state in the area to “live in peace within secure and recognized boundaries free from threats or acts of force”.
As Prof. Eugene Rostow, former US undersecretary of state for political affairs, wrote in 1991: “The Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there.” https://www.jewishvirtuallibrary.org/myths-and-facts-online-settlements
Currently, Israel is engaged in an armed conflict short of war in Judaea and Samaria.
This is not a civilian disturbance or a demonstration or a riot. This includes live-fire attacks on a significant scale, both quantitatively and geographically—around 2,700 such attacks over the entire area of the West Bank. The attacks are carried out by a well-armed and organised militia, under the command and encouragement of the Palestinian political establishment, operating from areas outside Israeli control.
In repulsing those attacks, Israel has acted within the parameters of Article 51 of the UN Charter. Article 51 of the UN Charter clearly recognizes “the inherent right of individual or collective self-defence” by anyone. That is, the language of Article 51 does not identify or stipulate the kind of aggressor or aggressors against whom this right of self-defence can be exercised … and certainly does not limit the right to self-defence to attacks by States!
Organisations like the ICJ/UN ignore repeated acts of terrorism from ‘Palestine’ because they conveniently posit that they emanate from “non-State” entities (ie because Israel does not claim that the attacks by Palestinian terrorists against it are attributable to a foreign “State,” it loses its right to act in self-defence.…). However, Article 51 of the UN Charter is quite clear: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations…”
The ICJ/UN also biases its deliberations against Israel in Judaea by ignoring the fact that Palestinian warfare is “Strictly regulated by the customs and provisions of the law of armed conflict, referred to here as international humanitarian law (IHL)” as well as by ignoring the Palestinian Authority (PA) violations of their assumed responsibility, such as the Oslo Accords, that required the Palestinians to abide by internationally recognized human rights standards.
Israel’s right to self-defence under Article 51 cannot be more apparent according to both international humanitarian law and the ‘Oslo Accord.’
I would like here to add that Article 5, paragraph 3, of UN GA Resolution 3314 support the case to annex the Jordan Valley to minimise aggression and violence from Palestinian terrorists. It states that “No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful (italics mine).”
Clearly, Israel in Judaea and Samaria today is not the consequence of Israeli aggression against the Palestinians or the Arab League. Arab countries acted aggressively against Israel in 1948 and 1967. Israel was not the aggressor in either the 1948 War of Independence or in the 1967 Six-Day War.
Israel is engaged in an armed conflict short of war in Judaea and Samaria, though it is not one of Israel’s making or choosing.
It should be remembered that in Oslo (1993), the stated goal of the Accord was a “permanent status” agreement to be achieved via bilateral negotiations. It said nothing about a Palestinian state.
It was understood that the issue of Israel “settlements” in Judaea and Samaria would be resolved in the final negotiations, that is, there was no prohibition on Israeli building. This was ratified in 1995 when Oslo II was signed.
Oslo II established Areas A (under full PA administration), B (PA civil administration and Israeli military administration), and C (under full Israeli administration) in Judaea and Samaria. Thus, as a result of these divisions, Israeli building was restricted to Area C, but that is where all the “settlements” are located in any event and is the bulk of the territory that Benyamin Netanyahu speaks of applying Israeli sovereignty to.
Israel should annex/ apply sovereignty/apply Israeli law (take your pick, the outcome is mostly the same despite semantic differences…) to Israeli settlements in the Jordan Valley because, in line with UNGA Resolution 2625, Israel’s presence in Judaea is lawful per the interpretation of Article 51 of the UN’s own Charter because illegal Arab aggression against the territorial integrity, political independence civilian security of Israel cannot be rewarded.
Palestinian terrorism is an act of aggression. Self-defence should be used against all such perpetrators whoever they are.
There is absolutely no need for Israel to continue to face Arab terror and continual violence over 71 years and lack the right to appropriate self-defence.
Article 3(a) of UN Resolution 3314 clearly covers aggression emanating from the Palestinian Authority, an internationally recognized autonomous, national political entity established by international treaty – the Oslo Accords. Moreover, Article 3(g) cites specifically that this includes:
“The sending by or on behalf of a State of armed hands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.”
Palestinian terrorist cells, with command centres and support in places such as Ramallah, Jenin, and Jordan using areas under the civil and security responsibility of the Palestinian Authority as organizational and staging areas to commit terrorist acts, clearly fall within the confines of this Resolution.
Applying Israeli sovereignty to settlements in the Jordan Valley will increase unfettered (by biased lawfare…) Israeli presence to more effectively counter this terror and right a political wrong 71 years in the making.
Let us not forget that contrary to popular opinion, there was no legal decision made in 1947 to ‘partition’ the land called Palestine into a Jewish and an Arab state. There was merely a recommendation by the UN General Assembly (Resolution 181). The Arabs refused to accept this and Judaea and Samaria then remained, without change, part of the territory that the original Mandate for Palestine had established for a Jewish homeland.
In line with the understandings contained in Article 51 of the UN Charter and Articles 3 and 5 of Resolution 3314, Israel is within its rights to legally annex territory it has taken in a defensive war for the reasons of protection of its sovereign land and inhabitants I have outlined above.