Annexation: What's in a Term?

The first half of 2020 has brought Israel and the Middle East two political documents that may well have a lasting effect on the region. On January 28, the Trump administration released Peace to Prosperity, a “vision” in which up to 30% of the current West Bank would come under Israeli sovereignty while the remainder, along with the Gaza Strip and some additional territorial adjustments,  would eventually constitute a nominally independent Palestinian state. On April 20, Benjamin Netanyahu’s Likud and Benny Gantz’s half of the Blue and White party signed a complex coalition agreement that, amongst other things, foresees in discussing from July 1 onwards, the agreement on “applying sovereignty” reached with the United States and to submit it to the government and/or Knesset for approval. Given Peace to Prosperity’s content, this “application of sovereignty” is understood to concern parts of the West Bank, as Israel already considers East Jerusalem and the Golan Heights to be under its sovereignty.

Since the publication of the coalition agreement, the issue of “annexation” has been topical in the media and in policy analysis, both in Israel and abroad. But is “annexing” (sipuach in Hebrew) the same thing as “applying sovereignty” (hachalat ribonut in Hebrew)? And what is the link between those two concepts and “applying Israeli law” to a territory? Also, what is the legal status of East Jerusalem and the Golan Heights, which Israel also took control over following the 1967 Six-Day War? Do these statuses provide useful benchmarks to assess scenarios for the future of the West Bank?

As a first step, this text defines and discusses the major terms used in the annexation debate. Next, it succinctly outlines the legal regimes in the territories held by Israel following the Six-Day War. Finally, it reevaluates the scope of the main terms in the light of the situation on the ground and it identifies parallels and tendencies across the territories, suggesting how they may materialize in the West Bank in the future.

Terms

Sovereignty is a basic concept in both international and domestic law. It refers to the full exercise by a state of its powers – legislative, administrative, diplomatic, military, etc. – over its territory. In international law, all states are, as the traditional subjects of international law, considered to be sovereign. In practice, however, sovereignty plays out in a myriad of ways: it is clear that the diplomatic, economic, and military powers of, for example, the United States, China, and Russia do not exactly match those of, say, Barbados, Nauru, or San Marino. Also, the internal sovereignty of states may be heavily limited by domestic conflicts, as is currently the case in Yemen and Somalia, for instance.

Annexation is the forcible and formal extension of a state’s sovereign powers to new, and often adjacent, territory. It is considered to take place when, on one hand, hostilities have led to a clear victory by one of the conflicting parties, and, on the other, the victorious party issues a declaration of annexation or concludes a treaty with the losing party. While annexation usually results from violence (e.g. the annexation of Kuwait by Iraq in 1990), it has also been considered to take place in the build-up to an armed conflict (e.g. the annexation of the Republic of Texas by the United States in 1845). In the view of international law that became widespread after World War II, unilateral annexation is illegal, given the obligation states have to settle their disputes by peaceful means and to refrain from the threat or use of force (Article 2.3 and 2.4 of the UN Charter). Nevertheless, due to its characteristics – notably the absence of an independent judicial authority – international law has not been able to guarantee a consistent response to cases of (purported) annexation.

In any event, as a state’s territory increases through annexation, the area in which the state’s law applies (its territorial jurisdiction) is also extended and the annexing state’s law is logically applied to the new territory. By way of example, Morocco regards that Moroccan law applies to its “Southern Provinces”, which were annexed in 1975 and which are internationally considered to be the occupied territory of the Western Sahara. An annexing state may, however, also decide to apply a special legal regime to the newly annexed territory. 

A last important concept here is recognition. As the international order is based on agreements (or disagreements) between sovereign states, governments express their legal stances through explicit or implicit acts of recognition. While these acts usually concern the acceptance of other states (and previously governments), changes made to existing states’ territories have also been the subject of approval or condemnation. For instance, several countries spoke out against the annexation of Crimea by Russia in 2014, which they declared to be illegal and without any legitimate standing.

Territories

The Six-Day War of June 5-10, 1967 led to Israel’s military conquest of the following territories:

– the West Bank, including East Jerusalem and the Old City of Jerusalem, occupied by Jordan after the First Arab-Israeli War of 1948-49 and located beyond the 1949 armistice’s “Green Line”;

– the Golan Heights, part of Syria;

– the Sinai Peninsula and the Gaza Strip, until then occupied by Egypt after the First Arab-Israeli War of 1948-49.

Israel completed its withdrawal from the Sinai Peninsula in 1982 (following peace with Egypt) and from Gaza in 2005 (unilaterally). The remaining territories are currently under Israeli control, yet different sets of Israeli laws and regulations apply to them. This text focuses on the legal regimes in East Jerusalem, the Golan Heights, and the West Bank (excluding East Jerusalem), with the proviso that only the broad lines can be given. Indeed, a tumultuous region where events unfold continually is prone to numerous, ever-changing, sometimes ad hoc rules. Also, it must be borne in mind that in the Palestinian view and according to the majority of the international community, East Jerusalem is an integral part of the West Bank. As will become clear, though, East Jerusalem and the West Bank met different fates early on in the period of Israeli occupation after 1967.

East Jerusalem

Up until the Six-Day War, Israel controlled the western part of Jerusalem, while the Old City and other areas east of the 1949 armistice line (except Mount Scopus) were in Jordanian hands. In the war, the Old City and all the neighborhoods and villages to the east of the armistice line fell to Israel. Less than three weeks after the end of the war, Israel extended the city’s borders to include newly conquered areas, notably all of Jerusalem under Jordanian rule (including the Old City) as well as 12 Arab localities further to the east:

The extension of the boundaries also meant that the law applicable west of the 1949 armistice line would equally apply east of it. However, as Ian Lustick has pointed out, whereas the extension of Jerusalem’s borders took place in three legal phases (two Knesset amendments and a government declaration), none of them involved “annexation” (sipuach in Hebrew) or application of “sovereignty” (ribonut in Hebrew). Quite to the contrary, a government press release on June 28, 1967 read as follows: 

“In order to dispel any possible misunderstanding the Foreign Ministry spokesman declared tonight that the basic purpose of the ordinance concerning the fusion of the Jerusalem municipal areas is to provide full municipal and social services to all inhabitants of the city […].”

In 1980, however, the Knesset adopted the famous Basic Law: Jerusalem, Capital of Israel, the first article of which reads:

“Jerusalem, complete and united, is the capital of Israel.”

Although neither this nor other articles in the Basic Law explicitly refer to annexation or Israeli sovereignty in East Jerusalem, the first article’s wording allows for a reading according to which Jerusalem would not have been “complete and united” without the area that came under Israeli control in 1967. In that view, Jerusalem is evidently considered to be under Israeli sovereignty. 

Through an amendment passed in 2000, a sixth article was added to the Basic Law, making it impossible to transfer to a foreign body any authority (samchut in Hebrew) over Jerusalem. The same amendment entrenched this provision by a seventh article requiring a majority of all Knesset members (MKs) to modify the sixth article. An additional amendment passed in 2018 raised that quorum to a majority of 80 Knesset members.

Faced with questions concerning Israeli sovereignty over East Jerusalem, the Israeli Supreme Court has confirmed the applicability of Israeli law to East Jerusalem, but has avoided making any assertions about its political status (see, in particular, the Ruidi and Maches, Mubarak Awad and Yoel Davis cases). Tellingly, these judgments have sometimes been put forward as proof of East Jerusalem’s status as annexed Israeli territory, which shows that discourse about the city is as much inspired by political as by legal considerations. 

As for the international community, it widely shares the view that the inadmissibility of forcible acquisition of territory applies to East Jerusalem and that, as a consequence, Israeli claims to sovereignty there cannot be legally founded, pending the conclusion of direct negotiations between Israel and the Palestinians. This position was expressed in a number of resolutions of the UN Security Council, notably in the wake of the Six-Day War (UNSC Res 252 in 1968), following the adoption of the Basic Law cited above (UNSC Res 478 in 1980), and more recently, in 2016 (UNSC Res 2334). 

On December 6, 2017, the US proclaimed its recognition of Jerusalem as Israel’s capital and on May 14, 2018 officialized the move of its embassy there from Tel Aviv. As the text of the proclamation explicitly states that the “specific boundaries of Israeli sovereignty in Jerusalem are subject to final status negotiations between the parties,” the decision cannot be considered in itself to be a departure from the international consensus on the status of Jerusalem’s eastern neighborhoods. In Peace to Prosperity, however, nearly all of those neighborhoods are proposed to be treated an integral part of Jerusalem, as only Kafr ‘Aqab and Shuafat (on the West Bank side of the security barrier) are suggested to constitute the Palestinian “capital” al Quds.

Residents of Jerusalem who came under Israeli rule in 1967 were not automatically given Israeli citizenship, but those present during a census conducted in the wake of the Six-Day War were given permanent residency status. This status is valid as long as those concerned do not settle abroad or are granted citizenship by another country. It does not allow for voting in Knesset elections, only in elections for the Jerusalem municipality. A study published in 2017 estimated that around 6% of East Jerusalemites held Israeli citizenship, yet recent reports have pointed to faster processing of corresponding applications, resulting in a higher number of acceptances and rejections. add media links if necessary

The Oslo Accords, decisive on the status of the West Bank (see below), did not make any changes to the situation in Jerusalem, whose future was to be decided through final status negotiations.

Golan Heights

The Golan Heights constitute an area of approx. 1200 km2/500 square miles that Israel seized from Syria during the Six-Day War (for the most part) with smaller adjustments during  the Yom Kippur War of 1973. When discussing the territory, it is important to point out two fundamental differences when comparing it to East Jerusalem/the West Bank. First, the area was captured from a state – Syria – whose sovereignty over it was not disputed. Second, the Golan Heights does not contain a Palestinian population that lived there across generations: while some of its inhabitants are Palestinians who left their homes in the 1948-1949 war, the original population consisted of Arabic-speaking Druze.

Following the Yom Kippur War, the Agreement on Disengagement between Israel and Syria was signed in 1974, leading to a buffer zone under UN control. Israeli settlement of the territory began shortly after the Six-Day War and the area was ruled through military command for over a decade.

After the area’s initial military rule, the Knesset approved the Golan Heights Law on December 14, 1981, during the Israeli disengagement from Sinai. Passed in record time (the three mandatory readings and entry into force took place on the same day), the law applied Israeli “law, jurisdiction, and administration” to the territory as defined in an annex. Whereas this appeared to anchor a de facto situation, the law did not make any mention of annexation or sovereignty. This situation, not unlike East Jerusalem’s condition after 1967, led to claims that Israel indeed did not annex the Golan Heights. Tellingly, however, in the international arena, the Golan Heights Law was widely viewed as an act of annexation. Apart from condemnations by individual states, the UN Security Council unanimously adopted Resolution 497 just three days after the Golan Heights Law’s passing in the Knesset. In the Resolution, the “Israeli decision to impose its laws, jurisdiction and administration in the occupied Syrian Golan Heights” was declared to be “null and void and without international legal effect.” This position has remained the international consensus ever since, altered only by the US recognition of the Golan Heights as “part of the State of Israel” in March 2019.

With regard to the inhabitants of the Golan Heights, Israel offered citizenship in 1981 to the inhabitants of the territory it placed under its law, jurisdiction, and administration. The overwhelming majority of the Arabic-speaking Druze population did not take on Israeli citizenship and retained their Syrian passports. They presently hold permanent resident status within Israel, just as most Palestinian inhabitants of East Jerusalem do. Since the beginning of the Syrian Civil War in 2011, however, more Druze inhabitants of the Golan Heights have applied for Israeli citizenship. add media links if necessary

West Bank

The legal regime in the West Bank may well be one of the most complex in the world. It comprises pre-1967 law (Ottoman, British Mandatory, and Jordanian), a host of Israeli military orders, Israeli laws made applicable through emergency regulations, and the system which was set up in the Oslo Accords. 

The first Israeli regulatory acts in the West Bank were promulgated on June 7, 1967, three days into the Six-Day War. On that day, the Israel Defense Forces (IDF), which had taken control over the West Bank, issued two military proclamations and several military orders. While Military Proclamation 1 declared that “Israeli military forces have occupied the West Bank and have taken over control ‘in the interests of security and public order,” Military Proclamation 2 laid the foundation for the legal regime in the recently conquered territory. It declared that “the laws which were in force up to June 7, 1967 [should] remain in force as long as they are not contradicted by a subsequent military order.” Importantly, all legislative, executive and judicial powers formerly held by the institutions of the Jordanian state were now vested in the IDF’s area commander. In the following years, hundreds of military orders created new rules for the Palestinian population.

At the same time, Israel established (or reestablished) settlements in the West Bank, named “Judea and Samaria“ by Military Order 187 of December 17, 1967. On March 25, 1979, Military Order 783 provided for the creation of five Jewish regional councils that “have jurisdiction over a group of Jewish settlements in their area.” It was superseded two years later by Military Order 892 that granted the IDF’s area commander “the authority to redefine the borders of these local councils.” Further military orders increased Israeli rule and material and territorial jurisdiction across the entire territory.

Emergency regulations, also applied to the area, did not emanate from the IDF, but from the Israeli government. Indeed, Israel’s Law and Administration Ordinance of 1948 – passed right after the Declaration of Independence on May 14, 1948 – had introduced the possibility for “the prime minister or any other minister to make such emergency regulations as may seem to him expedient in the interests of the defense of the State, public security and the maintenance of supplies and essential services.” On that basis, and since the aftermath of the Six-Day War, certain parts of Israeli law have been made directly applicable to the new territory. While this initially concerned criminal law – and, when a bond with Israel was present, civil law – residents of the Israeli settlements were also brought under the scope of Israeli state and administrative law (e.g. the Entry into Israel Law, the Income Tax Ordinance, and the Psychologists Law). Palestinians continued to be governed through military orders and any previous legislation left in place (Jordanian and, to a certain extent, British Mandatory and Ottoman law).

Following the 1978 Camp David Accords between Israel and Egypt, Israel worked towards autonomy for the Palestinians in the West Bank and Gaza. On November 8, 1981, the Civilian Administration was created by Military Order 947, so as to “administer the civilian affairs in the region, in accordance with the directives of this order, for the well-being and good of the population and in order to supply and implement the public services, and taking into consideration the need to maintain an orderly administration and public order in the region.” Military Order 947 did not specify nationality requirements as to the members of the Civilian Administration, yet made it clear that the Israeli military command retained  overriding rule. 

The next, and most recent, major change in the legal status of the West Bank and Gaza came about with the Oslo Accords, a series of agreements and protocols signed between 1993 and 1995 by Israel and the PLO as representative of the Palestinian people. While the Declaration of Principles on Interim Self-Government Arrangements (September 13, 1993) was the document that attracted attention from across the world, the Palestinian Authority (PA) was established by the Agreement on the Gaza Strip and the Jericho Area (May 4, 1994). By this and a number of subsequent agreements, certain powers held by the Israeli military government and the Civilian Administration were transferred to the PA. The main innovation, however, was brought about by the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (September 28, 1995), also called “Oslo II,” which further extended powers of the PA and created the well-known Areas A, B, and C in the West Bank. It should be noted that, while the Areas system created a transfer of policing powers to the PA (Area A: Palestinian civil and security control; Area B: Palestinian civil and joint Israeli/Palestinian security control; Area C: Israeli civil and security control), overriding security powers remained in Israel’s hands.

Internationally, Israel’s hold on the West Bank has been considered belligerent occupation since 1967 and Israeli settlements built their as illegal under international law. This position was expressed in several resolutions of the UN Security Council, such as UNSC Res 446 (1979) and UNSC Res 2334 (2016) (cited above), and is shared by states worldwide. As in the case of East Jerusalem and the Golan Heights, a caveat needs to be made regarding the United States: the current US administration declared on November 18, 2019 that, without “addressing or prejudging the ultimate status of the West Bank”, Israeli settlements in the West Bank are not illegal per se, given the “unique facts, history, and circumstances presented by the establishment of civilian settlements in the West Bank”.

As for the citizenship of West Bank residents, the pre-1967 inhabitants and their descendants hold a West Bank resident status under supervision of the Israeli population register. Whereas these residents could apply for Jordanian passports until Jordan relinquished its claims to the West Bank in 1988, Palestinian Authority passports have been issued since 1995. Israelis who move to the Israeli settlements and their descendants hold Israeli citizenship.

Discussion

The de facto and de jure status of the territories reviewed above can be represented in the following, simplified way:

 

	East Jerusalem	Golan Heights	West Bank excl. East Jerusalem
			Area C	Areas A and B
Territorial Control	Full Israeli	Full Israeli	Full Israeli	Full Israeli,  shared with PA in security/civil matters (Area A) and civil matters (Area B)
Legal Status – Israeli View	Brought within municipal borders of Jerusalem already under Israeli sovereignty (1967); “united and undivided”  (1980)	Israeli “law, jurisdiction and administration” applied (1981)	Military orders and (partially) Israeli law apply	Military orders and pre-1967 law apply
	Inhabitants Israeli citizenship mostly unavailable	Inhabitants Israeli citizenship available (majority prefers permanent residence)	Inhabitants Israeli settlers: Israeli citizenship Palestinians: West Bank residents (registered in Israeli population registry; Palestinian passports from 1995; Jordanian passports until 1988)	Inhabitants West Bank residents (registered in Israeli population registry; Palestinian passports from 1995; Jordanian passports until 1988)
Legal Status – International view	Israeli belligerent occupation since 1967 US since 2017: Jerusalem as Israel’s capital, fate of Eastern parts unclear	Israeli belligerent occupation since 1967 US since 2019: part of Israel	Israeli belligerent occupation since 1967, Israeli settlements illegal US since 2019: Israeli settlements not illegal per se	Israeli belligerent occupation since 1967

Several conclusions can be drawn from the table:

• While the three territories conquered in 1967 are all under Israel’s de facto  control, their legal status is governed by different sets of laws and regulations that formalized Israeli control.
• The terms annexation or application of sovereignty have not been generally used in the context of Israel’s formalized hold over the territories.
• The three territories have known diverging fates in terms of the rules applied to them. Notably, East Jerusalem and the rest of the West Bank have received different statuses, corresponding to Israeli views on them: Jerusalem is the united national capital, while the territory west of the Jordan river corresponds to Judea and Samaria, the status of which still needs to be determined.
• Until now, the formal incorporation of the territories into Israel has been more cautious in the case of the West Bank (excluding East Jerusalem), which has housed consistently higher numbers of Palestinians than East Jerusalem or the Golan Heights. It is this formalization of Israeli rule in the West Bank that is on the table now.
• The formalization of a state’s control over new territory brings about the question of citizenship rights for the population of the territory. Here again, Israeli laws and regulations have been different from one territory to another. The avoidance of granting Israeli citizenship to large numbers of Palestinians appears to have been a guiding principle. Yet, as recent developments have shown, both domestic administrative practices and events in neighboring countries may have an impact on citizenship applications/decisions.
• In the situations under scrutiny here, international law appears to work as a system in which rules are valid as long as subjects voluntarily adhere to them. A political decision linked to a change in government may lead to an amended or opposing view of international law. The practice of recognition by sovereign states is key.

With time passing, Israel’s de facto control seems to have confirmed in the (Jewish) Israeli mindset that East Jerusalem and the Golan Heights are formal parts of Israel. Aggregated polling data by the Israel Democracy Institute, for instance, show a majority of Jewish Israelis over time in favor of retaining the Golan Heights (with the Oslo aftermath and diplomatic attempts with Syria generating more enthusiasm for a negotiated return). As for Jerusalem, a 2018 poll found 72% of Jewish Israelis in favor of maintaining the city as Israel’s united capital in the context of comprehensive and stable peace with the Palestinians.

At the same time, and notwithstanding international objections, there appears to have been a mounting formal entrenchment of the idea of Israeli sovereignty over the areas conquered in 1967.  Not only was the Basic Law: Jerusalem, Capital of Israel amended twice so as to render cession of authority over Jerusalem more difficult (see above), the 2014 Basic Law: Referendum made it necessary to approve by either a referendum or an 80 MK majority the signature or ratification of any agreement wherein the “law, jurisdiction and administration” of the State of Israel would cease to apply in a territory where they currently do. The Basic Law: Referendum is understood to apply to the territory of Israel within its 1949 borders, East Jerusalem and the Golan Heights. Indeed, whereas certain parts of Israeli law have been made applicable to the West Bank (see above), it is not the case that Israel’s “law, jurisdiction and administration” have been fully applied there. However, a recent amendment to the basic law tabled by MK Zvi Hauser (whose Derech Eretz party is part of the ruling coalition) proposes to subject to the same conditions (approval by referendum or an 80 MK majority) any decision to dismantle Israeli settlements in the West Bank or to cede land from them. While it is currently unsure whether this amendment will become law, it signals that further legal formalization of Israel’s control over the West Bank remains possible.

In short, political views on the West Bank and its legal status are probably as patchy as the territory itself. When compared to East Jerusalem and the Golan Heights, the situation in the West Bank presents similar components, albeit ones that may not have played out in the same way. Indeed, Israeli opinions on the status of the West Bank are much more diverse, as many disparities have already emerged between Israeli political parties concerning the desirability, extent and modalities of annexation, as well as related questions including Palestinian statehood and/or the rights of Palestinians living under Israeli rule. Notably, a rift seems to widen between settlers in larger blocs closer to the Green Line and communities in smaller, far-flung settlements and outposts. According to recent polls, the general public, too, is divided on West Bank annexation, and still largely unsure or indecisive. 

The announcement on 13 August 2020 of normalized ties between Israel and the United Arab Emirates adds a further layer of uncertainty, as it stipulates that “Israel will suspend declaring sovereignty over areas outlined in [President Trump’s] Vision for Peace”. However, this “suspension” turns out to be a fuzzy concept as well, since, shortly after the announcement, PM Netanyahu insisted on his commitment to annexation and debate has emerged on whether such a move could still take place at a later date. Importantly, the possibility of taking further de facto steps on the ground, as opposed to formal de jure decisions, resurfaced in a settler leader David Elhayani’s call for unrestrained construction and Benny Gantz’s request to convene the Higher Planning Council for Judea and Samaria, to discuss building plans for 5,000 housing units. 

Whatever the case may be, with the political and legal future of the West Bank up in the air, it would not be surprising to find some legal creativity if formal annexation plans are carried out. The “extension of boundaries” and “application of law to new areas” are tried and tested recipes with a euphemistic connotation. The former may be dictated by the needs of a growing urban agglomeration, while the latter may be justified in the light of a situation in the West Bank where certain laws already apply. However, whether Jerusalem’s borders are extended to incorporate Ma’ale Adumim (or Modi’in Illit is integrated in Modi’in-Maccabim-Re’ut), or whether Israeli law is fully applied to Ariel instead of partially, two conclusions are warranted. For one, the situation on the ground may not change immediately. For another, the symbolic scope of any such measures is not to be underestimated in a region where sovereignty over conquered territories has seen progressive entrenchment In both law and public opinion.