Don’t be Misled by its Gaslighting
The Israeli settlement of Givat Zeev, near the Palestinian city of Ramallah in the occupied West Bank, on February 3, 2023. (Photo by AHMAD GHARABLI/AFP via Getty Images)
Tamar Megiddo, Ronit Levine-Schnur and Yael Berda, Just Security, February 9, 2023
Two parallel developments that took place last December seem bound for collision in the near future. First, on Dec. 29, 2022, a new Israeli government was formed. Its founding documents state unequivocally that the Jewish people have an “exclusive and indisputable right to all parts of the Land of Israel” (which, according to the Jewish tradition was promised to the Jewish people by God, and includes ‘Judea and Samaria,’ or the West Bank). They further declare that Israeli sovereignty shall be applied to the West Bank, which Israel has controlled since 1967, but defer the timing of such application to a moment which accords with the “national and international interests of the State of Israel” (see (in Hebrew) here and here). At the same time, and with immediate effect, the government has decided to implement changes to its administration and organization of the West Bank which, according to our analysis, reflect annexation in all but name. According to breaking news this evening in Israel, this is also the analysis of the Unites States’ government.
Second, on Dec.30, 2022, the UN General Assembly decided to refer to the International Court of Justice a request for an advisory opinion on the legal status and consequences of Israel’s control over the Palestinian territories. Israel has long been accused of de facto annexing the West Bank, as reflected in concerns raised by the ICJ in its 2004 advisory opinion on the legal consequences of the wall built by Israel in the Palestinian territories (see, e.g., para 121). In addition, it has been suggested by scholars (see here and here) and, more recently, by a UN-appointed Independent International Commission of Inquiry, that the Israeli occupation of the Palestinian territories has become unlawful. Both these arguments suffer from a shared weakness. They aim to trigger the consequences attached by law to annexation proper without successfully making the case that it has been legally effectuated.
Annexation de jure, however, has long been suggested to require a formal declaration by the annexing state. In the words of the Independent Commission: “De jure annexation is the formal extension of a State’s sovereignty into a territory recognized under its domestic law…” (see here, para. 12, italics added) The problem with this criterion is that it means leaving the cat with the cream. Annexation is a form of aggression, a violation of a jus cogens prohibition. It is classified as an international crime; it gives rise to international responsibility; and no territorial acquisition or special advantage resulting from aggression “is or shall be recognized as lawful.” States will therefore rarely volunteer to trigger the consequences of being classified as aggressors.
How can annexation de jure nevertheless be identified? In “A Theory of Annexation” we argue that changes to bureaucratic and administrative structure can serve as evidence for identifying sovereignty and shifts in sovereignty. In fact, such strategy for analyzing situations of contested sovereignty or questionable independence is not new—it was employed as early as the nineteenth century. This was particularly the case in colonial contexts, for as Hannah Arendt argued in her book On Violence, colonial rule deployed “bureaucracy instead of government.” One example in which administration and organizational capacities of a territory were important was in efforts to determine whether a territory qualified as “quasi sovereign” and the consequent legitimacy of the empire’s intervention in it. In this context, as Lauren Benton shows, British administrators who needed to classify the level of sovereignty of certain territories relied on organizational and administrative changes to make such determination.
Consequently, we argue that three indicators can show a change in the legal status of a territory, demonstrating de jure annexation, even without a formal declaration: (1) changes made to the organizing normative framework with which a state administers a certain territory (i.e., shifting from one body of applicable law to another); (2) changes to its bureaucracy’s organizational structure; and (3) shifts with respect to the symbolic performance of power. Our theory is applicable to other contested areas, first and foremost, parts of Ukraine occupied by Russia.
Considered in light of the recent developments in the context of Israel and Palestine, all three indicators demonstrate that annexation is already occurring, even if Israel is attempting to evade its consequences by deferring a declaration to a more opportune moment. First, the new government’s founding documents indicate a clear and dramatic pivot in the organizing normative framework with which it is administering the territories: from the law of occupation—to an application of Israeli domestic law. One clear example of this shift is an agreed change to the enemy property law which will “release” property in the West Bank that was held by Israelis prior to 1948 back into their hands. This change in legal policy echoes a similar move made upon the annexation of East Jerusalem in 1967 and signifies a determination that the temporary state of occupation has ended and that the territory is assimilated into the Israeli legal system.
Second, the new government has agreed to implement several significant structural changes. A constitutional change already made facilitated the appointment of a second Minister of Defense who has assumed responsibility for the military units managing civilian life in the West Bank: the Coordination of Government Activities in the Territories (COGAT), and the Civil Administration, as well as the authority to appoint their heads. Importantly, the new Minister considers himself committed first and foremost to advancing the interests of Israeli settlers in the West Bank, rather than the welfare of Palestinian residents.
Furthermore, the government agreed to transfer the authority of the legal advisors to these bodies from the military—the IDF Central Command—to the civilian Israeli Defense Ministry. Importantly, throughout the decades of Israeli rule in the territories, these legal advisors were responsible for ensuring that the occupied territories are managed in accordance with the international law of occupation.
This change is coupled with a determination that the Defense Ministry’s legal position on issues raised before the Supreme Court requires the approval of the Minister, diminishing the independent professional discretion of government lawyers. It should further be evaluated against the government’s radical transformative plan to undermine the binding status of government legal advisors’ opinions, abolish judicial review, eliminate the constitutional basis for human rights and assert unchecked power which will allow it to entrench itself.
These organizational changes transfer authority from the military commander, entrusted by the law of occupation with governing the occupied territories, to the hands of the civilian government of the occupying state. It therefore serves as strong evidence of change in the legal status of the West Bank: from an occupation to annexation.
Finally, the transfer of authority also reflects a change in the symbolic performance of power: from uniformed military legal advisors seated in the West Bank to civilian lawyers presumably seated in Tel Aviv. From a historic openness to a two-state solution, where a Palestinian state coexists side by side with Israel, subject to permanent status negotiations—to a declaration that the land in its entirety is the object of the “exclusive and indisputable right” of Israel.
We therefore conclude that Israel is presently effectuating changes which qualify as de jure annexation of the West Bank. Its deference of a formal declaration of annexation cannot serve to refute this conclusion; it is a simple attempt at gaslighting.
Annexation has no legal effect under international law, which determines that it is null and void. The annexed territory therefore continues to be considered occupied, and the occupant continues to be legally required to uphold and abide by the law of occupation. That said, in terms of the internal perspective of Israel, one consequence of annexation is that there can no longer be justification for application of different legal regimes to Israelis and West Bank Palestinians. Whereas occupation law required Israel to uphold, “unless absolutely prevented,” the law previously in force in the territories, a move away from this legal framework undoes the legitimacy of applying different laws to different territories and peoples. Undertaking annexation therefore arguably further constitutes an imposition of an institutionalized regime of systematic oppression and domination by one racial group over another, with the intention of maintaining this regime, otherwise known as apartheid.
As the Russian invasion of Ukrainian territory since 2014 indicates, states are reluctant to formally declare that they are annexing territories—or even that they are engaging in war, for a variety of diplomatic and strategic reasons. Russia preferred characterizing its aggression as collective self defense and its annexation as the realization of local preferences as expressed in referenda. One of the UN Charter’s crucial steps towards international peace and security was to renounce the requirement of a formal declaration of war and turn to consider the facts on the ground: whether a state uses force in its international relations. To be effective, the definition of annexation must take a similar step, from a requirement of a formal declaration of annexation, to considering the facts on the ground: whether a state has changed the organizing normative framework with which it is administering the territory; whether it has made organizational changes to that effect, and whether its symbolic performance of power has shifted.
Tamar Megiddo (@TamarMegiddo) is an Assistant Professor (Lecturer) at the College of Law and Business, Ramat Gan, and a Research Associate at the Three Generations of Human Rights Research Project at the Hebrew University of Jerusalem.
Ronit Levine-Schnur (@RonitLevSchnur) is an Associate Professor (Senior Lecturer) at the Harry Radzyner Law School, Reichman University, Israel, and a former legal advisor to the Military Commander of the West Bank for land related issues.
Yael Berda (@YaelBerda) is an Associate Professor (Senior Lecturer) at the Department of Sociology and Anthropology, Hebrew University of Jerusalem, and a Research Associate at the Middle East Initiative at the Harvard Kennedy School.