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Annexation concedes West Bank not belong to Israel

In his talk to the Shurat HaDin conference (21 June 2016), Naftali Bennett stated that PM Netanyahu’s Bar Ilan speech effectively conceded that the Territories did not belong to Israel although Israel had security needs there. Bennett’s point was that if this was the case, it inevitably produced the objection that Israel should not build on land that did not belong to it.
Leaving aside that the Bar Ilan speech did not imply this, it does point to the fact that Bennett’s own policy of annexation is guilty of exactly the concession he accuses Netanyahu of making. This is because it is impossible for a state to occupy or annex its own territory – at least, not in the sense of the standard international legal definition of occupation in The Hague Regulations, 1907, which concern relations between sovereign states rather than within a state.

For example, the USA cannot be said to occupy Massachusetts or Ohio. Nor can it annex these states for the simple reason that it is already the legitimate power in those states (to use the phrasing of The Hague Regulations, article 43). In other words, the term occupation refers to the control of territory not legally under the sovereignty of the occupying power. And annexation refers to the appropriation of sovereignty by one state power from another. In other words, a state can only annex territory that does not belong to it.

Therefore, to accept that Israel occupies or should annex any part of The Territories effectively concedes the main argument of the Palestinians Israel. That is, it accepts that someone else was, is or should be the legitimate sovereign from which the territory was taken (albeit in legal self-defense) and continues to be held.

This destroys Israel’s legal claim to sovereignty based on the Palestinian Mandate of the League of Nations. Yet this is an extremely powerful claim (which is probably why the ICJ Advisory Opinion, the EU, the UNGA, Noam Lubell’s legal report to the BBC enquiry in 2006, and others, ignore it).

Therefore, instead of throwing this away, it should be promoted ad nauseam in order to make Israel’s rights and the Palestinian denial of them into common knowledge at the center of international discourse and thus impossible to avoid in diplomacy.

In sum, it would be a serious legal and political error to abandon this legal position and a marvelous gift to the enemies of Israel. Therefore, there should be no discussion of annexation but only of the application of Israeli sovereignty.

Jon Dyson

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