Right about now, it’s all about the ‘A’ word. This week, Jews and Arabs protested against annexation in a joint demonstration in Tel Aviv. The Israeli government’s planned implementation of this aspect of US President Donald Trump’s Middle East plan has set off a torrent of criticism from governments around the globe, and media outlets are covering this dramatic regional development.
So what’s the deal with Israel’s annexation plan? International media outlets repeatedly state with the certainty of an accepted fact that Israel’s control of the West Bank is illegal. And on June 8 Oliver Holmes of The Guardian concluded that if Israel’s presence in the West Bank is illegal today, then international law regards any future annexation plan as illegal. But the article gets a key fact of Israel’s legal claim over the West Bank wrong. Here’s why:
Revisiting Article 49
The international community has for decades asserted that West Bank settlements are illegal because they violate Article 49 of the Fourth Geneva Convention. Israel is widely regarded as an occupying power that has certain obligations to the civilians who live in the West Bank.
Article 49 states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” It also prohibits the “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory”.
Thing is, Article 49 has little to do with the West Bank. First of all, this occupation began as a defensive action. Had the Israeli government not taken the steps it did during the Six Day War, the 19-year-old Jewish state would have likely ceased to exist.
Article 49 was never intended to apply to Israel’s circumstances in the West Bank. It was specifically written in direct response to the mass deportations, forced migration, evacuation, displacement, and expulsion of over 40 million people by the Nazis during the Second World War.
But no Israeli government forcibly moved its citizens into the West Bank and Gaza. Rather, steps have been taken since 1967 to incentivize the resettlement of Jews in the disputed territories. That’s right: Jews did live in the West Bank before 1967. During the Mandatory period, Jews lived in Kfar Darom in the Gaza region and Hebron – to name but two places.
This stubborn historical fact puts the Palestinian leadership’s oft-repeated vow that a Palestinian state would never allow Jews to live there in a whole new light.
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The Illegal Occupation That The Media Has Missed
Another reason that using the term ‘annexation’ out of context is problematic is because Israel didn’t invade a sovereign nation and conquer its territory in 1967. The Palestinians were living in territory that had been annexed by Jordan in 1950. That annexation was widely considered to be illegal and void by most of the international community.
Yet that illegal occupation is largely overlooked. Instead, international media outlets routinely describe Israel’s victory in the Six Day War as the starting point of a brutal occupation.
United Nations Resolution 242 is often cited to justify this assertion. However, this resolution was adopted in 1967 in an effort to secure a just and lasting peace between Israel and the Palestinians. Israel supported the resolution because it called on the Arab states to accept Israel’s right “to live in peace within secure and recognized boundaries free from threats or acts of force.”
Why would Israel support a resolution that labeled it as an illegal occupier? Because it didn’t.
Neither Resolutions 242 and 338, adopted following the 1973 Yom Kippur War, call for Israel’s unilateral withdrawal from the territories. Despite this, media coverage focuses almost exclusively on the call for an Israeli withdrawal, ignoring those clauses that place responsibilities on the other parties to the conflict.
Indigenous Rights Vs. National Rights
But if Israel didn’t invade another country and occupy its land what rights are the Palestinians entitled to? While indigenous Palestinians don’t have a sole legal claim to the West Bank, an overview of indigenous heritage legislation around the world should provide Palestinian human rights groups with cause to cheer. After all, the relatively recent idea that places of cultural significance to indigenous people deserve protection is spreading.
The legal foundations for the rights of indigenous peoples and local communities have been codified in such documents as the Indigenous and Tribal Peoples Convention, Declaration on the Rights of Indigenous Peoples, Convention on the Elimination of All Forms of Racial Discrimination, International Covenant on Civil and Political Rights and American Convention on Human Rights.
However, it’s worth noting that under international law indigenous rights are not synonymous with national rights. Otherwise, the Native Americans of the United States, the Basques of Spain and many other groups would be legally entitled to national sovereignty. Indeed, there are currently 124 territorial disputes around the world. While the wheels of justice sometimes turn slowly, does The Guardian or any other major media outlet describe Spain as illegally occupying the Basque Country?
And let’s not forget about the indigenous rights of the Jewish people. The 1922 San Remo Declaration was unanimously adopted by the League of Nations, affirming the establishment of a national home for the Jewish People in the historical area of the Land of Israel (including the areas of Judea, Samaria and Jerusalem).
This was subsequently reaffirmed internationally in the League of Nations Mandate Instrument, and accorded continued validity, up to the present day, by Article 80 of the UN Charter.
Controversial, Alarming… But Not Illegal
According to international law, annexation is ‘the forcible acquisition of territory by one state at the expense of another.’ Yet in the case of Israel and the Palestinians there’s only one state involved. Furthermore, the Israeli government’s plan to transfer the settlements and Jordan Valley from military to civilian law seems to belie the idea of ‘forcible.’
Still, even Israel’s traditional supporters have expressed concern, even alarm, at the government’s plan to apply its laws to approximately 30% of the West Bank. These concerns are valid since such a seismic shift in the status quo is bound to be fraught with dangers and unintended consequences. However, such a move at least has a legal leg to stand on.
Who knows, perhaps such a dramatic development will catalyze a shift among the Palestinian leadership. If the Oslo Accords are no longer valid, as Ramallah is asserting, another way for the Palestinians and Israelis to finally make a just and lasting peace will have to be pursued.
As events on the ground unfold, The Guardian and other media outlets owe their readers nuanced, balanced reporting. Getting a key fact like the legality of Israel’s presence in the West Bank wrong calls into question this news organization’s journalistic independence, objectivity, and even its credibility. Readers of The Guardian deserve better.
