Israel never abandoned its claims of sovereignty to this area, historically called “Judea and Samaria”, as part of the “Land of Israel”, just as the Palestinian Arabs have also claimed sovereign rights. Yet the Palestinians have rejected repeated Israel offers since 1967 – for example, in 2000, 2001 and 2008 – of full self-determination in the majority of this land.
The result is a categorically unique case: there is no comparable international legal situation in the world today where a country that acquired territory in self-defence and offered to surrender it in exchange for peace was refused.
In this case, the term “annexation” is, in fact, a misnomer. It refers to the forcible taking of territory belonging to another state. The disputed territories here do not belong to another state. A state of Palestine does not yet exist and a Palestinian right to self-determination does not entail automatic sovereignty throughout all of the West Bank.
The legal status of this territory is also currently the subject of a case before the International Criminal Court, where a majority of submissions invited by the court assert that Israel has legitimate claims to the West Bank, where a half million Jews live.
The territory that was previously the subject of a League of Nations Mandate for the purpose establishing a homeland of the Jewish people. Pursuant to article 80 of the UN Charter, those rights under the mandate remained binding under international law.
Israel obtained control of that territory lawfully, and no judicial authority or universal state practice supports a general rule that a state that is an occupying power cannot also have sovereign claims.
The International Law Commission Draft Code of Offences against the Peace and Security of Mankind (1954)] has endorsed the legality of acquisition of territory, unless by aggression or in violation of the UN Charter.
International practice demonstrates that aggression, such as Jordan’s in 1967, consistently leads to forfeiture of territory. Examples include breaking up the Ottoman Empire and Austro-Hungarian Empires in World War I and, in World War II, Japanese and German losses to the Soviet Union. Furthermore, Jordan’s claim to the West Bank was never recognised even by Arab states.
Israeli claims of sovereignty form the basis for negotiations under the bilateral Oslo Accords agreed with the Palestine Liberation Organisation in 1993, and the multilaterally agreed Roadmap to Peace. There is also a body of scholarship that claims that Israel has lawful sovereignty due to the doctrine of “succession”, a kind of international inheritance law.
Nevertheless, Israel still wishes to negotiate away most of “Judea and Samaria” in return for peace and security. This is the essence of the Trump administration’s peace plan – and it formed a common sense part of prior peace plans too. Unilateral Israeli action this year is likely to break the negotiations deadlock, pressuring a Palestinian side that has simply been refusing to negotiate since 2014.
Of course, as political issues, the Trump Peace Plan, Israel’s interests in regulating up to 30 per cent of the West Bank under its civil laws, and whether that will promote resolution of the Arab-Israel dispute, are open to debate. But adamantly using a contestable interpretation of international law that attempts to foreclose peace negotiations serves neither Israeli-Palestinian peace nor international law.
Gregory Rose is a professor of law at the University of Wollongong.