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“Annexation” Pros & Cons

June 20, 2020

Introduction

When the new government of Israel was finally sworn in in late April 2020, its coalition agreement allowed, beginning on July 1, a vote to apply Israeli law in parts of the West Bank, as part of the implementation of President Trump’s “Peace to Prosperity” plan. This ignited a vigorous debate in Israeli, Jewish, and foreign-policy circles about the legality and wisdom of such a move. I sent my own thoughts to a few friends, some of whom asked to share it more broadly. This is a slightly edited version of the same thread.

As is the case in many ideological discussions in our polarized political and social culture, some people on both sides of the debate are so convinced their position that they believe it is obvious and self-evident, or even the only correct and moral position. I have attempted here to go beyond the platitudes and sound bites (“Jewish and democratic!” vs. “Auschwitz borders!”) to make a logical and rational case both for and against the move.

Please contact me with any additional contributions to this discussion!

Outline

Disclaimers and Caveats

Views

These are not my personal views; they are the best arguments I have heard and read on each side of the debate. I am happy to share my own opinion if anybody is interested. (Spoiler alert: Not black and white.)

Terminology

Many Israelis (not only on the right) and legal scholars reject the term “annexation” in this context. They prefer to say “applying Israeli sovereignty” or, more accurately, “applying Israeli [civilian] law” to the areas in question. That’s because “annexation” means one state taking an area from another sovereign state, e.g., Crimea from Ukraine to Russia, or the Golan Heights, formerly Syrian territory, annexed by Israel in 1981. In the case of the West Bank, there is no recognized sovereign (see #3 below). I use the term “annexation” below, sometimes in quotes, to refer to applying Israeli law over part or all of the West Bank/Judea & Samaria (another terminology thorny thicket) simply as a convenient shorthand, without intending to prejudice the discussion.

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Scope

“Annexation” is not a binary, all-or-nothing proposition; it may have gradations, a question of degree or scope. There are different ideas and discussions about how much land and which specific areas Israel might claim:

(a) The entire West Bank/Judea & Samaria, i.e., 100% of the territory captured from Jordan in 1967 between the Green Line and the Jordan River

(b) All of Area C, about 60% of the West Bank territory, creating numerous disconnected Palestinian enclaves (Areas A&B)

(c) The 1967-68 “Allon Plan” (proposed by an Israeli Labor-led government, long predating the major settlement endeavor) – about 40% of the West Bank

(d) President Trump’s “Peace to Prosperity” proposal calls for Israel to annex about 30% of the West Bank, with tunnels and bridges connecting both Israeli “enclave communities” (15 non-contiguous settlements) and Palestinian areas (including Gaza)

(e) Only the major “consensus” settlement blocs contiguous with the Green Line, plus a strip of the Jordan River Valley (excluding Jericho) to the east, maybe 15-20% of the West Bank area (maps vary)

The specifics under consideration now seem to be something between (d) and (e) above. A joint U.S.-Israeli committee is working on drawing the maps, but hasn’t published anything yet. The new Israeli coalition agreement (Art. 29) says that the government and/or Knesset may vote after July 1 on applying Israeli sovereignty to areas “agreed with the U.S.” but doesn’t specify what these areas are.

The relative strength of pro- and anti-annexation arguments depends on the scope discussed. For example, concerns about whether and how Israel might absorb a large Palestinian population and what that will do to Israeli demographics (“Jewish and democratic,” in shorthand; see #9 below) are extremely important in scenario (a) above. But they diminish as we go down the list, and don’t apply to scenario (e), which annexes no Palestinian communities or built-up areas and virtually no Palestinian population.

There is also a “slippery slope” argument, that says that while we may only be discussing (e) or (d) now, they would make an independent Palestinian state not viable, leading eventually to (b) or (a) – with the additional complexities and considerations involved. Similarly, some right-wing opponents of annexation claim that any division of “greater Israel” will eventually lead to the creation of a Palestinian state, which they see as undesirable, illegitimate, or even dangerous. Both sides have valid concerns, but as a pragmatist I prefer to focus the conversation on what is actually on the table at any given time, not what it may or may not lead to, hypothetically, in the future.

Here’s what long-time “peace processors,” two-state advocates, and annexation opponents David Makovsky and Dennis Ross wrote last week in the Times of Israel (emphasis added): “Just to be clear: we think that all unilateral annexation is a mistake and hope the prime minister refrains from doing so. At minimum, we hope he will at least recognize the difference between annexing designated bloc areas versus all the settlements, including the Jordan Valley. The former would not close the door to two states and the latter would doom Israel to becoming a binational state that fundamentally alters its identity.”

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Arguments in favor of applying Israeli law in the West Bank

(1) Respect Israeli sovereignty and Israeli choices. As Secretary Pompeo said, this is an Israeli decision. It affects the Palestinians. It may affect Jordan. It may have second-order implications for other Arab countries. But it has nothing to do with us, as American Jews. Israel shouldn’t tell us how to live our Jewish communal lives and we shouldn’t tell Israelis how to live theirs. We have different priorities and different tradeoffs; if we don’t live by their Jewish values (living in the Land of Israel, serving in the IDF, speaking Hebrew), we should not expect them to accept ours. (Jonathan Tobin makes this argument in JNS, here.)

(2) Respect Israeli democracy. The rump Labor party has just joined the Netanyahu-led coalition and agreed to support the annexation. This means that extending Israeli sovereignty is no longer an “extremist” or “right-wing” policy proposal—or even “center-right.” When you add Labor to Blue & White and the Likud bloc, that’s 86 MKs—72% of the members of Knesset, or 82% of those from the Jewish parties (all except Yesh Atid-Telem and Meretz). In a country with such fractious politics, this is a stunning consensus. It is hypocritical for people who claim to care about Israel’s Jewish-and-democratic nature to oppose a policy supported by 82% of the democratically elected representatives of Israeli Jews.

(3) There is currently no recognized sovereign in Area C of the West Bank. The Palestinians demand sovereignty, but in the Oslo Accords, the PLO (later Palestinian Authority) agreed to full Israeli control over Area C. The last recognized sovereign of these areas was the British Mandate. Jordan illegally annexed the territory in 1950, lost it in 1967, and renounced all claims in 1988.

(4) Israel has the strongest legal claim to the territory of the entire West Bank/Judea & Samaria, firmly enshrined in international law and treaties. Under the legal principle of uti possidetis juris, newly-formed states retain the borders that their preceding colony or dependent area had before independence—in this case, the borders of Palestine under the British Mandate. The Balfour Declaration (Nov. 1917), San Remo Resolution (April 1920), Treaty of Sevres (Art. 95, Aug. 1920), Mandate for Palestine (Art. 6, July 1922), Anglo-American Treaty (Dec. 1925), and UN Charter (Art. 80, June 1945) all explicitly recognize Jewish rights to a “national home” and/or “close settlement of the land” in the entirety of Mandatory Palestine. Not only does Israel have a stronger claim to the West Bank than any other state, Israel may have a stronger basis in international law for its claim to the West Bank than any state has to any territory! (See analysis by Howard Grief here, and interview with Eugene Kontorovich here.) Even the landmark UN Security Council Resolution 242 (Nov. 1967), notwithstanding its complete rejection by the Arab nations (like that of the 1947 Partition Plan, UNSC #181), recognized Israel’s right to “secure and recognized boundaries,” and specifically did not require Israel to withdraw from all territories captured in the Six-Day War. This has also been the consistent position of Presidents Clinton, Bush 42, and Obama.

(4a) More recently and more specifically, the Oslo Accords—agreed between Israel and Palestinian Liberation Organization, which formed the Palestinian Authority—provide for full Israeli control in Area C of the West Bank. Applying Israeli law to Israeli citizens living in what is by mutual consent Israeli-controlled territory does not change the status of the area’s sovereignty.

(5) Israel has a valid security and demographic political need to maintain control over the Jordan River Valley and the major settlement blocs adjacent to the Green Line. Formally extending Israeli sovereignty to these areas inoculates against pressure on Israel to concede territory to terrorists and their enablers. Moving ahead with annexation while there’s a favorable American president in the White House is an insurance policy against future dangers.

(6) The Palestinians/Arabs have rejected two-state proposals for over 80 years, a unique refusal by a supposed liberation movement to accept international statehood. In the meantime, the fate of the territory’s Jewish inhabitants is held hostage to Palestinian intransigence. “The presumption was that exchanges of land for peace would happen after an agreement with the Palestinians. But that left the timing up to them; if they didn’t agree, then it wouldn’t happen. And so far, it has not” (Shoshana Bryen). Palestinian rejectionism should not be rewarded with a “hecklers veto” over Israel’s right to define its borders.

(7) The possibility or actuality of extending Israeli sovereignty may in fact spur the Palestinian leadership back to the negotiating table after a six-year hiatus, facilitating rather than hindering progress toward a two-state solution.

(8) Hundreds of thousands of Israeli citizens living in the West Bank/J&S are in legal limbo. Palestinian residents of the West Bank are governed by a combination of Jordanian law, Palestinian Authority law, Israeli military law, and international humanitarian law, none of which apply to Israelis living in the same areas. Rather, the Knesset has to specifically apply or exempt the application of individual laws and regulations to Israeli residents in the settlements, or the IDF has to copy every new law (criminal, civil, labor, tax, municipal, environmental regulation, land use, etc.) as a military directive. Israeli politicians and others on the right say that this is “a form of discrimination against some Israeli citizens based on where they live.”

(9) All the benefits above (#1-#8) can be accomplished without undermining either the prospects for a two-state solution or Israel’s Jewish majority

  • In any potential, proposed, hypothetical, or envisioned two-state solution, under any conceivable scenario, the major settlements blocs close to the Green Line would remain under Israeli sovereignty, and the Jordan River Valley would remain Israel’s eastern security boundary.
  • Very few Palestinians live in Area C, and even fewer (a few tens of thousands) in the specific areas discussed here, so even if they received full Israeli citizenship and voting rights, that would not change Israel’s overall demographic balance.
  • Even areas that have been formally annexed can be ceded in a subsequent treaty or agreement. There is precedent for this: Israel annexed the Golan Heights in 1981 but negotiated with Syria regarding potential withdrawal from the area in the 1990s.

(10) Any eventual Israel-Palestinian peace agreement must be based on reality and current conditions. Anything that moves the Palestinians away from unrealistic expectations (e.g., “right of return” for refugees’ descendants, 1967 borders, Jew-free Palestine) and toward reality increases, rather than decreases, the chances for peace. Those who work toward bringing the two-state solution closer to reality should welcome any steps that increase Israeli control over areas that will eventually be (and de facto already are) under Israeli control, and steps that decrease Israeli control over areas that will eventually be (and de facto already are, except for security) under Palestinian control.

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Arguments against applying Israeli law in the West Bank

(1) It’s a unilateral move that violates the 1995 Oslo accords stipulation, “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the Permanent Status negotiations.” (Article XXXI.7)

(2) It will (further) decrease chances of direct negotiations between Israel and the Palestinians, poison the atmosphere, and undermine whatever little trust exists between the two sides—moving the desired two-state solution even further away.

(3) It will (further) undermine Israeli-Palestinian cooperation on issues not related to a two-state solution, including security and (in the face of the COVID-19 crisis) public health.

(4) [Specifically regarding the Jordan River Valley:] Annexation by Israel will prevent territorial contiguity between the future Palestinian state and Jordan, making Palestine a fully enclosed enclave surrounded by Israel. Additionally, the Jordan Valley and Dead Sea are critical to Palestinian tourism and agriculture, so Israeli annexation of these areas would harm the economic viability of a future Palestinian state.

(5) Annexation may prompt Palestinian violence (see Dan Perry in the Times of Israel, April 27).

(6) It will damage Israel’s standing in the world, alienate allies, and harm relationships with

(7) It may trigger condemnations by the international community, or even international sanctions, and investigations by the International Criminal Court, all of which further undercut Israel’s standing in the world.

(8) It will deepen the partisan divide in support for Israel in the U.S. Congress and American public

(9) [If considering scenarios (a) or (b) above:] It would involve absorbing (or displacing?) Palestinian civilian population, which could threaten the demographic balance in Israel, i.e., its long-term Jewish majority. If these Palestinians are not offered Israeli citizenship—a move not currently considered by the Israeli government!—that would create a permanent apartheid-like situation. This is the “Jewish-vs.-democratic” dilemma, which we all understand to be a lose-lose proposition.

(10) Donniel Hartman argues in the Times of Israel (May 10) that while the political wisdom of annexation is questionable, the timing is morally wrong: “a demand for annexation now, in the context of the COVID-19 pandemic, subverts the moral credibility of its advocates.” (Counter argument, from an annexation supporter, is that this is exactly the right time, for the same reason: “Though tempers around the world likely will flare, no sane government will shift its focus from managing the coronavirus crisis to intervening in the Palestinian-Israeli conflict.”)

(11) An objection from the Israeli right, heard from some settler leaders, is that implementation of the Trump plan or extending Israeli law to parts of the West Bank “would be accompanied by concessions to the Palestinians, including the establishment of a Palestinian state in part of the West Bank,” which they reject. Some fear that it would limit further Israeli settlements in much of the West Bank, spelling “the death knell for religious Zionism” and “the evisceration of the settlements.”

[NOT-valid reason: President Trump/Prime Minister Netanyahu supports the move and I hate Trump and/or Netanyahu…]

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Your feedback is very welcome and actively solicited. Please contact me with your reactions, additions, and rebuttals.

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