T. Belman. International law is more complex than Baker would have you believe. Annexing territory is generally illegal but not always. After WWI and WWII the victors redrew boundaries. This is considered to be legal not illegal.
Furthermore UNSC Res 242 provided “Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,”. By that it means “by aggressive war”. It does not exclude the possibility of acquiring territory if attacked
“You can retain territory without annexing it,” Baker said. “That is what we did in the [Oslo accord] interim agreement, we retained Area C…we haven’t annexed it.”
Before becoming US ambassador to Israel in 2017, David Friedman was a bankruptcy lawyer with the Manhattan firm Kasowitz, Benson, Torres & Friedman – and a highly successful one at that. As such, he understands the significance of words, that words matter.
In his interview on Saturday with The New York Times, Friedman was quoted as saying, “Under certain circumstances, I think Israel has the right to retain some, but unlikely all, of the West Bank.”
The salient word here is “retain” – that Israel has the right to “retain” some of the territory. In the words quoted in the Times article, Friedman never uttered the word “annex,” which is significant, because annex has different, more far-reaching implications.
In the debate over what will be the final resolution of the territories occupied and annexed by Jordan in 1948 and held by Israel since 1967, many words and expressions are used, such as “retain territory,” “apply sovereignty,” “extend Israeli law,” and “annexation.”
Though the words have different legal meanings, they are often used interchangeably – and that is where the confusion sets in.
For instance, The New York Times online headline to the Friedman interview read: “US Ambassador Says Israel Has Right to Annex Parts of West Bank,” even though Friedman did not use the word “annex.” The Jerusalem Post story about the interview also used the word “annex” in the headline and the first paragraph, even though Friedman did not utter that word.
According to Alan Baker – former legal adviser at the Foreign Ministry who today serves as director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs – there is a difference: a distinction between retaining territories, applying Israel law, jurisdiction and administration over territories, and annexing territories.
He points out, however, that there is no difference between “applying sovereignty” over an area and annexing it. This is significant because Prime Minister Benjamin Netanyahu said in an interview just three days before the April 9 election – in an effort to woo right-wing voters – that he intended to “apply sovereignty” over settlements. Moreover, he said, “I don’t distinguish between settlement blocs and the isolated settlement points, because from my perspective every such point of settlement is Israeli.”
Netanyahu is also someone careful with his words, and pointedly avoided saying that Israel would annex the settlements. Nonetheless, according to Baker, “annexing” and “applying sovereignty” are the same thing, and both run contrary to international law.
Baker also argued that it makes no difference in international law whether the territories were won in a defensive or offensive war. This is significant because after US President Donald Trump recognized Israel’s sovereignty over the Golan Heights in March, Netanyahu said an important principle was set: that land acquired in a defensive war did not have to be given up.
The Six Day War, during which Israel gained control over east Jerusalem, the Golan Heights, the West Bank, the Gaza Strip and Sinai Peninsula, was a defensive war.
But while there is no difference between “applying sovereignty” and annexation, Baker said there are differences between retaining territory, extending law, jurisdiction and administration to territory, and annexation.
“You can retain territory without annexing it,” Baker said. “That is what we did in the [Oslo Accords] interim agreement. We retained Area C [the 62% of the West Bank where Israeli has full civilian and security control], but we haven’t annexed it, and we have not expanded Israeli law there.”
Retaining territory, he said, “can be done in agreement between the parties, or even in a unilateral way, until there is some positive outcome to negotiations over the permanent status of the territories. Israel has every right to retain whatever territories it feels it needs for its security.”
Annexation, on the other hand, goes much farther.
“To annex means that you extend your sovereignty,” said Baker. “It becomes part of your country. Your laws apply there. This is prohibited according to international law.”
It is possible, Baker said, that within the framework of an agreement, Israel will retain certain territories, which means it will maintain control and wield certain powers in those territories giving it specific rights, without necessarily incorporating them formally into Israel. These rights could be rights of passage, overfly rights for the air force, or many other myriad rights that it will retain inside territories whose final dispensation will be decided at a later time.
Between retaining territory and annexing it, there is another category, and that is extending the country’s law, jurisdiction and administration over territory.
And this path, Baker said, is the one Israel took in 1981 when it enacted the Golan Heights Law. That law did not formally annex the strategic plateau, but it did extend Israeli law, jurisdiction and administration there.
Baker said that prime minister Menachem Begin instructed Israel’s ambassador to the UN at the time, Yehuda Blum, to write a letter to the UN secretary-general saying that this move was being done “without prejudice to negotiations with Syria when Syria will decide they want to come negotiate on the location of a mutual bilateral border” between the two countries.
Extending Israeli law, jurisdiction and administration over the Golan Heights in 1981 did not mean applying sovereignty or annexing it, Baker clarified.
And what that means is that when Trump recognized Israeli sovereignty over the Golan Heights in March, he was actually recognizing a sovereignty that Israel itself had never formally declared.
@ Philippe:
It’s a waste of time talking about the “Levy Report”., There are already at lest 5-6 legal opinions on the very same subject…all in favour of Israel, going back many years. By FAR more important International experts on the subject. Levy is only the latest, and the least in importance. Besides, he’s an Israeli Jew and nobody would even bother to read his opinions. I recall that he headed a group of 3 (-4 ??) experts.
In fact I wondered at the time why Netanyahu gave such a bizarre request to him, considering who he was. Some scheme the PM was hatching, maybe wasting time to placate demands, and watching them subside. as the Levy investigation was progressing. Political memories are very short, and always overtaken by another matter the next day.
Read up on …for instance, the book by Jacques Gauthier, a renowned International expert on Israel, The League of Nations, and the British Mandate. He studied the subject very deeply and spent many years writing his book of nearly 1000 pages with an immense amount of footnotes, all very important and detailed.
Anyone even reading about Gauthier, knows right away that here is the definitive document on the subject.
Judge Edmond Levy of the Supreme Court made a deep study (international public law ) of Israel ‘s claim to the Judea-Samaria , in 2012 . It was totally supportive of Israel’s claim . But Netanyahu shelved the Levy report , and it remains useless in some classeurs . Now that we have a staunch ally in the White House , we are still sitting on the Levy Report . Utter weakness , utter stupidity . Lack of resolve .
@ Bear Klein:
What they should do FIRST, is declare in NO uncertain terms, their ownership of those lands, and detail the irrevocable and utterly LEGAL provenance right back to the San Remo Conference. THEN…. simultaneously, or the day after, move in swiftly and apply Sovereignty to the WHOLE land including the parts that Arabs live on, and declare that, notwithstanding their constant horrendous murders of innocent Jewish citizens of all ages, they are allowed to be there (temporarily) ONLY by the benevolence of the Jewish People….which is evaporating at an increasing rate.
Then some after this, begin rumours about the possibility of subsidised emigration…
Just one of my opinions …”off-the-cuff”…and as good as anything that has been said or written about the subject. Israel MUST act with decision, and firmness. NO kibbitzing, NO haggling between parties….just NO….!!
Also NO point in worrying about “what the goyim will think” …We KNOW what they always think so “to hell with them”. …….
@ Edgar G.:Real bottom line is that the government of Israel needs to apply its civil law in Judea/Samaria starting with all the Jewish Towns (land adjacent to them) plus the whole Jordan Valley and assert when it does this that it hold the legal and moral right to this with the remainder of Judea/Samaria.
Just like it did with the Golan and Jerusalem. We should explain to friends why we are doing and this our rights in doing this.
Our enemies and their supporters will not agree or recognize Israeli sovereignty. The enemies who wish to challenge us will need to be dealt with decisively.
We need a strong right wing government to do this.
@ Bear Klein:
I recall that speech. He turned off everyone. This matter usually does, by referring to the “Bible” when surrounded by completely irreligious people, with political and inborn animus against Jews…and the Jewish State. He neglected to mention that the Romans morphed eventually into the Byzantines, then the Persians, before Islam came and poisoned, desecrated the Land.
But of the MAJOR POINTS OF ALL…he never mentioned a word.
You see Bear, the Balfour letter of itself has NO legal Status, not a scrap. But the San Remo Declaration, the Sevres Agreement, and the League of Nations GIVING a Mandate to Britain to aid the Jewish People to return to their Land. are the REAL deeds to the Land, Legal to this day, and avoided by Goyim who hate Jews and Israel. They all include the Balfour Letter in their preambles.. He talked about “the L of N mandate ” but there were a few L of N “mandates”.
He needed to say…which he abysmally neglected, in his guttural pronunciation, that it was a “League of Nations British Mandate for Palestine”, and handed over to, and guaranteed by the UN, who carry it in their Constitutional Founding Documents and LEGAL to this very day.
All he did…and it was mostly about the Bible” was drone on,and on, turning pages, seemingly struggling, reading from a prepared script ……with no feeling, no lift , no resolution nor animation in his voice. I’m sure half of the few listeners were asleep.
Them’s my sentiments about Danon’s Address… It was as much use as udders on a bull……
I criticised that “speech” as soon as it appeared. I watched the whole painful nonsense. with upset . He was addressing the VERY institution, which had a copy of the Title Deeds of the Jewish People to the Land, right there in Article 80 of their Founding Document, and the damned fool didn’t even mention it.
The UN Members are all aware that it exists and this would have been a real opportunity to rub their noses in it…. and ask …WHY…..??
The whole enterprise, instead of being acclaimed by Jews (phony) they should have hidden their faces in embarrassment.
@ Edgar G.:Dannon did claim the rights to Judea/Samaria for Israel in April at the UN.
@ Bear Klein:
I hope tht Herb DOES read the commentaries here on his articles. They often delve deeper than his own writings.
ALSO- Because for very many years, ever since I heard of, and read about the San Remo Conference, and the subsequent allocation by the League of Nations (the accepted Legal Power then) to Britain of “The British Mandate for Palestine”, -which acted in the form of a Trusteeship- I have known-apart from Biblical stories- that Palestine belonged always to the Jews.
Even the dirty little schotzim fighting and chasing after me in Ireland, would yell..”Ya dirty Jewman Go back to Jerusalem”.
And THAT was the ultimate recognition of Jewish ownership of Palestine.
Now to the point I want to make….. NONE of these major writers or/and institutions ever even whispers the aforementioned British Mandate For Palestine, nor it’s vital contents.
Which should be a MUST for every discussion on the subject of this article….and there have been myriads. (So Herb…if you’re there…please respond) The Mandate itself should put an immediate stop to all other discussion about “ownership”.
I haven’t heard that Danon at the UN has even mentioned this conclusive evidence of Jewish Ownership of the Land..which as BEAR, who supports my constant position, has just iterated.
Has anybody got THE answer….Is it because there is universal distaste (even amongst Jews themselves) for admitting that the Jews really own anything…? I want someone authoritative to tell me why…!!
Herb, If you are reading commentaries you are wrong Israel has by applying its laws since 1981 applied its sovereignty to the Golan Heights. Israel at one time might have agreed to a treaty with Syria were it might negotiated away some of the Golan and that was the reason for the double talk. That is no longer the case. Israel is the Sovereign in the Golan Heights and Trump recognized the reality.
SOVEREIGNTY. The union and exercise of all human power possessed in a state; it is a combination of all power; it is the power to do everything in a state without accountability; to make laws, to execute and to apply them: to impose and collect taxes, and, levy, contributions; to make war or peace; to form treaties of alliance or of commerce with foreign nations, and the like
Israel meets all the criteria for being the Sovereign in the Golan Heights since 1981.
Since Israel has the legal rights to Judea/Samaria it does not need to annex them. By applying its civil law to such lands it is de-facto the sovereign as it is governing such land with its sovereign laws.
Annexation is taking land that was not yours legally and applying your laws and control. Since Israel is in control of land it has a legal right to, applying its laws makes it the sovereign without the need of annexation.
So is Mr baker suggesting that the hashimites still have a legal right to J-S? Otherwise who’s land is actually? Israel still recognizes hashimite land ownership.
Israel needs to do and be damned let the dickheads schmoozing at the u n waste time pissing anti ISRAEL dictates.