Palestinians and Israelis Will Both Gain From Israeli Sovereignty Over West Bank

By Avi Bell, KOHELET POLICY FORUM

Palestinians and Israelis will both gain from what is wrongly being labeled West Bank “annexation.” Soon after July 1, Israel is expected to apply its civilian law to roughly half of “Area C” of Judea and Samaria (i.e., the West Bank), which it governs under a power-sharing agreement made with the Palestine Liberation Organization (PLO) 25 years ago. Area C is where almost half-a-million Israelis reside alongside a much smaller number of Palestinians. Naysayers from Israel and abroad have labeled the move an “illegal annexation” that would be responded to with regional violence. The more mundane reality is that applying Israeli law to the disputed area will have two main salutary effects that will benefit all the residents of the area, Israeli and Palestinian alike.

First, after 53 years, military administration of the affected areas will end. Military rule is far from ideal, and residents’ needs will be better met under ordinary civilian governance provided by officials who have to answer for their actions at the ballot box.

Second, residents will no longer be subject to the antiquated mix of Ottoman, Mandatory British, Jordanian and military rules that confound even the simplest transactions. Area C’s law is full of anomalies, from the absence of environmental law to a ban on the purchase of land by non-Jordanians. Non-Israeli residents of Area C have no access to Israel’s unemployment insurance, subsidized national health care and other welfare programs. Israel’s Supreme Court has essentially blocked piece-by-piece legislation to clean up the mess. Applying Israeli law as a whole will grant citizens the benefits of a modern liberal democratic legal codex.

Despite the obvious benefits of applying Israeli civilian law, opponents have decried the proposal on what they describe as legal and practical grounds.

The legal objection is easily summarized and easily refuted. Opponents note that international law forbids annexation justified by conquest of sovereign territory of another state during an unlawful war (or perhaps any war at all). They then attempt to characterize Israel’s action as an example of such an unlawful annexation by connecting the rule to a string of falsehoods. They assume the PLO is a state, though it meets none of the conditions of international law, erase the history of the League of Nations designating the West Bank for a Jewish homeland (as it did in 1922), deny the international doctrine of uti possidetis juris that granted Israel sovereignty over Judea and Samaria upon its independence in 1948, pretend the PLO received sovereign title of the West Bank from Jordan’s illegal conquest and annexation of the territory during its 1948 attempt to destroy Israel, imply the illegality of Israel defending itself from Jordan’s aggression in 1967 and misinterpret Israel’s application of its civilian law to part of Area C as an attempt to gain sovereignty over another country’s territory.

Sadly, those who wrongly claim that Israel’s proposal is unlawful are rarely challenged to articulate their assumptions—let alone to justify their mendacity. Yet the truth remains that Israel’s application of its law to parts of Area C is lawful and beneficial, and has nothing to do with annexing another state’s sovereign territory. Israel already has a valid claim to territorial sovereignty, whether it applies its civilian law to the area or not.

The practical objections are more difficult to summarize, because they are, in large part, contradictory as well as illogical.

On the Left, opponents of the proposal claim it will destabilize the Palestinian Authority, lead to violence, foil the creation of a Palestinian state and destroy the chances of a peace agreement. On the Right, opponents claim the proposal will strengthen the Palestinian Authority and inevitably lead to a peace agreement and the creation of a Palestinian state on those parts of the West Bank where Israeli law is not applied. They view this as an unacceptable security threat and inimical to a true peace.

Others decry the proposal’s effects on the everyday lives of residents. Left-wing opponents assert that applying Israeli law will upgrade the rights of Jews at the expense of Palestinians. Right-wing opponents complain that the rights of Palestinians will be upgraded at the expense of Jews (for instance, some Jewish housing plans will be frozen, while previously unlawful Palestinian construction will receive an amnesty). A third group insists the proposal will have no effect on residents at all, and is a provocative and purely symbolic act.

The critics are wrong. A Palestinian state and a peace agreement are possible but not inevitable outcomes, whether Israel applies its law to part of Area C or not. The Palestinians will have the same path to a state either way: They need to end their maximalism and 11-year boycott of negotiations, stop funding terrorism, accept the right of the Jewish people to their state and get ready for some hard compromises. If the Palestinians are ready, they will find an Israel that is ready for peace, and a U.S. administration eager to broker the “deal of the century,” whether or not Israel applies its law to part of Judea and Samaria. In the interim, applying Israeli law will benefit all residents, whatever their ethnicity or citizenship.

Avi Bell is a professor of law at the University of San Diego and Bar-Ilan University. He is also a senior fellow at the Jerusalem-based Kohelet Policy Forum.