Yes, Israel Can Apply Israeli Law to the West Bank

 … Nor can it properly limit Israel’s sovereignty over its own territory….. International law’ hardly demands a ‘two-state solution’ to the Arab-Israeli conflict. Tablet Magazine

after all, Judea and Samaria is really ours, 
but the zionist gov won't acknowledge it "legally"

I will not allow Israel to annex the West Bank,” President Donald Trump said in response to a question from a journalist last September. The statement is one of the few aspects of his foreign policy that appears to have cheered Democrats. It came after a symbolic, nonbinding vote in the Knesset in support of applying Israeli civil law in the area.

But the Knesset never used the term annexation, and for good reason.

There is a simple, clear rule to determine the borders of new countries, whether they arise from imperial collapse, decolonization, federal breakup, cession, or any other cause. Under the doctrine of uti possidetis juris, a new country automatically inherits the borders of the last top-level administrative unit in that area. In other words, the pre-independence internal boundaries carry over to the new state. The continuity of prior borders is the sole factor, trumping fuzzy and hard-to-administer considerations like ethnic self-determination or historical title.

This rule has been applied to new states from Latin America to Europe. It is a matter of textbook international law. The reasons for it are clear. Demographics and history would give rise to multiple competing claims, whereas uti possidetis provides a unique, unambiguous solution.

To give a recent example, consider Crimea. The territory has been part of Russia for most of the past several hundred years. A majority of inhabitants were Russian speakers. Yet the international community rightly considers Russia’s annexation illegal and regards it as Ukrainian territory to this day—because of the uti possidetis principle. Nikita Khrushchev had redrawn the borders of the Ukrainian and Russian Soviet Socialist Republics to give Crimea to the former. When the Soviet Union collapsed and Ukraine became an independent state, it automatically inherited the borders of its Soviet administrative predecessor.

Annexation has a very precise meaning in international law: the taking and incorporation by one state of the territory of another state. The actions Israeli politicians have contemplated—applying Israeli civil law in areas that have been under nominal military administration—would not constitute annexation for two related reasons.

First, the area of “the West Bank,” a term coined by the Hashemite Kingdom of Jordan to refer to the lands it occupied after Israel’s 1948 War of Independence, did not belong to any foreign state when it came under Israeli control in 1967. The law of belligerent occupation, which governs territory taken in war—which is what most people mean when they talk about “Israeli occupation of the West Bank”—applies only to the sovereign territory of foreign states. This covers most cross-border conflicts but not some postcolonial transitions where there is a gap in sovereign control. For example, in 1975, Morocco seized Western Sahara, a former Spanish colony that had not yet emerged as an independent state, despite the national aspirations of its Indigenous Saharawi inhabitants. While there was some tepid United Nations pushback on Morocco’s land grab, it was not treated as an occupation by the United States and the European Union. Today, Rabat’s annexation of the “southern provinces” has been accepted as lawful by much of the world, including the United States and Europe.

Indonesia’s 1962 takeover of the similarly orphaned Dutch New Guinea colony gained universal acceptance. North Vietnam’s forcible incorporation of the entire country of South Vietnam, against the passionately expressed views of its residents, has long been universally accepted, no doubt because of Hanoi’s long-standing claims to sovereignty over both parts of French Indochina—just as Israel has long claimed Judea and Samaria as its own territory under the terms of the League of Nations mandate. In short, it is clear that Jordan was never sovereign in the territory. Thus, there is no basis for legal concepts like belligerent occupation and annexation.

But there is a second reason that Israel’s actions here wouldn’t constitute annexation: Israel itself has a sovereign claim to the territory, which it calls “Judea and Samaria”—a term used for more than 2,000 years, not only in the Bible but also by Roman historians, and by secular authorities including the United Nations up through the middle of the 20th century. Needless to say, a state cannot annex its own territory.

When Israel gained independence, its preceding geopolitical entity was Mandatory Palestine, which included the West Bank (Judea and Samaria), though it was not called that. Indeed, Judea and Samaria was never considered a distinct administrative entity. Under the application of standard rules of international law, the borders of the new state at independence would be the borders of the mandatory territory it succeeded.

The other states that arose in the Middle East from mandatory territories—Lebanon, Syria, Iraq, and Jordan—all acquired exactly the borders of those entities at the moments of independence. Each of these mandatory borders was drawn in arguably arbitrary ways that included discontented minorities in a larger state, be it Muslims in then-Christian majority Lebanon or the Kurds in Iraq. But in none of these cases have such arguments been seen as a reason to establish minority statelets in the territory of successor states.

Or consider Karabakh, a majority Armenian region within Azerbaijan with a deep Armenian history, which Yerevan took control of in a war with Azerbaijan at the time of the countries’ independence, much as Jordan grabbed the West Bank. With the collapse of the USSR, the two former Soviet republics entered into a protracted conflict over the territory. Yet since Baku captured the territory in September 2023, dislodging the Armenians, no one has treated it as an occupying power. The reason is simple: Karabakh had been within the boundaries of the Azerbaijan Soviet Socialist Republic, and so it automatically became part of the new independent state of Azerbaijan, even though this frustrates the self-determination aspirations of the Armenians there. This territory’s occupation by another country for two decades did nothing to erase Azerbaijani rights. This is a contemporary example of a situation quite comparable to Judea and Samaria being adjudicated by the international community the exact opposite way.

So let us briefly recap the political history of Judea and Samaria. For many centuries, up until 1918, the entire Levant belonged to the Turkish Ottoman Empire. Ottoman rule ended with its collapse at the end of World War I. Instead of taking Constantinople’s territories as colonies for themselves, the Allied powers sought to create independent nation-states—just as they did with the former territories of the defeated Austro-Hungarian Empire in Central and Eastern Europe. This process of making new nations out of older multinational empires was overseen by the newly formed League of Nations, which, by the treaty that created it, had the power to administer “mandatory territories.”

The League’s 1923 Mandate for Palestine was designated as a “National home for the Jewish people” and consisted of what we today would call Gaza, Israel, Judea and Samaria, and the Hashemite Kingdom of Jordan in one undifferentiated mass, cobbled together from parts of several Ottoman provinces. The terms of the mandate provided that it could be divided at its natural boundary of the Jordan River to create a Jewish and an Arab entity. The British promptly did just that, with the territory west of the river becoming the Mandatory Territory of Palestine—the Jewish entity. The area east of the river known as “Transjordan,” the Arab entity, was given to Britain’s defeated Hashemite supporters in Iraq and became the Hashemite Kingdom of Jordan in 1946.

Britain then terminated the Palestine mandate in 1948 following a U.N. vote to recognize two states in the remaining “Jewish” part of the mandatory territory—one for Jews and one for Arabs. The Jews accepted this proposal, which had no legal basis in the terms of the mandate but was seen at the time as an attempt to peacefully accommodate the existing balance of power. In other words, partition was a political solution that might allow the United Nations to fulfill in some part the inherited terms of the League of Nations mandate while avoiding what many expected to be a massacre of the Jews by the Arabs. Palestinian Arab representatives, expecting victory, uniformly declined the U.N. partition plan, which therefore did not “create” either Israel or a Palestinian state and has no standing in international law.

Uninterested in partition, five Arab states immediately invaded the mandate territory, with the stated goal “to prevent the establishment of a Jewish state.” Egyptian tanks rolled toward Tel Aviv but were turned back, but managed to seize a sliver of coastal territory that came to be known as the “Gaza Strip.” Similarly, Jordan’s Arab Legion was stopped by Israeli forces on the Samarian ridgeline, but not before it captured a significant part of Mandatory Palestine.

Israel and Jordan signed an armistice agreement in 1949, ending the fighting without agreeing to permanent borders. Jordan remained in control of the Old City of Jerusalem and the surrounding areas. It proceeded to ethnically cleanse every single Jew from this territory, which it then annexed in 1950 and dubbed “the West Bank.” All but a few nations rejected the legitimacy of this move, as Jordan had no credible sovereign claim on the territory, having taken it in a war of aggression.

Quite clearly, when Israel retook this territory in 1967, it was not occupying territory from Jordan, but rather ending Jordanian occupation of a portion of Mandate Palestine, the territory reserved by the League of Nations for a Jewish homeland under the British Mandate. Indeed, to say that “the West Bank” continues to have some special status 50 years after the end of Jordanian occupation is to retroactively give legal effect to the aggression against Israel in 1948. It is to say that to the extent the Arab states succeeded in occupying parts of Mandatory Palestinian territory and ethnically cleansing every single Jew, those areas must permanently remain Judenrein.

It emerges that under widely agreed-upon international rules, Israel has sovereign rights to the territory known to the State of Israel as Judea and Samaria and to many foreign scholars and writers as “the West Bank.” Some want to create a unique carve-out from these rules for the Jewish state.

Those who believe that a peaceful resolution of Israeli-Arab conflict depends on the creation of a sovereign Palestinian state may worry that the legal analysis presented here prevents such a settlement. Indeed, one might suspect that the strenuous denial of Israel’s legal rights has at times been designed to steer it toward what for many decades most diplomats regarded as the ideal solution: two states for two peoples. To date, the track record of that solution has not been a positive one.

However, the law is neutral as to diplomatic solutions. If you like your two-state solution, you can keep your two-state solution. Israel’s sovereign title to the territory does not prevent the country from ceding some or all of Judea and Samaria, or any other part of Israel, for a creation of a Palestinian state or any other type of state or entity—and indeed enables it. What the legal analysis does make clear is there is nothing about the 1949 Armistice Lines that makes them legally mandated borders of such a state, or that obligates Israel to cede all this territory.

Another consequentialist mode of analysis holds that if Israel does have sovereign rights to Judea and Samaria, it would put it in the uncomfortable position of ruling over the Arabs there, which could result in a high percentage of the population under Israeli rule not being Jewish—therefore forcing Israel to choose between being a Jewish state or a democracy. This is a serious consideration that is downstream from Israel’s legal rights. Like the idea of establishing a Palestinian state, or some other form of politically autonomous Palestinian Arab entity, Israel can choose to address its security problems, demographic problems, or regional security problems however it wants. While some of those choices might have better or worse real-world results, “international law” is not a magical formula that can or will compel Israel to make the choices that either its critics or its supporters might think best.

Israel’s sovereign rights over all of Judea and Samaria do not dictate the form of governance there. Indeed, since the Oslo process of the early ’90s, Israel has not governed the Palestinians of Judea and Samaria, who are instead misruled by the Palestinian Authority. Israel neither taxes them nor conscripts them; it does not write their schoolbooks or make their welfare policies or clean their streets. Israel’s current interactions with the Palestinian population focus almost entirely on hard security issues. Given that all nations enjoy an inherent right to self-defense, this would be the case whether the Palestinian areas were technically an independent sovereign or not.

President Trump’s 2020 peace plan, recently reaffirmed in his 20-point plan for peace, contemplated Israel extending its civil law to roughly half of Judea and Samaria, where the Jewish population is concentrated, and leaving the other half for a potential Arab state. This helps explain his comments about “annexation of the West Bank.” However, while Trump does not support Israel applying its law to those areas under Palestinian Authority control, that is not inconsistent with the proposals being discussed in the Knesset.

The so-called annexation plans being discussed in Israel are thus not about the incorporation of foreign territory into Israel proper. Rather, they are about ending the anomalous military administration that has applied in this area since 1967. After the Six-Day War, Israel never fully applied its domestic laws to the territory because it always expected the Arab states to sue for peace, and it was always prepared to transfer to them at least some part of the territory. Until the late 1980s, many Israelis assumed that the party for such negotiations would be Jordan. With the Oslo process, Israel’s “peace partner” became the Palestine Liberation Organization. In both cases, there was no point in hurriedly applying Israeli law to territory that might not remain Israeli because of a negotiated peace settlement.

Israel’s system of military governance in Judea and Samaria was always intended to be temporary. In retaining that system through decades of negotiations with the Palestinians, all of which resulted in their rejection of internationally backed statehood offers, Israel seems to have both severely misjudged the preferences and intentions of its Arab neighbors while also injuring its own citizens, creating a new problem of its own making.

Today, roughly 700,000 Jewish Israelis live in Judea and Samaria—where they have every legal and historical right to live and buy property. Yet Israelis and Arabs alike continue to find themselves governed by an odd patchwork of military regulations that has deliberately never been normalized or transparent to anyone and, over time, has become increasingly unwieldy. Property law is based on obscure Ottoman statutes, permitting for infrastructure projects is difficult and burdensome, and environmental regulations don’t exist for either Jews or Arabs. Clearly, this ad hoc situation is being sustained by a combination of official Israeli delusion and sloth and by external actors whose goal is to make life in these areas as practically unpleasant as possible for everyone.

Five decades of Arab rejectionism interspersed with violent terrorist assaults has made it untenable to continue to hold the legal regulation of Jewish communities in Judea and Samaria in limbo. And neither international law nor Western principles of democracy stand in the way of Israel finally applying its own civil law to its own citizens in those areas.

https://www.tabletmag.com/sections/israel-middle-east/articles/israeli-law-west-bank-judea-samaria

FOOTNOTE:

Uti possidetis juris (Latin for "as you possess under law") is a principle of international law stating that newly independent states inherit the same administrative boundaries, borders, or territorial demarcations they held just prior to gaining independence. It prevents disputes by transforming, for example, internal colonial or mandate borders into recognized international frontiers. 

Key Aspects of Uti Possidetis Juris

• Purpose: To prevent "fratricidal struggles" and ensure stability by preventing new nations from immediately disputing territory.
• Origin: Derived from Roman law (uti possidetis, ita possideatis), it became standard practice in 19th-century Latin America and was later adopted in Africa and other regions.
• Application: It applies even if previous boundaries were artificial or colonial. It was used to define borders in the dissolution of the Soviet Union and Yugoslavia.
• Limitations: It is not a rule of jus cogens (peremptory norm), meaning states can mutually agree to alter these borders. 

The principle is often used to establish that territorial boundaries remain at the moment of independence, often protecting the integrity of the newly created state.