Israel, the EU, and International Law

European Commission headquarters in Brussels, Belgium (PaulGrecaud/Getty Images)
If the EU tries to present its cynical political calculations regarding annexations as upholding international law, there are a few things EU members need to learn.

NRPLUS MEMBER ARTICLE S ometimes events provide clarifying moments. The European Union’s response to the prospect of Israel’s annexation of parts of the Jordan Valley, in which several almost entirely Jewish settlement blocs are located, is such a moment. By dressing up cynical political calculations as “the rule of law,” Europe in fact risks undermining Jewish rights and violating the very body of international law EU leaders claim to defend.

According to the EU, the lands Israel seized in 1967 are covered by the acquisition-of-force provisions of the Fourth Geneva Convention, and therefore Israel is to be considered an occupying power of the territories with all the legal obligations the convention imposes on such powers. Those include the nontransfer of populations, the prohibition on revision of borders to cede land to the occupier, and a variety of measures to protect the human and cultural rights of the populations, including the provisions not to change the cultural or religious nature of the occupied lands. It also establishes legal rights of the populations, including the prohibition on putting an inhabitant of that territory on trial in the occupier’s territory. As a result, the EU claims that any changes to the 1967 border are Geneva Convention violations. It further claims that Israel commits many more violations with its settlement and other policies. Even bringing an accused terrorist from Jerusalem or Hebron to stand trial in an Israeli court would violate the Fourth Geneva Convention, according to the EU. Annexations of land would constitute yet more violations.

Therefore, to maintain the rule of law and fulfill the EU’s rule-of-law ethos, the EU presidency and many of its members are seeking to punish Israel if it continues to build settlements, continues archaeological projects across the 1967 lines, or seeks to change the 1967 lines — which annexations would effectively do.

Right off the bat, it is hard to take Europe’s insistence on the 1967 lines as sacrosanct too seriously. EU members collectively still refuse to move their embassies to the western parts of Jerusalem, which have been part of Israel since 1948 but in some fantasy scenario might someday be part of a Palestinian state. It is a very strange formulation when land on the western side of the 1967 line — that is, land indisputably belonging to Israel for 72 years — is considered negotiable, but every inch on the other side is off the table. Are the 1967 lines sacrosanct or not? The double standard, applied to Jews but not to Palestinians, only raises questions about intent.

Some inconsistency can be dismissed, but undermining the rule of law should not be. Let’s be clear: Applying the Geneva Convention to the territories under Israeli control undermines rather than advances the rule of law.

Fifty years of propagandistic debate over Israel in the international community must not be allowed to obscure facts, both historical and legal. The legal disposition of all the territories defined by the League of Nations’ Mandate for Palestine of 1921, which today encompasses the State of Israel, Jordan, and the territories under question, is still grounded in that Mandate. All the Mandate’s provisions were perpetuated in no less than the UN Charter (Article 80), which is ratified by the United States and all European countries. Those provisions were then transitioned into the law codes of the countries that ratified it.

So what are those provisions? The preamble to the Mandate “recognizes” that the Jewish people have an inherent right to the territory defined by the Mandate, a sole claim to the deed in terms of property law, as opposed to being “granted” or awarded that right by the international body. It essentially says that the right is already that of the Jewish people, and the international community cannot therefore grant to a people that which is already theirs. The passage of the preamble is:

Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty [the Balfour Declaration], and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people. . . Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country. . .

That makes Israel one of only a very few nations anchored in an inherited right (which can be revoked by no one), rather than a granted right (which the giver of the right can take back). Under international law, only a handful of European countries, and very few elsewhere, have such an inherited right. That right, which essentially recognizes a deed to the land, also legally establishes the unbroken link between modern Israel and the Israel of two millennia ago.

Article 2 then lays out the specific, primary purpose of the entire Mandatory government and period: “The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions.”

Article 5 of the Mandate establishes the borders of the land as defined in the Mandate, which includes the territories that today are Jordan, Israel, the Palestinian Authority (in what is commonly known as the West Bank), and Gaza. Article 5 also asserts the principle that the Jewish people, as the deed-holders of the land, possess the sole legal right to make any modifications to the territorial definitions (including borders) of that land. It was for this reason that the cease-fire agreement (the Rhodes Agreement) of 1949, which ended the 1948 War of Independence and set what is commonly referred to as the 1967 lines, quite clearly could not, and did not, terminate any Jewish claims to the lands beyond the control of the Israeli army. To be clear, this is the text of the 1949 Rhodes Agreement, which delineated the 1967 lines: “The Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question.”

In short, under international law, the 1967 lines cannot be considered a border and cannot be used to prejudice the setting of a border. Thus, for the EU to regard the 1967 lines as some sort of legal absolute in fact has no legal foundation, and indeed undermines existing legal foundations.

The Mandate’s Article 6 elaborates on the obligation to fulfill the Mandate’s purpose: to assist — in terms of translating the Jewish people’s claims into a practical program — in the effort to realize the Jewish people’s rights, and to restore its nation in the territory of the Mandate. Settlement is explicitly stated as one of those rights and obligations. For the Mandatory authority and any successor (Britain then, Israel now), the legitimacy of its continued rule in the territory is contingent on its being the agent of resurrecting the Jewish nation. Thus the ruling authority has the explicit obligation to facilitate settlement of all the land.

To summarize: First, the legal basis for governance of what is Jordan, Israel, and the Palestinian territories starts from the foundation that the Jewish people are the deed-holders of the land. Second, the Jewish people alone have the right to adjust its borders. Third, the Jewish people have the full right to settle the land in its entirety, which actually any authority in the territory has the legal obligation to encourage.

Shortly after the Mandate went into effect in 1922, the Mandatory Palestinian lands east of the Jordan River, or “Trans-Jordanian Palestine” (or simply Transjordan) were separated for practical and political reasons under Article 25. (The British needed a piece of real estate to compensate the Hashemite clan for London’s having ignobly abandoned the Hejaz, in western Saudi Arabia, to the Saud clan.) But to do so the British Mandatory Authority first had to secure the approval of the Jewish people. The Jewish Agency — the formal representative of the Jewish people under the Mandate — informed the British that they agree to suspend, but not surrender, the right to Transjordan (which eventually became today’s Jordan). It was only under the Jordanian–Israeli peace treaty of 1995 that Israel finally formally surrendered its right to the east bank of the Jordan River, namely Transjordan, and granted it to the Hashemite Kingdom of Jordan. That the legal foundations of Jordan’s very existence rest on the indulgence of the Jewish State should give pause to the current Jordanian king when he threatens Israel, as he has unwisely begun to do over the issue of Israel’s annexation plans to the west of the Jordan River.

The remaining territories of Mandatory Palestine, along the western banks of the Jordan River, were known after 1922 as Cis-Jordanian Palestine, or West-Bank of the Palestinian Mandate, which is what today includes Israel, the Palestinian Authority areas, and Gaza. The Mandate still defines the terms of this terrain. The Jewish people are still the deed-holders for the real estate; as the successor of the Mandate, Israel alone has the right to adjust its borders and cede land; and the government of Israel has not only the right but the obligation to encourage settlement of the land. This is international law.

The Fourth Geneva Convention takes effect only when the sovereign territory of a nation is seized from it, and the legal sovereign of that nation, namely the High Contracting Authority, as it is called, formally submits its continued claim to that territory, making it “occupied territory” still belonging to the sovereign nation. The only valid High Contracting Authority, namely the sovereign deed-holder to the land, in the Palestinian Mandatory areas west of the Jordan, remains Israel. As such, the taking of any territory from that terrain against the will of the Jewish people makes the Israeli government a valid High Contracting Authority and invokes the Fourth Geneva Convention provisions to protect its interests and those of the Jewish people. Jordan’s occupation of the territories west of the Jordan River from 1948 to 1967, the annihilation of the Jewish communities there, the destruction of the Jewish cultural presence in the land (including the razing of the Jewish Quarter of Jerusalem) — all constitute serious war crimes under the Geneva Convention by the Jordanian government. Again, the current Hashemite king would do well to remember these facts in light of Israel’s plans to annex lands to the west of the Jordan River.

The upshot is this: Only Israel can invoke the Fourth Geneva Convention as the High Contracting Authority (sovereign) over the portions of the Palestinian Mandate west of the Jordan River, and then as protection of Jewish national rights, and not as a mechanism to deny the Jewish people their rights. The Europeans cannot legally invoke the Fourth Geneva Convention against Israel. And that eviscerates the entirety of claims against Israel regarding the illegality of altering the 1967 lines and encouraging settlements.

Moreover, any hostile act, such as sanctions of any sort, blocking the extension of Israeli sovereignty into any portion of the Mandate on the western banks of the Jordan River would undermine the rule of law and violate the international community’s legal obligations to defend the rights of the Jewish people in their homeland, as defined and recognized by the international community nearly a century ago, enshrined in the UN Charter, and ratified by the member states of the United Nations, making it their own law.

If the EU really cares about the rule of law and consistency, it will accept the implementation of annexations and settlements under the laws they claim to uphold rather than try to invoke this or that inapplicable treaty or agreement to condemn them.

If, however, the reigning elites of the EU proceed as expected to threaten Israel, holding sanctions or other punishments over them like a sword of Damocles, it will reaffirm for Americans (who broadly support Israel in this matter, according to all polls) and Israelis that their growing distrust of European elites and cynicism regarding European intentions are warranted. To put it simply, when European elites try to pressure Israel into territory-ceding positions it cannot accept, then their behavior becomes a threat to the rule of law, undermines the credibility and importance of international law, and only encourages those Palestinians and others who seek to destroy Israel rather than reconcile with it, thus leading to greater conflict, violence, and bloodshed. The one thing it will surely not achieve is peace.

David Wurmser is a senior fellow at the Center for Security Policy. He was formerly a senior adviser to the National Security Council under President Trump, to Vice President Cheney on Near East affairs, and to then–Under Secretary John Bolton at the State Department, as well as a senior intelligence officer in the U.S. Navy Reserves.

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