Along with 102 of my fellow public international law scholars, I have signed the following open letter condemning Israel’s plan to illegally annex large swathes of the West Bank. If you are interested in joining the list, please send an email with your name and affiliation to [email protected] before July 1. I will update this post with new names every few days. (And please note: I did not write the letter.)
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June 10, 2020
MK Benjamin Netanyahu, Prime Minister
MK Benny Gantz, Alternate Prime Minister and Minister of Defense
MK Gabi Ashkenazi, Minister of Foreign Relations
MK Avi Nissenkorn, Minister of Justice
Dr. Avichai Mandelblit, Attorney General
State of Israel
Dear Sirs,
We, the undersigned, scholars of public international law, are writing to express our grave concern regarding the intention of the State of Israel, as expressed by Prime Minister Benjamin Netanyahu, to move towards the unilateral annexation of areas in the West Bank on or after 1 July 2020.
Such an action would constitute a flagrant violation of bedrock rules of international law, and would also pose a serious threat to international stability in a volatile region.
The norm prohibiting unilateral annexation of territory acquired by force has come to be universally recognized as a basic rule of international law. All international courts (including the International Court of Justice) and all international institutions (including the UN General Assembly and Security Council) who have considered this matter, as well as the overwhelming majority of international jurists, affirm this rule unequivocally. This prohibition applies equally to territories belonging to other states, as well as to non-self-governing territories in which peoples are entitled to determine their political fate in accordance with the right to self-determination. Furthermore, this prohibition applies to all territories occupied by force, even if it is claimed that force was initially used in an act of self-defense.
The West Bank was taken by force in 1967. It has been consistently recognized by the UN General Assembly, the UN Security Council, and the International Court of Justice as an occupied territory, in which the Palestinian people is entitled to fulfill its right to self-determination. This remains so even if bilateral negotiations could determine the details of security arrangements and final borders. Furthermore, the Israeli government as well as the Israeli Supreme Court have for decades applied the law of belligerent occupation to the West Bank. This is demonstrated in dozens of decisions by the Supreme Court of Israel, as well as in Israel’s positions before international treaty bodies, where it argues that the West Bank is not under Israeli jurisdiction for the purpose of application of human rights treaties.
It follows that unilateral annexation of any part of this territory would violate the fundamental norm prohibiting annexation as well as the right to self-determination. As such, it would be null and void, entail consequences of international wrongfulness, and – under certain circumstances – lead to individual international criminal liability. In this context, it matters not whether such actions would be effected through “extension of sovereignty,” “extension of law, jurisdiction, and administration,” or explicit annexation. De facto annexation entails the same legal consequences as de jure annexation. Additionally, in no case can such an act lawfully bring about or justify discriminatory results, inter alia in relation to citizenship or property rights.
We would like to remind you that in a recent memo by Israel’s Attorney General, it was argued explicitly that all territorial aspects of the Israeli-Palestinian conflict must be resolved through bilateral negotiations.[1] Moves to annex parts of the territory would run counter to this pledge. Furthermore, in accordance with its longstanding position that the West Bank is held under belligerent occupation, Israel consistently argued that its actions in the territory are justified by the temporary nature of the situation, and motivated by security concerns alone.[2] Any move to annex territories will put in question past and future arguments by Israel that its actions are indeed concerned only with legitimate security needs.
We therefore urge you to reconsider this path, which is clearly unlawful and will most likely have adverse consequences, including non-recognition and other consequences of an internationally wrongful act. This is in addition to the harm to the legitimacy and foreign relations of the State of Israel, and to a high likelihood of violent escalation.
[1] State of Israel, Office of the Attorney General, The International Criminal Court’s Lack of Jurisdiction over the So-Called “Situation in Palestine” §49 (Dec. 20, 2019).
[2] For instance, concerning the legality of the West Bank Wall/Security Barrier, Israel claimed –indirectly before the International Court of Justice and directly in its own Supreme Court – that the route of the Wall is strictly based on security considerations, and is not designed to determine borders. Indeed, as ruled by the Israeli Supreme Court, sitting as the High Court of Justice, “the military commander is not authorized to order the construction of a separation fence, if the reason behind the fence is a political goal of ‘annexing’ territories of the area to the State of Israel and to determine Israel’s political border.” See HCJ 7957/04 Mara’abe v. The Prime Minister of Israel §15 (2005).
Signatories (affiliations are for identification purposes):
Mads Andenas, Professor, Professor of Law, Faculty of Law, University of Oslo
Kyo Arai, Professor of International Law, Doshisha University, Kyoto
Yutaka Arai, Professor in International Human Rights Law, Brussels School of International Studies, University of Kent, Brussels
Cecilia M. Bailliet, Professor of International Law, University of Oslo, Norway
Orna Ben-Naftali, Emile Zola Chair for Human Rights, Shtricks Scool of Law, The College of Management
Daniel Benoliel, Associate Professor, Faculty of Law, University of Haifa
Eyal Benvenisti, Whewell Professor of International Law, Faculty of Law, University of Cambridge
Nathaniel A. Berman, Rahel Varnhagen Professor, Brown University
Nehal Bhuta, Professor of Public International Law, University of Edinburgh
Eirik Bjorge, Professor of Law, University of Bristol Law School
Ziv Bohrer, Senior Lecturer, Bar-Ilan University Faculty of Law
Bill Bowring, Professor of Law, School of Law, Birkbeck University of London
Tomer Broude, Bessie & Michael Greenblatt, Q.C., Chair in Public and International Law, Faculty of Law, Hebrew University of Jerusalem
Jutta Brunnée, University Professor, Metcalf Chair in Environmental Law, University of Toronto Faculty of Law
Gráinne de Búrca, Florence Ellinwood Allen Professor of Law, NYU School of Law
Sarah H. Cleveland, Louis Henkin Professor of Human and Constitutional Rights, Columbia Law School
Geoff S. Corn, Vinson & Elkins Professor of Law, South Texas College of Law Houston
Harlan G. Cohen, Gabriel M. Wilner/UGA Foundation Professor in International Law, University of Georgia
Olivier Corten, Professor of International Law, Université libre de Bruxelles
Matthew Craven, Professor of International Law, SOAS, University of London
Omar M. Dajani, Professor of Law, McGeorge School of Law, University of the Pacific
Tom Dannenbaum, Assistant Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts University
Natalie Davidson, Lecturer, Buchmann Faculty of Law, Tel Aviv University
Janina Dill, Associate Professor, University of Oxford Department of Politics and International Relations
Catriona Drew, Lecturer in International Law, School of Law, SOAS University of London
Dieter Fleck, Honorary President, International Society for Military Law and the Law of War
Gregory Fox, Professor of Law, Wayne State University Law School
Tarcisio Gazzini, Professor of International Law, University of East Anglia
Robin Geiss, Chair of International Law and Security, University of Glasgow; Swiss Chair of International Humanitarian Law, The Geneva Academy of International Humanitarian Law and Human Rights
Rotem Giladi, Teaching Fellow in International Law, University of Edinburgh Law School
Christine D. Gray, Emerita Professor of International Law, University of Cambridge Faculty of Law
James A. Green, Professor of Public International Law, University of Reading
Aeyal Gross, Professor of Law, Buchmann Faculty of Law, Tel Aviv University
Francoise Hampson, Emerita Professor of Law, University of Essex
Matthew Happold, Professor of Public International Law, Faculty of Law, Economics and Finance, University of Luxembourg
Guy Harpaz, Associate Professor, Faculty of Law and Department of International Relations, Hebrew University of Jerusalem
Adil Haque, Professor of Law and Judge Jon O. Newman Scholar, Rutgers Law School
Kevin Jon Heller, Associate Professor of International Law, University of Amsterdam, Professor of Law, Australian National University
Christian Henderson, Professor of International Law, University of Sussex
Larissa van den Herik, Professor of Public International Law, Grotius Centre for International Legal Studies, Leiden University
Moshe Hirsch, Maria Von Hofmannsthal Chair in International Law, Faculty of Law, Hebrew University of Jerusalem
Tamar Hostovsky Brandes, Senior Lecturer, Faculty of Law, Ono Academic College
Robert Howse, Lloyd C. Nelson Professor of International Law, NYU School of Law
Ardi Imseis, Assistant Professor, Faculty of Law, Queen’s University
Ioannis Kalpouzos, Lecturer on Law, Harvard Law School; Lecturer in Law, City University of London
Alexandre (Sandy) Kedar, Associate Professor of Law, Faculty of Law, University of Haifa.
Jan Klabbers, Professor, University of Helsinki Faculty of Law
Jann K. Kleffner, Professor of International Law, Swedish Defence University
Robert Kolb, Professor of Public International Law, Law Faculty, University of Geneva
Martti Koskenniemi, Professor of International Law, University of Helsinki Faculty of Law
Shiri Krebs, Senior Lecturer, Faculty of Law, Deakin University
David Kretzmer, Professor Emeritus of International Law, Hebrew University of Jerusalem
Nico Krisch, Professor of International Law, Graduate Institute for International and Development Studies, Geneva
Nicolas Levrat, Professor of European and International Law, Global studies Institute, University of Geneva
Eliav Lieblich, Senior Lecturer, Buchmann Faculty of Law, Tel Aviv University
Karin Loevy, JSD Program Manager and IILJ Research Scholar, NYU Law School of Law
Marco Longobardo, Lecturer in International Law, University of Westminster
David Luban, University Professor and Professor of Law and Philosophy, Georgetown University Law Center
Noam Lubell, Professor of International Law, School of Law, University of Essex
Doreen Lustig, Senior Lecturer, Buchmann Faculty of Law, Tel Aviv University
Itamar Mann, Senior Lecturer, Faculty of Law, Haifa University
Susan Marks, Professor of International Law, London School of Economics
Tamar Megiddo, Minerva Center for the Rule of Law under Extreme Conditions, Faculty of Law, University of Haifa
Marko Milanovic, Professor of Public International Law, University of Nottingham School of Law
Makane Moïse Mbengue, Professor of International Law, Faculty of Law, University of Geneva
Kirsten McConnachie, Associate Professor in Law, University of East Anglia
Samuel Moyn, Henry R. Luce Professor of Jurisprudence and Professor of History, Yale University
Stefan Oeter, Professor of Public International Law, Faculty of Law, University of Hamburg
Phoebe Okowa, Professor of Public International Law, Queen Mary, University of London
Anne Orford, Redmond Barry Distinguished Professor, Michael D Kirby Chair of International Law, Melbourne Law School, The University of Melbourne
Dianne Otto, Francine V. McNiff Chair in Human Rights Law, Melbourne Law School, The University of Melbourne
Paolo Palchetti, Professor of International Law, University Paris 1 Panthéon-Sorbonne
Anne Peters, Managing Director, Max Planck Institute for Comparative Public Law and International Law, Heidelberg
Frances Raday, Elias Lieberman Chair in Labour Law, Hebrew University of Jerusalem, Faculty of Law, Hebrew University of Jerusalem; Director of Concord Research Institute for Integration of International Law in Israel, Shtricks School of Law, The College of Management
Surabhi Ranganathan, University Senior Lecturer, University of Cambridge Faculty of Law
Steven R. Ratner, Bruno Simma Collegiate Professor of Law, University of Michigan Law School
Yaël Ronen, Professor of Law at the Academic Center for Science and Law at Hod Hasharon; Minerva Center for Human Rights, Hebrew University in Jerusalem
Brad R. Roth, Professor of Political Science and Law, Wayne State University
Tom Ruys, Professor of International Law, Ghent University
Michal Saliternik, Lecturer, Netanya Academic College School of Law
Marco Sassòli, Professor of International Law, University of Geneva
Ben Saul, Challis Chair of International Law, University of Sydney
Michael N. Schmitt, Professor of International Law, University of Reading
Andrew I. Schoenholtz, Professor from Practice and Director, Human Rights Institute and Center for Applied Legal Studies, Georgetown University Law Center
Yuval Shany, Hersch Lauterpacht Chair in Public International Law, Faculty of Law, Hebrew University of Jerusalem
Scott J. Shapiro, Southmayd Professor of Law and Professor of Philosophy, Yale University
Sivan Shlomo-Agon, Lecturer, Bar-Ilan University Faculty of Law
Stefan Talmon, Professor of Public Law, Public International Law and European Union Law, University of Bonn
Christian J. Tams, Professor of International Law, University of Glasgow
Attila M. Tanzi, Chair of International Law, School of Law, University of Bologna
Ruti Teitel, Ernst C.Stiefel Professor of Comparative Law, New York Law School
Dire Tladi, Professor of International Law, University of Pretoria
Antonios Tzanakopoulos, Associate Professor of Public International Law, University of Oxford Faculty of Law
Maria Varaki, Lecturer in International Law, War Studies Department, King’s College London
Carlos M. Vázquez, Scott K. Ginsburg Professor of Law, Georgetown University Law Center
Yael Vias Gvirsman, Lecturer in International Law; Director, International Criminal and Humanitarian Law Clinic, Harry Radzyner Law School, Interdisciplinary Center (IDC), Herzliya
Michael Waibel, Professor, Department of European, International and Comparative Law, University of Vienna
Ralph Wilde, Associate Professor, Faculty of Laws, University College London
Siobhán Wills, Professor of Law, Transitional Justice Institute, Ulster University
Ariel Zemach, Senior Lecturer, Faculty of Law, Ono Academic College
Andreas Zimmermann, Professor, Faculty of Law, University of Potsdam
Gentian Zyberi, Professor of International Law and Human Rights, Faculty of Law, University of Oslo
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Kevin Jon Heller is Associate Professor of Public International Law at the University of Amsterdam and Professor of Law at the Australian National University.
Featured image is from IMEMC
