The misuse of international law to condemn Israel

(JNS) — More than 200 legal scholars have signed a letter on the prominent international law blog, Opinio Juris, condemning Israel’s prospective annexation of West Bank settlements. While this sentiment is backed by many United Nations resolutions, there’s a critical issue that like-minded jurists and institutions refuse to address: Their underlying reasoning leads to the curious conclusion that little, if any, Israeli territory actually belongs to Israel.

We’ve been told numerous times that territory cannot be acquired by force. The West Bank, which fell under Israeli control in the 1967 Six-Day War, therefore, would be off limits for annexation.

Just one problem: Israel became Israel due to an insurgency and a war of independence, rather than a peaceful transition of power. Following the scholars’ reasoning to its logical conclusion, a strong argument can be made that the Jewish community in the British Mandate acquired the whole of Israel by force, invalidating the Jewish claim to virtually every inch of Israeli soil.

Usually, when a position entails such absurd consequences, it is modified. In the realm of international law as applied to the Palestinian-Israeli conflict, however, poor reasoning is only followed by worse reasoning.

One ad hoc approach is to suggest that the prohibition only applies to already existing states. But we are still left with the fact that vast portions of what became Israel were acquired by force well after Israel satisfied the criteria for statehood and declared independence on May 15, 1948.

Israel’s largest southern city, Beersheva, was not acquired until late October 1948, and one would be hard-pressed to find a more deliberate forceful acquisition of territory. After all, Israel’s first prime minister, David Ben-Gurion, worked vigorously to stall a U.N.-mediated ceasefire to ensure that Israel had time to capture the city.

As for Eilat, troops did not reach what would become Israel’s Red Sea port city until March of 1949.

No country that established formal diplomatic relations with Israel has held Israel’s acquisition of these territories as unlawful. For all purposes, including trade and diplomacy, no distinction is made between Eilat and Tel Aviv.

This acquiescence proves critical in assessing the relevant international law. Under the Lotus Principle, acts are legal unless affirmatively illegal. For acts to be illegal, either there must be a treaty in place — or widespread customary practice — according to which states refrain from acts with the belief that doing otherwise would violate legal norms.

It’s difficult to imagine that Israel would have been admitted to the United Nations if the circumstances leading to its creation — the forceful acquisition of former British Mandate territory — had violated a treaty such as the U.N. Charter. Nor did there appear to be a violation of widespread customary practice, given the number of states that recognized Israel in its entirety.

Absent clear evidence of relevant changes in international law between 1949 and 1967, the Lotus Principle holds that what was not illegal in 1949 remained lawful during the Six-Day War.

India’s conquest of Portuguese-held Goa in 1961, a mere six years before Israel obtained control of the West Bank, argues strongly against any major legal developments in the intervening years. While Portugal vociferously argued that India acted illegally, and this position found sympathy in some Western states, plenty of states also sided with India. The widespread consensus required to change international law had not emerged.

Likewise, North Vietnam’s forceful acquisition of South Vietnam in 1975, eight years after the Six-Day War, was not met with the kind of unanimous legal opprobrium needed to indicate a change in customary norms.

There are strong indications that in certain circumstances, such as the Palestinian-Israeli conflict, it is permissible to acquire territory forcefully. Even if views gradually have evolved, Israel persistently has objected to any post-1967 customary norms that would require relinquishing its claims to parts of the West Bank. Absent unusual circumstances, changes in international law require the consent of affected parties.

Those arguing against Israeli annexation of its settlements have not adequately addressed the discrepancies in how the laws related to conquest are applied to Israel. This disparate treatment, itself a possible violation of general legal principles, fortunately has not gone unnoticed by the administration in Washington. On June 11, the same day that Opinio Juris released the scholars’ letter, U.S. President Donald Trump sanctioned the International Criminal Court for its highly politicized investigations of the United States and Israel.

Of course, legal scholars never should be sanctioned for holding erroneous beliefs. Instead, they should be encouraged to support their positions with cogent analysis, rather than retreating into an echo chamber. When it comes to the Palestinian-Israeli conflict, however, there’s far more echo chamber than critical thinking. Hopefully, that will change.

Matthew Mainen is a graduate of Stanford Law School and a Washington Resident Fellow at the Middle East Forum.