Germany warns Israel that annexation of any part of the occupied Palestinian territories would represent “a most serious violation of international law”

Published: 27 May 2021 Author: Stefan Talmon

The annexation of parts of the Palestinian territories occupied by Israel since 1967 had been an issue in Israeli domestic politics for many years. Especially during the two closely fought elections for Israel’s parliament, the Knesset, in April and September 2019, incumbent Prime Minister Benjamin Netanyahu vowed to annex about one-third of the occupied West Bank if he won another term in office. On both occasions, the two main parties, Benjamin Netanyahu’s Likud and the Blue & White alliance of Benny Gantz, failed to win a majority. As no new government could be formed, another round of elections was scheduled for 2 March 2020. In the meantime, Prime Minister Netanyahu continued in a caretaker capacity.

During the election campaigns, Prime Minister Netanyahu indicated that his plans to annex the Israeli settlements in the West Bank had the support of the U.S. Government. This was confirmed on 28 January 2020, when U.S. President Donald Trump unveiled his Middle East Peace Plan in the presence of Prime Minister Netanyahu at the White House. Palestinian leaders were not present at the event, having rejected the plan as flagrantly biased towards Israel. The 181-page plan, officially titled “Peace to Prosperity: A Vision to Improve the Lives of the Palestinian and Israeli People”, envisioned the Israeli annexation of large parts of the occupied Palestinian territories. Israel was to annex about 30% of the West Banks which included approximately 97% of the illegal Israeli settlements in that territory. Israel was also to annex the Jordan Valley and the territorial waters off the coast of the Gaza Strip which were considered both vital to Israel’s security. Finally, the annexation of East Jerusalem and parts of the West Bank as part of Israel’s sovereign and undivided capital was to be confirmed. Unveiling his plan at the White House, U.S. President Trump declared that “the United States will recognize Israeli sovereignty over the territory that my vision provides to be part of the State of Israel.” The Plan was accompanied by a “conceptual map” which was to give a general idea of the territories to be annexed. President Trump announced that the United States and Israel would form a joint committee “to convert the conceptual map into a more detailed and calibrated rendering so that recognition can be immediately achieved.”

In a first reaction, Germany did not reject the Plan outright but noted that it “departs from the internationally agreed parameters.” During the Security Council briefing on the situation in the Middle East on 11 February 2020, Germany’s Deputy Permanent Representative to the United Nations provided a more detailed response, stating:

“Germany remains firmly committed to a negotiated two-State solution, based on 4 June 1967 lines, with equivalent land swaps, as may be agreed between the parties, with Jerusalem as the future capital of both States, and with the State of Israel and an independent, democratic, contiguous, sovereign and viable State of Palestine, living side by side in peace, security and mutual recognition.

We continue to believe that the two-State solution is the only viable solution to the Israeli-Palestinian conflict that meets Israeli and Palestinian security needs, fulfils Palestinian aspirations for statehood and sovereignty, ends the occupation that began in 1967, resolves all permanent status issues, and guarantees equal rights for all.

Unilateral actions and creating facts on the ground in order to impose a certain outcome are counterproductive and will neither bring closer a just and lasting solution nor lead to a sustainable peace and security. To build a just and lasting solution, the final status issues, including the issues related to borders, the status of Jerusalem, security and the refugee situation, must be resolved through direct negotiations between both parties.

We therefore call on the parties to the conflict, and also on all international stakeholders, to refrain from taking any measures which risk undermining the viability of a negotiated two-State solution on the basis of international law, all relevant United Nations resolutions and the internationally agreed parameters.

We have taken note of the proposals presented by United States in relation to the Israeli-Palestinian conflict and have determined that they depart from the internationally agreed parameters, notably on the final-status issues, with regard to the status of Jerusalem, future borders and Israeli settlements. The Middle East Peace Process has been stalled for too long, and the absence of direct negotiations towards a just, comprehensive and lasting solution to the conflict is [a] source of frustration, first and foremost for the people in Israel and for the Palestinians, who desperately need and want peace. We therefore welcome fresh thinking and any efforts which aim at reviving the political process and reaffirm our belief that any viable proposal for direct negotiations must be accepted by both parties. The previous resolutions of the Council reflect both international law as well as parameters for negotiations that both parties have previously accepted in negotiations.

The most recent proposals by the United States contain detailed provisions for future negotiations that merit thorough analysis and discussion, as they raise a number of pertinent questions of great importance to both parties. We therefore believe that establishing or reviving a multilateral format would enable us to elaborate this most recent and other proposals before it. Those discussions could be helpful in achieving the shared objective of creating an environment conducive to the resumption of meaningful and genuine negotiations between the parties to resolve all permanent-status issues and to achieve a negotiated, just and viable solution to the conflict. […]

One of the main obstacles to a political settlement of the Israeli-Palestinian conflict remains the ongoing Israeli occupation and the continued settlement activities in the territories occupied since 1967. We reiterate our position that Israeli settlement activities in the occupied Palestinian territories are illegal under international law. They undermine the prospects for ending the occupation and achieving a negotiated two-State-solution. […]

We remain extremely concerned about the repeated statements by Israeli officials alluding to or announcing an intended annexation of the Jordan Valley and other parts of the occupied West Bank. The annexation of any part of the occupied Palestinian territory, including East Jerusalem, constitutes a breach of international law, undermines the viability of the two-State solution and challenges the prospects for just, comprehensive and lasting peace. Steps towards annexation, if implemented, would not be recognized and would have serious negative repercussions across the region. We therefore strongly advise the Israeli Government against taking any steps in that direction. […]

We reiterate that Germany will continue to distinguish between the territory of the State of Israel and the territories occupied since 1967. We will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations.”

At the end of February 2020, the joint U.S.-Israeli committee started work on a detailed map of the West Bank areas to be annexed by Israel. A day ahead of Israel’s election on 2 March 2020, Prime Minister Netanyahu said the annexation of the Jordan Valley and other parts of the West Bank would be one of his top priorities, if re-elected. The election, again, resulted in a political stalemate which was only resolved on 20 April 2020, when Likud and Blue & White reached an agreement to form a coalition government headed initially by Benjamin Netanyahu. Under the agreement, Prime Minister Netanyahu was allowed “to bring the agreement reached with the United States on the issue of applying sovereignty” to parts of the occupied Palestinian territories “to a debate in the security cabinet and the full cabinet, and for the approval of the cabinet and/or the Knesset.” Commenting on the 20 April 2020 agreement to advance plans for the annexation, Federal Foreign Minister Heiko Maas stated:

“Annexation of any part of occupied Palestinian territories including East Jerusalem constitutes a clear violation of international law and seriously undermines the chances for the two-state solution within a final status agreement. […] international law, including international humanitarian law and international human rights law, constitutes a cornerstone of peace and security in the region and of a rules-based multilateral order globally.”

On 30 April 2020, the German ambassador to Israel joined the ambassadors of ten other European States and the European Union in a formal protest against Israel’s annexation plan. The ambassadors wrote:

“We are very concerned about the clause in the coalition agreement that paves the way for annexing parts of the West Bank. The annexation of any part of the West Bank constitutes a clear violation of international law. Such unilateral steps will harm efforts to renew the peace process and will have grave consequences for regional stability and for Israel’s standing in the international arena.”

On 17 May 2020, Benjamin Netanyahu was sworn in as Prime Minster. Presenting his new cabinet to the Knesset, he vowed to annex the Israeli settlements in the occupied West Bank, saying: “These areas of the country are birthplaces of the Jewish nation. It’s time to apply Israeli law over them. […] The truth, and everyone knows it, is that hundreds of thousands of settlers in Judea and Samaria would always stay where they are under any agreement. The issue of sovereignty is on the agenda solely because I personally acted to advance it openly and honestly for the past three years.” Commenting on these latest developments, Germany’s Deputy Representative to the United Nations stated in the UN Security Council meeting on the Middle East Peace Process on 20 May 2020:

“[W]e are seriously concerned about the provisions in the coalition agreement as well as remarks made by members of the new Israeli Government regarding a possible annexation of the occupied Palestinian territories in the West Bank. We firmly believe that unilateral action in that regard would be extremely harmful to a peaceful resolution of the conflict. It would have serious, negative repercussions for […] the rules-based international order itself. […] we therefore strongly encourage the Israeli Government not to implement any measures that would constitute a violation of international law. We will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, unless agreed to by Israel and the Palestinians. We will continue to distinguish between the internationally recognized territory of the State of Israel and the Palestinian territories occupied since 1967, in accordance with our obligations under international law.”

On 28 May 2020, Prime Minister Netanyahu reiterated that he was committed to starting the process of extending Israeli sovereignty to parts of the West Bank in July 2020, after a joint Israeli-U.S. team had completed the process of mapping the exact vision for the future of the territory based on a conceptual map forming part of U.S. President Trump’s Middle East Peace Plan.

On 10 June 2020, Federal Foreign Minister Maas travelled to Israel to hold talks with Prime Minister Netanyahu, Defence Minister and Alternate Prime Minister Benny Gantz and Foreign Minister Gabi Ashkenazi and to convey Germany’s concerns regarding the annexation plans. After talks with his Israeli counterpart, he told reporters: “I repeated here today the German position as well as our serious concerns as a special friend of Israel of the possible consequences of such a step.” He was, however, later told by Prime Minister Netanyahu that any “realistic plan must recognise the reality of Israeli settlement in the territory and not foster the illusion of uprooting people from their homes.”

The Federal Government made it clear that it considered the Israeli annexation plans to be contrary to international law and it would not recognise such annexation. In response to a parliamentary question about the planned annexation of Palestinian territories by Israel, the Minister of State at the Federal Foreign Office, Michael Roth, stated on 17 June 2020:

“The Federal Government’s policy is aimed at avoiding the implementation of the annexation plans. The Federal Government would not recognize an annexation contrary to international law. Consistent with Security Council resolution 2334 in its conduct it already distinguishes between Israel in the 1967 borders and the territories occupied by Israel.”

For Germany, the planned Israeli annexation of parts of the occupied Palestinian territories constituted a “watershed moment” for international law and the United Nations. During the UN Security Council meeting on the Middle East on 24 June 2020, Germany’s Permanent Representative to the United Nations, Ambassador Christoph Heusgen, stated:

“The Secretary-General in his introductory remarks also said that the annexation of occupied Palestinian territories would represent a most serious violation of international law. Germany shares this assessment. We are at a watershed moment. […] We are at a watershed moment […] for the rules-based international order and the United Nations. The Secretary-General said that we are faced potentially with the most serious violation of international law. Let us remember that the respect for international law is the basis of the United Nations. This is the very foundation of the United Nations. Disrespect undermines the United Nations.

Let me remind those colleagues who think that past UN Security Council resolutions may not be relevant anymore: they remain binding international law and Resolution 2334, which, after all, is just three years old, represents binding international law. […].”

It must be noted, however, that Germany’s statement submitted for the written record of the meeting was more restrained. There was no longer any mention of a “watershed moment”.  The assessment of the planned Israeli annexation of parts of the occupied Palestinian territories constituting “a” or even “the most serious violation of international law” had been toned down to “a clear violation of international law”. On the other hand, Ambassador Heusgen made it plain that this assessment applied “irrespective of the size of the territory and the terminology applied to enact a formal annexation.” Germany’s obligations and responsibilities under international law would make it impossible for the country to recognise such an annexation. Germany saw annexation as bringing closer a “de facto one-State reality with unequal rights for Israelis and Palestinians” – in other words, an apartheid State. Annexation would not just have been another violation of international law but would have harmed “Israel’s standing within the international community, as well as its close bilateral relationship with the European Union and its member States.” Germany therefore called for Israel to abandon its annexation plan.

During a debate on the Middle East peace process in the Federal Parliament on 1 July 2020, Foreign Minister Heiko Maas made it clear that despite its special relationship with Israel Germany would not be silent in the face of an illegal annexation, saying:

“Germany feels an obligation to Israel; that is part of our historical responsibility. But the same holds true for respecting the principles of international law. And if those two obligations should come into conflict, then that is something we will have to endure. To remain silent on this is not an option. We will not do so – and those responsible will have to endure that too.”

On 13 August 2020, the Israeli plans for annexing parts of the occupied Palestinian territories were shelved for the time being – not because of Germany’s or any other country’s objections but because the U.S. Government had brokered the full normalisation of diplomatic relations between the United Arab Emirates (UAE) and Israel. In a joint statement, the three countries said:

“As a result of this diplomatic breakthrough and at the request of President Trump with the support of the United Arab Emirates, Israel will suspend declaring sovereignty over areas outlined in the President’s Vision for Peace and focus its efforts now on expanding ties with other countries in the Arab and Muslim world.”

Germany welcomed this development. During the UN Security Council meeting on the Middle East on 25 August 2020, the German representative stated:

“We trust that annexation plans are truly and indefinitely suspended and that this will also include restraint with regard to ongoing settlement expansion or plans to build new settlements.”

The last word on the question of annexation, however, may not have been spoken. After the announcement of the normalisation of diplomatic relations with the UAE, Prime Minister Netanyahu told reporters: “There is no change in my plan to apply our sovereignty to Judea and Samaria [West Bank] in full co-ordination with the US. I’m committed to it. That hasn’t changed. I remind you that I was the one who put the issue of sovereignty over Judea and Samaria on the table. This issue remains on the table.”

While Germany may not be able to stop Israel annexing parts of the occupied Palestinian territories, it is important that it speaks out in the face of what would constitute a serious breach of norm of jus cogens. The principle of the illegality of the acquisition of territory by force must be upheld not just in the case of the Russian Federation and its illegal annexation of Crimea but also in the case of close allies and partners. Germany has a historic responsibility not only with regard to Israel but also with regard to international law. The annexation of territory in today’s world is not just about the violation of a particular rule of international law but about the rule of law more generally. Above all, it should be a question of shared values.

Category: Territorial sovereignty

 

Prof. Dr. Stefan Talmon LL.M. M.A

Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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