Israel's 'Trump Card' in the West Bank debate

The cornerstone of Israel's territorial claims rests on a well-established but often overlooked principle of international law: uti possidetis juris. This doctrine, consistently applied in cases from Latin America to post-Soviet states, holds that new countries inherit the borders of the last top-level administrative unit that preceded them. In Israel's case, this was the British Mandate for Palestine, established by the League of Nations in 1922.

When the Ottoman Empire collapsed after World War I, the League of Nations created various mandates to oversee the transition of former Ottoman territories to independent statehood. The Mandate for Palestine explicitly recognized "the historical connection of the Jewish people with Palestine" and called for "the establishment of the Jewish national home." The mandatory borders encompassed what is now Israel, the West Bank, and Gaza.

The significance of the mandate system cannot be dismissed as mere colonial history. Jordan's very existence and borders derive from Article 25 of the Palestine Mandate, which allowed Britain to create Transjordan. If one questions the mandate's legitimacy for Israel, one must logically question Jordan's legitimacy as well—a position no serious international actor takes.

The UN partition plan of 1947, often cited as defining Israel's borders, was merely a non-binding recommendation. The UN General Assembly lacks authority to create states or determine borders. As Eugene Kontorovich of George Mason University's Scalia Law School notes, "If you read the resolution, it is worded as a recommendation to Britain... and Britain thought the recommendation was very unwieldy."

When Israel declared independence in 1948, it inherited the mandate's borders under uti possidetis juris. Jordan's subsequent occupation of the West Bank (1948-1967) did not confer sovereignty—a fact recognized by the international community, as only Britain and Pakistan ever recognized Jordan's attempted annexation of the territory.

The principle that military conquest cannot confer sovereignty cuts both ways. If Jordan's 1948 conquest could not legally alter the territory's status, neither could Israel's recapture of the area in 1967 be considered an "occupation" of foreign territory. A country cannot legally occupy territory to which it has sovereign claim.

Consider the parallel with Crimea. The international community maintains Ukraine's sovereignty over Crimea despite Russian occupation because Crimea was part of the Ukrainian Soviet Socialist Republic when the USSR dissolved. The fact that most Crimeans may prefer Russian rule is legally irrelevant. Similarly, demographic arguments about the West Bank's Palestinian majority do not override Israel's inherited sovereign rights.

This interpretation finds support in UN Security Council Resolution 242 (1967), which carefully omits the word "all" when calling for Israeli withdrawal "from territories occupied in the recent conflict." As Lord Caradon, the resolution's primary drafter, later explained, this omission was deliberate, recognizing Israel would not be expected to return to the pre-1967 lines.

The 1994 Israel-Jordan peace treaty further complicates the "occupation" narrative. Even the U.S. State Department's influential 1978 Hansell Memorandum, which deemed Israeli settlements illegal, acknowledged that a peace treaty with Jordan would end any occupation. Yet after Israel and Jordan made peace, this crucial caveat was conveniently forgotten by occupation theorists.

None of this means Israel must permanently govern all territories under its sovereign claim. States can voluntarily cede territory through negotiation, as Israel did with the Sinai Peninsula under the Egypt peace treaty. But this is fundamentally different from being legally obligated to withdraw as an occupying power.

This flexibility in administration does not diminish underlying sovereignty claims, just as a nation's decision to grant autonomy to certain regions does not negate its sovereign rights. The question of how to best govern these territories - whether through direct Israeli administration, continued Palestinian Authority involvement, or some new arrangement - is ultimately a political rather than legal question.

The 1993 Oslo Accords created a complex administrative regime, with the Palestinian Authority exercising civil control in Areas A and B of the West Bank. However, this was a voluntary delegation of administrative authority by Israel, not a recognition of Palestinian sovereignty. The PA collects its own taxes, runs its own schools, and maintains internal security in Area A—but ultimate sovereignty remains with Israel.

This framework explains why proposals for Israel to "annex" parts of the West Bank are legally misconceived. As Kontorovich argues, "You cannot annex territory to which you already have sovereign claims." When Israel applies its civilian law to settlements, it is exercising existing sovereign rights, not acquiring new territory.

Israel's security measures in the West Bank—checkpoints, security barriers, military operations—are exercises of legitimate self-defense under Article 51 of the UN Charter. Every sovereign state has the right to protect its citizens from terrorism. The fact that Israel delegates civil administration to the PA in some areas does not negate this fundamental right.

Critics may object that this legal analysis ignores Palestinian aspirations for statehood. But international law distinguishes between claims based on self-determination and established sovereign rights. The Palestinians' desire for independence, however legitimate, does not automatically override Israel's inherited sovereign claims under uti possidetis juris.

Moreover, Israel's sovereignty does not preclude eventual Palestinian statehood through negotiation. But such an outcome must be achieved through mutual agreement, not imposed by declaring Israel an "occupying power" in territory to which it has legitimate sovereign claims.

The legal status quo suggests Israel need not "annex" the West Bank because one cannot annex territory to which one already has sovereign claim. However, Israel has chosen to maintain different administrative arrangements in different areas - full Israeli law in East Jerusalem, military administration in parts of the West Bank, and Palestinian Authority civil control in others.

The legal reality may be uncomfortable for those seeking to pressure Israel through allegations of "illegal occupation." But intellectual honest requires acknowledging that Israel's presence in the West Bank rests on firmer legal grounds than commonly assumed. As with Nagorno-Karabakh, Northern Cyprus, and Western Sahara, reducing complex territorial disputes to simplistic narratives of "occupation" often obscures more than it illuminates.

This does not absolve Israel of its obligations to treat Palestinian residents humanely and seek a peaceful resolution to the conflict. But it does mean that solutions must be sought through negotiation between parties with competing claims, not by misapplying occupation law to territory where Israel holds legitimate sovereignty under well-established principles of international law.