Today, Al-Haq publishes its latest Q&A on “Israel’s De Facto Annexation of Palestinian Territory”. The publication offers an important overview of the law on de facto annexation. It further explains how since 1967, Israel’s parliament (the Knesset) has increasingly extended its sovereign authority over the West Bank, through legislative acts, in breach of its limited administrative authority as a belligerent occupant, and amounting to de facto annexation. In addition, it examines violations of international humanitarian law amounting to war crimes and crimes against humanity by Israel as Occupying Power which together may be considered as establishing a pattern of permanent measures amounting to de facto annexation.
Part 1 of the Q&A explains the provisions of international law governing annexation as an act of aggression and provides in detail, the jurisprudence of the International Court of Justice, governing de facto annexation. Article 2(4) of the 1945 United Nations Charter enshrines the prohibition on the acquisition of territory by force, stating that, “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. During belligerent occupation, acts of annexation are specifically prohibited under Article 47 of the Fourth Geneva Convention.
A de facto situation of annexation occurs through the adoption of a series of measures and actions on the ground that indicate the implied intention of the Occupying Power to permanently incorporate the occupied territory. In this regard, the application of the domestic law of the annexing State, short measures of direct incorporation will amount to de facto annexation. The term ‘de facto annexation’ is well understood as acts giving rise to annexation and is specifically referred to in the jurisprudence of the International Court of Justice (ICJ), United Nations War Crimes Commissions, UN Special Procedures, the European Parliament, and EU Fact Finding Missions.
The clearest recognition of the concept of ‘de facto annexation’ arises in the Advisory Opinion of the ICJ in the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory, wherein the Court concluded: “Whilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature… it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. The Court considers that the construction of the wall and its associated régime create a “fait accompli” on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.”
Part 2 examines how Israel’s settler colonial project is realized through Israel’s continued expansion into Palestinian land in the Occupied Palestinian Territory, i.e. the West Bank, including East Jerusalem and the Gaza Strip. The fragmentation of Palestinian territories and the separation of Palestinian communities from one another detrimentally impacts healthcare, in violation of Article 12(1) of the ICESCR on the right to the enjoyment of the highest attainable standard of physical and mental health. Overall, limitations on Palestinian freedom of movement, and access to land, services, and livelihoods, also threatens to exacerbate the unemployment crisis and curtail economic activity.
Throughout 2019, Al-Haq documented a sharp increase in house demolitions and forcible transfer in Area C as Israel prepared to implement the so-called “Peace to Prosperity Plan” and for a de jure annexation of large tracts of Area C in July 2020. Of the 362 public and private structures demolished across the entire West Bank, 36 percent of the documented demolitions were homes located near illegal Israeli settlements, the annexation wall, planned settlement areas, or land under the threat of confiscation. As a result, 669 Palestinians, including 271 children, were displaced.
As the COVID-19 pandemic shut Palestine off from the world, Israel escalated house demolitions. In 2020, the Israeli Occupying Forces demolished a total of 535 private and public structures, making it twice the annual number of demolitions of any year in the previous ten years. This reflected the shift in Israel’s colonisation plans, greenlighted by US President Donald Trump’s, and continued at pace ever since.
Al-Haq calls on Third States and the international community to address the root causes of Israel’s prolonged occupation, and to take concrete steps to bring to an end the de facto annexation of the West Bank and end the apartheid regime of institutionalised racial discrimination against the Palestinian people as a whole. One important first step, is for third States to not recognise the illegal acts of de facto annexation as lawful, and to follow with concrete measures of not rendering aid or assistance in maintaining the illegal de facto annexation, including through economic countermeasures and sanctions.