Some political forces in Israel urge annexation of all or a major part of the West Bank (Judea and Samaria) as was previously done by Israel in 1981 with east Jerusalem and the Golan Heights. For example, Naftali Bennett’s Jewish Home party, which has 11 parliamentary seats (out of 120) and is currently part of the ruling coalition, supports annexation of at least 60 per cent of Judea and Samaria. Likewise, some members of Prime Minister Netanyahu’s Likud party, including the coalition’s parliamentary whip Yariv Levin, support unilateral declaration of Israeli sovereignty over all or most of the West Bank.
Annexationists, as I will call them, assert a moral, legal, and historical Jewish right to settle in all of Judea and Samaria. The moral and historical foundations relate to the Jewish presence in that area going back thousands of years to the Hebrew tribes’ arrival and their evolution into Jewish kingdoms. Jewish presence in Judea and Samaria is also consistent with biblical promises to install Jewish control there. One biblical source (Genesis 15:18-21) would justify Jewish control from the Nile to the Euphrates and would encompass several modern Arab countries. The more modest biblical promise speaks to the land divided among the 12 tribes of Israel which would include Judea and Samaria (as well as green-line Israel, Gaza and part of Lebanon).
The legal foundation for Jewish presence on the West Bank lies principally in the 1922 League of Nations mandate authorizing British control of the Palestine portion of the former Ottoman Empire. The British mandate area included Judea and Samaria and the mandate provided for Jewish settlement toward a Jewish homeland in Palestine as endorsed in Britain’s 1917 Balfour declaration. That declaration had expressed British favor for “a national home” for the Jewish people to be created within Palestine by Jewish immigration, but without prejudice to the civil rights of existing non-Jewish communities in Palestine. Between 1922 and 1948, a small part of the influx of Jews into mandatory Palestine occurred in areas of Judea and Samaria like Gush Etzion; Jews in Hebron date back even further. Thus, at the moment when Israel was established in 1948, there was some legitimate Jewish presence on the West Bank.
The permanent borders of the State of Israel are not etched in stone. The 1948 declaration of statehood did not specify borders and the borders prevailing from 1949 to 1967 were established along the armistice lines following the 1948-49 war of independence fought against invading Arab armies. Those armistice lines left Judea and Samaria within control of the State of Jordan. Between 1949 and 1967, Jordan asserted sovereignty over and controlled the West Bank. During the 6-day war of 1967, which Jordan chose to enter to assist Egypt, Israel conquered the area of Judea and Samaria and the new armistice lines left Israel in control of the West Bank. The new 1967 “border” between Israel and Jordan (the Jordan River) was not intended to be permanent. U.N. Security Council resolution 242 in November 1967 called for Israeli withdrawal from occupied territory, but also called for secure boundaries for Israel; its drafters did not envisage strict return to pre-1967 boundaries. In short, there is legal room for adjustment of Israel’s boundaries from those prevailing between 1948 and 1967 and there’s some legal basis for a presence of Jews in Judea and Samaria. This is still a long way from entitlement to unilaterally annex all or a major part of the West Bank.
One obvious hurdle to annexation is demographic. Annexation of the entire West Bank would ostensibly entail permanent Israeli control of approximately 2.3 million Arab residents. In theory, a territorily expanded Israel could offer full citizenship to these Arab residents, just as Israel in 1948-49 bestowed full citizenship on all permanent residents, including Arabs and Beduins. In practice, annexationists, with rare exceptions, have no interest in according citizenship to another 2.3 million Arabs (beyond the existing 1.6 million Israeli Arabs).
Annexationists offer various solutions to the demographic obstacle. They would prefer to be free of physical entwinement with the West Bank Palestinian Arabs. Yet forced transfer (meaning mass expulsion of Arab residents from Judea and Samaria) is recognized to be beyond the moral and legal pale. The 1937 Peel Commission did favor the transfer of some Arabs as part of a suggested partition of mandatory Palestine, but not expulsion from Palestine.
An alternative annexationist idea is to promote Palestinian dispersion by providing economic incentives for Arab residents to leave Judea and Samaria. Such financial benefits would ostensibly favor the currently disadvantaged West Bank Arabs. Yet the economic incentive plan would fail. Even assuming the availability of financing, such an ethnically grounded dispersion effort would meet massive political opposition within the affected Arab population (as well as international condemnation). The ensuing resistance would doom the incentive idea to failure.
To grasp the depth of Arab resistance to dispersion, keep in mind that the great majority of the Arab residents of the West Bank have every right to be there. Some of these residents trace their roots in Palestine back hundreds of years. Another significant part of the Arab population are descendants of people who migrated to Palestine in the second half of the 19th century and the early 20th century from surrounding areas like Egypt. I.e., their forbearers settled in Palestine under the Ottoman domain just as did some forbearers of current Jewish Israelis. Both the 1917 Balfour declaration and the 1922 League of Nations mandate explicitly reassured the existing non-Jewish communities about their civil rights. Also, hundreds of thousands of Arab residents of the West Bank are descendants of former residents of Israel proper who were displaced by the 1948 war, settled in Judea and Samaria, and legitimately remained there between 1949 and 1967 while subject to de facto Jordanian control of the area. That these refugees were cynically exploited for the last 64 years by the Arab states’ refusal to resettle them elsewhere does not diminish their moral and legal right to remain in their adopted homes in Judea and Samaria if they so choose.
The most common “solution” advanced by annexationists seeking to cope with 2.3 million Arab residents is to treat the West Bank Arabs as resident aliens with some form of limited self-rule. (Some annexationists would link Arab residents’ prospective autonomy to Jordanian citizenship. However, while Jordan willingly exercised control over the area between 1949 and 1967, Jordan currently has no interest in exercising any kind of sovereignty there, or having any kind of citizenship connection with the Arab residents of the West Bank). Moreover, many annexationists reject any form of non-Israeli sovereignty within Judea and Samaria and thus confine the Arab residents’ prospective status to a limited autonomy under Israeli hegemony.
This notion of limited Arab self-rule anticipates peaceful coexistence between the resident Jews (Israeli citizens) and the Arab residents of an annexed West Bank. However, relegation of this Arab population to an unequal, non-citizen status vis a vis their Jewish neighbors is a prescription for unending turmoil and resistance.
To understand universal Arab rejection of inferior political status for Arab residents in Judea and Samaria, consider the Palestinian Arab perspective starting almost 100 years ago. At the establishment of the British mandate in 1922, the population of all of Palestine included approximately 80,000 Jews and 700,000 Arabs. Ever since 1922, Arab leaders in Palestine feared that Jewish immigration would result in subordination or forced transfer of the Arab population. The violent Arab rebellion in 1936 was one index of resistance to feared non-Arab control. By the end of the British mandate in 1947, Palestine’s population numbers were 600,000 Jews and 1,250,000 Arabs. During the 1948-49 Arab-Israeli war, hundreds of thousands of Arabs were displaced from residence in Israel proper; many became part of the West Bank Arab population (grown today to 2.3 million). Since 1967, the Arab population of the West Bank has resisted Israeli presence in a variety of ways, sometimes violent. Israeli annexation of the West Bank, coupled with second class status for Arab residents, would entail continued resentment, resistance, and struggle.
David Ben Gurion understood the instability fated to plague any Israeli effort to control the Arab masses of the West Bank. In 1949, he turned down a plan to conquer the West Bank, recognizing the difficulty of co-opting and controlling its Arab residents. Post-1967 Israeli military control has only sharpened those residents’ feelings of humiliation and resentment over Israeli domination. The former heads of the Shin Bet security apparatus interviewed in the documentary film “The Gatekeepers” were unanimous in deeming an accommodation with Palestinian Arabs “a security imperative” for Israel’s long-term welfare.
Nor is resistance by the Arab residents the only danger facing Israeli annexation of Judea and Samaria. The bulk of the international community would view such annexation and partial subordination of the local population as an unacceptable form of ethnic exploitation as well as a breach of international law. All the major powers, including the United States, would be opposed. That opposition would ultimately engender not only political isolation for Israel but imposition of sanctions as was done to South Africa. Israel would be treated as a pariah state.
One proposed alternative to Arab residents’ rage over inferior status in the West Bank is the so-called 2-state solution. This approach entails creation of a new Palestinian Arab state with sovereignty over most of the West Bank as well as Gaza and part of Jerusalem. The current prospects of implementing this 2-state resolution of the fate of mandatory Palestine are bleak. Some Palestinian representatives, most notably Hamas (already controlling 1.6 million Gazan Arabs), utterly reject accommodation with Israel and seek to violently reclaim all of Palestine. While other Palestinian representatives purport to support the idea of a Palestinian state in 21% of mandatory Palestine (the West Bank and Gaza), their dedication to that goal is suspect. The common Palestinian insistence on a “right of return” for the millions of descendants of the hundreds of thousands of Arabs displaced from Israel in 1948 contradicts an accommodation with a Jewish state. Widespread demonization of Israelis within Palestinian political circles, mass media, and schools also communicates unwillingness to accept contemporary Israel. And even if there are Palestinian representatives genuinely committed to peaceful coexistence with Israel, their ability to rein in the fundamentalist militants like Hamas and Islamic Jihad is highly suspect. The percentage of Palestinians who see Tel Aviv as occupied territory ultimately to be violently liberated is uncertain. The chances of Hamas and its cohorts usurping any new Palestinian state and gaining control of the West Bank (in addition to Gaza) are significant. A hostile force controlling Judea and Samaria – within dozens of kilometers of Israel’s major population concentration — poses an enormous security threat to an Israel already confronting thousands of missiles in surrounding areas like Gaza and Lebanon.
Nor do the obstacles to a new Palestinian state lie solely in Arab rejectionism. The more than 300,000 Jewish Israeli residents of the West Bank jeopardize the viability of any such potential political entity. The current inter-twining of Jewish settlements in Judea and Samaria leaves Arab population pockets looking like a non-contiguous archipelago. Arab mobility is also handicapped by a separation barrier that stifles free movement and burdens economic life. This mass Jewish presence in Judea and Samaria complicates if not eliminates the prospect for a stable 2-state solution. While evacuation of some Jewish areas pursuant to a comprehensive peace agreement might ease the demographic incongruities, settlers’ resistance to evacuation would be even more widespread and traumatic than in the prior evacuations of Jewish settlements in Sinai and Gaza.
The bottom line is that the long-term prospects for successful resolution of the fate of the West Bank appear discouraging. Both Israelis and Palestinian Arabs seem, for the time being, to be unready for any viable 2-state solution. Continuing reinforcement of Jewish settlement makes a successful 2-state resolution ever more improbable. At the same time, annexation of Judea and Samaria, with its inability to accommodate as citizens the 2.3 million Arab residents (to say nothing of the 1.6 million Gazans), is a prescription for unending turmoil.
Norman L. Cantor is Distinguished Professor of Law, Emeritus, at Rutgers University Law School, Newark. He now lives in Tel Aviv and his oped pieces, many focused on Israeli-American issues, have appeared in the Jerusalem Post, HaAretz, the Times of Israel, and the Faculty Forum of Scholars for Peace in the Middle East. His blog is http://seekingfairness.wordpress.com
