The difference between ‘retaining’ and ‘annexing’ territory

“You can retain territory without annexing it,” Baker said. “That is what we did in the [Oslo accord] interim agreement, we retained Area C...we haven't annexed it."

By HERB KEINON
THE JEWISH community of Mitzpe Kramim east of the West Bank city of Ramallah in 2015 (photo credit: REUTERS)
THE JEWISH community of Mitzpe Kramim east of the West Bank city of Ramallah in 2015
(photo credit: REUTERS)
Before becoming US ambassador to Israel in 2017, David Friedman was a bankruptcy lawyer with the Manhattan firm Kasowitz, Benson, Torres & Friedman – and a highly successful one at that. As such, he understands the significance of words, that words matter.
In his interview on Saturday with The New York Times, Friedman was quoted as saying, “Under certain circumstances, I think Israel has the right to retain some, but unlikely all, of the West Bank.”
The salient word here is “retain” – that Israel has the right to “retain” some of the territory. In the words quoted in the Times article, Friedman never uttered the word “annex,” which is significant, because annex has different, more far-reaching implications.
In the debate over what will be the final resolution of the territories occupied and annexed by Jordan in 1948 and held by Israel since 1967, many words and expressions are used, such as “retain territory,” “apply sovereignty,” “extend Israeli law,” and “annexation.”
Though the words have different legal meanings, they are often used interchangeably – and that is where the confusion sets in.
For instance, The New York Times online headline to the Friedman interview read: “US Ambassador Says Israel Has Right to Annex Parts of West Bank,” even though Friedman did not use the word “annex.” The Jerusalem Post story about the interview also used the word “annex” in the headline and the first paragraph, even though Friedman did not utter that word.
According to Alan Baker – former legal adviser at the Foreign Ministry who today serves as director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs – there is a difference: a distinction between retaining territories, applying Israel law, jurisdiction and administration over territories, and annexing territories.
He points out, however, that there is no difference between “applying sovereignty” over an area and annexing it. This is significant because Prime Minister Benjamin Netanyahu said in an interview just three days before the April 9 election – in an effort to woo right-wing voters – that he intended to “apply sovereignty” over settlements. Moreover, he said, “I don’t distinguish between settlement blocs and the isolated settlement points, because from my perspective every such point of settlement is Israeli.”
Netanyahu is also someone careful with his words, and pointedly avoided saying that Israel would annex the settlements. Nonetheless, according to Baker, “annexing” and “applying sovereignty” are the same thing, and both run contrary to international law.
Baker also argued that it makes no difference in international law whether the territories were won in a defensive or offensive war. This is significant because after US President Donald Trump recognized Israel’s sovereignty over the Golan Heights in March, Netanyahu said an important principle was set: that land acquired in a defensive war did not have to be given up.
The Six Day War, during which Israel gained control over east Jerusalem, the Golan Heights, the West Bank, the Gaza Strip and Sinai Peninsula, was a defensive war.
But while there is no difference between “applying sovereignty” and annexation, Baker said there are differences between retaining territory, extending law, jurisdiction and administration to territory, and annexation.
“You can retain territory without annexing it,” Baker said. “That is what we did in the [Oslo Accords] interim agreement. We retained Area C [the 62% of the West Bank where Israeli has full civilian and security control], but we haven’t annexed it, and we have not expanded Israeli law there.”
Retaining territory, he said, “can be done in agreement between the parties, or even in a unilateral way, until there is some positive outcome to negotiations over the permanent status of the territories. Israel has every right to retain whatever territories it feels it needs for its security.”
Annexation, on the other hand, goes much farther.
“To annex means that you extend your sovereignty,” said Baker. “It becomes part of your country. Your laws apply there. This is prohibited according to international law.”
It is possible, Baker said, that within the framework of an agreement, Israel will retain certain territories, which means it will maintain control and wield certain powers in those territories giving it specific rights, without necessarily incorporating them formally into Israel. These rights could be rights of passage, overfly rights for the air force, or many other myriad rights that it will retain inside territories whose final dispensation will be decided at a later time.
Between retaining territory and annexing it, there is another category, and that is extending the country’s law, jurisdiction and administration over territory.
And this path, Baker said, is the one Israel took in 1981 when it enacted the Golan Heights Law. That law did not formally annex the strategic plateau, but it did extend Israeli law, jurisdiction and administration there.
Baker said that prime minister Menachem Begin instructed Israel’s ambassador to the UN at the time, Yehuda Blum, to write a letter to the UN secretary-general saying that this move was being done “without prejudice to negotiations with Syria when Syria will decide they want to come negotiate on the location of a mutual bilateral border” between the two countries.
Extending Israeli law, jurisdiction and administration over the Golan Heights in 1981 did not mean applying sovereignty or annexing it, Baker clarified.
And what that means is that when Trump recognized Israeli sovereignty over the Golan Heights in March, he was actually recognizing a sovereignty that Israel itself had never formally declared.