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Authors

Dana Busgang

Abstract

On July 1, 2020, the international community released a collective breath as embattled Israeli Prime Minister Benjamin Netanyahu announced a temporary halt to his election promise to formally annex (or, in his words, apply sovereignty to) the occupied Jordan River Valley. Just forty-three days later, a victorious Netanyahu announced that as part of a peace accord with the United Arab Emirates, he agreed to drop his annexation plans. While Israel’s flirtation with official annexation appears to be over for the moment, the momentum gained over the last two years is unlikely to disappear. Further, many, including Palestinians, argue that Israel’s de jure annexation is nothing more than political theater, as Israel has de facto annexed the territory via its fifty-three-year occupation.

If—and most likely when—Israel moves forward with annexation, Palestinian citizens in the annexed territory theoretically should gain additional rights under the international human rights treaties that Israel is a party to, namely, the International Covenant on Civil and Political Rights (ICCPR). However, despite a 2004 advisory opinion from the International Court of Justice finding that Israel exercised a critical amount of effective control in the Palestinian territories to not only subject Israel to liability for violations of its treaty obligations, but also hold it liable for affirmatively upholding the rights of Palestinians in the occupied territories, Israel has thus far escaped any liability. Israel deploys a complex legal argument in order to exempt itself from applying either international human rights law or international humanitarian law to the Palestinian territories, and it argues for a narrow reading of the ICCPR’s scope clause that would also release it from its obligations under the Covenant.

If or when Israel annexes the Jordan River Valley, the ICCPR will apply in the annexed territory, holding Israel liable for future violations of the principles of the ICCPR and requiring it to uphold its positive obligations to protect the human rights of both the Palestinian and Israeli citizens of the Jordan River Valley. Building on a body of established international jurisprudence, the situation warrants a broad reading of the ICCPR’s scope clause due both to the effective control Israel asserts over the territory and the fulfilment of the Covenant’s object and purpose. By stating that it will “apply sovereignty,” Israel has defeated its own defenses to the application of the ICCPR to the Palestinian territories. Unfortunately, an analysis of Israeli Supreme Court Jurisprudence reveals that despite the strong argument in favor of the ICCPR’s application, international law lacks a legal status in Israel, and therefore the Palestinian citizens of the Jordan River Valley will be unlikely to find relief in Israeli courts.

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