Here we go again. We’ve moved on to a new chapter in the playbook used by the global club of illiberal democrats. It started with the inflammatory rhetoric against those deemed undesirables, be they immigrants, members of minority groups or just political enemies. Then it was transformed into policy, as Donald Trump made clear when he announced his infamous Muslim ban just a few days after assuming office in 2017.
Trump’s friends in the world saw fit to translate their own exclusionary words into exclusionary policy. Prime Minister Benjamin Netanyahu of Israel took this step in July 2018 when his government passed the Nation-State Law in the Knesset, effectively enshrining in law the supremacy of Jews over Arabs in Israel. In December 2019, Narendra Modi of India pushed through the Citizenship Amendment Act, granting a path for citizenship to migrants who had fled religious persecution in other countries, but not for Muslims, against whom Modi’s BJP party routinely discriminates.
Those two legislative acts are not mere hot air. They are of a piece with more dramatic acts of territorial realignment — basically, land grabs in defiance of international law. For example, a few months before the Citizenship Amendment Act, Modi rescinded the long-standing autonomous status of the disputed region of Kashmir, with its majority Muslim population. Netanyahu, for his part, drew on the Nation-State Law to grant priority to Jewish settlements in the West Bank and deprive the Palestinian population of rights and services.
Now along comes Trump with his proposed Mideast peace plan that invites Israel to annex all Israeli settlements in the West Bank, as well as substantial parts of the Jordan Valley. Netanyahu has held off for the moment on charging ahead with annexation. But his intentions are clear. He has repeatedly declared his desire to annex all settlements, and if re-elected on March 2 in round three of the Israeli elections, he will proceed (unless he’s convicted on bribery and fraud charges before that vote).
What is so brazen about these steps in India and Israel, aside from violating the two countries’ self-declared democratic and pluralist origins, is their total disregard for international law.
In the case of Kashmir, there is a long line of United Nations Security Council resolutions and letters, from 1948 to 2019, calling on both India and Pakistan to refrain from altering the territorial status of the region. In the case of the West Bank, there is a long-standing international consensus that Israel’s occupation stands in violation of the 49th clause of the 4th Geneva Convention from 1949, which explicitly states: “The occupying power shall not deport or transfer parts of its own population into the territories it occupies.”
Yet Israel has repeatedly transferred or permitted the movement of its civilian population to the occupied West Bank over the past half-century. Now it is on the brink of providing final validation with annexation.
The boldness of this act should not be lost. The foreign policy chief of the European Union, Josep Borrell, spoke in uncommonly candid language a few days ago when he stated that the Trump plan broke with “internationally agreed parameters” in its dismissal of the two-state solution — and more particularly, that “steps towards annexation, if implemented, could not pass unchallenged.”
Actually, the roots of this neglect of international law with respect to the West Bank can be traced back to 1967. In September of that year, the legal advisor to the Israeli Foreign Ministry, Theodor Meron, was asked to deliver an opinion on the status of the newly conquered territory. Meron, who would go on to a career as a distinguished international jurist, declared that the prohibition on settling civilians in the 4th Geneva Convention was “categorical and not conditional upon the motives for the transfer or its objectives.”
The government of Prime Minister Levi Eshkol — and all subsequent Israeli governments — rejected this opinion. By contrast, the overwhelming majority of the international community supported Meron’s view.
Now, as most of the world looks on with dismay, the Trump administration has decided to overturn decades of U.S. foreign policy — and the preponderance of international legal opinion — to encourage and condone the actions of the Netanyahu regime. He has done the same with Modi, who has moved toward de facto annexation of Kashmir. And, of course, Trump has repeatedly praised and embraced Russian President Vladimir Putin, whose forces illegally invaded Crimea in 2014.
It is easy to treat each of these cases in isolation, but in fact they are part of a larger scheme fomented by the world’s current crop of illiberal leaders to undo the foundations of international law. For them, the enemy of their form of chauvinistic ethno-nationalism is the international legal order.
Recent acts in India and Israel threaten the very idea of international law as a constraint against a nation unilaterally seizing territory from its adversaries. What is left of international law — not to mention, of decency and justice — if this principle is allowed to wither?
David N. Myers teaches Jewish history at UCLA, where he directs the Luskin Center for History and Policy. He is president of the board of the New Israel Fund.