The influx of news coming out of Israel these days renders it difficult to grasp the full scale and meaning of the constitutional and legal changes Israel is facing. In this blogpost, I wish to focus on one aspect of the upcoming changes, namely those that regard Israel’s control of the Occupied Territories. On December 28, 2022, Israel’s incoming Minister of Finance, Bezalel Smotrich, published an op-ed in the WSJ in which he argued, among other things, that the changes regarding the division of responsibilities concerning the Occupied Territories among Israeli bodies do not “entail changing the political or legal status of the area”. However, an examination of the changes included in the Coalition’s Basic Principles, published on December 12, 2022, and the coalitionary agreement between Netanyahu’s Likud Party and the Religious Zionist party, portrays a very different picture.
The West Bank’s Legal Framework
Following the six-day war in 1967, Israel annexed East Jerusalem and the Golan heights. Accordingly, Israel applies its own law in these territories. The West Bank, however, has not been formally annexed to date. Thus, even from an internal Israeli perspective, the legal framework that Israel applies in the West Bank is the international law of occupation (although Israel recognizes the applicability of only parts of the law of occupation, notably, excluding the application of the Fourth Geneva Convention). Practically, this implies that the legal framework that applies in the parts of the West Bank held by Israel is a two-tiered framework. In accordance with Article 43 of the Hague Regulations, the first tier includes the Jordanian law that applied in the territory at the time of occupation. The second tier includes the subsequent orders of the Military Commander from 1967 to date.
This legal framework has been applied by the Israeli Supreme Court in numerous petitions regarding the Occupied Territories. As David Kretzmer and Yaël Ronen demonstrate, the Court has allowed the state considerable leeway in conducting actions in the Occupied Territories, particularly through its refusal to address the legality of the settlement project, a question the Court defined as non-justiciable. Nonetheless, the Court did provide recourse in particular cases. These include, for example, cases concerning the building of settlements on private Palestinian land, including the invalidation of the Land Regularization Act.
The maintenance of separate legal frameworks between Israel and the West Bank served Israel in rejecting claims that it was conducting annexation, and in justifying the existence of different legal regimes in Israel and the West Bank. The commitment to this framework was made expressly, for example, in a 2019 memorandum issued by Israel’s Attorney General in connection with the ICC’s exercise of jurisdiction on the “situation in Palestine”. The memorandum states that “the bilateral Israeli-Palestinian agreements continue to form the applicable legal framework governing the conduct of the parties” and the “the international community, too, has reiterated on numerous occasions its support for the existing bilateral agreements as an applicable legal framework for settling the Israeli-Palestinian conflict and determining the sovereign status of the territory in dispute”.
While Israel’s outward-facing discourse thus maintains a formal commitment to the distinction between Israel and the West Bank and to the application of the Law of Occupation legal framework to the West Bank, Israel’s internal legal and political discourse is considerably different. With respect to the settlements, the distinction between Israel and West Bank has long been eroded through a combination of military orders, court decisions and legislation that effectively render the settlements Israeli enclaves in a long process of “creeping annexation”. From the perspective of the Israeli public, the settlements are perceived as part of Israel. Accordingly, the distinction between Israeli citizens living in the settlements and those living in Israel – the same distinction required by international law of occupation – is framed in Israeli public discourse as a “discrimination on the basis of place of living”. This phrase is included, for example, as a recognized discriminatory classification under the Prohibition of Discrimination in Products, Services, and Entry into Places of Entertainment and Public Places Law, 5761-2000.
In 2019, Netanyahu announced that the formal annexation was to take place. In analyzing the possible effects of such an annexation, I argued that despite steps that have already been made, such an annexation will have dire effects on both the ability of Palestinians to exercise their right to self-determination and the individual rights of Palestinians. A review of the guidelines and plans of the incoming government reveals a set of changes that are likely to gravely compromise both collective and individual rights of Palestinians.
Pushing the Settlements Project
The overarching principle that appears in the heading of all coalitionary agreements is that “the Jewish people have an exclusive and uncontestable right on the entire land of Israel. The government will advance and promote settlement in all parts of the land of Israel, in the Galilee, the Negev (south of Israel), the Golan Heights and Judea and Samaria”. It is difficult to see how this statement can be consistent with the recognition of Palestinian self-determination, not to say Palestinian statehood.
Specific reforms included in the agreement indicate that this overarching principle is more than a mere statement. These reforms may appear like bureaucratic measures to those who are not familiar with the day-to-day management of the Occupied Territories, but their aggregate effect is to remove hurdles to the expansion of the settlements, to regularize settlements that are considered in Israel as unauthorized under the existing legal regime, and to ensure that the settlements are treated as if they are part of Israel.
Thus, for example, the coalitionary agreement between the Likud party and the Religious Zionist movement stipulates that the government will regularize unauthorized settlements, will improve the services delivered in Judea and Samaria, and will authorize within 60 days of the constitution of the government a five-year plan to “strengthen and develop” settlements in Judea and Samaria.
The more significant changes, however, are included in the addendum to the said agreement. Article 6 of the addendum determines that the Ministry of Defense will include a second minister, in addition to the defense minister. This minister will head a new administrative unit, dedicated to settlements. The unit will have its own manpower, including a general manager and staff. It will be in charge of the Coordination of Government Activities in the Territories unit and the Civil Administration in the Occupied Territories. The legal advisory department regarding the Occupied Territories, which is currently under the Military Advocate General, will be transferred to the Ministry of Defense. Seven new legal advisors will be appointed, who will provide legal advice to the Settlement Unit. The agreement stipulates that “the project” of applying Israeli law to the settlements is to be given priority, with three legal advisors dedicating their time to this project. The mechanism to achieve this would formally be through Military Orders that apply Israeli law in the settlements. This mechanism maintains the formal appearance of a law of occupation framework. However, this formality appears to be, to a large extent, an empty shell – the content of the orders and their form is to be drafted by the lawyers in the Settlement Unit, and the goal – ensuring that the law that applies in the settlements is identical to the law that applies in Israel – is stated explicitly.
The establishment of a Settlement Unit, headed by what can effectively be called a “settlements minister”, is not a mere bureaucratic restructuring. The practical implications of the existence of an independent unit, with its own monetary sources and personnel, dedicated to furthering the political project of the settlements cannot be understated. The transfer of the authority to provide legal advice regarding the Occupied Territories from the Military Advocate General to the settlement unit itself is especially alarming in this regard. While the military legal unit in charge of the Occupied Territories has often been criticized for allowing the state much leeway in its actions in the Occupied Territories, it did impose some constraints on state action. More importantly, however, the military attorneys perceived themselves as subject to the general framework of the law of occupation and the Interim Agreements between Israel and the PA, and, accordingly, as guardians of the existing legal structure as an interim measure until the reach of a final agreement. The insistence on seizing their authority, and transferring it to a political unit dedicated to the settlement project, raises serious concerns regarding ongoing commitment to the constraints imposed by international law.
Creeping annexation – the more effective tool
The addendum states that the project of equalizing law in the settlement with Israeli law will be carried out “through military orders”. Thus, formally, the operation through a law of occupation framework will thus apparently be maintained. The concentration of all authority in the dedicated political unit, and the removal of independent legal checks on the exercise of the political power of such a unit, may empty such a framework from any meaningful content. Despite the fact that Article 118 of the agreement between the Likud and the Religious Zionism parties states that the “the Jewish people have a natural right to the land of Israel”, and that “the Prime Minister will develop and promote a policy for application of sovereignty in Judea and Samaria”, it is fair to predict that no formal annexation will take place. The price for such a move is simply too high, both in terms of the international response and in terms of the duties such an annexation would impose on Israel towards Palestinians living in the annexed territories. However, the plan laid out in the coalitionary agreements demonstrates that formal annexation may not be needed to achieve the goals of those who support annexation. The “creeping annexation” may prove to be as effective as a means to promote the settlement project, with less political and legal implications.