Legal Ramifications if Israel Decided to Annex the West Bank

Annexation would result in a continuous state of affairs in which two sets of laws apply to two adjacent populations and would undermine Israel’s democracy

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On April 6, three days before the Israeli elections, Prime Minister Benjamin Netanyahu was interviewed on Israeli TV Channel 12. When asked about his policy regarding the West Bank (Judea and Samaria) he replied:

I will not uproot a single settlement, and I will ensure that we’ll control all the area West of the Jordan river. Will we move to the next stage? The answer is yes, we will move to the next stage—to the gradual extension of Israeli sovereignty in the areas of Judea and Samaria. I also do not distinguish between the settlement blocs and the lone settlements, every settlement like that is for me Israeli.

Although dismissed by commentators as a last-minute election gimmick designed to divert votes from small right-wing parties to Netanyahu’s Likud Party, the statement on annexation does in fact reflect the official policy of the Likud Party. On Dec. 31, 2017, 1,500 delegates to the Likud Party congress voted unanimously in favor of a resolution calling on Likud elected officials to “take action to facilitate unlimited construction and to apply the laws of Israel and its sovereignty over all the liberated settlement zones in Judea and Samaria.”

The Likud-led bloc of right-wing and religious parties won a significant majority in Parliament (65 seats out of 120) in the election. Now, the move in the direction of annexation is politically feasible. Already, one of the nascent coalition parties—the Union of Right-Wing Parties (representing national-religious Jews and settlers)—has put the passage of annexing legislation as one of its key demands for joining the coalition. Although it is improbable that any unilateral step of this nature will be undertaken before the publication of the Trump administration’s peace plan, the likelihood of annexation would increase considerably if that plan fails.

What Kind of Annexation?

Neither Netanyahu’s pre-election statement nor the Likud 2017 resolution provided any specific details on the planned annexation or the method for its attainment. Under Israeli constitutional law, the extension of Israeli law to new swaths of territory can be facilitated through a ministerial decree (if the land in question is located within mandatory Palestine/Eretz Israel) or through a specific act of legislation. The annexation of East Jerusalem in 1967 was made through a governmental decision, later ratified by a Basic Law (titled “Basic Law: Jerusalem the Capital of Israel,” passed in 1980 and amended in 2000). The annexation of the Golan Heights was done in 1981 through a specific legislative act.

Given popular support among center-right-wing voters for annexation of the settlement blocs, the new coalition will probably try to force the opposition to take a stand on this question. Because of this, the coalition is more likely than not to authorize any annexation through a specific act of legislation. Such legislation could be modeled after private bills, submitted to the Knesset between 2016 and 2018, which attempted to extend the application of Israeli law to specific settlements, the Jordan River valley or all settlement blocs. These bills were never adopted due to the outgoing government’s concern about their diplomatic fallout and security implications.

The language of the private bills submitted in recent years deviates from the language used in the 1981 Golan Heights Law in two respects. First, unlike the Golan Heights Law—and, before that, the 1967 decision on East Jerusalem—which only alluded to extension of Israeli law, jurisdiction and administration to the territory in question, the draft bills also refer explicitly to extension of Israeli sovereignty. The distinction between formal extension of sovereignty and “mere” extension of legal and administrative powers has allowed Israel to claim in the past, somewhat insincerely, that it did not engage in the de jure annexation of new territory. But the new coalition has no interest in such pretense.

Already today, many norms of Israeli law apply to the settlements—either through application of personal jurisdiction over the settlers, or through military decrees that incorporated Israeli law into the law applicable to all or parts of the West Bank. In the 2004 Wall advisory opinion, the International Court of Justice (ICJ) alluded to Israel’s actions in the settlement blocs, which separated the blocs from rest of the West Bank, as de facto annexation. What those in favor of annexation now seek is the mostly symbolic act of de jure annexation.

Second, and more significantly, the new annexation plans found in some of the private bills and endorsed by Netanyahu appear to be targeted only at specifically designated parts of the West Bank, in particular the municipal jurisdiction areas of the different Jewish settlements in the West Bank. They would exclude areas populated by Palestinians. This differs from the Golan Heights Law, which covered the whole geographic area of the Golan, including villages populated by Golan Druze (who held Syrian nationality).

Non-Israelis in the Golan were invited to naturalize in Israel, though only some 10 percent of them chose to do so. The West Bank annexation plans are not expected to afford nearby Palestinians a similar option. By targeting only areas populated by Israelis, the planned annexation would try to deflect some of the domestic criticism against the demographic implications of annexation—i.e., the feared transformation of Israel into a bi-national state. Since citizenship would not be extended to Palestinians residing outside the annexed areas, there would allegedly be no demographic implications.

At the same time, the plan would create numerous Israeli enclaves in the West Bank. It is not clear right now whether adjacent open areas, such as the access roads leading to them, including roads used by Israelis and Palestinians, will be annexed as well. Notably, some right-wing politicians have also called for annexing all Area C lands—which represent most open land areas in the West Bank and are sparsely populated by Palestinians.

Legal Issues

Three principal sets of issues need to be considered when reviewing the legality under international law of the planned annexation of settlements/settlement blocs. First, such a move appears to run contrary to the inadmissibility of acquisition of territory by war. This principle is articulated in the preamble to U.N. Security Council Resolution 242 (1967); in multiple U.N. resolutions proclaiming the status of the West Bank as occupied Palestinian territory and expressing opposition to any change in the status of the territory not agreed to by the parties through negotiation; and in the ICJ advisory opinion on the Wall, which rejected the de-facto annexation of part of the West Bank.

The current annexation plans draw on the Trump administration’s recent recognition of Israel’s sovereignty over the Golan Heights. Arguably, the unique circumstances cited by the U.S. as justification for annexation in the Golan case—occupation in a defensive war and the presence of an ongoing security threat—would be relied upon in the context of the West Bank too. While the U.S. position had been heavily criticized internationally, it may give Israel  the political cover it needs to avoid some of the diplomatic repercussions of the annexation. Or at the very least, the Israeli government may believe this to be the case. Significantly, unlike in the Golan Heights, Israel has never recognized the sovereignty of any other political entity in the West Bank—and this may lead it to have fewer inhibitions in asserting its sovereignty there.

Second, the annexation plans run directly contrary to the Oslo Accords—and more generally to the two-state vision that both parties, including Israel under Netanyahu, accepted in the past. The unilateral creation of Israeli sovereign enclaves runs contrary to the obligation to negotiate a permanent status arrangement with the Palestinians, and effectively creates Palestinian enclaves in the nonannexed area with limited contiguity and almost certainly no sustainable viability as an independent state. This division of territorial control looks more like the South African system of Bantustans than the foundation of a viable two-state solution.  

Third, the annexation plans will perpetuate Israel’s control over large parts of the West Bank, effectively subjecting the Palestinian residents living next to the annexed areas to its authority on a day-to-day and permanent basis. These residents will be dependent on Israel regarding their movement and in connection to their basic rights to health, work, family life and more. Involuntarily subjecting a large local population to the power and authority of a foreign state—without providing that population with the right to naturalize and to partake in the design of government policies that affect daily life—raises significant questions of democratic legitimacy. If indeed the annexation plans result in extensive de facto control over West Bank Palestinians, then the decision not to de jure annex their villages does not fully resolve the demographic challenge they pose. And it leaves in place the aforementioned democratic deficit.

This situation will result in a continuous state of affairs in which two sets of laws apply to two adjacent populations: one able to exercise the full rights attendant to citizenship, and the other barred from those rights. Such a development could push Israel over the edge, from a democracy toward a regime whose laws de facto underlie a structural and permanent system of ethnic discrimination.

This article was first published in the Lawfare.