The “Deal of the Century” and Human Rights: Territorial Exchanges and the Status of the Palestinians in the Annexed Areas
The American peace plan presented by President Trump has two main components, which on the surface are not related to one another. The first is its support for Israel’s demand to impose its sovereignty or annex significant portions (about 30%) of Judea and Samaria, including the Jordan Valley and almost all the Israeli settlements. The second is the recognition of a Palestinian state, on the condition that the Palestinians comply with a series of conditions, ‘and the stipulation that such a state, could include territories currently under Israeli sovereignty, such as the Triangle area, and part of the Negev, along with financial assistance for the Palestinians of some $50 billion.
The following is a brief presentation of legal issues grounded in the questions of human rights, with regard to two key questions: the possibility of the transfer of areas inhabited by Israeli citizens (the Triangle), and the status of the Palestinians living in the territories that would be annexed by Israel (mainly in the Jordan Valley).
This survey does not consider the question of the legality of the annexation under international or Israeli law.
The transfer of territory under Israeli sovereignty to the Palestinian state
There is a remote possibility that the Palestinian Authority will agree to the plan and adhere to the conditions laid down for Palestinian statehood. Palestinian acceptance of the plan is far preferable to any other solution. However, even then, we must address a number of questions related to the fundamental rights of residents who are liable to be adversely affected by the plan:
Are the Palestinians and the state of Israel entitled to conduct negotiations on the transfer of Israeli “areas” populated by Israeli Arab citizens to the Palestinian State? Any discussion of such a plan would have to include an option offered to the Israeli citizens affected by the plan of relocating to areas remaining under Israeli sovereignty, and –if choosing to do so—-receiving fair compensation for the homes they left behind. Any other procedure would contravene the most basic principles of human rights, including the right of freedom of movement and the right to property, stipulated by the Basic Law: Human Dignity and Freedom, while also violating the ban on discrimination.
But even if Israel’s Arab citizens are given the choice of remaining in their homes and living in the State of Palestine, or moving elsewhere in order to remain in the State of Israel, territorial exchanges continue to be extremely problematic. The State’s model of citizenship includes not only the power to collect taxes and require citizens to comply with norms. Citizenship also connotes the state’s political obligation to address citizens’ welfare and not to attempt to “get rid of them” on the basis of their ethnic origin, or to treat them as “conditional citizens.” Accordingly, such territorial exchanges cannot be implemented in the absence of a clear decision by a majority of the residents affected, to reside in what would be a Palestinian state.
East Jerusalem poses a special problem. Although annexed by Israel, most of its residents do not hold Israeli citizenship, but rather —are defined as “permanent residents.” Territorial exchanges involving East Jerusalem neighborhoods, against the residents’ will, would also be problematic, all the more so when some of them are in the process of acquiring Israeli citizenship (although Israel makes it very difficult for them to do so). For other residents of these neighborhoods, their “permanent resident” status has functioned as a quasi- substitute for citizenship. The assumption that people can be transferred to a different country involuntarily, without obtaining their consent, is problematic, even though in this case, such an action would at least be compatible with the decisions by international bodies on the status of the neighborhoods taken over by Israel in 1967.
The status of the Palestinians who live in the territories that would be annexed
About 60,000 Palestinians live in the Jordan Valley. The imposition of Israeli sovereignty there would in effect— turn them into residents of Israel. The first stage of the annexation of other settlements is planned to include only the lands of the settlements themselves. We can assume that no Palestinians live in these areas. But the second stage of annexation would apply Israeli law to areas between the settlements. The question here is how much land would be annexed. According to estimates, about 200,000 Palestinians currently live in Area C. On the assumption that the annexation map would be drawn to include a minimum number of Palestinians, the number of persons who would find themselves under Israeli sovereignty would not be very significant. .
Over the years, Israel has applied two different models of citizenship to its Arab residents. Immediately after independence, it adopted a policy granting citizenship to all those living within its borders. Until the 1960s, however, many Israeli Arabs lived under military rule which imposed major limits on their ability to work, travel, attend educational institutions, and more. Since the abrogation of the military rule, Arab citizens of Israel have, at least formally and on the individual level—, enjoyed full civil rights in Israel. Of course, this does not necessarily imply actual equality. Here too, however, it seems that major efforts are being made to move towards greater equality and eliminate discrimination. That said, we may note that in 2018, the Knesset passed the Basic Law: Israel as the Nation State of the Jewish People. Although this ostensibly deals with national—rather than individual — rights some argue that its failure to include an explicit reference to equality could open the door for discrimination against Arab citizens of Israel.
The second model that Israel has employed is that of East Jerusalem, where, as mentioned, the Arab residents are not defined as Israeli citizens, but rather as “permanent residents.” There are both formal and substantive differences between residency and citizenship. Formally, those who are not citizens are not eligible to vote in national elections, and thus are unable to influence life in Israel. In addition, permanent residents are not entitled to return to the country if they leave it “permanently.” On the substantive level, the residents’ lack of political influence has led to many years of neglect of East Jerusalem, in the areas of education, employment, social services, and more.
Sovereignty, Citizenship, and Rights
Sovereignty does not only denote that a country has acquired territory; it also denoted responsibility for those who live in that territory.
Of course, a state is not obligated to grant citizenship to everyone living within its borders. Many countries do not grant full rights to some of their residents, even after they have lived there for many years. For example, citizens of the member states of the European Union can move freely from one country to another within the Union, but are not entitled to become naturalized citizens of the country in which they live. Many Israelis live in the United States for extended periods of time, without becoming American citizens. But there are two key differences between the situation around the world and the case of the Palestinians whose place of residence would be annexed.
The first difference is that the Palestinians have not chosen to be annexed by Israel, but happen to reside on land where Israel wishes to apply sovereignty. There are almost no examples in the democratic world, of a country that has imposed its sovereignty on a given territory without offering to grant citizenship to its residents.
The second point relates to discrimination. There is no place in the democratic world in which citizenship in a given territory is determined on the basis of ethnicity.
So there would seem to be no democratic legitimacy for failing to offer the option of full Israeli citizenship to Palestinians living in territories annexed by Israel. From the moment the land on which they live becomes fully Israeli, their right to citizenship in their place of residence is indisputable. And should the Palestinians decline Israeli citizenship, they would have to be granted “permanent residency,” with the full rights associated with that status.
As we have seen, the East Jerusalem model is problematic and must be amended. First of all, even if those who are not citizens cannot vote in national elections, establish relevant local institutions, e.g. municipalities enjoying full status under Israeli law, must be set up for which they can vote, should they wish to do so.
Second, stripping persons of permanent residency if they leave the country may make sense l in the case of those who chose to move to Israel, but it makes no sense for people who woke up one day to find themselves under Israeli rule. Hence the possibility of depriving Palestinian residents in annexed territories of their permanent residency status must be eliminated.
Third, even if the Palestinians do not request Israeli citizenship, it is imperative that Israel recognize all their basic rights in the annexed territory, and especially the right to equality. The main concern it that the territories to be annexed are home to two different populations—one granted all their rights, to whom resources would flow, and another subject to discrimination, with no rights, or restricted rights. For example, in recent years one of the main debates related to Israeli control of the West Bank has focused on legalizing the construction of settlements on privately owned Palestinian land. In 2017, in an attempt to resolve this problem, the Knesset passed the Judea and Samaria Settlement Regulation Law (against whose constitutionality petitions were submitted to the Supreme Court). This law, which allows the state to retroactively expropriate private Palestinian land on which settlements have been built, is prima facie contrary to the principles of international law applicable to occupied territories. Annexation of this land to Israel would make this law redundant, because the land would become sovereign Israeli territory, to which the laws relevant to expropriation within the borders of the State of Israel would be applied. The concern is that such laws would be applied in a discriminatory fashion, for the exclusive benefit of settlers, and at the expense of the Palestinians’ property rights. It would be imperative to enforce Israeli law in a way that produces an egalitarian outcome for Israelis, and for Palestinians living in the annexed territory.
Fourth, experience teaches that the most important tool used to deny the Palestinians their rights is the security argument. Naturally, there are justified security concerns if and when sovereignty is applied over tens of thousands of Palestinians. The problem is that these concerns are often translated into excessive curtailment of their rights. It is likely that Palestinians’ freedom of movement from those territories to the rest of Israel would be restricted. But this exploitation of security-related arguments to justify the exaggerated e denial of the Palestinians’ rights would be illegitimate.
In conclusion, Israel’s annexation of land in Judea and Samaria, along with its Palestinian residents, would require ongoing and vigilant attention to their rights. Strict protection of their rights, including an accessible and efficient system for enforcing them, would be essential in this situation.
Annexation along ethnic lines
The last issue to be addressed here is demarcating the borders of the annexation on the basis of ethnic lines—specifically, drawing new and “unnatural” borders around land intended for settlements, aimed at including as few Palestinians as possible, especially if this is done without the Palestinians’ consent.
The main problem of this annexation model is its severe infringement on the rights of the Palestinians living in Area C, nearby settlements. Of course, until the maps have not been drawn precisely, it is hard to define what will be the concrete results, but the example of the construction of the separation fence, suggest some potential implications of such annexation.
First, we must assume that the Palestinian residents of Area C will continue to be subject to control by the IDF, under the strict regime of the law of occupation. For them, this has no advantage as over the current situation, and they would continue to be isolated from the Palestinian Authority.
It is also likely that such annexation would create enclaves of Palestinians surrounded by sovereign Israeli territory, with their freedom of movement, severely restricted.
Finally, the main problem of this annexation plan is the mistaken perception of sovereignty on which it is based. The idea of applying Israeli sovereignty to territory inhabited exclusively by Jews, while deliberately excluding Palestinians so as to avoid granting them civil rights, is a distorted understanding of what sovereignty is all about. If Israel can make a good argument that certain territory should belong to it, and implements it by imposing sovereignty there, the mechanism for doing so must not be discriminatory. It is simply unacceptable to leave the Palestinian inhabitants of the land outside the borders of Israeli sovereignty solely in order to deny them their rights on the basis of their ethnic identity.
All of this is particularly relevant for the Palestinian residents of Area C, where there is no intention of allowing them any kind of connection to the future Palestinian state or to transfer their land to the control of the Palestinian Authority. Making this distinction would be nothing more than a thin disguise for blatant discrimination.