Joel Singer
Former Israeli legal adviser, military officer and negotiator

West Bank Annexation-Answers to Frequent Questions

With only a few days remaining until July 1st, the date set for commencing steps toward Israel’s unilateral annexation of portions of the West Bank – as agreed in the April 20th emergency unity government agreement reached between Israeli Prime Minister Benjamin Netanyahu’s Likud Party and Benny Gantz’s Blue & White Party – it appears that the new Israeli coalition government is still proceeding on an unshakeable course toward irreversible, self-defeating West Bank annexation. On May 24th, Netanyahu confirmed in a meeting with Likud Knesset members that July 1st continues to be the target date for beginning annexation procedures. And Gantz, who now serves as Minister of Defense in Netanyahu’s cabinet, told the Israeli Army on June 2nd to step up preparations in the West Bank ahead of possible annexation.

It is still hoped that, at the last moment, the United States – the only side whose approval is required for proceeding with annexation under the Likud-Blue & White coalition pact – will come to grips with the potentially catastrophic repercussions of unilateral annexation of 30% of the West Bank, reconsider its green light for annexation, and either instruct Netanyahu to put annexation on the back burner, impose conditions Netanyahu will not be able to accept, or push Netanyahu to limit unilateral annexation to a bare minimum. Short of this, it is beginning to look like the previously unimaginable may actually materialize very soon.

In this regard, many questions have been asked about the meaning, scope and impact of the Israeli government’s planned annexation. While much still remains up in the air, as Netanyahu holds all the cards close to his chest, this is my humble attempt to answer some of these questions.

Q: What are the West Bank areas that Netanyahu plans to annex?

 A: Pursuant to President Donald Trump’s “Deal of the Century,” 50% of West Bank Area C is destined to be annexed to Israel. Since Area C comprises Approximately 60% of the West Bank territory, around 30% of the West Bank is now a candidate for annexation. Area C includes all the Jewish settlements (inhabited by some 450,000 people who live in dozens of settlements scattered throughout the West Bank), Israel Defense Forces (IDF) camps and military installations, areas of security importance, and other non-inhabited areas.

Some of the Jewish settlements – those that are heavily populated and located closest to the border with Israel, often referred to as the “green line” – are grouped together in settlement blocs, which makes it easier to draw the annexation border so that they can be annexed to Israel without also including Palestinians in the annexed areas. Many other settlements located further into the West Bank, which include far fewer Israelis, however, are scattered throughout Area C and are surrounded by Palestinian towns and villages. Area C also includes the Jordan Valley, a strip of land that lays on the west side of the Jordan River (which is the border with the Hashemite Kingdom of Jordan), except for the Jericho Area. While included in the Jordan Valley, the Jericho Area – which Israel transferred to the PLO pursuant to the 1994 Gaza-Jericho Agreement – is designated as part of Area A, which, per the Oslo Accords, is controlled exclusively by the Palestinian Authority (PA). Under Trump’s plan, Area A, Area B (which is controlled by the PA in civil affairs and public order issues and by Israel in security issues) and the balance of Area C, as well as additional land currently a sovereign part of Israel, of roughly equal size to lands to be annexed by Israel, are to be allocated to the future State of Palestine (should the Palestinian Authority agree to the plan, its territorial allotment, and meet a series of stringent governance milestones more befitting Canada than a Middle East state, according to American Ambassador to Israel David Friedman). Trump’s plan calls for annexing to Israel all the Jewish settlements, as well as the Jordan Valley (except for the Jericho Area), all of which are now a part of Area C. A joint American-Israeli mapping committee is now drawing the borders of the areas designated for annexation.

Q: Will the Jordan Valley and settlement areas be annexed in one step?

A: Not necessarily and, as with other aspects of the annexation, Netanyahu’s plans are still not clear in this regard. Netanyahu must strike a balance between pressures placed on him from all sides. To his right, Netanyahu faces pressures from the settlers and their right-wing, hardline supporters, who demand that all the West Bank settlements be included in the annexed areas, who want their perimeters to be defined in the most expansive manner (to include room – a lot of room! – for future growth), and who, additionally, reject Israel foregoing its claims to non-annexed West Bank land or Israeli acceptance of the creation of a Palestinian state. To Netanyahu’s left, he faces pressures from his more moderate coalition partner, the Blue & White Party, as well as the PA, Jordan, the international community, and American Democrats, to either avoid annexation altogether or minimize it dramatically.

To “have the cake and eat it,” Netanyahu may end up adopting a strategy of annexation in phases, in which the first phase will be small (perhaps even symbolic) and the next phases will be pushed into the future without any precise target dates. Adopting this strategy will allow Netanyahu to deflect criticism from everyone who opposes annexation by pointing out that Israel annexed only a small portion of the 30% of the West Bank that Trump’s plan designated for Israel. Should he choose to only annex the major close to the “green line” blocs, the argument will also be that, in prior negotiations, the Palestinians have already accepted that Israel will absorb those areas (however, only as a part of a mutually-agreed permanent status deal, and always as a part of a land-swap of corresponding size and quality). This would, potentially, allow the left and international community to maintain belief that a contiguous Palestinian State may still be possible, keeping alive the two-state solution option. At the same time, Netanyahu can intimate to his Israeli settler and other hardline right-wing critics that that was only the first of many more annexation steps to come.

Q:  Is there a requirement that, before annexing West Bank areas, Israel must first accept President Donald Trump’s “peace plan,” including its parts calling for establishing a Palestinian State and transferring equal-sized Israeli sovereign territory to the future State of Palestine?

A: While Trump’s “Deal of the Century” does state that the plan is a package deal and prohibits cherry picking by either party, the Trump Administration, in fact, has seemed to encourage Israel to proceed with annexation unilaterally and, as of this writing, has not demanded that Israel must first formally accept the entire deal, including the requirement that a Palestinian State be established and that Israeli sovereign areas be transferred to the future State of Palestine. Moreover, as of this writing, Israel has not yet formally accepted Trump’s peace plan wholesale – only as a “basis for negotiations” with the Palestinians who have been adamant that they will not agree to negotiate if the Trump Plan is the Terms of Reference. Given the American failure to require formal Israeli cabinet endorsement of Trump’s plan, it is doubtful that Netanyahu will seek his cabinet approval of the entire Trump plan when he brings its annexation part for the cabinet’s approval. The American encouragement of Israeli unilateral annexation without insisting that Israel at least accept formally the entire “deal of the century” speaks volumes of Trump’s intentions.

Q: For annexation to take place, is there a need for a Knesset law or is it sufficient for the Israeli cabinet to take action?

A: Both methods can be pursued under Israeli law. When Israel annexed the Golan Heights in 1981, it did so through a special Knesset law that applied Israeli law, jurisdiction and administration in the Golan Heights. In 1948, and again in 1967, the Israeli Knesset passed two laws that authorized the Minister of Defense (the 1948 law) or the cabinet (the 1967 law) to issue an order that would apply Israeli law in any area of Palestine, or Eretz Israel (the land of Israel) as it is called in Hebrew, as determined in the order. These laws served as the basis for annexing areas Israel conquered in the 1948-49 War of Independence that lay between the United Nations partition resolution lines and the Armistice Agreement lines, as well as in annexing East Jerusalem following the 1967 Six Day War. After the passage of each of these laws, the government issued orders that applied these laws to specific areas defined in the orders. Netanyahu, therefore, may either initiate the passage of a new annexation law for this specific case, or issue of new orders under one of the existing laws described above.

Q: How quickly can the annexation bill be completed?

A: According to the April 20th emergency unity government agreement reached between Netanyahu’s Likud Party and Benny Gantz’s Blue & White Party, beginning on July 1, 2020, Netanyahu may initiate a cabinet or Knesset vote on annexing parts of the West Bank, on the basis of the Trump Administration’s “peace plan.” Per the agreement, such a vote would be held “as quickly as possible.” It normally takes many weeks, if not months, from the time a bill is first submitted for consideration in the Knesset until it becomes law. However, an Israeli prime minister who is determined to pass a law very quickly may succeed in condensing all the required  legal procedures for passing a law, including the need for having three Knesset calls (that is, three successive votes), into one day, as Israeli Prime Minister Menachem Begin did in 1981, when he decided to introduce the Golan Heights Law, which annexed these areas to Israel. However, it does seem possible that the Trump Administration, which is now preoccupied with domestic unrest following the killing of George Floyd, or the joint American-Israeli mapping committee, which is still struggling with defining the precise annexation lines, will not be prepared to provide the final green light for annexation by July 1, which may slow the process.

Q: What practical changes will occur after the Knesset passes the annexation law?

A: Very few, if any. Over the years, through several laws, the Knesset has already applied specific Israeli laws to the Jewish settlers residing in the West Bank on a personal basis. For instance, one law allowed them to vote in the Israeli elections (even though there is no absentee voting in Israel) and another law authorized Israeli courts to try them for offenses committed in the West Bank (even though Israeli criminal law does not otherwise apply extraterritorially). More important, through orders of the military commander of the West Bank (which are temporary and reversible, by nature), Israeli law has been applied in the Jewish settlements (including those located in the Jordan Valley). In other words, West Bank settlers already live under Israeli law applied in the West Bank settlements by the IDF. Further, Israeli governmental officials (such as Ministry of Education superintendents, Ministry of Religion Kosher inspectors, etc.) have been appointed by the military commanders to perform in West Bank settlements similar functions to those they perform in Israel, as a “second hat.” So again, in other words, the administration in West Bank settlements mirrors that in Israel proper. Once the annexation becomes effective, therefore, there will be no real change on the ground, because the same laws will continue to apply in the settlements, except that their source will be rooted in the Knesset and not the military commander. As to the administration, those same Israeli public officials operating in the Israeli settlements will continue to perform as before, except that they will lose their military government “hat” and use instead their Israeli “hat.” Things will be different in the Jordan Valley (outside the Jewish settlements) where suddenly Israeli law will replace Jordanian/Palestinian law. Any Palestinians residing in the annexed Jordan Valley, therefore, will instantaneously have a different legal system applicable to them and instead of being subject to the PA administration (such as for paying taxes and receiving services), they will be subject to Israeli administration.

Q: Are there any Palestinians living in the areas to be annexed to Israel?

A: The precise scope of the West Bank areas to be annexed to Israel (in terms of the number of settlements to be annexed, the size of the Jordan Valley to be annexed, and the exact lines defining the annexed areas) is still unclear. It is expected that the joint American-Israeli mapping committee that is now drawing the map of the areas to be annexed to Israel will attempt to draw the borders of these areas so that, as far as possible, any Palestinians who live in close proximity to Jewish settlements will be excluded. As to the Jordan Valley, it appears that up to 50,000 Palestinians live there (outside the Jericho Area, in which some 20,000 additional Palestinians reside). Netanyahu recently stated that he does not intend to give these Palestinians Israeli citizenship.  As clarified by Netanyahu, however, what he meant was that the joint American-Israeli mapping committee is attempting to exclude from annexation those Palestinians who live in the Jordan Valley by creating Palestinian enclaves in the Jordan Valley. Apparently, those enclaves will continue to be part of Area C (as the entire Jordan Valley, except for the Jericho Area, currently is), which will make the Palestinians living in any such enclaves subject to PA control with regard to civil affairs issues, but under Israeli security control.

Q: What will happen with Palestinian property located in the annexed areas?

A: Even though it currently appears that there will be no Palestinians annexed to Israel, there may be Palestinian-owned lands included in the annexed areas. If so, mere annexation will not change property ownership rights. Thus, any Palestinians who own property in the annexed areas will retain their ownership rights to that property. However, annexation may cause a lot of headaches to the Jewish residents of many of the annexed settlements. Even though the Israeli government has, for many years, attempted to establish settlements on state land, to avoid confiscation of private Palestinian property, some settlers in several settlements trespassed into nearby privately-owned Palestinian lands. Further, out of approximately 240 Jewish settlements that currently exist in the West Bank, some 110 have been established without governmental authorization (these are often called “illegal outposts”), many of which have been established on private Palestinian lands. Palestinian owners of this territory have often had constrained legal options for regaining lands which settlers had taken when the West Bank was administered by the Israeli military government.  If these “illegal outposts” and other Palestinian lands unlawfully overtaken by authorized settlements are included in the areas to be annexed to Israel, the doors to the Israeli courts, which are liberal and impartial, will immediately open for all of the Palestinian land owners to demand that the Jewish settlers be evicted from their privately-owned lands. This reality will require Netanyahu to decide whether to avoid annexing these settlements, turn Israeli courts into a new battlefield between Palestinian land owners and Jewish settlers, or pass a law that will effectively confiscate these Palestinian lands. Selection by Netanyahu of the third option would risk both potential Israeli Supreme Court annulment of such a law as unconstitutional, as well as additional international criticism.

Q: Will there be any difference between the annexed West Bank areas and Israel proper?

A: No. Once Israeli “law, jurisdiction and administration” have been applied to West Bank areas, either through a special Knesset law or pursuant to a governmental order published under an existing law, those West Bank areas – from the internal Israeli legal system’s point of view – will become indistinguishable from any other area in Israel proper. Those who consider the annexation to be illegal under international law, conversely, will continue to consider the annexed areas to be militarily occupied by Israel and not subject to Israeli sovereignty (as they do with regard to East Jerusalem and the Golan Heights), notwithstanding the fact that Israeli law has been applied there. Potentially, however, international action against annexation may be harsher than it has been against the long-standing Israeli occupation – a possible relevant example is the EU’s “non-recognition policy” toward Russia’s annexation of Crimea, in which the EU has banned investment and trade in Crimea, and does not recognize Russian-issued passports and certifications from Crimea. Whether the EU would go this far regarding annexed West Bank territory still remains to be seen.

Q: What is the difference between annexation, applying Israeli sovereignty, and applying Israeli “law, jurisdiction and administration”?

A: “Annexation” is often defined by international law scholars as a unilateral step of applying one state’s sovereignty to the territory of another state (as opposed to “cession,” which occurs as a result of an agreement between two states in which one state agrees to transfer territory to the other state). When Israel “annexed” East Jerusalem in 1967 and the Golan Heights in 1981, it deliberately avoided calling its action “annexation” and never referred to the results of this action as applying its sovereignty. Instead, the relevant laws referred to the action as applying “Israeli law, jurisdiction and administration.” Moreover, during the Knesset deliberations over the Golan Heights bill, when accused by opposition Knesset members of attempting to annex the Golan Heights to Israel contrary to international law, Israeli Prime Minister Begin rejected that characterization, making a case that simply applying Israeli law to these areas was not tantamount to a change in sovereignty or annexation. Similar attempts to deflect international criticism were made by Israeli official spokespersons after the “annexation” of East Jerusalem in 1967, when the law applying “Israeli law, jurisdiction and administration” to East Jerusalem was described as simply intended to unify West Jerusalem and East Jerusalem. Because of these statements and other minor legal nuances, some Israeli legal scholars have concluded that, under Israeli law, East Jerusalem and the Golan Heights were not annexed to Israel and that Israeli sovereignty does not apply there. This analysis, however, appears to be splitting hairs. As stated above, from the internal Israeli point of view there are no distinctions between East Jerusalem and the Golan Heights, on one hand, and the rest of Israel, on the other hand. The same conclusion applies to West Bank area annexation.

Q: Is annexation reversible?

A: Formally – yes, but practically – no. Since annexation will be accomplished by law or by an order pursuant to a law, annexation may be reversed by rescinding that law or order. However, such rescission will be almost impossible politically in Israel. In 2014, the Knesset passed a law called “Basic Law: Referendum,” the intention of which was to make territorial concessions almost impossible. Under that law, any Governmental action that will result in a situation where “the law, jurisdiction and administration of the State of Israel shall no longer apply to territory in which they currently apply,” must be approved by a two-thirds Knesset vote (80 out of the 120 Knesset members). Alternatively, the measure could be approved by a simple majority in the Knesset (61 out of 120 Knesset members) AND a majority vote of all Israelis in a nation-wide general referendum (a very difficult process that has never been tried before in Israel). Once Israel applied its “law, jurisdiction and administration” to West Bank areas, the Referendum Law will be triggered, making annexation almost certainly politically irreversible given the large majority of Israeli Knesset members from both the coalition and opposition parties (not to mention the Israeli public) who support annexation and would not support ceding Israeli territory.

Q: Does annexation mean that the annexed West Bank areas will no longer be on the negotiating table?

A: That appears to be Netanyahu’s objective. When in 1981 Israeli Prime Minister Menachem Begin brought the Golan Heights bill before the Knesset, several opposition Knesset members objected to the bill because it could undermine a future peace treaty with Syria. In response, Begin announced that, should circumstances change and Israeli-Syrian peace treaty negotiations would become possible, the Golan Heights Law would not be an obstacle.Indeed, in subsequent Israeli-Syrian negotiations, Israel agreed to full withdrawal from the Golan Heights notwithstanding the Golan Heights Law. Netanyahu is not expected to behave similarly with regard to annexed West Bank territory, particularly because the Trump Administration supports Netanyahu in his West Bank annexation, whereas the Regan Administration vehemently opposed Begin’s annexation of the Golan Heights and imposed sanctions on Israel after the passage of that law. Further, the West Bank (Judea and Samaria) hold a deeply important place for many Israeli Jews (particularly those supportive of Netanyahu), making negotiating away those lands, once annexed to Israel, unfathomable in a way that the Golan Heights is not.

Q: Does annexation violate the Oslo Accords?

A: Yes. Unilaterally annexing West Bank areas will violate the Oslo Accords. Article 31 (8) of the 1995 Israel-PLO Interim Agreement states that the “status of [the West Bank and the Gaza Strip] will be preserved during the Interim Period.” Further, the agreement contains a clear undertaking that “[n]either party shall initiate or take any step that will change the status of the West Bank and Gaza Strip pending the outcome of the permanent status negotiations.” (Article 31(7)). Since the status of the West Bank is that of an autonomous area under Israeli supreme authority, unilaterally annexing portions of the West Bank to Israel (as well as declaring an independent Palestinian state there by the PLO/PA) clearly constitutes a material violation of the Oslo Accords.

The only way for Israel to assert that its planned West Bank annexation does not violate the Oslo Accords is to argue that the accords are no longer valid because the PLO or the PA have already rescinded the Accords either by declaring them void or by violating them in such a material manner that they are no longer in force.

Q: Are the Oslo Accords still in force?

A: That will very soon be the $64,000 question. Both Israel and the PLO/PA have repeatedly violated the Oslo Accords so that sometimes it appears that the accords have been “more honored in the breach than in the observance.” Further, each side has accused the other of first violating the accords and justified its own transgressions as retaliatory steps for the other side’s violations. Notwithstanding the violations and the accusations, the parties have continued to behave as if the Oslo Accords are in full force. On May 19, however, at an emergency meeting for the Palestinian leadership held in Ramallah to discuss Netanyahu’s decision to annex the West Bank Jewish settlements and the Jordan Valley, PLO Chairman and PA President Mahmoud Abbas (known as Abu Mazen) declared that the PLO is “absolved, as of today, of all the agreements and understandings with the American and Israeli governments and of all the obligations based on these understandings and agreements, including the security ones.” That declaration prompted the International Criminal Court (ICC), which is now conducting a probe into the question whether Israel has committed war crimes in the West Bank and Gaza, to ask Abu Mazen to clarify his declaration. On May 26th, the ICC requested that, by June 10, Abu Mazen clarify whether the Oslo Accords are in force. The ICC also requested that, by June 24, Israel react to Abu Mazen’s clarifications by providing its own position on that issue.

Q: Can the Israeli response to the ICC impact Israel’s decision whether to proceed with annexation?

A: It may and certainly should. The ICC is now engaged in a preliminary determination of whether it has jurisdiction to try the case. According to its constitution, known as the Rome Statute, the ICC’s jurisdiction is based on delegation by member states of their criminal jurisdiction over individuals who may have committed war crimes (the ICC does not have authority to try states, only individual persons). The PLO, as a part of its “lawfare” tactics against Israel, asserts that Palestine is a sovereign state and purports to have delegated to the ICC its criminal jurisdiction over Israelis who allegedly committed war crimes in Palestine. Based, among other things, on the Oslo Accords, Israel argues that the West Bank and Gaza do not constitute a sovereign state and that the PLO/PA could not have delegated to the ICC  criminal jurisdiction against Israelis, which it does not have. Thus, a December 20, 2019 opinion by the Israeli attorney general, which was submitted to the ICC, asserts that the ICC lacks jurisdiction in this matter, among other things, because “existing Israeli-Palestinian agreements make it clear that the Palestinians have no criminal jurisdiction either in law or in fact over Area C, Jerusalem and Israeli nationals – and thus cannot validly delegate such jurisdiction to the Court.”

On June 4th, the PLO responded to the ICC’s request for clarifications, stating, among other things, that Abu Mazen’s statement meant that, “if Israel proceeds with annexation, a material breach of the agreements between the two sides, then it will have annulled any remnants of the Oslo Accords and all other agreements concluded between them.” Stated otherwise, therefore, the PLO’s position is that the Oslo Accords are still valid, but will be annulled IF Israel proceeds with annexation.

The need for Israel to respond to the the PLO’s clarifications by June 24 – just seven days before July 1, the date Netanyahu set to begin the annexation process— should put Israel on the horns of a dilemma. The PLO’s response clarified that the PLO still considers the Oslo Accords valid, thus denying Israel the possible argument that the PLO has already annulled the accords. If Israel asserts that nonetheless the Oslo Accords are no longer valid, it may weaken its position in the ICC deliberations regarding the ICC’s jurisdiction over Israeli citizens, thus increasing the risk that high-level Israeli military officers and civilians who are alleged to have participated in committing war crimes will be prosecuted before the ICC. If, conversely, Israel asserts that the Oslo Accords are still valid, it will make it more difficult for Israel to justify its planned unilateral annexation, which materially violates the Oslo Accords. This is, therefore, yet another consideration, on top of many others, that Netanyahu should also weigh carefully before proceeding with annexation.

About the Author
Joel Singer served as Legal Adviser of the Israel Ministry of Foreign Affairs and, previously, Director of the International Law Department of the Israel Defense Forces. So beginning shortly after the 1973 Yom Kippur War and for a span of almost 25 years, working for both right-wing Likud governments and left-wing Labor governments, Singer was a member of Israeli delegations negotiating peace treaties and other agreements with all of Israel’s Arab neighbors, including Egypt (the 1979 Israel-Egypt peace treaty), Lebanon, Syria and the Palestinians (the Oslo Accords). Singer currently practices law as a partner in the Washington, DC office of an international law firm.
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