Jonathan Kuttab looks at what Israel’s annexation in the West Bank may include.
First published, June 16, 2020 by the Arab Centre, Washington, DC
Read Just Peace Advocates statement on Annexation & associated actions you can take
Few know exactly how the Israeli annexation of certain territories in the occupied West Bank will take place, but it is safe to make some observations based on past experience. In all likelihood, legislation will be passed in the Knesset extending Israeli law and administration to certain areas shown in some attached map. Existing legislation allows such an act to be carried out by an Israeli government administratively and with little fanfare. It is solely the political implications of the action that would necessitate Knesset action, and only by a simple majority. However, reversing the process (that is, ceding land) would require the approval of a supermajority of votes in the Knesset, or 80 out of 120 members.
At a minimum, annexation—or extending Israeli law and administration to parts of the Jordan Valley—will require that Israel update, change, adapt, or reaffirm decrees, laws, and military orders that, since the 1967 occupation of the West Bank, have governed how the occupying power administers the territory and its inhabitants. Such laws, decrees, and military orders address relations with the Palestinians––especially as pertaining to the post-Oslo Accords and Areas A, B, and C––as well as Israeli settlers in illegal settlements, the status of these settlements in Israel’s military doctrine, and economic and social affairs, among other things. But whatever the new regulations may be, annexation is bringing new conditions that are likely to sow the seeds for extended conflict in the future, especially that the Israeli army itself has apparently been kept in the dark as to the particulars of the annexation.
Status of Jewish Settlers
After the supposed annexation, Jewish settlers will be treated exactly as if they are living in Israel de jure (by a lawful right), and not just de facto (by fact, or reality). Those who hold Israeli passports will continue to do so and will be treated as if living in Israel proper. This is significant since Palestinian residents of East Jerusalem have often lost their residency status if they lived in the West Bank, which was considered to be “outside” the state of Israel by the Israeli Ministry of Interior, which controls their status. A prominent case that exemplifies this policy is that of East Jerusalemite Mubarak Awad who, in 1988, lost his case to maintain his residency in East Jerusalem, which had been annexed to Israel following the 1967 war. Israel’s High Court decreed that since Awad was not Jewish and the Law of Return does not apply to him, and since the law annexing Jerusalem failed to define his status, then the Law of Entry into Israel of 1955 applied to Awad and his status was akin to that of an immigrant to Israel, thus making him and other Palestinians living in Jerusalem residents instead of full citizens.
What will be abandoned [with annexation] are the elaborate mechanisms of adjusting the laws and military orders to enable Jewish settlers to live fully and legally as if they are in Israel.
Jews who are in the annexed areas on visas will likely be further pressured to “make aliyah” (officially immigrate to Israel under the Law of Return) and obtain Israeli passports. What will be abandoned are the elaborate mechanisms of adjusting the laws and military orders to enable Jewish settlers to live fully and legally as if they are in Israel when they are technically living in the “administered territories” under the hybrid system of Jordanian Law and Military Orders. They will now be treated de jure as Israelis in Israeli territory. The annexation will have little impact directly on their rights, privileges, and responsibilities.
Palestinians in Annexed Areas
The status of Palestinian Arabs currently living in the areas to be annexed (estimated to number some 107,000 living in 43 villages, according to the Israeli organization Peace Now) is unclear thus far, although Israeli Prime Minister Benjamin Netanyahu declared they will not become citizens of Israel. In fact, he said they will be subjects of the Palestinian Authority. One possibility is that they would be given the same status as that of East Jerusalemites; as such, they would have a category as permanent residents, which is somewhat similar to the holders of “green cards” in the United States. They would be permanent residents who could live and work in Israel but who are not citizens, and they would lose that status if they leave the territory for an extended period of time, including for studying abroad, or if they obtain another citizenship or permanent residency elsewhere (as in Awad’s case).
It is possible, however, that this time, Israel would determine their status in the Knesset law annexing the territories in a way that may grant them a type of status that is markedly different from that applying to Palestinians of East Jerusalem. Perhaps it would authorize granting them special permits to enter and work in the newly annexed areas while continuing to be West Bank residents, in theory subject to the Palestinian Authority (PA) in Ramallah. At one time after the Second Intifada, residents of the Jordan Valley were issued additional permits that they had to carry together with their identity cards that allowed them to enter or reside in the villages of the Jordan Valley. It is also possible that these Palestinians would be pressured immediately, or over time, to leave the newly annexed territories entirely—in other words, they would be ethnically cleansed.
Access to the Annexed Areas
It is expected that access to the new areas will be subject to the same restrictions that apply to entering Israel itself. While West Bank settlements outside of East Jerusalem have been effectively “gated communities” that Palestinians cannot enter without a permit, now all the lands that will be annexed will be subject to the same general permit requirements for entering Israel. New checkpoints will be erected to control movement into the entire Jordan Valley as well as the newly annexed areas, and the movement of the residents of these areas to the rest of the West Bank would also likely be restricted. That means that Palestinians who live there or who have lands they are currently farming in that area would now need some form of permit to continue to live there or to access their lands.
New checkpoints will be erected to control movement into the entire Jordan Valley as well as the newly annexed areas, and the movement of the residents of these areas to the rest of the West Bank would also likely be restricted.
It is also possible that their lands would be expropriated en masse under the rubric of the Absentee Property Law since they will now be “in Israel”: landowners would technically be “absentees” under the definition of Israel’s absentee law. This bizarre outcome was hinted at in the January 2020 Trump plan, “Peace to Prosperity,” when it outlined the possibility of Palestinians being allowed to lease the lands they currently farm in areas that will be annexed. It is also possible that, initially, the status of the land would be left ambiguous with the precise status defined at a later point—that is, if Palestinians decide to assert ownership or challenge settlement expansion into their privately held lands.
Post-Annexation Institutions
In November 1981, Israel’s military commander created a civilian administration to rule the occupied Palestinian territories. Settlers were given different administrative structures in the form of “regional councils” of settlements which were accorded security functions to form their own security units, separate from the army. Israel also granted them direct access to governmental ministries and services, with every effort made to keep their areas as fully functioning Israeli administrative units—even though technically, they were physically and legally outside the state of Israel. At the same time, the entire West Bank was declared a closed military zone and Israel controlled all points of entry into it. Holders of visas or residency in Israel could freely go to the settlements and, if Jewish, they could also reside there. In addition, they could establish industrial zones that were not subject to Israeli environmental regulations and could employ Palestinian workers (though ironically, under the less advantageous Jordanian labor laws). Because of the restricted residence in these settlements to Jews only (whether Israeli citizens or not), settlers could claim many of the advantages of Israeli citizenship including health care, education, security benefits, and the like.
Once annexation takes place, the current status of Jewish regional councils is likely to be strengthened to the full extent of Israeli municipalities, with clear licensing, zoning, and administrative powers. They will enjoy open (and not surreptitious) access to funding and services of Israeli ministries as Israeli “development towns.” Israeli police, health, government, banking, public utilities, and postal services already exist in these settlements, though under questionable authority, since the settlements are “outside” Israel; but now they will be able to enjoy such services de jure. Palestinians residing in these areas and in “enclaves” will be left without services, in a manner similar to those living in unrecognized Arab villages in the Negev and elsewhere in Israel.
Palestinians in the annexed territories will thus be pressured to physically move to adjacent areas more directly controlled and serviced by the PA.
As for the Palestinian Authority, it will not be allowed to extend any services to these residents; further, they will not be able to obtain these services in the Jewish settlements. Palestinians in the annexed territories will thus be pressured to physically move to adjacent areas more directly controlled and serviced by the PA. Their inability to build and develop their lands will now be handled under the laws of Israel and the zoning plans and maps of Jewish settlements, rather than Israel’s Civil Administration. Those restrictions already exist since the Civil Administration rarely grants them permits. The problem will now be compounded, however, by the fact that their status under Israeli law is not clear and that they may well be deemed as “absentees” whose very physical presence is in question.
Israeli courts had taken the position that the occupied territories of the West Bank (except for East Jerusalem, and presumably the Golan Heights) are “occupied” under international law, and that the Hague Conventions (though not the Geneva Conventions) on belligerent occupation place some restrictions on how lands in the occupied territories can be used. Some security justification was deemed by Israel’s High Court to be necessary to allow building Jewish settlements on private Arab land (for example, the Elon Moreh case). Furthermore, public lands were supposed to be held in trusteeship until peace comes and their status is resolved. While these restrictions were minimal and usually circumvented, once the annexation takes place no such restrictions will be recognized, thereby allowing the settlements to expand with no internal restraints. The clear conditioning of rights and privileges on whether a person is Jewish or Arab, a well-known phenomenon experienced daily and fully understood by both Israelis and Palestinians, will become a formal legal feature of the landscape.
Apartheid Will Set In
The annexation that is looming in early July will undoubtedly alter Israel’s occupation policies and practices in the West Bank for the worse. While Netanyahu satisfies his political ambition and the voracious appetite of his right-wing supporters, conditions of Palestinians will worsen and international law will find another example of Israeli transgression and banditry. It is the clarity of conditions on the ground in the post-annexation period that will make it impossible to deny that the system of apartheid will have taken another step to being realized as an outcome of occupation. This is the reason why Palestinians, the larger Arab world, and the international community are opposed to annexation. It is also the reason that, importantly, so many liberal and conservative Zionists stand in opposition to it as well.
Jonathan Kuttab is a leading human rights lawyer and a Non-resident Fellow at Arab Center Washington DC. He is a resident of East Jerusalem and a partner of Kuttab, Khoury, and Hanna Law Firm there. He is the co-founder of Al-Haq, the first international human rights legal organization in Palestine, and of the Palestine Center for the Study of Nonviolence, and a founding member and director of Just Peace Advocates in Canada.
