Knesset Passes New Law to Prevent Future Compromise on Jerusalem

As we have written previously, for months the Knesset has been considering legislation aimed at changing Israel’s “Basic Law: Jerusalem” in order to prevent a future territorial compromise on the city as part of any peace agreement. The start of the New Year and President Trump’s recognition of Jerusalem as Israel’s capital brought these efforts to fruition, with the passage of a law that obstructs any future territorial compromise on Jerusalem and opens the door to gerrymandering Palestinian neighborhoods out of the city.

Specifically, prior to this new law, for an Israeli government to transfer any parts of municipal Jerusalem to any foreign authority, it was required to win either (a) a simple majority of 61 out of 120 votes in the Knesset, plus approval by the general population in a referendum, or (b) approval by a “super-majority” of 80 out of 120 Knesset members.

With passage of the new law, such transfer is now permitted ONLY if approved by a supermajority of 80 Knesset members – regardless of whether a majority of Israeli citizens support it in a referendum. In effect, this change creates a situation in which a small minority in the Knesset (the bill passed by a vote of 64-51, with one abstention) has determined that in the future, an even smaller majority in the Knesset will able to block the will not only of any future Israeli government, but of the Israeli people as a whole.

As the legal adviser to the Knesset’s committee himself indicated in the legal opinion he submitted to the Knesset, this “supermajority” requirement is exceptional in Israel legislation, until now only applying to two laws – a law restricting the Knesset’s ability to extend the time of office of the Knesset and a law to suspend the application of the Knesset Basic Law in time of emergency – that are aimed to protect the core foundations of Israel’s democracy. No other law in Israel is protected by a supermajority, not even legislation protecting basic civil rights or the electoral system in Israel. In that sense, this new Jerusalem legislation is unprecedented.

It should be noted that this new “super-majority law” can, itself, be amended by a simple majority vote of the Knesset; however, this means that in the future, if a peace agreement is in the offing, an Israeli Prime Minister will have to fight multiple ugly legislative battles merely to get serious consideration of any agreement that involves territorial compromise on Jerusalem.

Notably, the new law made two further amendments to the “Basic Law: Jerusalem.” The first is that it stipulates that “Jerusalem” from here on will be as defined by the Municipal limits that exist on the date that the law goes into effect. That means, for example, that even if Kafr Aqab were to be cut out of municipal Jerusalem and no longer part of Israeli-defined Jerusalem, even then handing over the area to the  Palestinian Authority in the future will need to be a super-majority of 80 in the Knesset supporting that change

At the same time, under the previous version of the law, an absolute majority of 61 was required to change the municipal boundaries (a change that would leave all the areas in question still under Israeli control). Under the amended Basic law, it can now be done by a simple majority vote. This change makes it easier to administratively cut out Palestinian areas from the municipality, consistent with existing efforts that are concrete and ongoing), or, potentially, to expand them to include West Bank settlements. However, this amendment does not go as far as many on the Israeli right had hoped. Prime Minister Netanyahu intervened immediately before the vote to remove from the new law a provision that would have further facilitated re-drawing Jerusalem’s borders, over tactical differences on now this should be accomplished.

Despite serving a range of right-wing objectives related both to Jerusalem and West Bank settlements, some on the Israeli right are concerned that removing Palestinian neighborhoods from the Jerusalem Municipality would be a first step toward handing them over to the Palestinians (notwithstanding the fact that to do so would, under the new law, require approval of the same super-majority as any other areas of Jerusalem). Further efforts to move ahead with the plan to excise Palestinian neighborhoods like Kafr Aqab and the Shuafat Refugee Camp from Jerusalem municipality, as advanced by Jerusalem Minister Zeev Elkin’s (Likud), remains highly likely.