Is This New? : To what extent does Netanyahu’s statement of September 10 differ from his pronouncement last April?

Netanyahu’s September 10th announcement (a week before the elections), closely resembles a pronouncement he made three days before the April 9 elections, as in both statements, he made a commitment to extend Israel sovereignty to all settlements in the West Bank. Yet, there were three main distinctions:

  1. The specific reference to the Jordan Valley, to which he referred only indirectly in April.
  2. The timetable: In the September 10th announcement, he postponed the decision to annex the settlements until after the release of the Trump plan, and in full coordination with the US administration, whereas he committed to “apply Israeli sovereignty to the Jordan Valley and the northern Dead Sea “right after the establishment of a new government”. Consequently, and in contrast to his broader statement of April, Netanyahu appears to be more serious about his intentions and more specific about its scope by setting down timetable for implementation and by displaying a map of the areas to be annexed.
  3. There is now an explicit linkage between the decision to annex the settlements and the Trump plan.

The most significant distinction between the two announcements may well be yet to come. In both cases, the announcements are “declarations of intent” in which Netanyahu’s commitments are to be realized after the formation of a new government. Since he failed to form a coalition after the April elections, this promise was not put to the test. If he succeeds in forming a coalition with his natural right-wing and religious coalition partners, it will be.

If he indeed forms a government and does not carry out the annexation, this week’s announcement will prove, in retrospect, to be yet another hollow pre-election promise; if he does carry it out, it will have become the “gun put on the table in the first act, which is destined to be fired in the last act”.

How can it be carried out? Does annexation of Israeli settlements and/or of the Jordan Valley require Knesset legislation?

There has been much discussion in the press and among politicians that annexation will require lengthy deliberations in the Cabinet, and subsequently by the Knesset. There is no legal basis to this conclusion, and it is dangerous for those concerned about potential annexation to make that assumption.

The annexation of all or part of the West Bank requires NO Knesset legislation, as we can learn from the most relevant precedent: the annexation of East Jerusalem. The Law and Regulation Ordinance then empowered the Cabinet to apply ”the law, jurisdiction and administration of the State” in any area in what was British Mandate Palestine, by means of a Government order, adopted by a simple majority. This is precisely how East Jerusalem was annexed on June 28, 1967. Those asserting otherwise – i.e. Knesset approval is required – refer to two related matters. In 1980, the Knesset passed the Basic Law: Jerusalem the Capital of Israel. They wrongly claim that it was this legislation that constituted the act of annexation. However, that bill was of largely symbolic significance; the actual imposition of Israeli authority over East Jerusalem came well before, in 1967. In addition, they refer to the 1981 Knesset legislation annexing the Golan Heights. However, such legislation was necessary only because the Law and Regulation Ordinance does not apply to the Golan Heights, it being outside the borders of Mandatory Palestine.

The language of the Government decision by which East Jerusalem was annexed and that was used in the Knesset legislation annexing the Golan Heights are identical, and clearly express what is actually entailed in de jure annexation. Both stipulate that: “The law, jurisdiction and administration of the State shall apply…” to the area in question.

The Law and Regulation Ordinance is still on the books. Consequently, if the next Government issues an order “applying the law, jurisdiction and administration of Israel” to any or all of the West Bank, including but not limited to the Jordan River Valley, that will constitute annexation of the designated area. There will be no trip-wire, no advanced warning.

Why not immediately? Why postpone the decision to after the elections?

If Netanyahu could have carried out the annexation immediately by means of government fiat, why has it been deferred, at the very least, until the formation of the next Netanyahu government (should such a government be formed)?

There are three possible answers to that question – legal, political and diplomatic, the political considerations been the prevailing ones.

1. Legal considerations – While the Government indeed has the authority to carry out the annexation, it is highly likely that any such move made by an interim Government on the eve of an election would be nullified by the High Court of Justice.

There is a precedent indicating that this is indeed the case:

In 1999, a week before the elections, Netanyahu trailed in the polls behind Barak. As today, he made a last minute attempt to consolidate his base, by issuing an order to close the Orient House, the PLO headquarters in East Jerusalem. There were dire warnings, including from Israeli security authorities, that this step could lead to an outbreak of violence.

A group of prominent Israelis (represented by the author of this report) filed suit to the High Court of Justice, challenging the legality of the order. The appellants conceded that a) the government had the authority to close the Orient House, and b) that it could not be ruled out that some of the activities there were illegal. However, they argued that such momentous decisions could not be made in the shadow of elections and, quite possibly, on the basis of electoral considerations. The appellants argued that only an order handed down after due deliberation AFTER the elections would be legally valid. The Supreme Court issued a temporary injunction, preventing Netanyahu from shutting down the Orient House (it was ultimately shuttered by PM Sharon in 2001, after the outbreak of the second Intifada).

Netanyahu has indeed asserted that he sought to carry out the annexation immediately, but that the Attorney General would not let him to do so before an election. The Ministry of Justice denied Netanyahu’s claim and conveyed that, under urgent circumstances, justified by a favorable diplomatic context, immediate annexation could be legal. There are more than modest elements of posturing in both of these positions.

It is important to note: an order handed down by the next Netanyahu government, should there be one, will not, in all likelihood, be invalidated by the Court.

2. Political considerations – Ahead of the elections, Netanyahu needs the announcement more than its implementation. It serves his purposes in two ways. First, it enables him to take votes from his right-wing rivals, in an attempt to secure the number of seats he needs in order to be tasked to form the next Government. Secondly, he does not want to waste the valuable “asset” of annexation during the election campaign, since he will likely need it after the elections, for far more compelling reasons. Should Netanyahu receive a mandate to form the next Government and attempt to form a right-wing coalition, that coalition will likely be based on one overarching deal: granting his far-right coalition partners all they wish, including annexation, in exchange for immunity from prosecution. One legal scholar, Prof. Yuval Shany, has suggested that towards this end, Netanyahu will likely seek Knesset approval (even if it is not required) in order to create the fanfare that will maximize the impact of the public annexation.

If Netanyahu indeed succeeds in forming a right-wing coalition, the prospect of annexation being carried out is very real. Under all other circumstances (e.g. a Likud-Blue White-Israel Beitenu coalition), annexation will play a lesser role in the negotiations to form a government, and its implementation will be far less likely. Still, given the statement of Blue White’s leaders in reaction to Netanyahu’s announcement, which displays sympathy to partial annexation, that prospect will not entirely disappear.

3. Diplomatic considerations – Netanyahu may well be inviting international pressure to stop him. Netanyahu has long opposed de jure annexation, fearing that de jure annexation would likely jeopardize the de facto annexation which has been the very core of his policies in the West Bank. As he is not unconcerned about the prospect of possible proceedings before the International Criminal Court, the total rescission of the Oslo Agreements, including of Israeli-Palestinian security coordination, and potential Israeli isolation, his message may well be a call to the international community to hold him back.

Does this Matter? Isn’t there already de facto annexation of the West Bank?

Many have been arguing that there is no real significance to formal annexation, because on the ground, de facto annexation – the application of Israeli law to the settlers and the settlements – already exists. For some, this conveniently provides a reason (or an excuse) not to strongly challenge Netanyahu over this; for others, it reflects their abandonment of the two-state paradigm.

Even though there is indeed much credence to the claim that de facto annexation is already operational, this position grossly underestimates the dire and far-reaching ramifications that will derive from de jure annexation:

1. Unilateral Finality instead of a Negotiated Settlement – Occupation by its very nature is temporary, and international law pertaining to occupation is geared to temporarily govern the rules of engagement between the occupier and the occupied until agreement is reached.  Even 52 years after the onset of Israeli occupation, this principle – even if it has become in many ways a thinly veiled fiction – has been upheld by the international community.
By annexing, Israel will formally and unequivocally declare: these territories are not for negotiations; the current reality is permanent. Insofar as the annexation will not (at this stage) apply to Areas A and B or to the Palestinians in Area C, it will no longer be possible to assert that Israeli policies in the West Bank are provisional, and the comparison of Israel to an Apartheid regime will become virtually inevitable.

It goes without saying that annexation would be yet another nail in the coffin of the two-state paradigm, if not its death certificate.

2. Annexation will be a stark violation of international law. The issue of Israel-Palestine is not unique: the post WWII world order is being challenged as never before, and contempt for international law is on the ascendancy. Such a wanton violation of the law will destroy the remnants of the international consensus on how to move towards a resolution of this conflict. The fragmentation of that consensus is not merely one of the prices paid for annexation, but one of its prominent features.

Just as the move of the US Embassy is supposed to “take Jerusalem off the table”, and defunding UNRWA is supposed to obviate the necessity of dealing with the refugee problem, annexation aspires to create “the new normal”. The contours of that new normal have been articulated by Jason Greenblatt in his recent speech to the UNSC: international law, international consensus and UN resolutions are irrelevant in regard to the Israeli-Palestinian conflict; Israel has rights while the Palestinians have “aspirations”; the West Bank is not occupied, but disputed. And Israel has unilaterally elected to “settle” that dispute through annexation.

3. Annexation is the ultimate breach of the Oslo Accord, its letter and spirit. The Oslo accords determined that the issue of borders is a permanent status issue to be resolved through negotiations. Violating that provision will likely lead the Palestinians to respond by abandoning their own obligations under the Oslo Accords, primarily, but not exclusively, security cooperation with Israel.

4. A highly destabilizing move – Such a dramatic collapse of the Oslo Accords without any alternative to them on the horizon itself will be destabilizing. The hopelessness this will generate could well lead to the collapse of the Palestinian Authority, the outbreak of widespread violence, or both. There have been prominent members of Israel’s policy community who have sounded this warning, and reportedly, the Israeli security and intelligence community expressed these concerns to Netanyahu when he told them of his intentions, immediately before the annexation announcement.

What Can Be Done?

There has been a long-established custom whereby Israel’s friends in the international community refrain from raising issues relating to the conflict during an election cycle, not only for fear of being accused of meddling, but a belief that any mention of the Palestinians will encourage a siege mentality and be counter-productive. However, maintaining silence in the face of annexation is unconscionable, even now, on the eve of elections.

1. It is abundantly evident that Netanyahu is using the issue of annexation as an electoral ploy. It is part of a broader campaign message, whereby under Netanyahu, the world will ultimately acquiesce, and the Palestinians submit, to permanent Israeli control over the West Bank. Netanyahu has successfully enlisted the support of Trump, Putin and some European leaders, among else, to prove as much to the Israeli public. Failing to express deep concern over potential annexation is tantamount to joining these leaders in the “Committee to re-Elect Netanyahu”.

2. Given the possible absence of a trip-wire that will indicate the imminence of post-election annexation, it is absolutely essential to engage now – both openly and behind closed doors.

3. Israel’s relations with its allies are based on shared values and shared interests. Annexation will be a departure of such magnitude from those values and interests that it must not be treated as merely another example of “poor behavior” on the part of Israel. It must be made clear that that this is not a routine crisis, and that annexation will by necessity elicit non-routine consequences, in word and in deed, and at the most fundamental levels of the relationship with Israel.

4. The prospect of any forward movement on Israel-Palestine under Trump and Netanyahu, and without some clarity on Palestinian succession, are remote, to say the least. However, the day will come when, hopefully, it will be possible to seek ways to generate a credible political process between Israelis and Palestinians. By then, the earth will likely be so scorched that the task will be daunting. Trying to renew a political process in the face of Israeli annexation may well transform the daunting into the impossible.

5. The commitment to international law is not merely what the European Union “does”, it is cuts to the core of what the EU is. The EU and its member states have remained committed to international law in the face of serious challenges, most prominently on the issue of Jerusalem. Annexation will therefore not only violate international law, it will put Israel in a position that directly clashes with what is the foundation of the EU’s common identity and values, challenging its cohesiveness and the coherence of its policies towards Israel, Palestine and the resolution of the conflict between them. There are indications that this is well understood in key capitals in Europe, who have already been responding to Netanyahu’s announcement accordingly.