Jonathan Kuttab
The Electronic Intifada / August 7, 2020
Israel’s planned annexation of West Bank land is on hold, for now at least. If and when it takes place, annexation will in all likelihood take the form of a law extending Israeli sovereignty to certain areas of occupied territory.
In reality, Israeli law and administration has been implemented throughout the occupied West Bank to varying degrees in a process of creeping annexation since 1967.
To understand how this process works, it is necessary to know the legal mechanisms used to implement it so far, which will also facilitate an understanding of what is likely to happen as a result of annexation.
The West Bank was governed by Jordanian law until the 1967 War. Over the years, these laws were amended by hundreds of military orders. These orders incorporated everything from the Israeli value added tax system through customs regulations to traffic laws.
The military orders altered existing laws in all areas of Palestinian life, tying it, in a subservient fashion, to the Israeli economy and system of governance, but without extending any advantages. Palestinians thus did not enjoy the benefit of civil law, and general administration was in the hands of the Israeli military and military court system.
Israeli manipulations of the Jordanian legal regime – which itself was built on Ottoman and British Mandate law – also facilitated the takeover of Palestinian lands by Jewish settlers. A parallel system of administrative governance for the Jewish-only settlements, extending to them all the advantages of civil rather than military Israeli administration on a preferential basis, was also established.
Settlers were organized into “regional councils” which were allowed to form their own security units, separate from the army, and were given direct access to ministry budgets and services from Israel.
Separate laws, separate people
Every effort was made to keep these areas as fully functioning Israeli administrative units, even though technically, they were physically and legally outside the State of Israel. For instance, while 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, could also reside there.
In addition, settlers could establish industrial zones that were not subject to Israeli environmental regulations, and employ Palestinian workers under poorly enforced and less advantageous labor laws. By restricting residence in these settlements to Jews only (whether Israeli citizens or not), they could extend to them and their communities all of the advantages of Israeli citizenship.
The Oslo accords created a Palestinian Authority and granted it certain specified powers within areas of heavily populated Palestinian cities, labeled Area A. Village areas, labeled Area B, were supposed to be ruled jointly by the PA and Israeli military forces.
The remaining 60 percent of the West Bank was labeled Area C, covering all the Israeli settlements, much of the land in the Jordan Valley and a relatively small number of Palestinians. Area C continued to be ruled directly by the Israeli military and its Civil Administration.
While the PA exercises some authority in Areas A and B, the regional councils effectively became the local government for areas where settlers lived. Settlers often considered all of Area C to be theirs, and the army and the Civil Administration cooperated by refusing to issue construction licenses to Palestinians, allow Palestinian economic projects, or even the planting of trees in Palestinian communities in Area C.
Area C, the territory slated to be annexed, includes all the areas where there are settlements. It contains a maximum amount of land – among the West Bank’s most fertile, particularly in the Jordan Valley – and a minimum number of Palestinians, and has been effectively treated as part of Israel for many years.
Practical ramifications
Judging by past experience we can thus give an educated guess as to the form and impact of proposed annexation in the areas where Israeli sovereignty will likely be applied.
Jewish settlers will be treated exactly as if they are living in Israel de jure. Those who hold Israeli passports will continue to do so, and will be treated as living in Israel.
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 will be abandoned. They will now be treated de jure and not only de facto as Israelis. The annexation will have little impact directly on their rights, privileges and responsibilities, except to streamline legislation regarding annexed areas.
The status of Palestinians currently living in the areas to be annexed (in all, up to 300,000 Palestinians live in Area C) is unclear. Israeli Prime Minister Benjamin Netanyahu has indicated that they will not be granted Israeli citizenship, but will be “subjects” of the Palestinian Authority. One possibility is that they will be given the same status as Palestinians in East Jerusalem: residents but not citizens of Israel.
It is possible, however, that when legislating for annexation Israel may impose a new type of status on Palestinians living in the affected areas. Perhaps it will authorize granting them special permits to enter and work in the newly annexed areas, while continuing to be West Bank residents, subject to the PA in Ramallah. It is also possible they will be pressured immediately or over time to leave the newly annexed territories.
Access to the “annexed” areas will become subject to the same restrictions applying to Israel itself. West Bank settlements, outside of East Jerusalem, have effectively functioned as “gated communities” to which Palestinians cannot enter without a permit. Now, all the lands annexed will be subject to the same general permit requirements for entering Israel.
Expropriations
It is also possible that Palestinian land will be expropriated en masse under the Absentees’ Property Law, since the lands will now be in Israel while its owners will be technically “absentees.” This Israeli law was enacted in 1950 to facilitate the appropriation of the properties and land of Palestinians who fled or were forced out in 1948.
This bizarre outcome was hinted at in the Trump administration’s “Peace for Prosperity” plan. The plan provides for agreements under which “existing agricultural enterprises owned or controlled by Palestinians shall continue without interruption or discrimination, pursuant to appropriate licenses or leases granted by the State of Israel.”
Finally, the status of the regional councils will likely be upgraded to that of full Israeli municipalities, with clear licensing, zoning and administrative powers, and formal access to funding and services from Israeli ministries as “development towns” – areas the state designates for preferential investment and tax purposes.
Israeli police, health, government services, banks, public utilities, postal services and the like already exist in these settlements under questionable authority, since the settlements are “outside” Israel. Presumably, their operation after annexation will no longer be questionable, in the eyes of Israeli law.
Land belonging to Palestinians and any “enclaves” of Palestinian population are likely to be left without services in a manner similar to the unrecognized villages in the Naqab desert and elsewhere in Israel.
The clear conditioning of rights and privileges on whether a person is Jewish or Palestinian, as per Israeli Basic Law, will become a formal legal feature of the landscape.
All of this will certainly negatively affect Palestinians in the areas that are likely to be annexed. It will also almost certainly undermine any remaining prospects for a two-state solution and possibly endanger the existence of the PA.
But this clarity also makes it impossible to deny the apartheid nature of the occupation. That is also the reason why so many Zionists, and not only liberal ones, oppose formal annexation.
Jonathan Kuttab is Palestinian attorney and human rights activist
