Opponents of Israel’s sovereignty plan express pessimism that it can be reversed if approved.
By TOVAH LAZAROFF, JPOST MAY 27, 2020
LEFT-WING ACTIVISTS demonstrate against US President Donald Trump’s Middle East peace plan, in Tel Aviv last February.
(photo credit: MIRIAM ALSTER/FLASH90)
With West Bank annexation appearing to be almost a certainty, its opponents have looked for a ray of hope in day-after scenarios, as they ponder whether a Knesset sovereignty vote can be reversed.
For two leading left-wing attorneys, that chance seems slim to nonexistent, both for legal and geopolitical reasons, unless it comes within the context of a major peace agreement between Israelis and Palestinians.
“I cannot imagine reversing annexation without a comprehensive agreement. I do believe that annexation is reversible, but in a framework of an alternative permanent-status agreement,” said attorney Michael Sfard, who often represents the left-wing groups Peace Now and Yesh Din in cases before the High Court of Justice.
Prime Minister Benjamin Netanyahu is under pressure from the Israeli Right to apply sovereignty over portions of the West Bank in Area C immediately or certainly by his announced July date.
Whether he does so within the context of the Trump peace plan or not, it’s presumed that such an annexation plan would include all the West Bank settlements. All those Jewish communities are located in Area C of the West Bank, which is under Israeli military rule.
Within the context of Israeli law, Sfard said, such application of Israeli sovereign law to that area can occur very rapidly.
“Annexation happens in one moment. That is the moment of the declaration, which can be done by a cabinet decision or a vote in the Knesset, that Israeli sovereignty applies to that territory,” Sfard said.
Technically, Netanyahu would not need to do more than apply sovereignty through the cabinet, but it is doubtful that he has a majority there, and he has a majority in the Knesset, Sfard said.
A Knesset vote brings with it an enormous amount of symbolism, and the Israeli Right would want that kind of gesture, he said.
More significantly, Knesset approval would be needed for the necessary accompanying legislation, Sfard explained.
It is that execution and the transformation of the annexed territory from military rule to Israeli sovereign law that is time-consuming, he said.
“What will take time is the actual digestion of that area into the Israeli bureaucracy and applying the law fully to that territory,” he added.
Past applications of Israeli law, in east Jerusalem after the 1967 war and on the Golan Heights in 1981, were very different because there were a small number of Israelis in both areas, Sfard said. He dates the annexation of east Jerusalem to 1967, adding that the 1980 Knesset vote symbolized the already existing situation.
Annexation in the West Bank would be more complicated because there are upward of 430,000 Israelis already residing in that area, Sfard explained. Their lives are governed by thousands of military rules not all of which are necessarily analogous to Israeli law, he added.
Unless there was accompanying legislation for the gradual application of Israeli law, business would become illegal and the local councils would be obsolete, Sfard said, listing just a few examples.
“What I expect is that, with annexation, there will be some kind of legislation that will escort it, saying that whatever license and whatever permit was done by the Civil Administration will be considered legal, so that everyone will continue to operate,” Sfard said.
Institutional democratic structures have to be developed for those areas, such as court systems. The power of local councils would be expanded, particularly with regard to land appropriation and development, he explained.
The result, he predicted, would be “massive expropriation of land belonging to Palestinians,” and “what we will see in the annexed territory is settlement construction and expansion on steroids.”
Technically, he said, annexation can be reversed, even though a current law was designed to make it difficult to do so, Sfard said.
At present, sovereignty can be relinquished only with the support of 80 parliamentarians, or a referendum. But if there is enough political power in the Knesset, then the law can be repealed by a 61-member vote, he said.
But as time goes by and the population in those territories increases and people become more entwined with Israeli sovereign laws, it would become harder to rescind the rights of citizens within that system, Sfard said.
In addition, he said, residents of those areas have many more rights under Israeli sovereign law, when it comes to issues of forced evacuation, such as occurred during the Sinai and Gaza withdrawals.
“The main obstacle for withdrawal is the number of people that we need to take out of there,” he said.
It is “easier to withdraw from an area under occupation,” Sfard said. When the Israeli citizens of Gaza and Sinai turned to the court prior to evacuation, their claims were rejected. They were told that, given that scenario, it should have been clear to them that their future there was conditioned upon international understandings and agreements, he explained.
“It is not the same if a sovereign territory of Israel is being evacuated or withdrawn from,” because those citizens have “a valid expectation that they can live there forever,” he said.
“You can’t order people to leave Haifa,” he said. Technically, Israel could relinquish the territory and leave its citizens in their homes, but it isn’t a political option, Sfard said.
In the eyes of international law, annexation is illegal, and states should not recognize it, he said. But in the eyes of Israeli law, it’s the issue of populated areas.
Sovereignty purports to be eternal, he said. For the last five decades Israel defined the West Bank as disputed territory, language that suggested the situation was temporary.
The only force that could override the inherent complications associated with repealing annexation would be a significant peace treaty, he said.
ATTORNEY TALIA SASSON, former New Israel Fund board president, who in 2005 authored a report for the government on West Bank outposts that were illegal under Israeli law, said that the issues here are not merely technical matters of law.
There is not enough political power in this Knesset to make those changes, said Sasson. Even if Alternate Prime Minister Benny Gantz were to succeed Netanyahu as prime minister, he would still not have enough power in this Knesset to make such a move.
Netanyahu could destroy Gantz’s government on any day because Gantz does not have power in the Knesset and Netanyahu does, said Sasson, who once ran for the Knesset on the Meretz ticket.
“The Gantz government would be dependent on the goodwill of Bibi Netanyahu,” she said. “We, the citizens, are thinking we have to bear Netanyahu for one-year-and-a-half, and then Gantz will come and things will settle down and be OK. No, not at all,” she said.
But what makes the difference between the day before annexation and the day after is less the application of law and more all the ramifications of that decision, Sasson said.
Each reaction and counterreaction creates changes on the ground that have long-term implications for any potential future peace process with the Palestinians, she said.
“We do not know what the results would be,” she said.
On Wednesday, Anna Ahronheim and Tzvi Jofre reported in the The Jerusalem Post that the Defense Ministry is already braced for a violent Palestinian reaction, and has warned that it is unlikely to be prepared to counter that by the July date.
“There would be many issues with security, more violence. We might lose the peace agreement with Jordan,” Sasson speculated. If that happens, Israel would lose the strategic depth that Jordan provides, which protects it from hostile forces from Iraq, she said.
Things might be changed for the worse for Israel, Sasson said.
“You can’t take only the perspective of a pure legal thought and look at it and say, this law that you legislated today, you can change it tomorrow. No. Things might be changed on the ground. Emotions would be changed. Security would be changed. The cooperation between Israel and the Palestinians would be changed. I can’t tell you we can do that today and we could cancel it tomorrow. I do not think so,” she said.