Part II: Annexation versus Expanding Sovereignty in the West Bank

Is the extension of sovereignty identical with annexation? Further, since settlers as Israeli citizens are subject to Israeli law and most of the territory is already under Israeli administrative and security control, what difference would the initiative make? What effect will the initiative have on the American Peace Plan? A number of other questions follow. What are the variations in any extension of the sovereignty initiative? How would the initiative be received by:

  1. Palestinians;
  2. Egypt and Jordan which have peace agreements with Israel;
  3. Other Arab, particularly Gulf, states;
  4. The coalition of Iran, Syria and Hezbollah in opposition to the Gulf Arab states, with some support from Turkey;
  5. Moderate Arab states such as Morocco;
  6. Europe;
  7. Russia;
  8. China;
  9. Middle powers like Canada;
  10.  The international legal regime?

There is a difference between annexation and the gradual extension of sovereignty. Most importantly, annexation cannot be gradual. It usually follows occupation and entails the unilateral joining of a conquered territory to the territory of the conqueror. “Conquest and annexation are not synonymous either. The latter term is used within and outside (my italics) the context of armed conflicts, to designate a unilateral decision adopted by a state in order to extend its sovereignty over a given territory. In many cases, the effective occupation of a terra nullius was followed by a declaration of annexation in order to incorporate the territory under the sovereignty of the acquiring State. In the context of armed conflicts, annexation is the case in which the victorious state unilaterally declares that it is henceforth sovereign over the territory having passed under its control as a result of hostilities.” (See Marcelo G. Kohen’s 2017 essay, “Conquest” published in the collection edited by Frauke Lachenmann and Rűdiger Wolfrum, the editors of The Law of Armed Conflict and the Use of Force.)

Complete sovereignty follows annexation. Annexation asserts legal title. But extending sovereignty does not entail annexation. Sovereignty may be extended by degrees and over time. In contrast, either a territory is annexed or it is not. The unilateral annexation of territory of another state, whether it was Bosnia Herzegovina in 1908 by the Austro-Hungarian Empire or Ethiopia by Italy in 1936, is generally regarded as illegal. But what if the territory has not been allocated to a recognized state? And what if the territory annexed was not conquered as such but acquired in a defensive war?

Under Israeli constitutional law, Israeli law, and, therefore, sovereignty, can be extended to new territories via:

  1. Ministerial decree if the land is located within mandatory Palestine/Eretz Israel – the Israeli cabinet decided to annex East Jerusalem in 1967, a decision ratified in 1980 in “Basic Law: Jerusalem the Capital of Israel;”
  2. Legislation if the land never was part of Mandatory Palestine, as was the case with the Golan Heights in 1981, which, unlike Bibi’s April election pledge, applied to the whole geographic area of the Golan, including all the Druze villages, as distinct from the extension of sovereignty over the West Bank that presumably would apply only to specific Jewish municipalities.

On the other hand, the extension of sovereignty can be gradual. When one country conquers another, the conquering nation exercises sovereignty over the conquered territory. No annexation need occur. The degree of sovereignty extended is variable. Extending Israeli law to cover Israeli citizens living in the West Bank is an extension of Israeli sovereignty. That is already the case with residents of “legal” settlements and certainly all settlements in Area C. Extending Israeli domestic security to cover Areas B and C is another extension of Israeli sovereignty. Extending Israeli domestic administration to cover Area B and C is a further extension of Israeli authority. Israel already controls the external security over the whole of the West Bank and effectively over Gaza, though only with respect to the control of air space, access by water, limitations on fishing rights and access by land from Israel.

Extending sovereignty is usually carried out by an executive decision though it may be backed up by legislation. Annexation requires legislation. Bibi did not promise to annex Israeli blocs in the West Bank but gradually increase Israeli sovereignty over the blocs. While extension of sovereignty over blocs in Areas A and B makes sense in the meaning that it can be comprehended, what could the extension of sovereignty mean in the case of Area C if not annexation?

Between 2016 and 2018, a number of private bills in the Knesset attempted to extend the application of Israeli law to: a) specific settlements; b) the Jordan Valley; c) all settlements. In other words, shifting from a cabinet decision to legislation entails a gradual increase in sovereignty even if there are no changes on the ground. The difference is that legislation unequivocally translates the gradual extension of sovereignty approaching virtual annexation through de jure and not merely de facto action, even when de facto decisions actually extend Israeli law. Extending laws by legislation sends a message of permanence. It is very significant in symbolic terms.
 
But it is not only symbolic. If areas are annexed by legislation, it is incumbent upon the party that exercises sovereignty to offer citizenship to the residents of the area. Israel did this with the Druzim living on the Golan Heights. Bibi’s announcement, even though unarticulated, makes if fairly clear that there would be no offers of citizenship extended to Palestinians, if only because the targeted areas for extending sovereignty include only Jews who are already citizens of Israel.

 
Why did Bibi not include all of Area C which is 60% of the West Bank? After all, of the original 500,000 Palestinians that were living there in 1967, there are likely less than 150,000, perhaps only 100,000, left. Offering citizenship to up to 150,000 Palestinians might be perceived as good public relations, but it would clearly put a one-state solution totally on the table.

More significantly, the gradual extension of sovereignty does not explicitly contravene the Oslo Accords, which specifically forbids changes in the permanent status not agreed to by both Palestinians and Israelis. If Israel, through unilateral legislation, effectively annexed Israeli-occupied municipal enclaves, it would be an official declaration that Oslo was dead. Oslo may no longer even be on life support, but no authority has yet declared that it is brain dead. Creeping annexation, an oxymoron, is really another name for the gradual extension of sovereignty, even though it is not annexation per se. However, the salami method of extending sovereignty reveals that the end goal is annexation. If Israel does not change the status of any areas in the West Bank by legislative acts, then Israel could continue the pretence that there has been no annexation. Further, even if the extension of sovereignty takes place as a result of legislation, Israel could argue, not very convincingly, that the Palestinians living next to these municipal areas still could theoretically create their own state even though their mobility rights might be very restricted.

But why at this time? Unlike the Golan, Israel cannot explain the move to be a result of war – there is no intifada currently underway in the West Bank – or even a significant security threat as existed in the Golan. One reason might be that the move for extending sovereignty would engage wide domestic support and muted international opposition while outright annexation might arouse both the international community as well as a very significant part of the Israeli electorate.
 
Did Bibi concede in advance the demand of the Union of Right-Wing Parties representing all the settlers, especially the national-religious ones (Shas and UTJ), that extending sovereignty gradually would be part of a deal to form his government? Bibi’s extension of sovereignty initiative was widely viewed as an effort aimed at galvanizing support among his nationalist base and right-wing allies, which it evidently did, but possibly at the expense of Bennett. In the negotiations with his allies in the new prospective government, it is not clear what promises he made to them concerning this issue, but the extension of sovereignty was certainly believed to be one of the promises that he made. When asked in that TV interview on 6 April on Israel Channel 12 why he had not annexed Israeli settlement blocs, most specifically Maale Adumim and Gush Etzion, Bibi replied, “Yes. We will go to the next phase to graduallyextend Israeli sovereignty in the areas of Judea and Samaria.”
 
That answer stirred up greater consternation among part of the Israeli public and around the world. Bibi added that, “I will impose sovereignty, but I will not distinguish between settlement blocs and isolated settlements.” Bibi added three further clarifications. “From my perspective, any point of settlement is Israeli, and we have responsibility, as the Israeli government. I will not uproot anyone, and I will not transfer sovereignty to the Palestinians.” He also added, “We will control all of the area west of the Jordan River.”

The plan in outline then included:

  • Imposing sovereignty on outlier settlements as well;
  • There would be no uprooting of anyone, either Palestinian or Israeli;
  • There would be no transfer of sovereignty to the Palestinians, even in Area A where the Palestinian Authority (PA) is responsible for administration and domestic security and Area B where the PA is responsible only for internal administration;
  • Israel would continue to control the whole of the West Bank.

Why the surprise? Variations of this had always been the policy of the Likud. On 31 December 2017, 1,500 delegates to the Likud Party Congress unanimously required Likud elected officials to “take action to facilitate unlimited construction and to apply the laws of Israel and its sovereignty over all the liberated settlement zones in Judea and Samaria.” 

Bibi’s announcement was immediately (mis-?)interpreted by Palestinian Foreign Minister Riad Malki as an intention to declare sovereignty over the whole of the West Bank. He held out the prospect that this would be a move to a one-state solution which would mean that Bibi would be faced, in Malki’s words, with “the presence of 4.5 million Palestinians.” But Malki’s figure included Palestinians in Gaza; the announcement did not include any intention to extend sovereignty over Gaza.

Palestinians in East Jerusalem previously annexed by Israel have been eligible for Israeli citizenship since it was annexed decades ago, even though, in the last few years, bureaucratic obstacles have been placed in the way of Palestinians applying for such citizenship. The actual number of Palestinians affected by Israel extending sovereignty into the West Bank would only be 2.8 million. Bibi ruled out ethnic cleansing since he promised that no one would be uprooted.

The announcement implies the extension of sovereignty only over Israeli blocs rather than a specific territory, even the whole of Area C. In depicting “outlier” settlements, this seemed to include Israeli settlements in territory under Palestinian security and administrative control. But what about the roads and infrastructure that link the settlements to one another and to Israel?

Whatever the interpretation re the extent of the sovereignty, it is widely believed that any effort in this direction would put the final stake in the possibility of a two-state solution because the move would make the creation of a viable and contiguous Palestinian state impossible, especially since Bibi announced that no sovereignty would be transferred to the Palestinians, which he claimed would “endanger our existence.”
 
Given that Donald Trump had recognized a united Jerusalem under Israeli sovereignty and, much more recently, Israel sovereignty over the Golan Heights, a further assumption was made by many that Bibi had conferred with Trump on the extension of sovereignty plan and, further, that Trump had promised his support.

Perhaps Putin as well had extended his quiet endorsement given Russia’s need to gain greater support for its own initiatives in annexation.

 
To be continued

With the help of Alex Zisman

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