Israel and Annexation by Lawfare

I always thought that if Israel were to unilaterally annex the occupied Palestinian territories, it would come under an international spotlight, with denunciations and protests around the world. I was wrong. Annexation is underway, but out of the spotlight, away from international attention. In the dismal offices of the fortified Justice Ministry in East Jerusalem, in the cramped meeting rooms of the Knesset, and in the august chambers of the Supreme Court, Israel’s finest lawyers are working around the clock to shape the biggest paradigm shift since the West Bank was conquered in 1967. The government’s lawyers are busy giving their counsel, drafting laws, and defending Israel’s efforts to expand the jurisdiction of its law and administration beyond the 1949 ceasefire lines to serve the interests of Jewish settlers at the expense of the occupied Palestinians, whose civil rights are suspended. Knesset committees are drawing up legislation to expand and entrench the dual legal system that already exists in the West Bank: one code for settlers, another for Palestinians. These new laws are to be applied in a setting in which the colonized are dominated by the colonizers, with a clear intention of maintaining that domination. Even the Israeli judiciary is joined to the task, allowing the exploitation of Palestinian property for the benefit of Israeli settlers.

This epic transformation is taking place after close to fifty years of occupation. During that time, Israel made profound changes to both the landscape and the demography of the territory it conquered. Palestinians were subjected to a military government that denied them participation in the political process that shaped the rules applied to them and determined their future. Israel used the authoritarian powers that international law gives an occupying force to exploit the territory in a way never envisaged by the framers of those laws. It unilaterally annexed East Jerusalem, a move that was widely condemned abroad. The international community does not recognize the unified city as Israel’s capital; even Trump’s declaration on moving the US embassy to Jerusalem stops short of acknowledging the annexation of the city’s eastern parts.

Yet, even as Israel was doing all this—and even before it signed the Oslo Accords—it continued to agree that the permanent status of the land it “administers” (the euphemism used by Israel’s foreign service) would be decided through negotiations and consent. Military control, it was said, would be temporary. The government denied that the territory was occupied in the legal sense, but conceded that because the land was “disputed,” its future would not be decided unilaterally.

The Israeli government’s actions—chiefly, the expansive settlement project—proved beyond doubt that the country intended to annex much of the West Bank. But its words were not insignificant. Temporariness is one of the qualities that distinguishes the regretful, yet legal, reality of occupation from the illegal act of annexation by force. The policies that evolved over decades—a creeping process of de facto annexation—stopped short of a wholesale application of Israel’s sovereignty over the Occupied Territories; the legal and political distinctions between the West Bank and Israel were preserved.

Now, this crucial legal-political status is being dismantled. The government is peeling away the last remnants of loyalty to the notion of the occupation as temporary and to any obligation to negotiate with the Palestinians. The goal is clear: a single state containing two peoples, only one of which has citizenship and civil rights.

What the government is embarking on amounts to both de jure annexation and the crime of apartheid. In recent months, the expansion of de jure annexation has been staggering. Lawyers for the Ministry of Justice recently drafted a bill to give the Jerusalem district court, rather than the High Court of Justice (which is a bench of the Supreme Court), the power of judicial review over the military government in the Occupied Territories. This shift away from the High Court represents a move to designate the West Bank as a district within Israel. In addition, the attorney general has directed the government’s legal advisers that when drafting bills, they should take into account the need to find a legal mechanism to apply those bills to Israeli settlers as well.

At the same time, the ruling parliamentary coalition has put its lawyers to work drafting numerous annexationist bills. Their latest accomplishments include a law, enacted last year, which instructs the army to confiscate private Palestinian land and assign it to the intruding Israelis who have put up settlements there. This law is not only a naked sanction of land theft; it is also an unprecedented imposition of Knesset legislation on Palestinians who have no parliamentary representation. Another law that passed the legislative process a few weeks ago gives the state’s Council for Higher Education authority over Israel’s academic institutions in the West Bank, normalizing their presence and operation there. One bill currently making its way through the legislature would extend Israel’s law and administration to the municipal areas of Jewish settlements; another proposes the establishment of a Greater Jerusalem Council, which would include nearby settlement blocs. Prime Minister Benjamin Netanyahu even bragged recently that these annexation plans are coordinated with the US administration—a claim he had to retract after a strong denial from the White House.

Justices in the Supreme Court, housed in a hilltop building that faces the Knesset, have set precedents of their own: last November, three judges ruled that the settlers constitute a “local population” in the West Bank, and that therefore, under certain conditions, private Palestinian land can be “temporarily” allocated to serve their needs. Their judgment overturned a principle, upheld for over forty years, that barred the use of private Palestinian land for settlement expansion. Within days of the ruling, the attorney general authorized the army to consider the expropriation of private land owned by Palestinian farmers to pave a settlement road.

Israel’s charade of adhering to the principles of international law is over. Every branch of government is contributing to this overhaul, with jurists taking the lead. In another set of buildings, some even shabbier than the dingy Ministry of Justice, a different group of lawyers, myself among them, wield the legal tools at our disposal with an opposite aim. We enlist the law to fight oppression and dispossession: in one case, we have challenged the confiscation law (also known as the Settlements Regularization law); in another, we have petitioned for a further hearing on the November ruling that allows (temporary) use of Palestinian lands for settlements. We have launched countless petitions, on behalf of our Palestinian clients, demanding that the settlers be evacuated from private land and the structures they have built be demolished. Our legal struggles, which often seem Sisyphean, take years first to liberate, then to restore access to, the occupied lands on which more than a hundred settlers outposts, such as Migron and Amona, have sprung up since the 1990s. We have invoked legal principles to win the lifting of restrictions placed on the movement of Palestinians, fighting to overturn orders that the army frequently issues to deny Palestinians access to their farm lands as an easy way to avoid friction with violent settlers. And we have demanded countless times that the court end its disgraceful failure to enforce the law against settlers: astonishingly, construction companies, settlers associations, and even heads of settler municipal councils, which are all involved in illegal construction on private Palestinian lands, have never been charged for their role in this huge collective crime. We are filing petitions to secure a remedy that sounds simple but is extremely difficult to get: to force the police to investigate these violations and the prosecutors to prosecute them.

Our petitions against the confiscation law, filed on behalf of some forty Palestinian local councils, sixteen Israeli human rights NGOs, and several individual land owners, will be heard in June before an unusual tribunal of nine justices (the Supreme Court usually sits in panels of three). It will be a significant test for the highest Israeli court, which over the years has approved many practices that strengthened Israel’s military and civilian presence in the Occupied Territories. The court backed government and army policies that allowed settlers to colonize land and exploit its resources, and it upheld draconian measures designed to crush grassroots Palestinian leadership. Supporting the power of the gun and the settlements, it gave the occupation a third leg on which to rest: the court’s legal authority, which helped secure the occupation’s stability and boost its legitimacy. But the justices have been careful not to stain their hands with outright annexationist acts. Like a child offering to brush her teeth after binging on candy, the court has insisted that the international laws of belligerent occupation still apply to the military regime, and that the land is held “temporarily” and in “trusteeship” until an international agreement is reached on its permanent status.

Much could be said about the integrity of a jurisprudence that sustains such internal contradictions. It must be noted, however, that the court’s reluctance to seem bluntly annexationist has on some level helped slow the process of incorporating the West Bank into Israel. Now, with the case against the confiscation law and other challenges to creeping annexation, the court will have to make an epochal choice. Given the enormous change in its composition in recent years (ten of its fifteen justices were appointed after 2012), the court’s traditional legal approach to the status of the Occupied Territories is no longer assured. The activist bench of the 1980s, 1990s, and 2000s, which saw a steady majority of justices who professed allegiance to liberal legal philosophy, became the number one target of the Israeli right. The generational turnover on the court’s bench gave successive Netanyahu-led governments the opportunity to liquidate its liberal wing. The new appointments of conservative, illiberal, and nationalistic judges, two of them settlers, changed the balance in favor of justices who emphasize nationalism rather than universal values.

A vestigial aspiration to end the occupation was not the only victim. Several important rulings in recent years contradict the fundamental principles of equality, political freedom, and freedom of expression of Israeli citizens that were hallowed by the court in the past. For example, in 2012 the court dismissed a petition challenging the constitutionality of the “Nakba law,” which imposed sanctions on organizations that mark Israel’s Independence Day as the day of the Palestinian catastrophe. This law mainly impinged, of course, on the political freedom of Israel’s Palestinian citizens; the justices threw out the petition on the basis of the “ripeness” doctrine, which holds that a case is not ready to be decided because it rests in part on contingent future events, and on the grounds that the issue has not generated a sufficient factual basis to merit judicial resolution. The court also dismissed a 2014 petition to repeal a law that allowed admission boards in localities in the Negev and Galilee regions to reject applicants for residency because they were deemed “socially” or “culturally” incompatible with the community—a law that is widely considered a tool for screening out minority groups, primarily Arabs. (The court refused this case also on the grounds of ripeness.) And in 2015, the court rejected a petition challenging a law that imposed administrative sanctions on parties that call for an economic, cultural, or academic boycott of Israel, including of the settlements, and made such a call an actionable tort.

This is how the rule of law in Israel is abused by some and used by others. The law has always been a servant of two masters: for one, a sword; for the other, a shield. All the good for which some lawyers have ever fought and won was a remedy against the evil that other lawyers helped to draft, legislate, and adjudicate. In the struggle against slavery, the campaign for women’s suffrage, the battle for LGBTQ equality, and the fight against the injustices of occupation, lawyers have stood on both sides: with the abusers and with the abused. They might have been students in the same departments and the same classes, and may even have studied together for exams; they learned to master the same language, but when they grew up, they chose to use that language for strikingly different ends.

The battle for the future of Israel’s dominion over millions of Palestinians and the colonization of their land is at a critical juncture. Will the current reality of repression and discrimination through “temporary” control of one nation over another be reinforced and institutionalized by official annexation into one permanent state? Lawyers stand on both sides of the barricades. Across the lines from me and my colleagues, lawyers working for the government and the military are charged with engineering a separate and unequal system of law. If they do not put down their pens, disconnect their keyboards, and stop lending their talent and expertise to the destruction of the best traditions of the rule of law as a means for assuring equality, liberty, and dignity for all human beings, they will not only betray our professional calling but also disavow the lessons they should have learned from our nation’s history. We are the sons and daughters of a people that knows the pain of discrimination and subjugation and the intensity of longing for freedom and independence. Our collective biography taught us that obeying orders is not a defense for morally reprehensible acts. Devising bad laws bears no less responsibility than obeying them.