The Detrimental Geopolitical Significance of “Regularisation” Laws in the Palestinian-Israeli Conflict

After President Trump’s investiture influential figures within Netanyahu’s Government such as Ayelet Shaked, Naftali Bennett or Bezalel Smotrich have found the leeway to push for a normalisation and regularisation of the West Bank Settlements and Outposts. The Regularisation Law is a prominent example of this as it allows the annexation of the Palestinian privately owned territories in the West Bank turning the temporary character of the occupation into an overt permanent annexation of the West Bank impeding the viability of the Two-State Solution. This paper focuses on Israeli government attempts to pass this and similar bills which aim to regularise the legal situation of the Israelis living in the West Bank. This encompasses their right to own, cultivate and expand their land despite these same rights being denied to their Palestinian neighbours. With a particular focus on the Regularisation law, this essay aims to provide an understanding on how the settlement expansion, and its regularisation, impede the feasibility of a Palestinian State and, therefore, the prospects of a Two-State Solution.

To understand the relevance of the regularisation of settlements and outposts status, it is important to first touch upon the concept of geopolitics. The well-known French geographer Yves Lacoste defines geopolitics as “any power struggle of a given territory”[1] meaning, thus, the physical features as well as the peoples living in that territory and “the forms of power they accept, those they rebel against for historical reasons in which they rightly or wrongly believe, their fears, and the representation they create of a more or less distant past and future”[2] . This struggle over the territory has historically been the main obstacle in achieving a Peace Agreement between the two parties concerned. Israel has the tools, both economically and militarily, to be the force of power that exercises control over area C^[3] in the West Bank and, thus, the principal agent who will determine the physical features of the territory. On the basis that there is no nation without territory as Lacoste[4] affirms, this paper places emphasis on the dangerous direction the settlement dynamics are heading in, with regards to achieving a Two-State solution.

In that spirit, power dynamics define geopolitics in a mutually reinforcing relationship, this being key to understand the spatial strategy and, thus, the Palestinian-Israeli conflict and in turn, any future configuration of the region.

Previous to the Trump Administration, there have been countless attempts to achieve a Peace Deal – the last one being The Quartet’s attempt to rekindle the talks before Obama left office in 2016. With regards to the settlements, the released report agreed on the necessity of the following conditions: halting settlement expansion, allowing Palestinian infrastructure development and transferring the control of Area C to Palestinian civil authorities. Moreover, the report warned of the adverse consequences of the Israeli designation of new “State Land” -where there are Palestinian privately own territories[5] .

Former US Secretary of State John Kerry declared in 2014 that “Israel risks becoming an apartheid state if peace talks fail”[6]. Although he regretted using the word ‘apartheid’, Kerry warned of the danger of a future institutionalisation of the ethnocratic character of Israel, if the States do not recognise each other and the settlement expansion continues.  Although not overtly referred to as illegal since the days of Carter Administration, settlements have been categorised by the US as illegitimate. More recently in 2016, the US took this condemnation a step further and decided not to veto a UN resolution which described settlements as lacking legal validity[7]. Additionally, the former US Ambassador to Israel, Dan Shapiro, questioned Israel’s long-term intentions and expressed his concern about the direction Israel settlement policy was taking[8] .

Further to this, it is also worth noting the decision to evacuate the Amona outpost following a 2014 order by the Israeli Supreme Court of Justice[9]; which was made effective at the very end of Obama’s tenure and was immediately followed by the announcement of the construction of 3000 new housing units^[10] in the West Bank once evacuation had taken place and Trump had been elected. “We are building and we will continue building”, declared Netanyahu[11] most probably in a bid to regain political support lost due to the forced evacuation.  One month after the events in Amona, Netanyahu announced the construction of a new settlement, the first one in two decades^[12].  

Whilst the US has historically been an Israel ally and has not taken significant measures to translate condemnations into any robust political opposition, the advent of President Trump’s leadership has undoubtedly swayed the pendulum towards Israel. Religious nationalists and far right-wing parties willingness to annex the West Bank is nothing new, but the flames of their ambitions have been fanned by Trump’s administration and the appointment of the pro-settler US Ambassador to Israel David Friedman. Previous discussions on evacuation and land swaps, the viability of a two-state solution and the materialisation of the Green-Line –or even the West Bank Barrier- as the physical boundary between the two nations are now almost unthinkable. Friedman could not be more unequivocal: “settlements are part of Israel”[13] -which now places the US discourse in sharp contrast with the positions of its old Middle East Quartet allies -the United Nations and the European Union.

In recent years Israel has been trying to pass a series of bills in the Knesset all of which have something in common: regularise the settlement status in the West Bank through its expansion and its formal annexation. The main legislative proposals are: the Regularisation Law which would deem legal the expropriation of Palestinian privately owned land under Israeli Law; the Maale Adumim Bill which has the strategic aim of annexing the largest settlement, expanding Jerusalem existing municipality and, ultimately, the Annexation Law which aims to apply civil rights to the Israeli citizens of the West Bank [14]. These bills were on the table before 2017 but have now been given the impetus by the changing attitude of the US and the subsequent space for aggressive expansion.

Before discussing these bills in more detail, it is prudent to highlight Israeli legal obligations under Hague Regulations[15] (art. 42-56) as the occupying power and the Fourth Geneva Convention[16] (art. 27-34 and 47-78) -which aims to protect the rights of the local population[17].

Article 49(6) of the Geneva Convention establishes that the civilian population cannot be transferred to occupied territories[18]. This safeguards against the annexation or colonisation of occupied territories, the permanent modification of the physical landscape, the acquisition of resources and the prevention of a tiered class citizenship based on ethnicity or otherwise[19]. In order to prevent a permanent annexation, the occupying power cannot acquire sovereignty over the territory or confiscate privately-owned land, but to instead, gradually transfer authority to the local powers and re-establish “the full and free exercise of sovereignty”[20]. The problem arises when Israel acknowledges its obligation to apply the laws of belligerent occupation on one hand, whilst the means to do so is left with politicians, who are altering the legal framework[21].  This is particularly reflected in government attempts to regularise the settlements and the settlers’ legal status.

Law for the Regularisation of Settlements in Judea and Samaria

As a starting point, the Knesset passed the Law for the Regulation of Settlements in Judea and Samaria, 5777-2017 on February 6^th 2017 which allows the expropriation of privately-owned land in the West Bank and serves as a tool to regularise the existing outposts and its expansion under Israeli Law[22]. Mainly pushed by the Minister of Justice Ayelet Shaked and the Minister of Education Naftali Bennett, this bill not only contravenes international law but also, it signifies a shift within Israeli Law which until now had deemed such action illegal[23]. According to Dan Meridor, a former Likud member, Israeli sovereignty in the West Bank is limited to security purposes and in the case of full sovereignty over the territory, to legislate on private land, it would have to concede the Palestinians the right to vote for the Knesset and claims to Israeli citizenship. The law would legalise more than 50 outposts, issue further demolition orders and –as a case in point- would have prevented the evacuation of Amona[24].

Sixty members voted in favour of the Law whilst fifty-two objected it[25]. Its chief obstacle has been the Israeli Supreme Court and the General Attorney Avichai Mandelblit who declared it was a violation of the Fourth Geneva Convention and Israeli domestic law as it does not respond to military needs but Zionist ambitions[26]. As a result, in August 2017 the High Court of Justice issued a temporary injunction freezing the bill[27], to which the Government responded by arguing that the Law was a “humane, proportional and reasonable response to the genuine crisis of Israeli residents”[28]. The brief issued by the General Attorney opposing the Regularisation Bill proposes a more moderate alternative which would allow the halting of demolition of illegal outposts on a case-by-case basis regulating a third of the already built illegal outposts as these would be valid under the criterion of “good faith”[29].

There were previous unsuccessful attempts to pass the bill under Obama’s administration, although the pressure to regain legitimacy was too high after the Amona forced evacuation[30]. If the result of the evacuation of a single illegal outpost has led to pass such a drastic legislative response what will their proponents do if major compromises to reach a Two-State solution are made.

Ma’ale Adumim Bill and the ‘Greater Jerusalem Bill’

Further to this, the announcement of the illegality of the settlements in 2016 by the UN Security Council[31] Resolution 2334 has triggered Jewish Home and Likud members to advance the annexation of some of the main West Bank settlements as is the case of the Ma’ale Adumim Bill in December 2017 (originally submitted in 2016[32]).

Extending sovereignty to a settlement which is strategically placed in the borders of the so-called E1 zone next to East Jerusalem -as the Ma’ale Adumim Bill proposes- is just the first step to further expand Jerusalem Municipality by the same means. The Ma’ale Adumim Bill’s most ambitious and recent version is the ‘Greater Jerusalem Bill’ which aims to expand Israel Jurisdiction to the East, including Ma’ale Adumim and Gush Etzion settlements blocks[33] with the purpose of acquiring a Jewish majority in the Jerusalem Municipality[34]. Enjoying the support of Netanyahu, the vote to pass the ‘Greater Jerusalem Bill’ has been delayed on several occasions, the last one being in October 2017 due to the US demand for clarifications on some of its aspects[35].  

The Settlements Annexation Bill

Last but not least, the Government attempted in June 2017 to pass the Annexation Bill which would extend Israel’s sovereignty to the West Bank by applying Israeli civil laws to the settlers[36]. Since 1967 Israel has gradually applied civil law to the settlers[37] but has not formally done so thus far. The implications would be Israel’s formalisation of sovereignty and further institutionalisation of a “two-tiered system” [38] in Area C. With the prospect of annexation, Israel would cease to apply military rule over Area C as required under the Laws of Belligerent occupation to apply instead Israel domestic law[39]  as it has done since 1980 in East Jerusalem and the Golan Heights[40]. Ultimately, in February the Settlement Annexation Bill was delayed in a bid to appease the US. To understand the reach of the Bill, it is important to note that it relies on the support of most of Likud and some of the Kulano members[41] and it came after a similar resolution was passed in the Likud Central Committee with unanimous consent[42] . 

Nevertheless, it seems that such radical legislations seem to have encountered obstacles in favour of more moderate changes[43]. What is clear is that under Trump’s Administration these and similar bills have a greater chance of being realised. An example of this was the declaration of the main proponent of the Annexation Bill Yoav Kisch after the visit of the Vice Secretary of State the US to Israel: “[the] visit has strengthened the feeling that this is the right time, that this is the time to apply sovereignty. We’re at a historic juncture”[44].

Implications and conclusions

Calls for annexation and regularisation of the settlements although not entirely successful thus far, have seen a recent increase[45] and are currently pending on the next US move and the outlook of the US Peace Plan[46] . Although we have seen that Trump’s administration is more permissive than his predecessors, annexation continues to be a red line of which Netanyahu is cognisant[47] . However, the mere fact that issues such as sovereignty over the occupied territories (OT) are being discussed in the Knesset and supported by influential Knesset Members reflect a new reality which represents a new order from the Oslo agreement and which stem from a demand which, legitimate or not, will only get normalised with time. As argued by Chachko[48]: “the Regularization Law may not survive judicial review, but the massive political pressure it has placed on the Israeli legal establishment is already changing its approach to illegal settlements in profound ways”.  This willingness to regularise the settlers status in the OT is reminiscent of the maximalist approach of the late 70s and particularly during the rule of Menachem Begin who argued that it is impossible to “annex your own country” referring to the West Bank[49]. His vision of Judaism set the precedent for today’s national-religious and hawkish ideologies[50] which are now on the rise.

The different legislative proposals are the materialisation of the already existing Palestinian spatial crisis. Whether these bills are finally passed or not, issues such as land discontinuity[51] which directly stem from the ongoing settlement and outpost expansion are not compatible with the creation of a Palestinian state and, thus, with the Oslo understanding of a Two-State solution. As a result of the settlement expansion in Area C, Areas B and A have turned into “165 disconnected ‘islands’”[52] and the regularisation of such a situation will permanently undermine any state building enterprise by the Palestinians. Time is against the realisation of any Peace deal as new generations of Israelis are born into this environment, knowing only the current political landscape, and seeing themselves as second-class citizens with the legitimacy to claim the same rights Israelis enjoy in the West side of the Green Line. As argued in the beginning of this paper, geopolitics are also about the forms of power the peoples accept and, in this case, the Jewish understanding of Judea and Samaria as given territories. Naturally, the issue is much more complex as economic reasons are also involved in a settler’s decision to move to the West Bank, given the lower cost of living and the incentives provided. However, in practical terms the consequences are similar: resettling a growing population with already second and third generations is an unpopular political decision.

The conclusion which can be drawn from this is the Government disinclination to make any compromise with regards to territory. On the contrary, it has only worsened when making sovereignty claims over an occupied territory has become normalised and almost regularised. All the progress which had been made early this century has been blown away and moved the conflict back to the seventies when a Palestinian state was too weak and not recognised.

It remains to be seen yet what the final outlook would be of these regularisation bills as there are still unsolved issues which are key definers such as the future of the Netanyahu Coalition in the face of the coming elections and the recent accusations of bribery; and also, the final shape of Trump’s Peace Process. Thus far, there is one thing clear: Israel is benefiting more from making no Peace deal and it will remain as such as long as there is no major condemnation and sanctions imposition by the International community[53].

[1] Lacoste, Y. (2012). Geography, Geopolitics, and Geographical Reasoning. Cairn-int.info. Retrieved 6 February 2018, from https://www.cairn-int.info/article-E_HER_130_0017–geography-geopolitics-and.htm p. 1

[2] Ibid.

^[3] Area C being over 60% of the West Bank, 70% of it being used by Israelis, the remaining 30% mostly being Palestinian privately owned land, in UN. (2016). UN News – Diplomatic Quartet releases report on advancing two-state solution to Israel-Palestine conflict. UN News Service Section. Retrieved 25 January 2018, from https://www.un.org/apps/news/story.asp?NewsID=54379#.WmuvKa6nHIURead

[4] Ibid. 1. p. 20.

[5] UN. (2016 A). UN News – Diplomatic Quartet releases report on advancing two-state solution to Israel-Palestine conflict. UN News Service Section. Retrieved 25 January 2018, from https://www.un.org/apps/news/story.asp?NewsID=54379#.WmuvKa6nHIU

[6] Beaumont, P. (2014). Israel risks becoming apartheid state if peace talks fail, says John Kerry. The Guardian. Retrieved 26 January 2018, from https://www.theguardian.com/world/2014/apr/28/israel-apartheid-state-peace-talks-john-kerry

[7] BBC. (2017 B). Can Jewish settlement issue be resolved?. BBC News. Retrieved 18 February 2018, from http://www.bbc.com/news/world-middle-east-38458884

[8] Shuttleworth, K. (2016). Israel eyes land in West Bank; Annexation plan is denounced by Palestinian leaders and the U.N. chief. Search.proquest.com. Retrieved 18 February 2018, from https://search.proquest.com/docview/1758845529?accountid=8555

[9] Al Jazeera. (2017) Israel evacuates settlers from illegal Amona outpost. Aljazeera.com. Retrieved 25 January 2018, from http://www.aljazeera.com/news/2017/02/israeli-begins-evactuation-illegal-amona-outpost-170201105859758.html ; Reed, J. (2017). Israel begins evacuation of Amona settler outpost. Ft.com. Retrieved 26 January 2018, from https://www.ft.com/content/f534b2cc-e853-11e6-893c-082c54a7f539

^[10] Number that has continued to increase after Trump’s Investiture, in Beaumont, P. (2017 A). Israel evicts Amona settlers as 3,000 new homes approved elsewhere. The Guardian. Retrieved 26 February 2018, from https://www.theguardian.com/world/2017/jan/31/israel-west-bank-settlement-homes

[11] Al Jazeera. (2017) Israel evacuates settlers from illegal Amona outpost. Aljazeera.com. Retrieved 25 January 2018, from http://www.aljazeera.com/news/2017/02/israeli-begins-evactuation-illegal-amona-outpost-170201105859758.html

^[12] Israel had been expanding the existing settlements by adding new housing units, in BBC. (2017 A). Israel approves new West Bank settlement. BBC News. Retrieved 26 February 2018, from http://www.bbc.com/news/world-middle-east-39449510

[13] Beaumont, P. (2017 B). Israel only occupies 2% of West Bank, says US ambassador. The Guardian. Retrieved 26 January 2018, from https://www.theguardian.com/world/2017/sep/28/israel-occupies-small-fraction-of-west-bank-claims-us-ambassador

[14] Dajani, O. (2017). Israel’s Creeping Annexation. AJIL Unbound, 111, 51-56. http://dx.doi.org/10.1017/aju.2017.21

[15] ICRC. Treaties, States parties, and Commentaries – Hague Convention (IV) on War on Land and its Annexed Regulations, 1907. Ihl-databases.icrc.org. Retrieved 6 March 2018, from https://ihl-databases.icrc.org/ihl/INTRO/195

[16] UN. IV GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR OF 12 AUGUST 1949. Un.org. Retrieved 1 March 2018, from http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf

[17] ICRC. (2004). Occupation and international humanitarian law: questions and answers – ICRC. Icrc.org. Retrieved 28 February 2018, from https://www.icrc.org/eng/resources/documents/misc/634kfc.htm

[18] Ibid. 16

[19] Tahhan, Z., & Najjar, F. (2017). Why Jerusalem is not the capital of Israel. Aljazeera.com. Retrieved 28 February 2018, from https://www.aljazeera.com/indepth/features/2017/05/jerusalem-capital-israel-170524091310050.html

[20] ICRC. (2004). Occupation and international humanitarian law: questions and answers – ICRC. Icrc.org. Retrieved 28 February 2018, from https://www.icrc.org/eng/resources/documents/misc/634kfc.htm

[21] Kretzmer, D. (2012). The law of belligerent occupation in the Supreme Court of Israel. International Committee of the Red Cross. Retrieved 16 February 2018, from https://www.icrc.org/eng/assets/files/review/2012/irrc-885-kretzmer.pdf p. 231

[22] Library of Congress. (2017).Israel: Law for the Regulation of Settlement in Judea and Samaria, 5777-2017. (2017). Loc.gov. Retrieved 27 January 2018, from https://www.loc.gov/law/help/israel-settlement/judea-and-samaria.php

[23] Kaplan Sommer, A. (2017). Explained: Israel’s new Palestinian land-grab law and why it matters. haaretz.com. Retrieved 26 January 2018, from https://www.haaretz.com/israel-news/explained-israel-s-new-palestinian-land-grab-law-and-why-it-matters-1.5495208

[24] Ibid.

[25] Ibid. 22

[26] Ibid. 22

[27] HRW. (2018). World Report 2018: Rights Trends in Israel and Palestine. Human Rights Watch. Retrieved 21 February 2018, from https://www.hrw.org/world-report/2018/country-chapters/israel/palestine

[28] Peace Now. (2017). Attorney General responds to Regularization Law Petition submitted by ACRI, Peace Now and Yesh Din to High Court of Justice – Peace Now. Peace Now. Retrieved 4 March 2018, from http://peacenow.org.il/en/attorney-general-responds-to-regularization-law-petition-submitted-by-acri-peace-now-and-yesh-din-to-high-court-of-justice; Adala. (2017). Responses of Israeli government and attorney general in Settlements Regularization Law Case – Adalah. Adalah.org. Retrieved 4 March 2018, from https://www.adalah.org/en/content/view/9371

[29] Chachko, E. (2017). Israel’s Settlement Regularization Law: The Attorney General’s Extraordinary Brief and What it Means for Israel’s Legal Stance on Illegal Settlements. Lawfare. Retrieved 4 March 2018, from https://www.lawfareblog.com/israels-settlement-regularization-law-attorney-generals-extraordinary-brief-and-what-it-means

[30] Ibid. 23

[31] UN. (2016). Israel’s Settlements Have No Legal Validity, Constitute Flagrant Violation of International Law, Security Council Reaffirms | Meetings Coverage and Press Releases. Un.org. Retrieved 4 March 2018, from https://www.un.org/press/en/2016/sc12657.doc.htm

[32] Ibid. 22

[33] Verter, Y. (2017). Israeli ministers set to vote on annexing West Bank settlements to Jerusalem. haaretz.com. Retrieved 4 March 2018, from https://www.haaretz.com/israel-news/ministers-to-vote-on-annexing-west-bank-sett; Tahhan, Z. (2017). Israel delays vote on bill to Judaise Jerusalem. Aljazeera.com. Retrieved 4 March 2018, from https://www.aljazeera.com/news/2017/10/israel-delays-vote-bill-judaise-jerusalem-171029074608976.htmllements-to-jerusalem-1.5460310

[34] Tahhan, Z. (2017). Israel delays vote on bill to Judaise Jerusalem. Aljazeera.com. Retrieved 4 March 2018, from https://www.aljazeera.com/news/2017/10/israel-delays-vote-bill-judaise-jerusalem-171029074608976.html

[35] Heller, J. (2017). U.S. pressure delays Israel’s ‘Greater Jerusalem’ bill: legislator. Reuters. Retrieved 2 March 2018, from https://www.reuters.com/article/us-israel-palestinians-settlement/u-s-pressure-delays-israels-greater-jerusalem-bill-legislator-idUSKBN1CY0CB

[36] Al-Orzza, M. (2018). Upcoming Likud bill is Israel’s latest attempt to annex the settlements. Mondoweiss. Retrieved 4 March 2018, from http://mondoweiss.net/2018/02/upcoming-israels-settlements/

[37] ACRI. (2014) Association for Civil Rights in Israel (ACRI). One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank |. Acri.org.il. Retrieved 26 January 2018, from https://www.acri.org.il/en/2014/11/24/twosysreport/

[38] Ibid. 27

[39] Maurer, P. (2012). Challenges to international humanitarian law: Israel’s occupation policy. International Committee of the Red Cross. Retrieved 1 March 2018, from https://www.icrc.org/en/international-review/article/challenges-international-humanitarian-law-israels-occupation-policy

[40] Sharvit Baruch, P. (2018). Implications of the Application of Israeli Sovereignty over Judea and Samaria. Inss.org.il. Retrieved 19 February 2018, from http://www.inss.org.il/publication/implications-application-israeli-sovereignty-judea-samaria/

[41] Lis, J. (2018). Netanyahu blocks settlement annexation bill from coming to a vote. haaretz.com. Retrieved 5 March 2018, from https://www.haaretz.com/israel-news/netanyahu-blocks-settlement-annexation-bill-from-coming-to-a-vote-1.5809143

[42] Magid, J. (2017). Likud top body votes to urge annexing parts of the West Bank. Timesofisrael.com. Retrieved 4 March 2018, from https://www.timesofisrael.com/likud-top-body-votes-to-annex-parts-of-the-west-bank/

[43] Ibid. 35

[44] Ibid. 35

[45] Ibid. 39.

[46] Muasher, M. (2018). Dead on Arrival?. Carnegie Middle East Center. Retrieved 22 February 2018, from http://carnegie-mec.org/diwan/75564

[47] Mualem, M. (2018). Trump opposes Netanyahu on annexation plans. Al-Monitor. Retrieved 5 March 2018, from https://www.al-monitor.com/pulse/originals/2018/02/israel-us-benjamin-netanyahu-donald-trump-annexation-bill.html

[48] Ibid. 29

[49] Galchinsky, M. (2004). The Jewish Settlements in the West Bank: International Law and Israeli Jurisprudence. Israel Studies, 9(3), 115-136. http://dx.doi.org/10.1353/is.2005.0003

[50] Shilon, A. (2016). Menachem begin’s attitude toward the jewish religion. The Middle East Journal, 70(2), 249-274. http://dx.doi.org.ezproxy.aub.edu.lb/10.3751/70.2.14

[51] Ibid. 1

[52] B’Tselem. (2017). Planning Policy in the West Bank. The Israeli information center for Human Rights in the Occupied Territories. Retrieved 1 March 2018, from https://www.btselem.org/planning_and_building

[53] Thrall, N. (2017). Israel-Palestine: the real reason there’s still no peace. The Guardian. Retrieved 19 February 2018, from https://www.theguardian.com/world/2017/may/16/the-real-reason-the-israel-palestine-peace-process-always-fails