Annexation by Any Other Name

By Michael J. Koplow

When the previous Binyamin Netanyahu-led Israeli government was moving toward annexing parts of the West Bank in 2019 and the first part of 2020, it was easy for everyone to see what was transpiring.

The proposals floating around were straightforward and simple to comprehend, whether it was talk of annexing specific spots such as the Jordan Valley or the Etzion settlement bloc, or absorbing all of Area C, or incorporating 30% of the West Bank into Israel based on the map in President Trump’s Peace to Prosperity plan, or applying sovereignty and Israeli civilian law to all 127 recognized Israeli settlements.

Any of these measures would have immediately transformed the legal status of parts of the West Bank and made them indistinguishable in Israeli law from Israel inside the Green Line, and this made these plans and their potential impacts easy to understand and evaluate.
The Netanyahu government that is about to be formed is proceeding in a different manner.

Unlike the blunt force of previous annexation attempts, the new approach is much smarter by being more tactical. Moving to annex parts of the West Bank in one fell swoop created an easy target for annexation’s opponents and also caused a stir outside of Israel, as demonstrated by the public Emirati concern over the policy that led to annexation being shelved in favor of normalization with the UAE and eventually to the Abraham Accords.

Having learned from their previous mistakes, Israeli proponents of annexation — led by Bezalel Smotrich — are now taking a piecemeal approach that gives them cover to argue that they are not actually moving to change the West Bank’s legal designation, but are only implementing administrative changes to make life easier for the West Bank’s Israeli residents.

As these efforts unfold, it will be vital to recognize them for precisely what they are. They are not an attempt to build settlements at a more rapid pace or make it easier to get approval for West Bank infrastructure. They are also not creeping annexation, a catch-all category that has come to describe Israel’s growing presence inside the West Bank. They are the first stages of actual annexation, designed to remove authority over and control of the West Bank from the military — which is the proper address for a military occupation — to civilian bodies, effectively annexing the West Bank in every way short of doing it in name.

The plan laid out by Smotrich and incorporated into the coalition agreement signed between his Religious Zionism party and Netanyahu’s Likud has a number of elements that accomplish this. The first is legalizing illegal settlement outposts, which are illegal under Israeli law because they have been constructed without authorization and outside of the established approval and permitting process, and in many cases because they have also been built not on state land but on private Palestinian land.

Retroactively legalizing about 70 of these illegal outposts is the first step in normalizing them by putting them beyond the reach of IDF bulldozers or the Israeli Supreme Court and treating them like established settlements. Doing so will make it so that there is no longer a category of construction inside the West Bank that is deemed to be illegal under Israeli law, and in the process weakening the rule that settlements cannot be constructed on private Palestinian land. The term that the right uses for these illegal outposts is “young settlements,” which itself is designed to erase any distinction between what is deemed legal and legitimate, and what is not.

Standardizing the status of all West Bank settlements, including previously illegal ones, is a precursor to the next step, which is shifting the West Bank from a territory governed by the IDF to one governed by Israel’s civilian government. The Religious Zionism-Likud agreement stipulates that Religious Zionism will receive a new minister in the Defense Ministry — likely to be Smotrich himself — who will oversee all issues related to territory, construction, demolition and civilian life. In addition to creating what is effectively a settlements minister apart from the defense minister, the agreement dictates that the legal department that oversees the West Bank will be moved out of the IDF Judge Advocate General’s office and into the Defense Ministry under the authority of the new Religious Zionism minister.

While this will be explained as nothing more than a bureaucratic reorganization, it is in reality a momentously significant step, since it officially removes the authority to sanction things in the West Bank as legal or illegal out of the military and to a civilian body. The only proper way to describe this is as an extension of civil governmental authority to the West Bank, which functionally means annexation, even if it is intentionally not described as such.

In addition to shifting some responsibilities over settlements out of the IDF to the purview of this new minister, Smotrich has also ensured that the power to shape facts on the ground will lie with him. The new minister will be in charge of the permitting and planning process for both Jewish and Palestinian construction in Area C by overseeing the Supreme Planning Committee, dictating how often it meets and what is on its agenda. The new minister will also be able to influence what illegal construction is subject to demolition by ratifying the appointment made by the IDF chief of staff of the head of the Civil Administration, which is the body charged with overseeing construction and demolition.

Given Smotrich’s frequent contentions that Israel is engaged in a “war for Area C” with the Palestinian Authority, it should not surprise anyone when Jewish construction spikes while the pace of demolitions of unpermitted Palestinian structures is supercharged. Smotrich will also have the power to ramp up the land survey process in Area C, which is critical to designating more land as state land and thus available for future settlement construction. The legal aspect to this also is not confined to moving the legal department for the West Bank into the Defense Ministry, as the agreement also grants the new minister the power to approve the state’s responses to Supreme Court petitions challenging settlement construction, meaning that Smotrich will oversee the legal strategy for settlement expansion.

These moves have a twofold purpose. The first is to make Israel’s hold on the West Bank even more boundless and impervious to being limited or rolled back. The second is to do so in a manner designed to be maximally opaque, tied up in bureaucratic language and administrative maneuvering that will tangle the U.S. and European governments in knots the more they try to understand and object to what is unfolding. It is much easier to protest building new settlements than it is to protest providing water and electricity on the state’s dime to settlements that already exist, albeit illegally.

It is much easier to condemn applying sovereignty to settlements on occupied territory than it is to condemn moving the office of legal counsel overseeing those settlements out of the military and into the Defense Ministry. It is much easier to fight against not granting construction permits to Palestinians than it is to fight against land surveys that limit the amount of land that is available for those construction permits. This is all meant to usher in a new era of annexation under the noses of those who are on the lookout for annexation.

The Biden administration and Democratic members of Congress are likely going to maintain their previously stated red line of formal annexation as the one that must not be crossed. What cannot get lost in the shuffle is the fact that the moves that the incoming Israeli government will make are all either right on or over that red line, even if they are harder to recognize. When they arrive, they should not be mistaken for anything other than the annexation that they are designed to implement.

Michael J. Koplow is chief policy officer at Israel Policy Forum.