Can Israel legally enforce the ‘Deal of the Century’
For Israel to transfer to the Palestinians land in the Negev, a national referendum might be necessary
On Tuesday, Prime Minister Benjamin Netanyahu said that the cabinet would vote on annexing West Bank settlements at its next meeting, which will likely take place next Tuesday. However, the current “transitional government” has far less discretion than a regular government, and, according to scholars from the Israel Democracy Institute, can act only in cases in which there is an “essential public need.”
As such, can Israel implement US President Donald Trump’s peace plan right now?
“At least in theory, it is possible to carry out an annexation of territories,” explained Prof. Amichai Cohen, director of the Amnon Lipkin-Shahak Program on National Security and Democracy at the IDI, and his colleague Dr. Amir Fuchs, head of the Defending Democratic Values Program.
Although Attorney-General Avichai Mandelblit said Tuesday night that he would not regard the government decision to annex parts of the West Bank as part of the “Deal of the Century” as illegal simply because the government is transitional, Cohen and Fuchs wrote that they expect Mandelblit would rule that because the current transitional government never received a vote of confidence from the Knesset, it cannot make decisions about annexing land.
If so, they said, it is also unlikely that a government decision to carry out an annexation would be approved by the Supreme Court.
A transitional government, according to the IDI website, is a government that has resigned or has been brought down by a vote of no-confidence, but continues to serve until the next government is formed.
However, Cohen and Fuchs explain that there is no legal barrier to the Knesset passing such legislation, as long as there is broad agreement in its favor.
“According to accepted practice, foreign policy agreements are in any case submitted for Knesset approval, so as to grant them legitimacy,” the scholars wrote. “This practice was followed by the late prime minister Menachem Begin in the case of the peace deal with Egypt, and by the late prime minister Yitzhak Rabin with the Oslo Accords and the peace agreement with Jordan.”
It is likely, though, that the Arrangements Committee, made up of the two main Knesset blocs – the Likud and Blue and White – and the Knesset speaker would have to approve the decision to let the Knesset vote on this matter.
Of course, after the election and when a government is formed, the Knesset will be able to enact an annexation order by government resolution for territories that were part of “Mandatory Palestine,” such as sections of Judea and Samaria, including the Jordan Valley.
“In practice, the extension of Israeli law to territories conquered in the Six Day War was eventually grounded in legislation over the years, via the Basic Law: Jerusalem the Capital of Israel, and the Golan Heights Law,” Cohen and Fuchs said.
However, for Israel to transfer to the Palestinians land in the Negev, which the full plan calls for in order to provide the Palestinians with a contiguous state, a national referendum might be necessary. This would also apply to annexation of the Triangle communities: Kafr Kara, Arara, Baka al-Gharbiya, Umm el-Fahm, Kalansuwa, Taiba, Kafr Kassem, Tira, Kafr Bara and Jaljulya.
“These communities, which largely self-identify as Palestinian, were originally designated to fall under Jordanian control during the negotiations of the armistice lines of 1949, but ultimately were retained by Israel for military reasons that have since been mitigated,” the Trump plan’s authors explained.
Israel’s new Basic Law: Referendum requires a referendum to be held in the event of an agreement or decision that involves yielding territories to which Israeli law applies, they wrote. But it also states that a referendum will be unnecessary if the decision is passed by a majority of 80 Knesset members.
Moreover, “it should also be noted that the Referendum Law can be amended with a simple majority of just 61 Knesset members,” they wrote.