Can the Netanyahu Government Annex Parts of the West Bank?

By Elena Chachko
Friday, January 31, 2020, 4:28 PM

On Jan. 28, President Trump unveiled his administration’s “Peace to Prosperity” plan for the Israeli-Palestinian conflict. Shortly thereafter, Israeli Prime Minister Benjamin Netanyahu announced that the Israeli government plans to hold a vote on the annexation of territories in the West Bank that the plan purports to designate for Israel as soon as next week. The Trump administration has sent mixed signals about its position with respect to the annexation vote, if it takes place. Senior officials, including Secretary of State Mike Pompeo, have expressed their support. But Jared Kushner, who appears to have spearheaded the plan, has said that he hopes Israel will wait to consider annexation until after the upcoming Israeli elections on March 2. At this stage, it is unclear whether the government will hold the vote and, if it does, what portion of territory it will vote on.

It is hard to exaggerate the geopolitical and historical implications of a potential annexation. I will leave the political analysis of the plan and its aftermath to others. In this post, I consider a relatively narrow legal question: whether the Israeli government has the authority—as a matter of domestic law—to unilaterally annex territory before the upcoming Israeli elections. The issue implicates difficult constitutional questions under Israeli law: Can a caretaker government that does not enjoy the confidence of the Knesset (the Israeli parliament) make such a significant move so close to an election? Will parliamentary approval of a government decision be necessary? What can we learn from historical practice? Where does the Israeli Supreme Court stand on these questions?

At the outset, I should highlight that, if one subscribes to the position of the vast majority of international lawyers, the answer to the question of whether the annexation is legal under international law is an unequivocal “no.” Acquisition of territory by conquest or unilateral annexation is prohibited under international law. But domestic law is just as—if not more—significant in determining the trajectory of developments on the ground in this situation. Therefore, it is worth exploring what Israeli constitutional law has to say. And the law is far from clear. Avichai Mandelblit, the attorney general, has implied that he might not rule an annexation unconstitutional at this time.

The Scope of a Caretaker Government’s Authority

Israel’s Basic Laws do not say anything about extension of Israeli law to new territories, except for asserting Israeli sovereignty over the whole territory of Jerusalem. At the sub-constitutional level, however, the Government and Law Ordinance of 1948 provides:

11b. The law, jurisdiction and administration of the State will apply in any territory of the land of Israel that the government had designated by order.

In 1967, the government relied on this authority to apply Israeli law in East Jerusalem but did not use it to extend Israeli law to other territories that came under Israeli control after the Six-Day War.

This would suggest that, in principle, the government has the authority to essentially annex new territory within the historical “land of Israel,” without further parliamentary approval. As we will see below, however, practice suggests that the Knesset has often been a part of the decision-making process when it comes to major territorial changes—both unilateral moves and withdrawals from territory pursuant to peace agreements.

The current Netanyahu government is a caretaker government, running the country in the time since the Knesset dissolved itself in December. Because this would be the third round of elections, the caretaker period has lasted for more than a year—an unprecedented period for an outgoing government. There is a long-standing norm in Israeli practice, albeit not in the Basic Laws, that caretaker governments in times just before elections have more narrow authorities than “ordinary” governments that serve with the confidence of the Knesset, and that they are subject to a stricter reasonableness requirement. A key document that articulates these norms is the attorney general’s guidelines for caretaker governments. The guidelines explain, relying on Supreme Court case law, that “the government and the ministers in a caretaker government on the eve of an election must conduct themselves with ‘the restraint that befits the status of an outgoing government.’” For instance, there are significant restrictions on a caretaker government’s authority to appoint senior officials. For this reason, Israel does not currently have a state attorney or a head of police.

At the same time, the guidelines stress the importance of continuity of government. Therefore, the guidelines require balancing the obligation to ensure the continuity of effective administration with the obligation of an outgoing government to exercise restraint. In the Supreme Court’s words, “[G]overnments rise and fall, but the government forever stands.” The guidelines explain that the outcome of this balancing test depends on the circumstances. The more “vital” certain action is for the public interest, the less restraint is required. So, the question of the legality of unilateral annexation of territory by a caretaker government depends on what “vital public interest” means. Based on Supreme Court case law, diplomatic negotiations and significant foreign policy decisions might qualify as “vital public interests.”

The Supreme Court

The Supreme Court addressed the lawfulness of diplomatic negotiations toward a peace agreement by a caretaker government in Weiss v. Prime Minister, decided in 2001. The petitioners argued that the then-caretaker prime minister, Ehud Barak (who had previously resigned from his position), lacked authority to negotiate a peace settlement with the Palestinians, with the aim of signing an agreement, on the eve of an election. They argued that a caretaker government’s authority is limited to day-to-day maintenance and does not reach matters “of principle with far-reaching ramifications.” A majority of the court rejected this claim but not without adding certain caveats. Subsequent cases have since relied on Weiss (see, for example, HCJ 9202/08 Livnat v. Prime Minister [2008], in which the court denied a petition challenging the authority of the then-caretaker prime minister, Ehud Olmert, to conduct peace negotiations with the Palestinians and Syria close to an election). ‏

The Weiss ruling allowed caretaker governments significant latitude to make foreign policy decisions. In Weiss, the court articulated the balancing test reflected in the current attorney general’s guidelines (discussed above). It then strongly suggested that foreign policy decisions qualify as “vital public interests” for purposes of delineating the scope of a caretaker government’s authority. The court cited self-defense as the paradigmatic scenario where action would be warranted. “No one would think,” the court reasoned, “that the outgoing prime minister and his government cannot protect state security from a war … just because the days are the final days of an outgoing government. Defense of the State from war, certainly raises a vital public need, that every prime minister, including an outgoing prime minister must deal with.”

But the court went even further than self-defense. It held that foreign policy decisions of even a caretaker government should generally receive heightened deference and that “[s]upervision of the utilization of the powers of the government in these matters is in the hands of the Knesset.” The court agreed with the attorney general that the Barak-led negotiations created “a rare window of opportunity” that warranted action. The court also quoted with approval the attorney general’s claim that the petitioners in the case were asking the court to decide an essentially political question. The court held that in this case, the Knesset—not the court—was the appropriate oversight organ.

Nevertheless, the court implicitly limited the scope of the caretaker government’s authority to implement a signed agreement, if an agreement would eventually be reached. The court underscored that its holding was

based, inter alia, on the declaration of the Attorney General, that if any agreement is signed between the representatives of the outgoing government and the representatives of the Palestinian Authority, it will be established in the agreement itself that a condition for the validity of the agreement in the international arena is that the agreement receive the necessary approvals in accordance with domestic law, including the fact that it will be approved by the government and the Knesset.

In other words, by noting that its holding was based on the government’s commitment to seek Knesset approval, the court strongly suggested that parliamentary approval is required for the implementation of an Israeli-Palestinian peace agreement signed by a caretaker government.

This created a tension in the decision: While the court held that the government had the authority to conclude an agreement and declined to rule that there was a constitutional obligation to bring an agreement to the Knesset for approval (as we will see below), the court appeared to imply that Knesset approval would be necessary to implement the agreement.

Applying the court’s logic, one could argue that the Trump “peace plan” has created a “rare window of opportunity” and that Netanyahu’s caretaker government may therefore decide to annex territory to seize this opportunity. This would be a foreign policy decision—a political decision—that enjoys heightened deference even with the elections around the corner. The Weiss court left open the question of whether Knesset approval of an agreement was required as a matter of constitutional law.

That outcome is hard to fathom. A caretaker prime minister under criminal indictment would be allowed to take a monumental step with enormous implications for Israel and the region on the eve of an election, without proper deliberation and in furtherance of a peace plan the Palestinians took no part in preparing.

What Practice Tells Us

Past instances of major changes in Israeli control of other territories are illustrative. With the exception of the application of Israeli law in East Jerusalem in 1967, which came on the heels of a major war, all previous major changes were considered or approved by the Knesset through legislation. The Knesset passed legislation to approve the Israel-Egypt peace treaty in 1979, pursuant to which Israel withdrew from the Sinai Peninsula. Israel extended its jurisdiction to the Golan Heights through the Golan Heights Law, 1981—not via government decision. The Gaza disengagement plan was also approved by the Knesset, which passed the Law Implementing the Disengagement Plan, 2005.

Israeli scholars have argued that this practice establishes a constitutional custom that the Knesset must approve major territorial changes and peace treaties before they can be implemented under domestic law, under both ordinary and caretaker governments. But the Supreme Court has so far avoided such a conclusion. As then-Chief Justice Aharon Barak noted in Weiss (emphasis added):

7. It has been argued before us that there is a constitutional custom, according to which the outgoing government is limited to ongoing operations (‘maintenance’ operations) alone. So too it was argued, that there is a constitutional custom, according to which international treaties of special importance that Israel is party to require Knesset ratification. This constitutional custom, so it was argued, is not limited only to retroactive ratification by the Knesset but requires advance consent of the Knesset before the government signs them. We cannot accept these arguments. The question of the validity of constitutional custom in Israel has yet to be examined by this court. … It will suffice for me to say, for purposes of the matter before us, that it has not been proven to us, in the accepted manner for the proving of (constitutional) customs, the existence of a constitutional custom according to which the outgoing government has only ongoing powers (or ‘maintenance’ powers). As to the ratification of international treaties of special importance, the government accepts … that any agreement that will be made in this matter will be brought before the Knesset for ratification …. The existence of a constitutional custom by which the consent of the Knesset must be given in advance, has not been proven to us.

The court stopped short of holding that a constitutional custom has evolved that requires Knesset approval for territorial changes. But this conclusion contradicts logic deployed by the court at other points in the Weiss opinion. As we have seen, the Weiss holding relied, among other things, on the attorney general’s commitment to bring any signed agreement before the Knesset for approval. It therefore implicitly required Knesset approval while at the same time denying that there was a constitutional obligation on the government to obtain such approval. The opinion is therefore ambiguous on this point.

So Can the Israeli Government Do That? Does It Matter?

In light of all this, it is an open question whether a caretaker government has the authority to unilaterally annex parts of the West Bank pursuant to the Trump peace plan. The government has statutory authority to do so. Nevertheless, the Supreme Court’s reasoning in Weiss and past practice about the territorial scope of Israeli law suggest that Knesset approval might be necessary before such a move could be implemented.

Yet, in this case, a requirement for Knesset approval of annexation of territory might not make much of a difference in preventing the Israeli government from going through with the annexation before the elections. (The analysis might be different with respect to Knesset approval of the Trump plan as a whole, parts of which—in particular, recognition of part of East Jerusalem as the Palestinian capital—might raise objection even within the Netanyahu coalition.) There is reason to believe that Netanyahu might have the votes in the Knesset to support the annexation of at least a portion of the territory. Avigdor Liberman, head of Israel Beytenu, has said that his party opposes implementation of the Trump plan because Israeli elections are just a month away, but he said he would support the annexation of the Jordan River Valley and Ma’ale Adumim if put to a vote. With Israel Beytenu on board, Netanyahu might have enough votes in the Knesset to pass an annexation bill. This would mean that Netanyahu can circumvent the complicated legal issue of whether a caretaker government has the authority to move forward with the annexation unilaterally. In other words, political will to undertake the annexations may end up making the legal constraints on caretaker governments irrelevant in practice.

It is hard to say definitively at this point whether the political conditions are ripe for an annexation move before the Israeli elections. Either way, this is another outgrowth of the constitutional crisis that has plagued Israel for more than a year: It is hard to tell whether Netanyahu is acting in what he views as Israel’s best interests, or whether he is guided by electoral politics and considerations related to his impending criminal trial. It is doubtful that the Supreme Court envisioned this predicament when it decided Weiss. If it had, it might not have been so generous with foreign affairs deference and its permissive approach to a caretaker government’s authority in this area.