Last week, the Knesset Finance Committee approved amendments to Israel’s 1959 Law for the Encouragement of Capital Investment that would extend tax benefits granted to certain businesses inside the Green Line to their counterparts in the settlements. Opposition lawmakers have criticized the proposal as a form of “creeping annexation.” In recent months, far-right parties in the ruling coalition have often made headlines with talk of various forms of annexation. Earlier this month, agriculture minister Uri Ariel urged the annexation of Area C — 61% of the West Bank (the dark brown area in the map below) — without clearly stating whether the thousands of Palestinians living there should be expelled or not. In May, Justice Minister Ayelet Shaked announced plans to apply Israeli law directly to the West Bank settlements.
Critics have charged Israel with “creeping annexation” or “de facto annexation” for decades, so it is sometimes difficult to discern what is new or distinct about each development. These terms also raise their own questions, since they do not have a clear legal meaning. In one sense, these terms are oxymorons: if annexation is by definition a de jure act — applying one’s domestic legal system to another territory — then what does it mean to do something both de jure and de facto? This lack of clarity may be one reason why the International Court of Justice in its 2004 Advisory Opinion on the separation barrier found that Israel has violated many of its international legal obligations, but declined to make a finding on de facto annexation at that time, instead leaving it open as a future undefined possibility:
“The Court considers that the construction of the wall and its associated régime create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation” (¶121, emphasis added).
In practice, terms like “creeping annexation” are used to convey disapproval at Israel’s refusal to respect the Palestinian right to self-determination or — more often in the case as used by Israelis — a warning about a future undetermined point when partition will no longer be seen as a viable option. Far less clear is when one can say that annexation is no longer merely “creeping” or “de facto.” How does one know if the “window for the two-state solution,” in peace process-speak, has definitively closed?
There is another way to look at this issue, however. If we think of the Nakba as a structure of dispossession rather than as a one-time event, we know that legal pluralism has long been crucial to the achievement of Zionist goals: different laws for different people. This was true when the Yishuv existed as a legal community under the umbrella of the British mandate, through the application of martial law to Palestinian citizens of Israel from 1949 to 1966, continuing to the occupation of the West Bank and Gaza Strip today. Annexation, in theory, is the elimination of legal pluralism in favor of one law for all. Legal equality — in the sense of one law for all — of course does not prevent oppression or marginalization of diffrent groups subject to the law but, depending on demographics and other factors, it can significantly reshape the possibilities for it.
Annexation therefore presents a dilemma: if there is to be one law for two peoples, then does that mean granting the less powerful group formal equality or removing it? Few Israeli politicians, even in the extreme right, have supported total annexation of the West Bank out of concern that they would be forced to articulate a choice between losing a Jewish majority or advocating mass expulsion of Palestinians. Recent annexation moves may be the pet project of right-wing parties but they also reflect an incrementalism that “has been a hallmark of the Zionist project in Israel since long before the existence of the state itself.” Instead of treating these proposals as something like but also less than annexation, it would be helpful to recognize them as just the latest attempts to renegotiate and redraw the lines between legal regimes to consolidate conquest and demographic transformation. The annexation of tomorrow shouldn’t confuse us about the Nakba of today.
So what is new and what is different in recent moves to apply Israeli civil law to the territories? In the next post, we will present a brief overview of the different ways in which Israel has applied its domestic legal system over the years to the 1967 territories.