Applying Israeli Sovereignty to Parts of YESHA According to the Trump Plan – Implications

{Originally posted to the JCPA website}

Where Do the Americans Stand on Sovereignty?

Around the time of Secretary of State Mike Pompeo’s visit to Jerusalem on May 13, a shift may have occurred in the U.S. administration’s position regarding the conditions and the timing for applying Israeli sovereignty to parts of Judea and Samaria, including the Jordan Valley, that are designated to be under Israeli sovereignty according to the U.S. peace plan. This would involve about half of Area C, that is, about 30 percent of Judea and Samaria, including the Jewish communities and most of the Jordan Valley, including the roads that lead to it.

Until the visit, the Americans said that the decision, including the timing and details of the application of sovereignty, was in Israel’s hands, and that, as U.S. Ambassador David Friedman announced, the United States would support the move if two conditions were met. One was the completion of the work of the joint Israeli-American committee on demarcating the territory in question. The other was a declaration by the Israeli prime minister that he accepts the U.S. peace plan and agrees that sovereignty will be applied within its framework, which requires Israel to refrain from building during the next four years in the rest of Area C that is intended to be part of the future Palestinian state, and that he agrees to the establishment of a Palestinian state in the lands that the plan allots to it, if the Palestinians accept certain conditions.

However, in the wake of the visit, State Department spokesperson Morgan Ortagus told Israeli journalists, “We really think annexation should be part of a peace process where Palestinians should have a say.” The Palestinians have indeed proclaimed that they reject the American plan, but the United States will keep pressuring them to return to the negotiating table and still hopes that they will. At the same time, the Palestinians were stepping up their threats and eventually declared that they are no longer committed to their agreements with Israel and the United States, including in the security realm, while they keep warning that they will react violently if sovereignty is applied.

Jordan’s King Abdullah warned in an interview to Der Spiegel that Israeli sovereignty in parts of Judea and Samaria would lead to a “massive conflict” with the kingdom. That, too, drew a moderate and even sympathetic American response. Morgan Ortagus remarked: “The United States has a close relationship with the state of Jordan. We know that it plays a special role in the Middle East, especially their relationship with Israel. The peace treaty between Israel and Jordan is very important to all of us. What we want for both Israel and Jordan is the relationship that is not only strong on the security level, but that’s also strong at the diplomatic level and the economic level.”

She added: “We certainly understand that the king has expressed his concerns today and again that’s why we think it’s important to turn back to President’s Trump’s Vision for Peace and to bring all parties to the table to work toward this peace plan. That’s what we will be working on at the State Department.”

The European opposition to applying sovereignty was also evident in a virtual conference of the European foreign ministers, even though they did not reach an agreement on the wording of a threat to Israel. Even before that, the Arab states, including the United Arab Emirates, had come out against the move.

This change, of course, greatly affects the chances of carrying out the measure. According to the agreement between Prime Minister Benjamin Netanyahu and Defense Minister Benny Gantz, its implementation is conditional on full U.S. consent – and it seems there are differing approaches on the issue within the U.S. government. Nor is it clear whether the American consent will be attained early enough before the U.S. presidential elections. (It does not seem that the other caveats included in the agreement between Netanyahu and Gantz, before extending the sovereignty – such as international deliberations, maintaining regional stability, and protecting existing peace agreements – carry the same restrictive weight.)

A possible change in the U.S. position does not reflect a retraction of the view that the Jordan Valley and the Israeli communities in Judea and Samaria should be under Israel sovereignty, but perhaps a temporary shelving of the idea that sovereignty can be applied unilaterally, even without Palestinian agreement. But for Israel this would mean a very significant change, since an important component of the plan was the removal of the Palestinians’ veto over altering the reality on the ground. If this change is not temporary, it indicates American agreement that the Trump plan’s fate will be the same as that of all its predecessors, and that applying sovereignty has, at this stage, been dropped from the agenda. However, a State Department source denied that such a change has occurred when asked by an Israeli journalist.

Claims of the Critics

Many of Israel’s critics and opponents claim that what is involved here is an annexation that constitutes a gross violation of international law, which prohibits the conquest of territory by force. They say this move will bring to an end the possibility of a settlement based on the two-state principle, spark a wave of violence, inevitably lead to the collapse of the Palestinian Authority and the end of the cooperation with it, require Israel to take over the territories with the unbearable economic burden that would entail, and destroy Israel’s identity as a Jewish and democratic state. They also claim that it will precipitate a crisis in relations with Jordan that will undermine the Israeli-Jordanian peace treaty, mar relations with pragmatic Sunni Arab states, lead to tensions with the Democratic party and many liberal Jews living in the diaspora, and cause economic damage to Israel, both because of the wave of violence and possible European sanctions. In any case, they contend, Israel already has security control over these territories, and “annexation” provides no security benefit. Some claim that such a move involves a cynical exploitation of the Covid-19 pandemic. Daniel Pipes, a friend of Israel, was the first to warn of damage to relations with the Trump administration because it, too, in his opinion, opposes a unilateral Israeli measure. Some Israeli research institutes reiterate these messages as well.

Conversely, supporters of the move, including other Israeli research institutes, say that this apocalyptic vision is coming from those who always cry wolf, as, for instance, concerning the transfer of the U.S. embassy to Jerusalem. Some emphasize the justness of the Jewish state’s claim to sovereignty over these territories based on Israel’s religious, historical, and legal rights (particularly stemming from the San Remo Conference and the Palestine Mandate). They also underline the uniqueness of the current time period, as long as Trump is president, since the Trump plan promises U.S. support for the move. Others point to the security importance of the measure, given the Jordan Valley’s critical role in protecting Israel from the east. There are, of course, those who favor applying Israeli law without connection to the U.S. peace plan and even in contravention of it, ignoring the need to accept the plan as a basis for negotiations with the Palestinians and to agree to freeze construction in parts of Area C that are designated for the Palestinians.

Responding to the Critics

Neither the U.S. peace plan itself and statements by the president and senior administration officials, nor statements Israeli officials, make use of the term “annexation,” and for good reason. The terms that are used are “application of sovereignty” or “application of the law and the administrative and jurisdictional regulations” (based on Article 11b of the Israeli Law and Administration Ordinance of 1948, which makes possible the application of Israeli law, jurisdiction, and administration to territories of the Land of Israel that the State of Israel controls).

In other words, according to their view, there is no annexation of a foreign territory here but rather an implementation of the formulations of the British Mandate regarding the Land of Israel. That mandate entrusted the British with reconstitution of the Jewish National Home in the Land of Israel, and it still constitutes the legal basis for the issue of sovereignty in Judea and Samaria as long as no other agreement has been reached between Israel and the PLO in negotiations under the Oslo accords. Moreover, according to Article 80 of the United Nations Charter, the UN cannot alter any resolution of its predecessor, the League of Nations, regarding the rights of peoples.

Indeed, in agreeing in the Oslo accords to discuss the future of these territories, Israel recognized the fact that the Palestinians, too, have an ability to claim sovereignty over the territory in dispute, though Israel did not give up its own claim to sovereignty over them. Likewise, the Palestinian agreement to discuss the future of these lands implied a kind of quiet acceptance of the fact that there is a basis to Israel’s claim to at least parts of them. Furthermore, in accepting the Trump plan, Israel agrees that the rest of Area C will in the future be part of the Palestinian state, if the Palestinians meet certain conditions, hence expressing readiness to cede this land.

Israel and the United States do not accept the claim, which has taken root in the United Nations, that Judea and Samaria, like all of eastern Jerusalem, are “Occupied Palestinian Territories” (OPT), because there is no legally binding international document, resolution or agreement that gives this territory to them and because they were never ruled by the Palestinians. Israel conquered these territories in a defensive war from Jordan, which annexed them illegally in 1950 and which, meanwhile, has renounced its claim to them. Because they are territories designated by the Mandate to be part of a national home for the Jewish people, no annexation is involved here. At most, the issue constitutes a special legal case. This is also made clear by the U.S. adoption of the view that Israeli settlement in these territories is not in itself illegal.

It is clear, on the other hand, that the application of sovereignty is a unilateral move that deviates from the Oslo accords, which prohibit unilateral measures that affect the final status. Here, it can be pointed out that the Palestinians have blatantly violated this stipulation by seeking recognition of the Palestinian Authority as a state and by joining – as a state – international conventions and especially the International Criminal Court, along with clear-cut breaches of other provisions of the accords including stopping incitement and fighting terror (instead, the PA continues to pay salaries to terrorists). In any case, if the Israeli government decides to apply its law and jurisdiction without declaring that it is applying sovereignty, this could mitigate the Palestinian and international reaction.

Palestinian, Arab, and International Reactions

Those who oppose the move likely exaggerate the severity of Palestinian, Arab, and international reactions, while those who favor it are far too dismissive of them. The Israeli move, particularly if it is presented as an application of sovereignty, will incense the Palestinians. They will indeed see it as dashing their hopes to reach a settlement that answers their demands.

Those demands include: a Palestinian state in all of Judea and Samaria, including all of the Jordan Valley, except for small territorial swaps; the evacuation of the Israeli communities from lands that will be transferred to the Palestinians; (east) Jerusalem as the capital of the Palestinian state; Israeli recognition of the “right of return” of the refugees and their descendants; and, most of all, the denial of Israel as the nation-state of the Jewish people. The Palestinians remain committed to the eventual establishment of their own state in all of Mandatory Palestine.

What the Israeli sovereignty move conveys most concretely to the Palestinians is that these aspirations – to whose realization, in their view, the Oslo process was supposed to lead – have not been fulfilled. It will be very hard for the Palestinians to accept that message, and they are not likely to take it lightly. We may indeed expect a significant increase in violence and terror from both Gaza and Judea and Samaria, at least for a certain time; unilateral Palestinian moves expressing a disavowal of what still remains of their commitment to the Oslo accords; damage to the security cooperation between Israel and the PA; an international campaign to have sanctions imposed on Israel, including through the International Criminal Court; and considerably increased activity by BDS organizations working for a boycott of Israel.

At the same time, it is likely that the Palestinian Authority, which the Palestinians consider the most important achievement of their national movement, will continue to exist and will maintain a certain level of security cooperation with Israel in order to prevent the strengthening of its political enemies, particularly Hamas. Thus, the Palestinians in Judea and Samaria and in Gaza will continue to exercise self-rule and Israel will not have to take over the PA territories. In any case, Israel does not intend to rule the Palestinians or apply its sovereignty to the Palestinian-populated parts of Judea and Samaria, nor, of course, to Gaza. So the alleged threat to Israel’s Jewish and democratic identity is completely baseless.

Although the Europeans will react with harsh condemnations, it is doubtful whether they will take significant punitive political and economic measures against Israel, particularly because of the difficulty in reaching a European consensus on the matter. The same is true regarding the pragmatic Arab states, which need Israel and the United States in their existential struggle against Iran and Sunni radicals. Jordan and Egypt will undoubtedly react severely, but they, too, will be under restraining factors, particularly the critical importance of their relations with the United States and the importance of their ties with Israel in the economic and security contexts.

Because Jordan’s population is largely Palestinian, it is likely to take harsh political measures in reaction, but will it give up the peace treaty with Israel, with all its vital advantages for the country? (A prominent Jordanian pundit has already explained that when King Abdullah spoke about “a massive conflict,” he did not mean abrogating the peace agreement.) While some in Jordan speak fearfully of Palestinian immigration to the kingdom in the wake of the Israeli move, it is very doubtful that this will occur, and it is certainly impossible to present the application of Israeli law/sovereignty as designed to bring this about. Moreover, even if the Jordanians cannot allow themselves to say so, in their hearts they prefer a permanent Israeli presence along their western border to a Palestinian one, and the planned sovereignty move will ensure that outcome.

Relations with the Democratic left in the United States, in particular the Jewish part of it, will take a turn for the worse, and if the Democrats win the upcoming elections there will be implications for the degree of U.S. commitment to Israel. It should be noted, however, that even today those relations are very problematic. The Democratic Party is adopting positions that are not acceptable to Israel, and even in the absence of the planned application of Israeli law, it has taken no measures against the anti-Semitic statements of Congresswomen Ilhan Omar and Rashida Tlaib; it backed a peace plan that was very dangerous to Israel’s security (the Kerry-Obama plan); it initiated a Security Council resolution that is hostile to Israel (Resolution 2334); and it is enabling pro-Palestinian organizations, including J Street and more extreme groups, to take over its agenda. After the application of law/sovereignty things could indeed get worse, but not a lot worse, because in any case Joe Biden is not anti-Israel like a considerable contingent from the progressive wing of the party. In any event, with or without the application of law or sovereignty, there is a huge gap between the political positions of a majority of the Israeli public and those of the Democratic Party and a large part of American Jewry. It should also be borne in mind, however, that it is certainly possible the Republicans will win the elections, and then the implications will be different.

Would Sovereignty Block Peace?

Will the application of law or sovereignty bring to an end the possibility of reaching peace and a two-state solution? In the foreseeable future, there is no chance of working out a solution involving two states, let alone on the basis of the U.S. peace plan, and that is why all such attempts have failed. Israel cannot agree to the Palestinian version of a solution, which does not include recognition of Israel as the nation-state of the Jewish people, demands Israeli recognition of a “right of return” for Palestinian refugees and their descendants, insists on Palestinian control of almost all of Judea and Samaria including eastern Jerusalem as their capital, and does not provide a reasonable solution to Israel’s justified security concerns.

At the same time, the Palestinians cannot agree to the Israeli version, which envisages two states for two peoples, one of them the nation-state of the Jewish people, and the other the nation-state of the Palestinian people, with mutual recognition of each other’s national identity and with each granting full equality of civil and religious rights to all their residents. In addition, as former Prime Minister Yitzhak Rabin outlined to the Knesset in October 1995, the Palestinian entity would be subject to restrictions aimed at ensuring Israel’s security; a united Jerusalem would continue to be the capital of Israel; and the Jordan Valley in its widest sense would be Israel’s eastern security border.

According to the Israeli position, there is no place for the uprooting of Jewish communities, responsibility for the Palestinian state’s external security will remain in Israels hands at least for a considerable period of time, and there will be no right of return for the refugees. If someone thinks those two positions can be bridged, he is dreaming, and Mahmoud Abbas’ rejection of the proposals of Israeli Prime Ministers Ehud Barak, Ehud Olmert, and former U.S. Secretary of State John Kerry and President Barack Obama is clear testament to this. When Abbas returned from a meeting with Obama in March 2014, during which a plan was presented to him that was close to his positions (except for the requirement to recognize Israel as the nation-state of the Jewish people), he made clear to the crowd welcoming him back that the commitment to the pledge and the trust, namely, the commitment to a Palestinian state from the Jordan River to the Mediterranean Sea (that included all of Israel), had not changed.

The U.S. Peace Plan

It is precisely the Trump administration’s peace plan, which largely adopts the Israeli version of a two-state solution, that shows the greatest promise. It offers a realistic approach and understands that the false Palestinian narrative is the main obstacle to peace. This Palestinian narrative asserts that there is no Jewish people, the Jews had no history of sovereignty in the Land of Israel, the Zionists are intolerable creatures, Zionism is the handiwork of colonialism, and until the injustice of the Jewish state’s existence is fully rectified, the Palestinians must fight Zionism and refuse to come to terms with the Jewish nation-state’s existence on the soil of Mandatory Palestine. Moreover, for the first time, the U.S. plan would deny the Palestinians a veto over the creation of a new reality on the ground and requires them to understand that time is not working in their favor.

The application of Israeli sovereignty in parts of Judea and Samaria is not an obstacle to a two-state solution but an opportunity. Making that move requires the Israeli prime minister to accept the U.S. peace plan – which includes a future Palestinian state – as a basis for negotiations. Precisely because the plan is comfortable for Israel, and because of Israel’s trust in the Trump administration, Israel will be prepared to accept the principle of a Palestinian state, under certain conditions, as an aspect of a settlement.

The only alternative to applying sovereignty is a continuation of the status quo. It is possible that such a policy is preferable. Israel is indeed in control of the territories and, in terms of practical security, nothing will change on the ground, and Israel could spare itself the rise in violence and in tensions with Jordan, Egypt, Europe, and the moderate Democrats. An agreement is not achievable in any case, and one day, in another few generations, perhaps some sort of settlement will be reached. Although this approach, which security officials promote in practice, has logic, the alternative of applying law/sovereignty challenges it in several regards.

Firstly, while the political/ideological level with its administrative implications is of less interest to us in this discussion, a clear majority of the Knesset supports applying Israeli sovereignty because it pertains to parts of the homeland that are laden with history and Jewish heritage, and such a move dovetails with the objectives of Zionism. It does not entail adding a significant Palestinian population to Israel since the Jordan Valley is sparsely populated. The Palestinians will keep living within their own political entity, and its status may even be reinforced. Meanwhile, the problem of the legal status of the Israelis who live in these areas will be solved. This will never be achieved if Israel waits for Palestinian consent.

Secondly, as for security, indeed practically nothing is supposed to change on the ground as a result of applying sovereignty. It is reasonable to expect a temporary but significant uptick in Palestinian violence and terror along with negative effects on security cooperation with the PA, and possibly also with Jordan. Over time, however, the feeling of certainty should strengthen the awareness that the Jordan Valley is the eastern security border of the State of Israel. It should also lead to the entrenchment of Jewish communities in areas with security importance, and include most of the Jordan Valley and the roads that connect it to the mountain spine and the Judean foothills. The security importance of permanent Israeli control of these lands is clearly evident from the topography of the area, the inherent instability of the Middle East as a whole, the hostility to Zionism that is inculcated in the minds of the Palestinians and of many Arabs, and the lessons of the Israeli withdrawals from Gaza and from Lebanon.

Palestinian awareness of the fact that this is the permanent situation, along with the thickening of Jewish communities having security value, will likely make a positive contribution over time. Furthermore, making such a move is the opening stage of implementing all of the plan, whose security component is reasonable from Israel’s standpoint, even if not perfect. In any case, continuing the status quo, too, likely entails negative implications for security; it, too, contravenes Palestinian aspirations, though they, as well as Israel, may perceive it as the lesser evil.

Thirdly, as for timing, as Hillel the Elder said: “If not now, when?” The publication of the American peace plan; the formation of a unity government in Israel, which includes the application of sovereignty in its enabling agreement; the crucial importance of the relationship with Israel for the pragmatic Arab world in light of the growing tension with Iran; the focusing of global and Arab attention on the Covid-19 pandemic and its ramifications; and particularly the uncertainty about the results of the U.S. elections – all this creates a set of circumstances that is probably unique in its capacity to moderate the reactions to the move. If the United States supports the unilateral implementation of the plan according to the conditions it laid down for Israel, and if Israel does not exploit these circumstances to apply its law/sovereignty in keeping with the plan, it could be regretted for generations. This is not only because it will be asked why such trouble was taken and risks were assumed if even Israel does not implement the plan. There will also be question marks about Israel’s persuasiveness concerning the justness of its claims to these territories, and about its resolve to ensure its control of them in a future settlement. Most serious of all, refraining from implementation under such circumstances means leaving the veto over the process in the hands of the Palestinian Authority, which is committed to the anti-Zionist struggle. This, as noted, is what the possible change in the U.S. position entails.

The conclusion that arises is that the alternative of continuing the status quo is not necessarily preferable to applying Israeli law/sovereignty, and that it is doubtful whether it is a realistic alternative – if the United States again expresses willingness to support a unilateral Israeli move. How, then, can the negative effects be mitigated and the advantages enhanced? First, the move can be carried out in stages. The law can be applied in the first stage, and only later, if the Palestinians continue their rejectionism even after the U.S. elections (and on the assumption that Trump is elected), sovereignty can also be applied. Israeli law or sovereignty can also be applied in stages from the territorial standpoint, beginning with the settlement blocs along the Green Line, about which there is broad agreement. As noted, the application of Israeli law, unlike the application of sovereignty, leaves the status of sovereignty over Judea and Samaria in dispute, which is consistent with the Oslo accords.

A further possibility is to create conditionality between applying Israeli law or sovereignty and Palestinian, Arab, and international measures toward Israel (such as ceasing incitement and the payment of salaries to terrorists, promoting normalization, or European pressure on the Palestinian Authority to enter negotiations and stop supporting terror), while making clear that without such incentives Israel sees no benefit in delaying the move. Today it seems that maintaining the PA is of such great value to Israel that it is prepared to accept the incitement, the payments to terrorists, the litigation against Israel in the International Criminal Court, and the like in order to ensure the PA’s security. Clearly, under this policy, the PA has no incentive to change its course.

In any case, Israel must begin preparing immediately to deal with the move’s repercussions. This preparation should, of course, be conducted in full coordination with the Americans, who must be persuaded of the need to moderate the Arab and international responses while reinforcing the message that Israel is committed to peace in line with the Trump plan and is calling on the Palestinians to enter negotiations without preconditions. Without U.S. support, Israeli activity to promote the move should not be considered. The split within the Israeli government on the issue of applying law/sovereignty – with the foreign and the defense ministries controlled by a party whose positions on the issue are less clear-cut than those of the parties of the right-wing bloc – is likely to hamper the required preparation. For Israel, a unified approach is the order of the day.