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How would Netanyahu go about annexing the settlements? An explainer

The pledge to annex the settlements is just one of many campaign promises Prime Minister Benjamin Netanyahu has made over the years that may never be fulfilled, his political rivals sniped on Tuesday evening.

As others, they cited his vows to reform Israel’s electoral system, to demolish the illegally built Palestinian village West Bank village of Khan al-Ahmar, and to legislate the death penalty for terrorists.

No one knows whether, if reelected, he will keep this particular promise.

But the phrasing of his public pledge to “apply Israeli sovereignty over all Jewish communities” in the West Bank some time after the September 17 election, and to apply sovereignty in the Jordan Valley immediately after his new coalition is established, sheds a little more light on what exactly he has in mind, although many technical and legal questions remain unanswered.

The semantics

In recent weeks, Netanyahu repeatedly vowed to apply Israel law, or Israeli sovereignty — he used the terms interchangeably — to the settlements in the West Bank, a move many analysts consider tantamount to annexation.

Pro-sovereignty advocates abhor this a-word, noting that a state annexes territory that previously belonged to another country. The West Bank, they argue by contrast, is disputed territory that does not have a previous sovereign.

International law does not have a clearly defined set of terms to describe the process of one country acquiring additional territory, hence scholars disagree about the semantic nuances.

“Applying sovereignty and annexing is the same thing,” Alan Baker, a former legal advisor to Israel’s Foreign Ministry, told The Times of Israel recently. “The meaning of annexation is acquiring sovereignty. [By contrast,] application of law doesn’t necessarily mean annexation,” he added, positing that a state could apply its laws to a territory in order to better administer and govern the area without ruling out the possibility of future withdrawals.

Other international law experts argue that all three terms can be used interchangeably, as there is no textbook definition for what is commonly called annexation.

How is it done?

How does a state annex, or apply sovereignty over, a piece of land that previously was not previously part of its territory?

Simply put, whenever a state declares that it considers a certain territory its own, and acts in accordance with that statement, it can be considered an annexation.

“There is no magic formula for annexation,” said Eugene Kontorovich, an American-Israel scholar and the director of the Center for International Law in the Middle East at George Mason University.

A country can annex territory without applying its domestic law to it, he said, noting that most US territories were under military law for many decades. And a state can also apply its laws to territory without necessarily annexing it, he added.

But when a state applies its laws and calls it an “act of sovereignty,” as former Israeli prime minister Menachem Begin did with the 1981 Golan Heights Law, “well that is clear annexation,” Kontorovich said.

Interestingly, that law does not mention sovereignty, but merely talks about applying Israeli “law, jurisdiction and administration” over the territory, as Begin evidently thought of the possibility of future negotiations that could end with Israel returning the area to Syria.

But aside from what a country says, the most important determining factor is what it does in the ostensibly annexed territory, several experts interviewed for this article agreed.

For example, Israel started treating the Golan as its own shortly after the law was passed, and the international community also considered it an annexation for all intents and purposes.

“The bluff was called immediately. Everybody treated it as annexation, including the UN Security Council,” said Eliav Lieblich, who teaches international law at Tel Aviv University.

Although Israel has never formally declared the West Bank to be its sovereign territory, some consider Israel’s half-century long hold on the territory and the constant expansion of settlements a “de facto annexation,” Lieblich also noted. “Some people already say Israel is treating the territory as its own,” he added.

The International Court of Justice, for instance, ruled that the erection of the West Bank separation barrier “would be tantamount to de-facto annexation” of land on the Israeli side.

The annexation process

Netanyahu did not specify precisely which steps he intends to take if wins the election and moves ahead with his promised West Bank sovereignty moves — first in the Jordan Valley and then, with US backing, in the settlements.

Will he simply declare one day that Israel hereby applies its sovereignty over this or that area? Will he first hold a vote in the cabinet, or take the issue to the Knesset plenary?

Israel enshrined its annexations of both East Jerusalem (in 1980) and the Golan (in 1981) in legislation, but legal scholars said there is no absolute need for a law. Rather, a simple government decision would suffice for the annexation to take effect.

“If Netanyahu really wanted to annex all or part of the West Bank, he could do it in an hour, without any Knesset legislation,” according to Daniel Seidemann, a veteran left-wing analyst of Israeli politics.

“The Law and Regulation Ordinance empowers the Cabinet to apply the law, governance administration of Israel in any area in what was British Mandate Palestine by means of a Government Order, adopted by a simple majority,” Seidemann tweeted on Tuesday.

But during his ostensibly “dramatic” presentation Tuesday, Netanyahu said that he wants to “apply sovereignty in the next Knesset” — apparently envisaging seeking majority approval from among all 120 members.

Land or lives?

Until Tuesday, there had also been some debate over whether Netanyahu wanted to annex the territory of the Israeli settlements — which then would beg the question of how to define the borders of each outpost — or merely to “annex” the people residing there, by determining that Israeli laws apply extraterritorially to Israeli citizens who live in areas that are not technically part of the state.

(Currently, laws passed in the Knesset do not apply to the West Bank; this territory is ruled by military law. But in practice, all Israelis enjoy the same legal rights and privileges, regardless of their address.)

Tuesday’s statement put that discussion to rest, as Netanyahu made plain that he intends to annex physical territory.

The Jordan Valley, which he presented as some sort of pilot annexation project for which he would not await specific American approval, is Israel’s “eastern defensive wall that guarantees that we will never again be a mere few miles wide,” the prime minister declared. Therefore, the Israeli army must remain in the entire Jordan Valley, he added. And “in order for the IDF to always remain there,” he spelled out, “it is imperative that the Jordan Valley be under Israeli sovereignty.”

Not the people, that is. The land.

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