The law to legalize settlements: Inching toward a one-state solution

On Feb. 6, 2017, Israel’s Knesset enacted the “Legalization Law,” dubbed by its opponents the “Theft Law.” The vote was 60 to 52. The law “legalizes” housing units built by settlers on private Palestinian land. This was after enforcement of a High Court decision to raze homes built on such land in the Amona outpost (and some in the settlement of Ofra are slated for similar treatment). The decision could affect more than 2000 settler homes built—say settler leaders—accidentally on private land.

The problem stems from the fact that in the opinion of government and Knesset legal advisers, as well as other legal authorities, the Legalization Law is unconstitutional. It’s very likely that the High Court, which has already disqualified construction on private Palestinian land, will throw out a law that injures the property rights of Palestinians who are not Israeli citizens. A strange scenario is unfolding before our eyes – the Israeli government, headed by Netanyahu, caves in to its Education Minister, Naftali Bennett. He demanded passing an illegal law only so that the High Court will, by overturning it outright, save Israel from having to face the International Court in The Hague.

Netanyahu left no stone unturned in trying to delay the vote in the Knesset. He prefers to reach an understanding with President Donald Trump, in their first official meeting on February 15. But Naftali Bennett is in a hurry. Bennett’s position is crystal clear: He sees Trump’s election as a game changer, an opportunity to take a historic step toward annexing Area C of the West Bank to Israel. The Legalization Law is the key. Bennett wants Netanyahu to arrive in Washington “armed” with the law and to put Trump to the test. The White House statement that settlements are not “an impediment to peace, [but] the expansion of existing settlements beyond their current borders may not be helpful”, signifies a change in the American approach. It seemingly accepts Netanyahu’s mantra that the real obstacle to peace is not the settlements, but the Palestinian refusal to recognize Israel as a Jewish state.

While Bennett wants to create facts on the ground and force a new reality on the administration in Washington, Netanyahu is taking a more cautious approach. He understands that the Legalization Law could lead to the imposition of Israeli law in the West Bank. Bennett’s behavior is consistent with the message coming from the High Court, i.e. those who want to “legalize” the confiscation of private Palestinian land must first decide if they want to annex the territory. A decision on the future of the West Bank is something Netanyahu avoids like the plague. Political necessity and unrelenting competition with Bennett on ‘who is more right-wing’ force Netanyahu to adopt positions that he does not actually believe in.

On the other side of the divide, the Labor Party cries out against the Legalization Law in the name of saving the settlement blocs. According to the teachings of one of the labor movement’s intellectual founders, Berl Katznelson, colonialism calls for stealing land – but elegantly, without brutality. The Legalization Law will shake up the international community’s silent acquiescence to the settlement blocs. According to the Labor Party, the extreme Right is willing to sacrifice the fate of 400,000 Israelis living in the settlement blocs for 80,000 settlers living in isolated settlements who, in any future agreement, would be compelled either to leave or be part of the new Palestinian state.

In principle, the Labor Party is prepared to negotiate with the Palestinian Authority (PA). Labor relies on understandings reached in the past with the United States, which view the settlement blocs as Israeli assets. But in adopting the Right’s argument that there is no one to talk to on the Palestinian side, the Labor Party is shooting itself in the foot. The distance between Labor and the Right is not great: Bennett wants to annex Area C unilaterally, and the Labor Party does not oppose building in the settlement blocs unilaterally.

However, postponing negotiations with the Palestinians about the future of the West Bank strengthens the settlers’ grip on the isolated settlements, making a future Palestinian state with territorial contiguity almost impossible. Lack of political negotiations on the one hand, and unilateral building in the settlement blocs on the other, have the same result: creeping annexation of the West Bank. Like Likud, Labor is not a true believer in two states. Though it opposes annexation in order to preserve Israel as a Jewish and democratic state, it has no alternative political program.

Columnists writing in Haaretz asked the Finance Minister, Moshe Kahlon, if he would oppose the law and save Netanyahu and Israel from having to go to the High Court. But Kahlon sees no reason to help Bibi and the Left pull chestnuts out of the fire. He has his own political considerations. As a leader of the Right, he has no interest in cutting himself from an electorate he may need in the future.

The Legalization Law creates a golden opportunity to review and decide the future of the West Bank. But that’s just what Netanyahu and the Labor Party want to avoid at all costs. The Occupation has continued for 50 years and has created a situation of no-return. Those opposing the evacuation of Amona argue that it is artificial to “discriminate against” the 80,000 in isolated settlements for the sake of the 400,000 in the blocs, given that the settlements were established with the acquiescence and help of the various Israeli governments, starting the Labor in the early seventies.

Not only does Israel allow this strange political reality to flourish, postponing decisions on the fate of the occupied territories, but PA President Mahmoud Abbas (Abu Mazen) is also aware that a Palestinian state is slipping through his fingers. The truth is that both Abbas and the Hamas government in Gaza accept the current arrangement. Like Netanyahu and Bennett, they play the political game in order to maintain their rule. Abbas threatens to turn to the Security Council and the International Court in The Hague, and Hamas continues its rhetoric of an armed struggle against Israel. In fact, the war Hamas is waging is against the PA. President Abbas prevents the regular supply of fuel to the Gaza Strip, thereby paralyzing the Gaza power station and causing major outages. For its part, Hamas has not stopped its verbal attacks on Abbas and the PA. Thus Israel continues to build settlements in the West Bank and delights in Palestinian internal divisions, which prevent a serious political confrontation with Israel.

Netanyahu understands that the problem is not what to say to Trump, but what to do with Abbas. He knows that a unilateral annexation of Area C, as demanded by Bennett, will result in the almost certain collapse of the PA. The Authority would lose its reason for existence. It’s quite clear that the fate of the occupied territories will not be decided by Bennett, Netanyahu, or opposition leader Herzog, but by the Palestinian residents themselves. The current arrangement has existed for 50 years and has created a forced coexistence. Israel accepts the Hamas-led Islamic regime in Gaza, and the security coordination between Israel and Abbas continues. Barriers are lifted at dawn, and 150,000 Palestinian workers commute to Israel each day; customs and taxes collected by Israel pour into the PA’s coffers; the EU continues to channel money to maintain the illusion of a country-in-the-making; and no one has any interest in rocking the boat.

What does the future hold? It seems that nobody on the Israeli or Palestinian side is breaking their heads to come up with a solution. The most right-wing Israeli government ever cannot decide in favor of annexation, and Palestinian citizens accept the existence of a corrupt Palestinian government. This distorted reality is slowly giving rise to one state. It’s unclear what the name of this state will be, what its nature will be, whether there will be a constitution, and what rights, if any, its inhabitants will have. And yet it is happening.

*Translated from the Hebrew by Robert Goldman

About Yacov Ben Efrat