Entrenching Apartheid: The Netanyahu-Trump annexation plan

By Mazen Masri (City, University of London).

Plans of annexing the occupied West Bank or parts thereof have had constant presence in political discourse in Israel since it occupied the area in 1967, but these plans were boosted recently by the so-called Trump Peace Plan and the more recent agreement between the two major parties in Israel’s emerging ruling coalition. The COVID-19 pandemic also offers the perfect timing for such a controversial move, assuming that some international scrutiny or repercussions may be avoided or mitigated since the world is busy fighting the pandemic. Of the many issues that annexation would raise, the question of Israel’s attitude to the Palestinian population is particularly important.

Apartheid and Annexation are Already Here

Any accurate discussion of annexation must start with the caveat that we are here talking about the process of formal annexation done through the proper legal channels in Israeli law, which includes the demand of international recognition, even if such recognition is not ultimately granted. This is how Israel initiated the annexation of East Jerusalem in 1967 and the (Syrian) Golan Heights 1981. But in reality, as anyone who has visited the West Bank would observe, Israel has annexed it long ago. Nothing in the Israeli occupation of the West Bank indicates that it is intended to be temporary. All evidence on the ground, from the relentless construction and expansion of settlements for decades (war crimes under international law), settlement infrastructure, control over natural resources, such as water and stone, to the de-development and depopulation of the Palestinian society, indicates that Israel has no plans to withdraw from the territory. All of this is facilitated by legal instruments that include primary legislation, emergency regulations and military orders. This reality, played out in daily life and in law, has prompted many legal scholars (including a former Attorney General of Israel) to argue that the legal regime imposed by Israel would be more accurately described as apartheid or colonialism. The much-discussed annexation plan is intended to deepen and entrench this apartheid reality.

Political Realities of Citizenship

The plan will include annexation of land outside highly populated Palestinian areas, which will create disparate Palestinian enclaves, leaving many Palestinian villages and cities with no or limited prospects of future growth. Predictions that Israel could offer citizenship or comparable status to Palestinians in these areas are far from reality, given the history, current reality, and clear rationale behind the annexation of entrenching control and the apartheid system. In fact, the Trump plan envisages the denationalisation of Palestinian citizens of Israel through the transfer of Palestinian villages and towns which are in Israeli sovereign territory, whose residents hold Israeli citizenship, to the control of the Palestinian Authority. So with denationalisation already on the table, and Israel’s explicit commitment to a Jewish demographic majority, it’s hard to see how extending citizenship to more Palestinians would be put on the table.

As much as the coveted territory is seen as important by the different political parties in Israel, this appetite to annex and absorb territory is tempered by obsession with demography. Historically, demography has always been present as a concern in the decision-making process in Israel. Demographic concerns can be traced back to early twentieth-century Zionist. Since then, demographic considerations permeated almost all policy areas that could be used to increase the number of Jews and reduce the number of Palestinians. They provided the impetus for many policies such as family planning and health policy (especially women’s health), and played a role in zoning and land policy—where the goal is usually to reduce the concentration of Palestinians in certain areas and to avoid the creation of contiguous Palestinian population centres.

As Ariel Zemach mentions in his blog post, the creation and maintenance of a Jewish majority is linked to the question of Israel’s character as a Jewish state. But the obsession with demography is also related to Israel’s settler-colonial origins including in its pre-1967 borders. As more academics study Israel through the lens of settler-colonialism, insights about how settler-colonialism affects the state’s approach to population are helpful here. Gershon Shafir articulates the centrality of demography to settler-colonial situations in his discussion of the ‘demographic interest’, which represents the preferred ratio between land and population that would allow the settler population to gain and maintain control over territory. This explains the exclusionary nature of Israel’s population laws and policies in relation to Palestinians (even those who are Israeli citizens), compared to the policy of increasing the number of Jewish citizens using a range of methods which include automatic citizenship, financial support and other incentives. This also means that Israel will resist any call to provide citizenship to West Bank Palestinians.

History also shows that this will be the most likely outcome. Palestinians in East Jerusalem, which was annexed in 1967, were granted residency status in Israel. While this status provides some rights, it is still a precarious status that could be withdrawn if a resident spends an extensive period of time abroad or acquires citizenship elsewhere. This has led to tens of thousands of Palestinian residents of Jerusalem losing their legal status, and absurd situations where some families whose Jerusalem lineage goes back centuries were not allowed to return because their resident status has lapsed. Another example is the Syrian population in the occupied Golan Heights. The majority of the population of the Syrian occupied territory fled in 1967. The few thousands that managed to stay were granted residency status in 1981. This status allows its holder to apply for citizenship, the grant of which is at the absolute discretion of the Minister of Interior. The take up amongst the Palestinian Jerusalemites and the Syrians of the Golan for whom Israel is an occupying power has been limited, and Israel’s policy has been to minimise the grant of citizenship for applicants.

Citizenship and Human Rights Obligations

Ariel Zemach’s blog post and article focus on Israel’s international duty to offer citizenship, but political realities indicate that even if there is such duty, this question is merely a theoretical one. While the application of the human rights norms is welcome, it is unclear why this duty would garner more support than the wide range of international obligations that Israel is in violation of. Israel violates many more pressing international obligations, whether based on international humanitarian law or international human rights law. As Tamar Hostovsky-Brandes mentions in her post, the grant of citizenship does not address the question of the  Palestinians’ right to self-determination, even though  the latter is much more established and few would dispute it. Other obligations, as a matter of daily life, and even life and death, are much more important, such as the obligation to end the crime of apartheid, to end the inhumane blockade on the Gaza Strip, to remove settlements, to stop the illegal exploitation and discriminatory allocation of water, to stop the arbitrary detention and torture of political prisoners, to name just a few. For the Palestinians these obligations are much more important, and these violations are likely to increase with the annexation plans. Furthermore, of the almost 3 million Palestinians living in the West Bank, 838,328 are refugees registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). These refugees left or were expelled from areas that are now under Israeli sovereignty, and were denationalised when Israel enacted the 1952Citizenship Act which excluded them from Israeli citizenship. The exclusion of these refugees was discriminatory and illegal under international law, and they are entitled, together with Palestinian refugees elsewhere, to return to their lands which are in present day Israel. Israel has disputed this right for over 70 years.

Notwithstanding the importance of international legal obligations, the ability and willingness to uphold such an obligation and enforce it is equally important. Even if there is indeed a duty to offer citizenship if Israel formally annexes parts of the West Bank, why would such a duty gain more traction than violations that amount to war crimes (settlements), or crimes against humanity (apartheid)? The fact that this duty is one that is inherently related to sovereignty (grant of citizenship is a sovereign act par excellence) also means that it will be hard to compel Israel to uphold this duty absent drastic enforcement measures such as sanctions.

We have seen many UN Security Council resolutions and General Assembly resolutions about violations of human rights and international law. In 2004 the International Court of Justice issued its Advisory Opinion on the wall which clearly upheld the applicability of international human rights law, and the right to self-determination of the Palestinian people. These resolutions, condemnations, protestations are piling high and fast, but the situation on the ground is getting worse. Most of the blame lies with the international community’s indifference and unwillingness to take human rights of Palestinians seriously. Worse, when some citizens in European countries decided to take human rights violations seriously and took action to stop them by promoting the call by Palestinian civil society to boycott Israel, their own right to freedom of expression was violated. They are now campaigning to protect their own rights.

Israeli Citizenship and Self-determination for Palestinians

Another important question that arises here is the nature of Israeli citizenship. There is a significant difference between Israeli citizenship that Jewish Israelis have, and the citizenship that Palestinians hold. Essentially, Israeli citizenship is stratified based on whether the citizen is Jewish or not. The Jewish definition of the state, and the implications of this definition mean that Jews get preferential treatment. These superior rights have been a feature of Israeli constitutional law long before the enactment of the Basic Law: Israel the Nation State of the Jewish People that Hostovsky-Brandes mentions in her post in this series. This is palpable in most policy areas, but especially so in immigration and citizenship laws and policy, and land laws and policy. What appears to be a universal citizenship has, in practice, several hierarchical categories in it based on religion or ethnicity. These categories present Palestinians as outsiders, rather than as the native population; they are treated as an immigrant ethnic minority whose rights are subject to the interests of the Jewish majority. It is not surprising therefore that human rights organisations count dozens of discriminatory legislation on Israel’s statute books.

These features of Israeli citizenship are especially important here in light of Zemach’s comment which assumes that granting Israeli citizenship is a possible way of realising the right to self-determination of Palestinians. First, Palestinians self-determination cannot be satisfied through unequal citizenship of a state which constitutionally excludes them and can only deal with them through the lens of security and demographic concern. It is practically locking them up in a third-class citizenship in a system that is built on racism and discrimination. Second, Israeli constitutional law doctrines do not tolerate such a view. The only right to self-determination in Israel is Jewish self-determination. Even liberals implicitly exclude Palestinians who hold Israeli citizenship from the right to self-determination in Israel. Self-determination for this group (and the corollary national rights), they argue, should be exercised in a future Palestinian state.

While the suggestion that Palestinians and Israelis could hold the same citizenship could actually be a good starting point for some permanent settlement, it could not advance while maintaining superior rights and privileges for some, and without addressing rights of the refugees and the Palestinians in the Gaza Strip. Equality of rights should be the starting point, not defective citizenship. Until this point is fully internalised, one can only anticipate that annexation plans will further deepen and entrench apartheid, increasing the levels of human suffering and causing more instability. Troubled waters lie ahead.

The feature photo of this article is Israeli West Bank barrier.