Reasonableness - Out, Annexation - In
Dear Friends, 

There is a direct connection to be drawn between the Israeli government’s judicial overhaul and practical implications for the Israeli-Palestinian conflict. The revoking of the “unreasonableness doctrine” this month – framed as the least controversial of proposed judicial reforms – will provide far-right ministers in Israel’s government significant maneuverability as they expedite a policy of de-facto annexation in the West Bank. Despite warnings from throughout the international community, Israel appears determined to forge ahead. 

The Two State Index drops -0.5% from 4.97 to 4.94 this month. Scroll through the headlines below for in-depth analysis on how developments this month impacted the feasibility of the two-state solution.

 

 

July at a Glance:


  • In Revoking Reasonableness Clause, Israeli Gov’t Solidifies Unprecedented West Bank Powers Handed to Civilian Minister: Why Ministerial decisions which don't violate specific laws - such as those pertaining to equitable West Bank planning and construction - will now be more difficult to review.

  • After First Judicial Reform is Passed, What Is Left for Biden to Leverage a Horizon for Peace? US counting on a Saudi-Israeli normalization agreement as major foreign policy triumph for all parties - but Netanyahu must contend with the priorities of his coalition vis-a-vis the West Bank.

  • Israel Moves to Expand West Bank Annexation Policies to Areas Under PA Authority: Crackdown on Palestinian construction, major budget allocations for infrastructure and archaeological preservation tighten Israeli grip on Area C.

  • Israeli Ministers Vote To ‘Prevent Collapse’ Of PA As It Moves to Re-Assert Authority In Jenin Following Raid: Vote highlights how PA and Oslo serve Israeli interests and maintainence of status quo.

These events decreased the Two State Index by -0.5% in June (down 0.03 points from 4.97 to 4.94)


 

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In Revoking Reasonableness Clause, Israeli Gov’t Solidifies Unprecedented West Bank Powers Handed to Civilian Minister

Despite international pressure and protests that have drawn hundreds of thousands of Israelis to the streets for thirty consecutive weeks, Prime Minister Benjamin Netanyahu’s coalition this month passed the first major legislation in a broader plan to weaken the judiciary. The so-called “reasonableness bill” was framed as the least controversial in a series of planned judicial reforms, but it nonetheless carries significant implications for the Israeli-Palestinian conflict. Chief among them, the reform solidifies unprecedented power handed to far-right pro-settlement Minister Bezalel Smotrich, whose civilian and political influence within the Defense Ministry’s Civil Administration is rapidly advancing an agenda of de-facto annexation in the West Bank.

The now-defunct “reasonableness doctrine” had allowed courts in the past to invalidate government and administrative decisions which were seen as  extremely unreasonable, even if such decisions did not directly violate any specific laws or rulings. But the reform passed this month now prohibits the courts from intervening to overturn decisions made by the cabinet, government ministers and “other elected officials” – making it harder for the courts to review their appointments and decisions. 

Proponents of the reform argue that the reasonableness doctrine handed judges too much authority to intervene in government decisions, while critics say it is an essential tool for protecting rights that are not specifically enshrined in law. The doctrine had been invoked earlier this year, for example, when the courts overturned a decision by Defense Minister Yoav Gallant not to grant dozens of Palestinian families entry to Israel to participate in a joint Israeli-Palestinian memorial day event on the basis that the Minister failed to provide adequate proof of any security risks posed by the families and failed to consider the significant number of Palestinians given entry visas to come into Israel every day for various other purposes.

“In general, Israeli law does not apply in the occupied territories but there is a growing trend of applying segments of Israeli law in the West Bank and the High Court has stated in the past that administrative measures of Israeli laws are subject in the territories. If the courts’ ability to examine the legality of government decisions in the occupied territories lacks the reasonableness doctrine, that is one less tool in their toolkit,” says Dr. Tamar Hostovsky Brandes, a Senior Lecturer (Associate Professor) at the Ono Academic College Faculty of Law and an expert in international and constitutional law.

And though some Palestinian rights will continue to be protected under international and human rights law, as well as through other judicial doctrines, various infringements, in particular through Ministerial decisions such as those pertaining to equitable West Bank planning and construction, entry visas to Israel, and environmental protections, will now be more difficult to review.

“Of course, human rights law and international law still apply broadly across the occupied territories. But the unreasonableness clause was very useful in enabling the courts to strike down more sophisticated decisions where it was difficult to pinpoint specific violations under law, rather by examining their motivation, intention, and effect,” Dr. Hostovsky Brandes explains. 

“Considering Smotrich is a second Minister in the Ministry of Defense and is in charge of the settlement project, and his decisions in this authority cannot be reviewed by the courts on grounds of reasonableness, this leaves a lot of space for him to expedite processes that don’t necessarily violate specific rights or international law. Essentially, the reform hands him a lot more leeway and maneuverability in the areas under his authority.” 

The passing of the first judicial reform legislation this month and the sustained efforts of a grassroots protest movement which features a growing anti-occupation block has sparked increased discourse on the implications for the Israeli-Palestinian conflict, with greater attention paid to the  consequences for the West Bank. The TSI’s “Israeli Public Discourse” parameter rises from 5 to 6 this month.

 

 

After First Judicial Reform is Passed, What Is Left for Biden to Leverage a Horizon for Peace?

Despite an extraordinary eleventh-hour appeal by US President Joe Biden that followed several pointed and terse warnings from the White House, Israel pushed through the first in a series of controversial and divisive judicial reform bills this month. Biden’s show of political and emotional investment in Israel’s judicial overhaul stood in contrast with his administration’s comparatively soft-handed approach to matters pertaining to the Israeli-Palestinian conflict until now, and Israel’s defiance underscored the diplomatic dilemma the US now faces in confronting additional Israeli moves to further weaken the judiciary, as well as unilateral measures to expand settlements and further diminish a horizon for peace.

"While the Biden Administration has been reluctant to employ leverage, and it will presumably become tougher to persuade it to do so in the run up to the 2024 election, polling shows that President Biden does have political space to take meaningful action. Calls on Biden to intervene by high-profile voices within the Israeli pro-democracy movement, including former senior security officials, increase that political space,” says Dr. Debra Shushan, Director of Policy at J Street Washington.

Analysts have warned of “irreparable damage” to the US-Israel relationship as a result of such policies, going as far as to say that they warrant a re-assessment of the US’s multi-billion-dollar military assistance to Israel. Nonetheless, the White House has insisted that there are no talks of a formal reassessment and that it would not cut military aid to Israel. And in spite of increasingly strained ties, Biden even finally extended an invitation to Netanyahu for a meeting in the US ahead of a visit to Washington by President Herzog, which had emphasized the lack of a similar invitation to the PM. The invite notably did not set a date nor specify that the meeting would take place at the White House, however, leaving open the possibility of a less politically significant venue, such as on the sidelines of the UN General Assembly in September.

But Biden still has plenty of room to maneuver, Dr. Shushan says: “The US has no shortage of leverage, given multiple Netanyahu government priorities and requests of the Biden Administration. These include major US concessions to Saudi Arabia in order to persuade the Kingdom to normalize relations with Israel, admission to the Visa Waiver Program despite significant questions about whether Israel meets all of the legal requirements, and a long sought-after meeting for Prime Minister Netanyahu with President Biden.”

Biden dispatched national security adviser Jake Sullivan to Saudi Arabia for talks with Crown Prince Mohammed bin Salman, signaling that the US administration is still counting on a highly-coveted Saudi-Israeli normalization agreement as a major foreign policy triumph for all parties. The expectation (and potential obstacle, from the current Israeli government’s perspective) is that any agreement would include Israeli concessions to the Palestiniansthat would preserve the viability of a two-state solution.

While a major foreign policy achievement like rapprochement with Saudi Arabia might be high on Netanyahu’s agenda, the Israeli premier must also contend with the priorities of his coalition – which Biden this month panned as featuring some “of the most extreme members” he had ever seen and whose pro-annexation agendas would undoubtedly be starkly at odds with any proposed concessions for the Palestinians.

But even the expectation that a Saudi normalization agreement will necessarily be accompanied by a commitment to the two-state solution may be softening, and the Palestinian cause would undoubtedly suffer if Riyadh and Washington back away from insisting on a permanent solution to the Israeli-Palestinian conflict as a prerequisite for a regional agreement.

In light of current political realities, analysts say there are additional steps that Washington can pursue in order to avoid a further deterioration between Israel and the Palestinians: “The Administration took a notable step when it informed the Israeli government that it would not provide funds for cooperative scientific research programs to Israeli institutions based in West Bank settlements. The Biden Administration should follow this move by taking additional steps that reinforce differentiation between Israel and the West Bank (such as restoring the bipartisan customs guidance on accurate labeling of West Bank goods), expressly revoking the Pompeo Doctrine and restoring the longstanding US position that settlements are inconsistent with international law, investigating whether any US-original military equipment has been used to promote de facto annexation and in violation of US arms export control and/or foreign aid laws, supporting European donor countries’ claims for compensation from Israel for Israeli demolition of Palestinian schools and other foreign aid-funded structures, and making clear that the US will not block appropriate criticism of Israel for acts of annexation in international fora," says Dr. Shushan.

The TSI’s “International Actors: United States” parameter drops from 7 to 6 this month.

 

 

Israel Moves to Expand West Bank Annexation Policies to Areas Under PA Authority

Far-right minister Bezalel Smotrich said this month that the government was advancing a plan to allow Israel to demolish buildings deemed to be "national security threats" in areas A and B of the West Bank, signaling his intention to expand Israel’s authority into areas meant to be under Palestinian Authority control under the Oslo Accords. Until now Israel’s efforts to crack down on construction violations in the West Bank have focused mainly on Area C, where Israel currently has enforcement authority.

This month, demolitions in Silwan and Humsa al-Tahta village, Al-Araqib, and the evictions of the Ghaith and Sub Laban families from their homes in Jerusalem’s Old City underscored concerted Israeli efforts to crack down on unauthorized Palestinian construction in Area C while pursuing rapid expansion of Jewish settlements and infrastructure. 


Army officials noted this month that 90-95% of Palestinian building requests in Area C have been rejected while 60-70% of Israeli requests have been approved. Israel’s failure to approve Palestinian housing and its razing of illegal structures in Area C has fueled tensions with the EU, in particular, which said this month that demolitions of more than 100 EU-funded structures in Area C last year incurred a total of €337,019 in losses.

Analysts also say this month’s allocation of an unprecedented $33 million to fund the preservation of archaeological sites in Area C marks yet another move towards annexation, by preventing Palestinian access to lands in Area C and extending the authority of Israeli ministries into the West Bank.

“Israel’s annexation of the West Bank is complete. The only thing left to do is to call a spade a spade,” says Palestinian analyst Ibrahim Dalalsheh. “The announcement of new Israeli projects in the West Bank – establishing new road networks to connect Jewish settlements to Israel while bypassing Palestinian communities, granting authority to demolish homes in Areas A and B, assigning budgets for archaeological sites in Area C – all point to finalizing annexation.”

With the backing of an unyielding pro-settlement bloc, Netanyahu has increasingly spoken against the establishment of an independent Palestinian state and this month said that he does not envision any Israeli settlements being uprooted under a future peace agreement – even those located deep within West Bank territory.

But as ideologically-motivated settlers push deeper into the West Bank, new points of violence and friction continue to open and the viability of a contiguous Palestinian state dwindles. Footage this month showing armed settlers entering Palestinian homes in the southern West Bank accompanied by IDF soldiers underscored Israel’s feeble response to the rapidly rising rate and intensity of settler violence and illegal outpost construction. 

The TSI’s reverse-scale “Israeli law in the West Bank” parameter rises from 7.5 to 8 this month, as Israel signals moves to expand its authority to Areas A & B. The “Area C” parameter, tracking the level of Palestinian access to (and relaxation of Israeli control over) Area C, drops from 3 to 2.5. 

 

 

Israeli Ministers Vote To ‘Prevent Collapse’ Of PA As It Moves to Re-Assert Authority In Jenin Following Raid:

Israel’s national security cabinet this month passed a declarative proposal to “act to prevent the collapse of the Palestinian Authority”, without committing to any specific measures to do so. Analysts and the international community have warned for months that the PA is on the verge of collapse, with its financial woes compounding a legitimacy crisis that have led many Palestinians to reject its authority – opening a power vacuum in major West Bank cities being filled by loosely-organized militias with the backing of rival groups, including Hamas and Islamic Jihad. 

PM Netanyahu and Defense Minister Gallant are expected to present measures to stabilize civilian circumstances in the West Bank, but have ruled out offering any financial bailout to prop up the PA. Without any substantive measures, the motion stands mainly to clarify that the Israeli government continues to see the existence of the PA as an asset – despite the fact that continued raids into PA-controlled cities (including an unprecedented operation in Jenin last month) are counter-productive to this position.
“The Oslo Accords were designed in a way that leaves little room for independent Palestinian decision-making in the West Bank, conveniently handing Israel maintenance of the status quo,” says Palestinian Analyst Mohammed Younis. 

“In light of the current situation on the ground, the PA faces only two options: Either leave security to the Palestinian street and face irrelevance, or crack down on militants to prevent its own collapse and maintain the status quo. After a long hesitation, it has chosen the second option and is moving quickly to restore what remains of its reputation.”

Palestinian Authority President Mahmoud Abbas received a lukewarm welcome in Jenin this month, during his first visit to the city since 2012. Seeking to reassert authority, Abbas warned of consequences for any group seeking to undermine stability in the city as PA security forces rounded up 10 members of the rival Islamic Jihad faction. 

The PA has sought to perform a delicate balancing act over recent months, attempting to assert itself as the legitimate leadership of the Palestinian people – for which it was established under the Oslo Accords – while at the same time not wishing to be seen as cooperating with Israeli efforts to crack down on militant activity in Palestinian strongholds.

There are no changes to relevant TSI parameters.

 

 

The Two-State Index (TSI) is part of the Two-State Coalition (TSC) that is brought to you by the Geneva Initiative, a Palestinian-Israeli organization working to promote a negotiated peace agreement in the spirit of the two-state vision. The TSI is part of the Two-State Coalition project, produced by an Israeli-Palestinian team, and reflects a unique bilateral perspective.

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