ANALYSIS: The Supreme Court and Israeli law in Judea, Samaria and the Jordan Valley

"Annexation" is not necessary because Israel had and has the best claim to these areas.

Yochanan Visser ,

Jordan Valley
Jordan Valley

The Israeli Supreme Court took another controversial decision on Tuesday and declared a law passed by the Knesset in 2017 invalid. Under the now annulled legislation, more than 4,000 homes of Jews in Judea and Samaria were declared legal, and the municipalities in the historic heartland of Israel were given the right to confiscate Palestinian Arab land for new construction according to zoning plans and provided the owners were compensated generously for the loss of their real estate.

The Supreme Court decision brought joy to the left-wing camp in Israel and satisfaction among the Palestinian Arabs whose representatives from EU-sponsored NGOs brought the case to the court.

The Likud party of Prime Minister Binyamin Netanyahu immediately announced that new legislation would be introduced that would effectively overturn the Supreme Court decision.

The timing of the Supreme Court decision suggests that the judges wanted to send a two-fold signal.

First, the court made it clear to the International Criminal Court (ICC) in The Hague that there is a well-functioning legal system in Israel that can overturn alleged illegal decisions and take action against law offenders. The latter is important, as the ICC has still not decided whether to launch an investigation into alleged Israeli war crimes in the conflict with the Palestinian Arabs (since 2014).

The Palestinian Authority has repeatedly called for an ICC investigation against Israel despite the fact that the PA is not a state and only states can join the ICC. Israel is also not a member of the ICC and the US government, through Mike Pompeo, the Secretary of State, has indicated that it is firmly against any investigation by the ICC into alleged war crimes committed by states that defend themselves or act against terrorism.

Pompeo threatened "consequences" for the "corrupt" ICC if it were to adopt the recommendations of chief prosecutor Fatou Bensouda regarding her intention to sue Israel for alleged war crimes. Behind the pressure on the court in The Hague is Bensouda's intention to also charge US soldiers who fought the Taliban in Afghanistan for alleged war crimes. On Thursday, Trump signed an executive order imposing sanctions on individuals involved in the ICC's investigation into alleged US war crimes in Afghanistan and also cited the ICC's war crimes investigations against Israel when signing the order.

A possible second reason for the sudden decision by the Israeli Supreme Court to cancel the so-called “Settlement Regulations Law” is the fact that the Netanyahu/Gantz government is preparing to officially apply Israeli law in the Jordan Valley and parts of the so-called Area C in Judea and Samaria. Under the Oslo Accords, Area C was placed under full Israeli rule and covers approximately 30 percent of Judea and Samaria.

Opponents of what the media wrongly refers to as the "annexation" of parts of Judea and Samaria as well as the entire Jordan Valley say Israel has no right to decide to implement Israeli law in the Jewish communities in Judea, Samaria and, the Jordan Valley.

The same opponents of “annexation” point to the Oslo accords to argue that Israel cannot take unilateral measures conveniently forgetting that it was the Palestinian Authority that breached the Oslo accords from the very beginning by supporting terror and by starting the so-called "Second Intifada" or the Oslo War in September 2000.

Annexation, moreover, is not necessary because, according to a correct interpretation of international law, Israel had and has the best claim to these areas. The San Remo conference in April 1920 assigned the entire area from the Mediterranean Sea to what is now the eastern border of Jordan to the Jewish people to establish a "national home".

Thereafter, no new binding legislation has been adopted that defined the status of the area, nor did UN Security Council resolution 242 that spoke only of withdrawals from territories conquered in the 1967 Six Day War and linked it to Israel's right to live in security.

The resolution did not rule on the status of the territories Israel liberated in this war from Arab states, among them Jordan which participated in the Six Day War and illegally occupied Judea, Samaria and the Jordan Valley for 19 years between 1948 and 1967.

The Israeli Supreme Court, in its ruling on the Settlement Regulations Law, likely sent a political signal to the new government in Jerusalem that it is better to refrain from introducing Israeli law in the aforementioned areas.

However, the likelihood that the Israeli government will cancel the measure is slim despite the fact that the European Union is also pressuring Israel and threatens to boycott the Jewish state whenever it introduces Israeli law in parts of Judea, Samaria and the Jordan Valley.

German Foreign Minister Heiko Maas was in Jerusalem this week to hold talks with the Israeli government on the proposed "annexation" but is expected to fail to prevent what Netanyahu calls "a historical possibility".

The Israeli PM said during the meeting with Maas that retaining the Jordan Valley was crucial for Israel’s security.

Threats of sanctions will also be of no use because the EU is Israel's main trading partner and would itself be hardest hit by a boycott of Israeli products found in, for example, virtually any computer or smart phone.

The PA is trying in every conceivable way to gain support from the international community in order to prevent “annexation”. On Tuesday, PA Prime Minister Mohammed Shtayyeh announced that the government in Ramallah would immediately declare a Palestinian state on the so-called “1967 border”, which were, in fact, the 1948 armistice lines.

Those lines also ran straight through Jerusalem and would make the Old City, including the Temple Mount, the holiest place in Judaism, inaccessible to Jews again.

Shtayyeh reiterated that the PA would end any cooperation with Israel, including security, if Israel implements Israeli law in the above mentioned areas.

However, Hussein Al-Sheikh, the head of the PA Committee on Civil Affairs and a member of the central committee of ruling Fatah Party in the PA-controlled areas, made it clear that the Palestinian Authority would continue security cooperation with Israel and violence that should happen again.

However, Al-Sheikh may have been ventilating his own opinion as the media monitor group Palestinian Media Watch released a report showing that the PA is ramping up incitement against Israel.

PMW published four official PA videos calling for the "national honor" to be restored through murder of Jews, suicide bombings, stabbing and dying for Al-Aqsa, the mosque built in the seventh century on the ruins of the Jewish Temple.

It remains to be seen if the PA campaign will mobilize the masses, however.

A demonstration in Ramallah organized by the PA drew only 200 protesters and according to a report by Tzvi Yechezkeli, the Arab affairs commentator of Channel 13 News, many Palestinian Arabs prefer to have no state and want to be ruled by the Israeli government, not the Palestinian Authority or Hamas.