Shushan Street:
The Settlement Enterprise and the Demise of Israel’s Post-Netanyahu Government

Dr. Debra Shushan
on June 22, 2022

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Fifty-five years after Israel began its occupation of the Palestinian territories during the 1967 Six-Day War, the occupation has precipitated the downfall of Prime Minister Naftali Bennett’s government. A coalition of exceptional ideological breadth, the Bennett government was united by the imperative of freeing the country from the megalomaniacal grip of Israel’s longest-serving prime minister (Benjamin Netanyahu) and ending the political paralysis characterized by several rounds of inconclusive elections in close succession. The government survived longer than many expected, and despite a razor-thin majority, was able to pass Israel’s first budget in three years and amass other accomplishments, including managing two waves of the coronavirus and breaking the taboo on the inclusion of an Arab party in the coalition.

The coalition agreed to focus on opportunities for progress and steer clear of areas of disagreement — in particular, the Palestinian issue. It would not move ahead with de jure annexation of swaths of the West Bank but neither would it implement a settlement freeze or engage in peace talks with the Palestinian leadership. While pledging to “shrink the conflict,” it continued de facto annexation, advancing thousands of new settlement units, demolishing Palestinian homes in East Jerusalem, and launching the mass eviction of over 1,000 Palestinians from eight villages in an area known as Masafer Yatta in the occupied West Bank.

Ultimately, it was the elephant in the room — the occupation — that brought down the coalition, specifically the move to renew the legal framework of Israel’s settlement enterprise. On June 6, the Knesset failed to pass a Settlements Bill that applies Israeli law to Israeli settlers living in settlements in the West Bank, which are illegal according to international law. When it was first issued by then-Defense Minister Moshe Dayan as an “emergency order” less than a month after the occupation began, Israel had not yet established any settlements or even made a decision to do so. Dayan’s regulation protected Israelis traveling to the territories newly under Israeli control.

Israeli journalist Gershom Gorenberg has dubbed Dayan’s order the “founding document of As-If Land.” It enables Israelis, of which there are now over 450,000 living in the West Bank, to live as if they were residents of sovereign Israel, when in fact they are living over the Green Line, in occupied territory that Israel has never annexed by law. (The situation in East Jerusalem, where there are more than 230,000 settlers, is different; Israel’s Knesset adopted a legal framework there that is closer to de jure annexation.) Intended at first as a stopgap measure, Dayan’s emergency regulation has been extended for five-year periods, with additional provisions added over time.

The result is the development of two distinct legal systems under Israeli rule in the West Bank: one that applies to Palestinians living under occupation and a second that covers Israeli citizens and Jews to whom the Law of Return applies who live in the area, even if they are not citizens of Israel. Palestinians are subject to Israeli military rule, while Israelis are subject to the Israeli legal system; the former are unable to vote to determine the Israeli regime that governs their lives, while the latter vote in Israeli elections in polling places located in West Bank settlements.

The Association for Civil Rights in Israel (ACRI) notes in its report “One Rule, Two Legal Systems” that nearly every aspect of life for Palestinians and settlers is impacted by these divergent legal systems. The following are examples:

  • Criminal proceedings: A suspect’s identity determines which law applies and who will have jurisdiction. When a Palestinian resident of the West Bank is suspected of committing a crime there, they stand trial before a military court under military law. Israeli settlers face trial before courts inside Israel.
  • Planning and building: There is a dual planning system in the West Bank which restricts Palestinian construction while facilitating building in Israeli settlements. While Israelis are partners in drafting plans for their settlements and are represented on planning committees, Palestinians lack representation, and construction in most villages under the authority of the Israeli Civil Administration has been frozen for decades.
  • Freedom of movement: Nationality determines a person’s ability to move freely in the West Bank. Palestinians are subject to a system of checkpoints, roadblocks, the separation barrier, and prohibitions that inhibit their ability to move between and within areas of the West Bank. Israelis are permitted unrestricted access throughout most of the West Bank, including to Palestinian villages in Areas B and C.

David Elhayani, CEO of the Yesha Council (the umbrella organization of municipal councils of West Bank settlements), warned that failure to extend the “emergency regulations” that provide the foundation of two separate legal regimes in the West Bank “could drag the area into anarchy,” a prediction echoed by Defense Minister Benny Gantz who cautioned that the West Bank could “turn into the Wild West.” Israelis in the West Bank would be treated in the same way as Israelis living anywhere else outside of Israel — they would lose the right to government insurance and lawyers (including Israeli Supreme Court justices who are settlers) would not be able to join the Israeli Bar Association and work as lawyers in Israel. They would be brought before military courts if they commit crimes in the West Bank, and there would be consequences regarding entry into Israel, military conscription, taxation, the population registry, and adopting children. Further, Israeli police would no longer be able to operate in the West Bank.

At five-year intervals over the last fifty-five years, the “emergency regulations” that undergird Israel’s settlement enterprise were renewed, by governments on the left and right, without controversy. This year was different. While Netanyahu’s Likud Party and its allies in the opposition support the Settlements Bill substantively, their Knesset Members voted against it to show that the Bennett government was unable to pass what many see as essential legislation. They hoped to peel away enough right-wing lawmakers in Prime Minister Bennett’s coalition to topple it with a “constructive no-confidence vote,” which requires the formation of an alternative coalition government, or by securing at least 61 votes to dissolve the Knesset.

This strategy accelerated the disintegration of the ideologically wide-ranging governing coalition. On the coalition’s right flank, Justice Minister Gideon Sa’ar of New Hope threatened to leave the coalition if the Settlements Bill did not pass, warning, “Any coalition member who doesn’t vote for this law that is so central is an active participant in its demise.” While most of the Zionist left voted for the bill in order to keep the government alive, despite opposition to settlements, Ghaida Rinawie Zoabi of Meretz voted against it. She said of her vote, “It’s my duty to be on the right side of history by delegitimizing the occupation and supporting the basic right of the Palestinian people in establishing a country alongside the state of Israel.” Mazen Ghanaim of Ra’am, the Arab Islamist party in the government, was the other coalition MK to vote against the bill, while the rest of his party’s MKs abstained. (In the latest twist, Zoabi and Ghanaim will leave their respective parties, with the latter leaving national politics altogether.) While party leader Mansour Abbas was reportedly open to supporting the measure, Ra’am MKs declined to risk angering their electorate by voting in favor if the bill would not pass even with their support.

After the bill failed, by a 52-58 vote, Nir Orbach of Yamina announced his departure from the coalition, accusing “extremist, anti-Zionist elements” of “holding [the coalition] hostage.” Without Orbach, the ruling bloc became a minority government with 59 of 120 Knesset seats. (Idit Silman, also of Yamina, departed the coalition in April, depriving the coalition of its narrow 61-seat majority.) Prime Minister Bennett acknowledged the coalition was on the verge of collapse within a “week or two,” if rebellious MKs did not return to the fold.

On Monday, Bennett and his coalition partner Foreign Minister Yair Lapid announced in a joint statement that they had “exhausted options to stabilize” the coalition and would hold a vote on dissolving the Knesset. This Knesset took the first step in that direction today (June 22) and that paves the way for Israel to hold its fifth election in less than four years, with Lapid taking over as a caretaker Prime Minister until a new governing coalition can be formed. The decision was preceded by a discussion between Bennett and Attorney General Gali Baharav-Miara, in which the latter clarified that there would be no way for the government to extend the “emergency regulations” in the West Bank. That apparently cinched the decision for Bennett, who stated that there would be “grave security perils and constitutional chaos” if the law expired and he “couldn’t let that happen.” Under a caretaker government, these regulations will be extended automatically upon expiration. As for Bennett’s political career, it may soon be over. According to reports, he plans to resign soon and will not run in the upcoming election.

Minister of Justice Gideon Saar summed up the significance of the Settlements Bill this way: “This is not just another bill, it is the operating system of the rule of law in Judea and Samaria… The entire way of life in Judea and Samaria relies on this legislation.” Of course, he neglected to mention that under this “operating system” there is “a military justice system for subjects without citizenship who live under a military dictatorship, and… a second system for privileged Jews with Israeli citizenship, who live under Israeli law in a territory that’s not under Israeli sovereignty.”

For 55 years, the Israeli government renewed this system without controversy or fanfare. The situation was different this time, and the turmoil over the “emergency regulations” helped to expose the legal mechanism, and indefensibility, of the occupation. In the words of the Haaretz editorial board, “the West Bank’s secret is out.”