The Regularization Law passed on Monday by the Knesset, which legalizes heretofore illegal construction in the West Bank that was built without authorization on private Palestinian land, is a fiasco for myriad moral, legal, and political reasons.
- Israel's answer to world condemnation: Supreme Court will overturn land-grab law
- EU foreign policy chief: Israel's land-grab law entrenches one-state reality of unequal rights
- Israel passes contentious Palestinian land-grab bill in late night vote
While it is almost certain to be struck down by Israel’s Supreme Court, limiting its tangible and immediate consequences, the fact that it was even passed by the Knesset means it will have a long term impact on settlements nonetheless - but not the one its champions intended.
The Israeli government has deliberately erased any distinction between types of settlements, no matter their geographic position or legal status. Israel will now find it harder to get the nascent Trump administration to do the opposite and accept those very distinctions as the basis for American policy, to work out an arrangement on settlements that will be more to Israel’s liking.
Trump’s victory has been celebrated by the Israeli right since the moment he was elected. That euphoria was based on the assumption that American policy during his tenure would give Israel free rein to build as it pleases in the West Bank. Naftali Bennett famously declared the end of the era of a Palestinian state, and Israelis all along the right have relished the prospect of a new American policy that departs from the Obama administration’s insistence that all settlements were a significant impediment to peace.
Indeed, there has been good reason to believe that a new policy on settlements was coming. The Trump campaign’s Israel advisers, David Friedman and Jason Greenblatt, were clear in their conviction that settlements do not pose an obstacle – let alone the core obstacle – to peace between Israel and the Palestinians, and their views are only more important now in their respective positions as nominee for ambassador to Israel and special envoy for international negotiations. Furthermore, the previous Republican administration of President George W. Bush took a more relaxed view of settlements, acknowledging the difference between settlements inside the blocs that Israel is expected to keep in a permanent status agreement, and settlements elsewhere. Both Republican policy and the emerging Trump administration policy point to an arrangement on settlements more to Prime Minister Netanyahu’s liking.
The statement issued by the White House last Thursday, saying that the existence of settlements is not an impediment to peace but that “the construction of new settlements or the expansion of existing settlements beyond their current borders may not be helpful in achieving that goal” indicated a partial victory for the Israeli right but also contained a caution flag. It explicitly voiced the idea that settlements are not a problem, but only if their boundaries are frozen in amber.
In other words, this would be a return to the understanding between Bush and Prime Minister Sharon explicated in an exchange of letters in April 2004 between the two leaders. In them, Sharon promised to limit the growth of settlements and remove all unauthorized outposts. In return, Bush acknowledged, “In light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949.” In non-diplomatic speak, this meant that Israel would concentrate its building in the blocs, and the U.S. would recognize that building in the blocs was okay given that they were going to be part of Israel in any final deal.
The Trump statement last week can be read as more expansive than that, given that it declared all existing settlements – and not just those that are major population centers – as posing no problem so long as they are not expanded.
But the White House statement responded to Netanyahu’s announcement that Israel would be constructing a new settlement for the first time in over two decades. It was already crystal clear that Israel would be expanding the footprint of already existing settlements.
If a return to the Bush-Sharon understanding were to become the end result, it would be an unabashed victory for the Israeli government. But the Regulation Law makes that increasingly difficult. The Trump administration has indicated that it does not want to see the borders of the settlement enterprise expand, and in legalizing over fifty previously unrecognized illegal settlements and opening the door for the justice minister to add to this list indefinitely in the future, the Israeli government has done exactly that. Coming on the heels of the first definitive statement from the Trump administration on the issue, this is a dangerous game for Israel to play.
Even if the High Court strikes the law down as expected, Netanyahu and the Israeli government are now in the position of trying to credibly advocate for an American policy – acknowledgement that all settlements are not created equal – after doing the precise opposite back home.
The Israeli government has long wanted international acceptance of the settlement blocs, and repeatedly expressed its frustration with the Obama administration for not understanding the distinction between Itamar (deep in the West Bank) and Ma’ale Adumim (a commuter settlement suburb of Jerusalem).
But it has now publicly told the world that not only does it see no difference between blocs and isolated settlements, it sees no difference between blocs and altogether illegal settlements. Even the current White House is unlikely to accept an argument that all West Bank construction is the same, and certainly not in the guise of Israel trying to argue on the one hand that all settlements are equal and on the other that the blocs need to be granted a special status.
For supporters of two states, this is the real danger posed by the Regularization Law. An effective and practical two-state solution can accommodate the blocs, but it cannot accommodate Nahalat Yosef, an illegal outpost. Erasing the distinction between what is legal and what is illegal is a prelude to erasing the distinction between large population centers and a few caravans on an isolated hilltop.
Even if the Regularization Law is never implemented, what it represents is disastrous. In trying to have their cake and eat it too, the Israeli right is doing its utmost best to ensure that in the end it is left with nothing but crumbs.
Michael J. Koplow is the policy director of the Israel Policy Forum. Follow him on Twitter: @mkoplow