Destructive Unilateral Legislation and Plans on Jerusalem’s Boundaries

Two bills — the Basic Law: Jerusalem, Capital of Israel (Amendment No. 2) Bill and the Greater Jerusalem Bill — that have been promoted recently from the benches of the governing coalition, aim to substantively change the borders of Jerusalem. These bills, presented during the 50th anniversary of the annexation of East Jerusalem, seek to annex de facto the settlement blocs surrounding Jerusalem and to displace approximately one-third of the Palestinian residents of East Jerusalem who now live in t neighborhoods beyond the separation wall.

The bills have not been introduced in a vacuum. They form part of a continuum of initiatives in recent years all of which strive to force determinative territorial-political facts in Jerusalem in the guise of “municipal processes.” These initiatives, which are formulated over the heads of the residents of Jerusalem, Israelis and Palestinians, will be deeply destructive to the prospect of a political resolution in the city, will disrupt the urban fabric and will escalate the confrontation in Jerusalem.

The existing Basic Law: Jerusalem, Capital of Israel Act was enacted in 1980 to make it difficult to cede any part of the territory annexed to Jerusalem in 1967. This basic law was amended in 2000 so as to further restrict the possibility of future negotiations on the city, clarifying that the law applied to the entire area annexed in 1967, and that no authority over the annexed area of Jerusalem could be turned over to a foreign entity. It was stipulated that in order to change these restrictions, it would be necessary to pass a basic law by a majority of at least 61 members of Knesset. In addition, the Basic Law: Referendum was passed in 2014. This law presents two alternatives for ceding Israeli sovereign territory: approval of the move by a majority of 61 MKs as well as obtaining a majority in a referendum; or approval of the move by a majority of 80 MKs without the need to hold a referendum.

The Question of "Territorial Concessions" and "Municipal Changes" in the New Law

The amendment to the Basic Law: Jerusalem, Capital of Israel currently under discussion, introduced in July 2017 by the minister of education Naftali Bennett and Zeev Elkin, the former minister of immigrant absorption of Israel, has passed its first reading in the Knesset. This amendment provides that changing the current restriction on transferring any area of Jerusalem to a foreign entity would require a super majority of 80 MKs, rather than 61. The requirement for a majority of 80 MKs renders a referendum largely unnecessary.

The amendment further states that the section that provided that this law would apply to the entire area within the annexed borders of Jerusalem from 1967 would be annulled. In its place, it stipulates that all areas currently within the municipal borders of Jerusalem may not be transferred to a foreign entity. What may appear as a cosmetic change implies, in fact, that the amendment to the law distinguishes between territorial-political concessions that are prohibited with respect to the entire area of Jerusalem at present and even makes the approval of such concessions more difficult, as opposed to “municipal changes”, as to which it is implied that the Jerusalem municipality operates like any other local authority.

The legal distinction between “territorial concessions” and “municipal changes” in the proposed amendment is intended to create maximum room for maneuver for de facto annexation of the three settlement blocs surrounding Jerusalem under the guise of “urban” expansion and in order to create a “municipal” cutting off of the Palestinian neighborhoods from Jerusalem, without formally waiving the control and sovereignty over them. This picture becomes fully clear from the second legislative proposal discussed below.

Trying to Incorporate Three Settlement Blocs into Jerusalem

The Greater Jerusalem Bill introduced in the Knesset by MK Yoav Kisch and Yisrael Katz, the minister of intelligence, transportation and road safety, on July 10, 2017, seeks to enlarge Jerusalem’s area of jurisdiction so that it includes the local authorities in the three settlement blocs of Ma’ale Adumim (including the E1 area), Gush Etzion and Givat Ze’ev. Similar to the bill to amend the Basic Law: Jerusalem, Capital of Israel, the process is defined as a change in the municipal status of the local authorities within these settlement blocs. An earlier draft of the bill also included the application of Israeli law to the local authorities listed therein, but this provision was removed from the version that was finally introduced in the Knesset. However, even in this more limited draft, it is difficult to miss the political significance of the legislative proposal, particularly in view of the declarations of those who initiated and are promoting it — the annexation of the settlement blocs and “the creation of a large Jewish metropolis with a clear Jewish majority.”

According to the legislative proposal, the local authorities that will be annexed to Jerusalem — Beitar Ilit and Ma’ale Adumim municipalities, the Givat Ze’ev and Efrat local councils and the Gush Etzion regional council — will be given the status of sub-municipalities of Jerusalem — “Jerusalem’s daughter municipalities” — and their residents will vote on the date of the elections for the Jerusalem municipality. At the same time, the authorities that have become sub-municipalities will continue to benefit from municipal autonomy. Linking the dates for the elections for the local authorities at issue to that of the elections for the Jerusalem municipality is intended to pave the way for the residents in these local authorities to vote in the municipal elections both for the local authorities in the area in which they live and for the Jerusalem municipality. In this manner, those promoting the law seek to change the demographic balance in the city immediately, and to override the electoral power of the Palestinian residents of the city in the future, in the event that they choose to exercise their right to vote in the municipal elections in Jerusalem.

The bill sets forth a second category of areas that will receive the status of municipalities that are adjunct to the Jerusalem municipality, and these are “neighborhoods of Jerusalem that are separated from it by the Separation Barrier.” In this category, the legislative proposal includes three sub-municipalities: the Shu’afat refugee camp, Kufr Aqab and Anata. In this manner, the initiators of the proposal seek to complete the legislative process whose objective, as described by Katz, is “to strengthen Jerusalem by adding thousands of Jewish residents to the city, while simultaneously weakening the Arab hold on the capital.”1

The De Facto Annexation of Areas in the West Bank into Israel

Despite the term used by those drafting the bills, the significance of the unilateral processes of expansion and separation proposed in them reaches far beyond the “municipal.” At issue is the first move, since the annexation of East Jerusalem in 1967, for de facto annexation of areas in the West Bank to Israel, and at the same time a massive displacement of Palestinian residents from Jerusalem. These moves are in contravention of international law and United Nations Security Council resolutions, including Resolution 2334, which was approved in December 2016, and are expressly intended to constitute a critical obstacle to the two-state solution and an agreed-upon future.

The intention to sever neighborhoods beyond the separation wall from Jerusalem was evident, even prior to the latest legislative initiatives, in the declarations of senior level decision-makers. Recently, not only have more declarations to this effect been heard, there are increasing signs that the government is making operative plans and has even moved on to the practical implementation of some of them. Elkin, for example, has now unveiled a proposal to cut off from the city neighborhoods located beyond the separation wall, saying that the ties between these neighborhoods and the city were “very loose.”

In another example, in the meeting of May 28, 2017 dedicated to Jerusalem, during which the government decided to allocate funds for “dealing with environmental hazards in the Arab neighborhoods of Jerusalem,” the budgetary allocation was designated only “for the Arab neighborhoods in Jerusalem within the security fence” (Decision No. 2684). It was also reported in May 2017 that in the contacts between Netanyahu’s office and U.S. President Donald J. Trump’s negotiation team, the Israeli side raised ideas in this spirit — of cutting off the neighborhoods beyond the separation wall from the city.

The Zionist Union, Too

This is also true with respect to plans recently proposed by the Zionist Union Party. In the past two years, plans for a unilateral separation of the Palestinian neighborhoods in East Jerusalem and their ostensible transfer to the Palestinian Authority (PA) have also been advanced in the Knesset by the Zionist Union Party. All five of the candidates in the election for the head of the Labor party that was held in July 2017 expressed support for various versions of these plans. In contrast to the impression their proponents wish to create, these plans will not assist in doing away with the Israeli taboo on a political division of Jerusalem. Quite the opposite, they will deepen the control of Israel over the heart of East Jerusalem — the Old City and its expanded surroundings — areas densely populated by Palestinian residents, which are at the core of the Israeli-Palestinian conflict. In effect, the principle of a political division in Jerusalem and the establishment of two capitals in Jerusalem on the basis of the 1967 lines with agreed-upon and limited revisions — a fundamental principle of the two-state solution, the necessity of which was agreed upon by all of the center and centerleft leaders who have participated in political negotiations since the Oslo process — has been removed from all of these plans. These are plans that will fragment East Jerusalem and will eliminate the possibility of a viable solution in the future while engendering serious humanitarian ramifications. Instead of demanding that the government return to the political negotiating table and, in the meantime, that it act with determination to renew and establish alternative channels of Israeli-Palestinian dialogue, those who favor unilateral measures are strengthening, wittingly or unwittingly, the position of the government that “there is no partner” and are only increasing the tension between the two sides.2

The Uprooting of the East Jerusalem Neighborhoods beyond the Barrier

The bills and their attendant plans seek to uproot Palestinian residents living in Jerusalem, and to add to Jerusalem, in an artificial manner, Jewish residents who do not live there. In addition to the clear political aspects, these moves can be expected to have serious humanitarian consequences, and these two aspects are connected. A local authority is a complex and delicate entity which expresses spatial, community and political connections. As opposed to the local authorities in the settlement blocs, which were established from the outset as separate authorities with all of the attendant physical and community infrastructures and the accompanying budgetary priorities, the neighborhoods that remained beyond the separation wall are part of East Jerusalem and dependent upon it in terms of community, identity, livelihood and family ties.

Past experience instructs that all of the assurances that were given to these neighborhoods that they would be provided with the necessary services and infrastructure will likely remain mere promises. In the declarations accompanying the bills, their proponents repeated the need “to increase the governability” of the neighborhoods beyond the separation wall. In other words, government investments, if they are directed to these neighborhoods at all, will almost certainly be allocated to increase policing and control at the expense of services and infrastructure. The poor conditions in these neighborhoods, which will deteriorate further due to the proposed forced moves, and the lack of civic status and political weight that can influence decision-makers and distribution of governmental resources, do not enable the creation, ex nihilo, of vital and functioning local authorities. These authorities, if they are established, will be in a kind of geographic, infrastructure and systemic limbo and will serve, at most, as a tattered fig leaf to try to cover up the displacement of more than 100,000 residents of East Jerusalem from their city and a further serious decline in their living conditions and rights.

Needed: A Consensual Process to Improve the Lives and Security of Both Populations

The bills and attendant plans seek to force radical changes on the structure of the city, its boundaries and its populations, without any appraisal having been carried out with respect to how these processes will affect the city’s life and its functioning, without consulting with urban planning and management experts and without including the residents, Israeli and Palestinian, and taking into consideration their lives in the city and how they perceive it. In the view of those sponsoring the bills and plans, Jerusalem is a super-territorial place that can be, in one fell swoop, expropriated from its residents and from its history as an actual place. Indeed, similar processes set the borders of the annexation in 1967.

However, fixing the problems created in 1967 will not be achieved by further forced measures. Instead of taking an approach based on force, we need to recognize the constraints of reality that have been created since 1967 and the fine and fragile balances that, for the most part, enable the routine of its existence, and to promote delicate and consensual processes that can improve the lives and security of both populations of the city in the present and will constitute a basis for an agreed and viable political future.

These processes must include a significant strengthening of the living conditions, the infrastructure and the services in East Jerusalem, within and beyond the separation wall, and absolute protection of the residency status. As opposed to the common perception of Israeli policy-makers, removing the threat of the revocation of residency status for all East Jerusalem residents will increase their housing options to all areas in the vicinity of Jerusalem, even outside its municipal borders, and will decrease the pressure, the density, collapse of infrastructure and the unregulated construction in the East Jerusalem neighborhoods within and beyond the separation wall.

Jerusalem is the current home and future capital of two peoples who live in it. A secure and stable life in Jerusalem can exist only based on recognition of the full extent of the connections of both of these peoples to the city, and when they can both conduct their daily life and their public life in an independent and sovereign manner. Unilateral measures, whether in fact or discourse, play into the hands of those who oppose a consensual solution and will bring about the heightening of already existing power gaps and disparities in living conditions between the two sides and further deterioration of the situation.

In the absence of a permanent solution in the foreseeable future, the two peoples will continue to share a complex urban reality based upon a delicate and sensitive weave of symbiotic relations and interdependence. In this reality, a policy should be adopted that will strengthen the residential communities and personal security of all of the residents of the city and will reduce, to the extent possible, the factors that increase the tension in the city. First and foremost, the living conditions and vital security of the residents of East Jerusalem must be improved in an absolute manner, both within and beyond the separation wall. They must be allowed to develop in the urban sphere, to preserve the wholeness of their community and physical surroundings and to conduct their affairs in the city through their own institutions and agencies without fear.

The living conditions in West Jerusalem also require strengthening, and there must be nurturing of positive economic, social and political horizons for dialogue. The residents of both parts of Jerusalem and their political leadership, with the support of the international community, must be partners in determining the future of the city. A shared life experience can and must constitute a basis for negotiations for a viable political solution out of an understanding that in every political constellation the two peoples will live alongside each other in Jerusalem.

1 Amihai Attali, Netanyahu Advances Greater Jerusalem Bill, YEDIOT AHARONOT, July 27, 2017.
2For further elaboration on the failings of unilateral plans, see, IR AMIM, JERUSALEM: PRESENT HOME AND FUTURE CAPITAL OF TWO PEOPLES – A POLICY PAPER (February 2016).