Israel has vowed to quickly annex large parts of Judea and Samaria after getting a green light from President Donald Trump, whose newly unveiled Mideast initiative heavily favors Israel and has been rejected by the Palestinians.
But the move raises complex legal questions, both in terms of international law, which forbids the annexation of war-won territory, and inside Israel, which has not had a permanent government in more than a year. Those issues, and an apparent push by the Trump administration for Israel to proceed carefully, could delay any formal move to apply Israeli sovereignty in the area.
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Israel seized east Jerusalem, the West Bank and the Gaza Strip in the 1967 war, lands the Palestinians want for a future state. Most of the international community supports a two-state solution based on the 1967 boundaries.
The Trump plan would give the Palestinians limited self-rule in Gaza, parts of the West Bank and sparsely populated areas of Israel, with a capital on the outskirts of Jerusalem. In return, Israel would be allowed to annex all of its settlements in Judea and Samaria, which much of the international community views as illegal.
Prime Minister Benjamin Netanyahu had planned to bring annexation to a vote as soon as Sunday, but that was postponed, with one government minister saying the plan would first need to be submitted to the attorney general.
US officials have said a joint Israeli-US committee would need to be formed to implement the extension of Israeli sovereignty over parts of the West Bank. Jared Kushner, Trump's son-in-law and the architect of the plan, told GZERO Media the administration hopes Israel waits until it has a permanent government after March 2 elections – the third in less than a year.
But there are legal concerns around any potential annexation.
International law forbids the annexation of war-won territory. Israel argues that Judea and Samaria is a special case because it was never part of a Palestinian state. Israel, Judea and Samaria and Gaza were all part of British-ruled Palestine, and Britain had promised a national home for the Jewish people there, without specifying its boundaries. On that basis, Israel says it has the right to extend sovereignty over the territories with a simple Cabinet vote, a position backed by the Trump administration.
Most of the international community rejects that interpretation, and views annexed east Jerusalem and the West Bank as "occupied territory" because they were seized in war.
Amichai Cohen, a legal expert at the Israel Democracy Institute, a non-partisan think tank, said Israel's legal claim is "simply a way to try to avoid a confrontation with the international community. Annexation has a negative aura to it because it's illegal to annex territory," he said.
Annexation would be widely seen as a violation of international law, but there would be no way to hold Israel accountable outside of the United Nations Security Council, where the US wields a veto.
The Hague
The International Criminal Court said last year it was prepared to open a probe into alleged war crimes committed in the occupied territories pending a ruling on jurisdiction. The ICC is not authorized to prosecute annexation as a crime, but Chief Prosecutor Fatou Bensouda said Israel may have violated international laws against transferring civilians into occupied territory – a reference to Jewish settlements.
Israel has strenuously objected to any probe, saying the Palestinians do not meet the court's criteria of statehood and the dispute over the settlements must be resolved through peace negotiations. The Trump plan, by defining a future Palestinian state and siding with Israel on the settlements, could undermine that defense.
Israel is not a member of the court and does not recognize its jurisdiction, but Israeli officials could be subject to international arrest warrants if indicted.
Israel's political limbo
Israel has had a caretaker government for more than a year after back-to-back elections left Netanyahu and his main opponent unable to form a majority coalition. Israelis will head to the polls again in March, but even that may not break the gridlock.
A transitional government has the same formal powers as a permanent one, but the Hight Court of Justice has long urged restraint, saying such a government should not take major decisions unless absolutely necessary. That would support the argument for delaying annexation.
But the Trump plan enjoys wide support in Israel, including among all the major parties in the Knesset. In making the case for urgency, Netanyahu says Israel has a rare opportunity from the greatest friend it has ever had in the White House.
Netanyahu's main opponent, former IDF chief Benny Gantz, has also embraced the Trump plan. But he has warned against "rash, irresponsible measures" and said it should be implemented in coordination with other countries in the region like Jordan, which is opposed to annexation.
Gantz has vowed to bring it to a vote in the Knesset next week. That would strengthen the government's case if the Supreme Court were to argue for postponing annexation until after the elections.
But it would also pose a dilemma for Netanyahu's right-wing allies, who have welcomed the opportunity to annex territory but are vehemently opposed to any Palestinian state, even the heavily restricted one called for in Trump's plan.
A vote on the plan as a whole would force them to choose between rejecting Trump's proposal or voting in favor of a future Palestinian state. The discussions over the plan could lay bare fractures in Netanyahu's right-wing bloc ahead of elections, potentially helping Gantz.
