Can an interim cabinet that can’t fund daycare annex the West Bank? Probably not

With the release of US President Donald Trump’s long-awaited plan to resolve the Israeli-Palestinian conflict on Tuesday, Prime Minister Benjamin Netanyahu and senior members of the Israeli government called for the immediate annexation of the Jordan Valley and Jewish settlements in the West Bank.

In the following hours, however, lawmakers began walking back those calls somewhat as Attorney General Avichai Mandelblit said he had to review the move as it may contradict the widely accepted view that caretaker governments are not meant to take such dramatic policy steps.

The United States has also appeared to call for Israel to not begin the annexation process immediately, but to coordinate such a move through an as-yet-to-be-created joint committee.

There is no concrete legal proscription that explicitly forbids the government’s annexation plans, but there are historical precedents against such a move.

In cases concerning the powers of transitional governments, the High Court of Justice has maintained that these caretaker administrations are meant to strike a balance “between restraint and action.” This is seen as especially true for the current government, which did not win majority support in the last election and thus does not truly represent the democratic will of the people.

The Court has ruled that while there are no formal limits on an interim government’s powers, it should only take actions beyond the public need “in cases in which an ‘essential public need’ demands immediate action and cannot be delayed until after the elections,” according to legal scholars Amichai Cohen and Amir Fuchs of the Israel Democracy Institute.

An example of this would be the Israeli airstrike on the Iraqi nuclear reactor in 1981, three weeks before parliamentary elections, which represented a significant military operation that had the potential to spark a war but had clear defense value.

One of the more direct parallels to the current situation occurred in 2000, when Ehud Barak, who had recently dissolved his government, attempted to enter negotiations with Palestinian leader Yassar Arafat. A petition was filed to block the move, arguing that Barak was overstepping his bounds as an interim prime minister. The Court, under Justice Aharon Barak, rejected the appeal, allowing the prime minister to continue negotiations.

In that case, however, Ehud Barak’s attorney general told the Court that he would bring any proposed peace agreement to a vote in the Knesset before passage. Ultimately, the matter was for nought as the peace talks failed, with Arafat rejecting Barak’s offer.

Now, the government may attempt to argue that there is a pressing need to act quickly in order to annex the Jordan Valley and Jewish settlements in the West Bank, as US support may waver on the matter or other external factors may prevent Israel from going forward with the plan in the future.

If accepted, this could lead to the somewhat bizarre situation in which the current government is legally unable to easily perform simple budgetary actions like subsidize afternoon preschools or provide start-up grants to Israeli technology companies, but could radically alter the dynamics in the West Bank with a unilateral annexation.

Though this is not necessarily a winning argument.

According to Cohen and Fuchs, “it is unlikely that a government decision to carry out an annexation will be approved by the Supreme Court.”

In his comments on the matter, Mandelblit was more circumspect.

“If a request is filed, I will examine it from a legal perspective. I don’t rule out anything. I will hear what the request is and what the explanation is for the urgency, and I will decide on that basis,” said Mandelblit on Tuesday, who earlier in the day filed an indictment against Netanyahu with the Jerusalem District Court in three corruption cases after the premier withdrew his request for immunity from prosecution.

Of course, even if Mandelblit approves the annexation, the matter would almost certainly be challenged in court and could be blocked there.

In order to avoid such an argument, the government could try a different tack: bringing the matter to a vote in the Knesset.

Though formally disbanded, the parliament could be brought in to vote on annexation if it gets approval from the Arrangements Committee, which is responsible for procedural matters of the Knesset.

If such a proposition were passed in the Knesset — a possibility but by no means a certainty — there would be no real legal recourse to prevent annexation.