Legal aide: Defense minister can overrule Religious Zionism on West Bank policy

Weighing in on bill that incoming coalition is advancing, Knesset legal adviser says minister from far-right party won’t have absolute control over Civil Administration and COGAT

Likud leader MK Benjamin Netanyahu (left) speaks with Religious Zionism party head MK Bezalel Smotrich during a vote in the Knesset, December 20, 2022. (Yonatan Sindel/Flash90)
Likud leader MK Benjamin Netanyahu (left) speaks with Religious Zionism party head MK Bezalel Smotrich during a vote in the Knesset, December 20, 2022. (Yonatan Sindel/Flash90)

The Knesset’s legal adviser said Wednesday that the next defense minister will still be able to overrule another minister in his office from the far-right Religious Zionism party who is slated to gain control of key bodies overseeing West Bank policy.

Gur Bligh gave his legal analysis during a parliamentary committee hearing on legislation being advanced by the incoming coalition, which will allow for the appointment of a Religious Zionism member as a minister in the Defense Ministry in charge of the Civil Administration and Coordinator of Government Activities in the Territories.

Religious Zionism leader Bezalel Smotrich has long advocated for annexing large parts of the West Bank, massively expanding settlement construction, legalizing Israeli outposts and demolishing wildcat Palestinian construction in Area C — where they are virtually never given permits to build — and has demanded control over the two bodies during coalition negotiations so he can advance these policies.

The bill, which passed a first reading in the Knesset earlier this week, states that “in a ministry run by a minister, it will be allowed for another minister to be responsible for certain areas while still being subordinate to the minister in charge of the ministry.”

Bligh was asked during Wednesday’s session to elaborate on how this sentence should be understood. He responded that it means that the defense minister “has the option of overruling the minister under him.”

“If the junior minister determines X, and the minister in charge does not agree to it, he can say, ‘It’s Y,'” Bligh added.

Prime minister designate Benjamin Netanyahu has not yet announced who he’ll be appointing as defense minister, though it is expected to be Likud MK Yoav Gallant. Smotrich, who will start off as finance minister in the new government, has similarly not revealed who will be given the post responsible for the Civil Administration and COGAT, but he is expected to keep the job for himself.

Knesset legal adviser Gur Bligh attends a committee meeting on June 26, 2022. (Olivier FItoussi/Flash90)

Netanyahu’s willingness to give Smotrich control over bodies central to West Bank policy has been cause for concern in capitals around the world, given the Religious Zionism chairman’s opposition to Palestinian statehood or equal rights in the West Bank.

Netanyahu sought to alleviate that concern in an interview last week. “I didn’t hand over great powers in Judea-Samaria, the West Bank, not at all. In fact, all the decisions will be made by me and the defense minister, and that’s actually in the coalition agreement,” he told Saudi broadcaster Al Arabiya.

Following the interview, however, Likud issued a Hebrew “clarification,” saying that Netanyahu was referring to “the security powers that will be in his and the defense minister’s hands,” and not to the agreement with Religious Zionism on the Civil Administration, which is one of two Defense Ministry bodies it is slated to gain control over.

The Likud statement added that decisions regarding the Civil Administration “will be made in coordination with the prime minister, as is written in the coalition agreement.”

In a parliamentary committee debate on the bill last week, Bligh hinted at his discomfort with the legislation.

The legal opinion he submitted for that debate did not reject the controversial legislation outright, but appeared to recommend the bill be amended so it will not be scrapped by the High Court of Justice on the grounds it violates one of Israel’s quasi-constitutional Basic Laws.

Bligh wrote that lawmakers should ensure that the defense minister remains the sole minister responsible for the IDF,  adding that the military’s chief of staff should report directly to them.

The legal adviser appeared to be making the recommendation in light of the incoming coalition’s intention to task a Religious Zionism member with control over the Civil Administration and COGAT, which are responsible for civilian affairs in the West Bank, even though they are also currently under the purview of the IDF’s Central Command.

The Civil Administration and COGAT administer numerous aspects of civilian life in the West Bank for both Israeli settlers and Palestinian residents of the territory, including managing the movement of goods and people as well as granting construction permits and enforcing demolition orders.

Bligh wrote that the bill should clarify that transferring control over COGAT and the Civil Administration to another minister in the Defense Ministry “will not harm the arrangement enshrined in the Basic Law: The Military.”

Defense Minister Benny Gantz (R) and IDF chief Aviv Kohavi (C) at an IDF base in Beersheba on August 24, 2022. (IDF spokesperson)

That 1976 law lays out the division of powers in the IDF and details the military’s relationship with the political echelon.

The legal adviser suggested that a possible way to address the issue would be for the bill’s writers to specify the relationship between the new junior minister and the defense minister, as the current version of the bill only generally describes the Religious Zionism minister’s role.

Bligh also noted that there was precedent for the appointment of a junior minister in the Defense Ministry, with National Unity MK Michael Biton filling such a role from 2020 to 2021 with the title of minister for civil and social affairs in the Defense Ministry.

However, Biton did not deal with West Bank policy and no entire departments were transferred to his control. Moreover, the defense minister at the time was Benny Gantz, the chairman of Biton’s party. In the incoming government, the defense minister is slated to be a member of Netanyahu’s Likud, while the junior minister will be from Religious Zionism.

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