Military lawyers: Smotrich’s West Bank powers will be seen as de facto annexation

Chief military prosecutor, Defense Ministry legal adviser reportedly warn Netanyahu move could place Israel in legal peril on world stage

Religious Zionism leader Bezalel Smotrich arrives for coalition talks with Likud chief Benjamin Netanyahu, in Jerusalem, November 6, 2022. (Yonatan Sindel/Flash90)
Religious Zionism leader Bezalel Smotrich arrives for coalition talks with Likud chief Benjamin Netanyahu, in Jerusalem, November 6, 2022. (Yonatan Sindel/Flash90)

Senior legal authorities within the defense establishment reportedly warned Prime Minister Benjamin Netanyahu in a meeting this week against the transfer of civilian authorities in the West Bank under the Civil Administration to far-right Finance Minister Bezalel Smotrich, and argued that the move could have negative legal implications for Israel on the international stage.

During the meeting on Tuesday, attended by Smotrich, Defense Minister Yoav Gallant and Justice Minister Yariv Levin, chief military prosecutor Yifat Tomer-Yerushalmi and Defense Ministry legal adviser Itay Ofir told Netanyahu that the transfer of some powers to Smotrich could be perceived by international bodies, such as the International Court of Justice (ICJ), as a de facto annexation of the West Bank by Israel, according to Haaretz.

Smotrich was given ministerial responsibility for some aspects of the Israel Defense Forces as part of recent coalition agreements.

His second role as a minister within the Defense Ministry ostensibly allows him to appoint the generals leading the hybrid civil-military Coordinator for Government Activities in the Territories (COGAT) and its office overseeing many settlement issues, the Civil Administration, subject to Netanyahu’s approval.

Currently, the major general in charge of COGAT is appointed by the defense minister at the recommendation of the IDF chief of staff, and the brigadier general overseeing the Civil Administration is appointed by the IDF chief of staff.

The Civil Administration is principally responsible for planning and construction in Area C of the West Bank, as well as enforcement against unauthorized construction, be it by Israeli settlers or by Palestinians.

In addition, the agency is responsible for civilian infrastructure such as paving roads and providing water and electricity. Area C comprises the 60 percent of the West Bank’s territory in which Israeli settlements are located and where Israel maintains military and administrative control over both the Israeli and the Palestinian populations.

Brig. Gen. Yifat Tomer-Yerushalmi. (Israel Defense Forces)

Smotrich sees control of the Civil Administration as a means of extending Israeli sovereignty to the West Bank, replacing the military administration of the territory with direct control by the central government and its ministries.

The position grants him the power to rein in enforcement against illegal Israeli construction in the West Bank, in line with his ideological support for the settlement movement, and to increase enforcement against illegal Palestinian construction, in line with his vehement opposition to the establishment of a Palestinian state.

Likud leader Benjamin Netanyahu and Religious Zionist party head Bezalel Smotrich and other party leaders in a group photo after the swearing-in of the 25th Knesset, November 15, 2022. (Olivier Fitoussi/Flash90)

Gallant will remain in charge of entry visas for West Bank Palestinian laborers and other authorities.

Critics have strongly denounced the move to transfer the extra powers to Smotrich, saying it would amount to de facto annexation of Area C because it would allow for Israeli citizens in the West Bank to be administered by a civilian body, rather than a military one, as is the case for Palestinians.

The meeting Tuesday, called to resolve differences over the ministerial responsibility for the Civil Administration in the West Bank, ended without agreement, the Haaretz report said.

The sit-down came days after Smotrich and Gallant clashed over the razing of an illegal West Bank outpost at Gallant’s order.

Smotrich said he had told the Civil Administration to halt the evacuation of Or Chaim, but that Gallant had authorized the action anyway. On Sunday, ministers from Smotrich’s Religious Zionism boycotted the weekly cabinet meeting in protest over the move.

Activists attempt to reestablish an illegal settlement outpost dubbed Or Chaim in the northern West Bank on January 22, 2023. (Courtesy)

According to a report Wednesday on the Kan public broadcaster, Netanyahu took Smotrich’s side over Gallant’s in meetings with the lawmakers on Monday and Tuesday and will order the transfer of civilian authorities under the Civil Administration to Smotrich in accordance with the coalition agreement. Security authorities within the Civil Administration are slated to remain under Gallant’s purview.

According to the report, Justice Minister Levin — who served as Likud’s chief negotiator during coalition talks — and National Security Adviser Tzachi Hanegbi supported Smotrich’s position, but all of the senior IDF officials in attendance were opposed.

During Tuesday’s meeting, Gallant warned that there can’t be a split in the chain of command, while senior security officials noted that the decisions of the Civil Administration also had security implications, Kan reported, publishing a partial transcript from the closed-door meeting.

“I am the defense minister. There can’t be two military commanders,” Gallant reportedly said, telling Levin and Smotrich that they “spent two months playing in front of an empty goal — nobody asked me.”

But Netanyahu, Smotrich and Levin all pointed to the signed coalition agreements mandating the transfer of powers to Smotrich.

Outgoing defense minister Benny Gantz (left) embraces his successor Yoav Gallant, at military headquarters in Tel Aviv, January 1, 2023. (Emanuel Fabian/Times of Israel)

In response to the Kan report, former defense minister and former IDF chief Benny Gantz tweeted that while founding prime minister David Ben Gurion “disbanded all the underground militias and brought all the organizations into the IDF — 75 years later, Netanyahu is dismantling the IDF into pieces due to his political motivations, and directly undermining the unity of command.”

Gantz, head of the opposition National Unity party, wrote that the move to transfer powers to Smotrich “will be a direct threat to security, in the face of which a black flag must be waved.”

A former legal adviser to the defense establishment told The Times of Israel in an interview last week that the government would need to amend two of Israel’s quasi-constitutional Basic Laws — The Government and The Military — for Smotrich to be given independent authority in the ministry and to give orders to COGAT and the Civil Administration.

Aviv Kohavi, who ended his term as IDF chief of staff earlier this month, repeatedly objected to the transfer of any of the defense minister’s authority over the IDF to any other minister.

An IDF spokesman said Netanyahu and Kohavi had agreed “that decisions that are tied to the IDF will be made only after the IDF presents the consequences and significance of such decisions.”

Emanuel Fabian contributed to this report.

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