In May 2022, the Israeli commander in the West Bank issued the latest set of regulations for the occupied territories in the form of Booklet #261. The booklet contains two new military orders (2121 and 2122), as well as other secondary legislation and regulations. Booklets such as these are issued from time to time, and act as an official gazette that chronicles the laws governing the West Bank. While the specific content of this booklet is not remarkable, it is still worth examining, especially for those interested in understanding the legal situation in the occupied West Bank today and its significance for the prospects of peace between Palestinians and Israelis.
Military Order No. 1, promulgated on June 7, 1967, declared all of the Jordanian laws and regulations that had governed the West Bank prior to the start of the Israeli occupation to be the law of the land until amended, repealed, or added to by the commander of the Israeli Army in the area. Military Order No. 2 subsequently vested in the Israeli commander all legislative, judicial, and executive power in the territories.
International law does not permit an occupying power to alter civilian laws at its own discretion, or for the benefit of its own population.
While Jordanian law initially continued to be the basis for the legal system in the occupied territories, it has since been radically amended and altered by more than 2,100 Israeli military orders. These orders take precedence over all other laws in the West Bank, including the Jordanian Constitution, and cover all aspects of life. This situation, however, directly violates international law.
International law governing the occupation of territory allows an occupying power to pass temporary measures necessary for the protection of its forces and the security of the area, but does not permit it to alter civilian laws at its own discretion, or for the benefit of its own population. After more than a half century, and with no clear end to the occupation in sight, it is worth taking a deeper look at the current legal situation in the Israeli-occupied Palestinian territories.
The Oslo Effect
A detailed analysis of the legal situation was made by attorney Raja Shehadeh in his book Occupier’s Law: Israel and the West Bank. Following the 1993 Oslo Accords and the creation of the Palestinian National Authority (PA), many people expected the legal situation in the West Bank to be radically transformed, since power was supposed to be transferred to the Palestinians. A Palestinian parliament was indeed elected and began to create its own legislation. However, the PA was severely restricted from the very start, both geographically, since it was limited to Areas A and B of the West Bank and excluded Area C, which remained under Israeli control, and legislatively, since it could not create legislation covering any issue outside of the limited powers delegated to it. The PA also lacked authority over settlers or any other Israelis in the territory. While many hoped that its authority would expand into actual statehood, and some in the international community even behaved as if the PA was in fact a state in the making, the legal reality told a different tale.
During the negotiations that led to the Oslo Accords, the issue arose as to what the basis of authority was for the then still-to-be-created PA. Israeli authors maintained that the Israeli military government was in fact the source of said authority, while Palestinians asserted that the will of the people was its basis. The US, meanwhile, dismissed the argument as being merely academic, and stated that the treaty itself should be viewed as the source of authority.
After Oslo, the reality on the ground has been that envisioned by the Israelis. Israel has blatantly flouted the Oslo Accords, not hesitating to illegally enter into Palestinian-administered Area A whenever it chooses.
The reality on the ground, however, has been the one envisioned by the Israelis. Israel has blatantly flouted the Oslo Accords, not hesitating to illegally enter into Palestinian-administered Area A whenever it chooses, and refusing to acknowledge its own obligations—such as allowing free passage between Gaza and the West Bank and refraining from activities that prejudice the outcome of negotiations over permanent status issues—while simultaneously demanding that the PA strictly abide by all stipulations laid out in the agreement. In fact, the Israeli Army has continued to act as the real sovereign power in the West Bank, first through a governing body called the Civil Administration, and currently through a special unit in the Israeli Ministry of Defense called the Coordinator of Government Activities in the Territories (COGAT). But regardless of which entity the Israeli Army operates under, its function remains the same.
Israel continues to act as the real source of power and authority in the West Bank, even for the PA, to which it chose to delegate certain authorities under the 1995 Oslo Interim Agreement. Proof of this is evident in the fact that the joint committees that were created in order to take charge of a number of civilian affairs that had not been delegated to the PA outright have been effectively dissolved. In addition, Palestinians who were to serve in District Coordinating Offices (DCOs)—which were meant to be a tool of Israeli-Palestinian coordination—have been expelled from the offices, and the Palestinian flag that used to fly over the DCOs alongside the Israeli one has now been removed. Israel now fully administers the areas under the authority of the committees, while the responsibilities of the Palestinian side of the office have been reduced to little more than bringing Palestinians’ applications for permits—which were meant to be adjudicated by joint Israeli-Palestinian committees—to the Israeli side, and then delivering the Israelis’ response back to the applicants.
What Is New in Booklet #261?
The first military order included in the booklet, Military Order 2121, regulates and facilitates the destruction of “new structures” that are built without a requisite license. This provides additional legal backing for the constant destruction of structures, including solar panels, tents, and animal shelters, as well as homes and shacks, particularly those located in Area C. One of the prime targets of this new order is the Masafer Yatta area, which comprises some eight villages and is home to more than 1,000 Palestinians who now stand to be expelled from their lands, and whose property is now subject to demolition. This order is particularly effective in the event that Palestinians attempt to rebuild structures that have been destroyed. Rebuilt structures fall directly under the order’s definition of “new structures,” and can therefore be summarily destroyed again.
Israeli settlers have been active in both reporting such structures to Israeli authorities, and in destroying them themselves. It is curious that the occupation attempts to demonstrate the legality of its actions by providing a pseudo-legal structure as cover for acts that are clearly unjust and are also illegal under international law.
It is curious that the Israeli occupation attempts to demonstrate the legality of its actions by providing a pseudo-legal structure as cover for acts that are clearly unjust and are also illegal under international law.
Military Order 2122, meanwhile, simply makes permanent previous “temporary regulations” by changing the wording of a previous military order. This is not at all uncommon, as Israel often “legislates” through what it declares “temporary regulations” that are later rendered permanent in exactly this way.
The bulk of Booklet #261 consists of secondary legislation that expands and amends existing military orders. One such secondary legislation includes a detailed and illustrated set of regulations regarding traffic signs, which perfectly mirror traffic signs in Israel. These regulations quite comically include signs for railroad crossings, which do not exist in the West Bank today because no trains operate there. This is typical of Israel’s military orders, which accomplish the de facto absorption of the occupied territories into the State of Israel whenever such absorption is in its interest. The occupied territories are effectively treated as part of Israel in many regards, with “legislation” covering civilian regulations, traffic rules, currency and banking, standards and measurements, and customs duties all mirroring legislation in Israel.
The recent crisis in the Israeli Knesset regarding a proposed extension of Israeli laws to settlers in the West Bank provides an example of this legal phenomenon. Strictly speaking—and until there is formal annexation, as happened with East Jerusalem and the Golan Heights—the West Bank continues to be a separate and distinct territory that is not governed by Israeli law. However, portions of Israeli law have already been incorporated into the existing legal structure through the amendments contained in Israel’s military orders. One notable instance of this de facto annexation of the West Bank is an Israeli law—in effect since the start of the occupation in 1967 and routinely extended every five years—that proclaims that Israeli laws and privileges continue to apply to Israeli citizens living and residing in the West Bank. In fact, with or without this law, such is the reality experienced every day in the West Bank, where Israeli citizens enjoy their full rights and privileges, while Palestinians’ rights under international law are purposefully denied.
On June 6, however, in what was part of an obvious political maneuver, the Knesset failed to extend the law, threatening the status of hundreds of thousands of settlers. The right-wing, pro-settlement opposition voted against the extension in an effort to force the ruling coalition to collapse. No one believes that the law will truly be allowed to expire, however, and a new legislative session will take the matter up again before the law lapses at the end of June. However, the vote created a serious problem for one coalition member, the United Arab List, chaired by Mansour Abbas, as well as some members of Meretz, who found themselves having to choose between voting to extend a law that is part and parcel of what many argue is a system of apartheid, and essentially helping to dismantle the governing coalition. Whether this will indeed lead to the collapse of the coalition and to new elections remains to be seen. However, it is certain that additional military orders and administrative steps will need to be taken to confirm and “legalize” the existing system of apartheid, and to assure settlers that they will continue to be treated as Israeli citizens, and will not be subjected to the military laws applicable to West Bank Palestinians.
It is certain that additional military orders and administrative steps will need to be taken to confirm and “legalize” the existing system of apartheid in the occupied West Bank.
Some of the other legislation in the booklet concerns the confiscation of property “for public purpose,” and provides maps of newly confiscated areas. Another section designates a portion of land a “nature reserve,” to be known as Nahal Og (Wadi Muqallik), a change that would limit access, and preclude Palestinian development of the area.
Other regulations in the booklet expand and delineate the areas of jurisdiction for “regional councils,” which are administrative structures relating to Israeli settlements. Since the settlements (other than those in East Jerusalem and the Golan Heights) have not been formally annexed into Israel, regulations must be promulgated from time to time, providing the legal basis for treating settlements as part of Israel, which includes extending to them Israeli laws and regulations. This is accomplished through the use of booklets such as this one. In Booklet #261, orders are also issued relating to the settlement of Amihai, which is located near Bethlehem, as well as the settlement of Shaar Shomron, near Nablus. Additional regulations are likely to be enacted in light of the abovementioned coalition crisis and the failure to extend the legislation that applies Israeli law to settlers.
The maintenance of separate legal and administrative structures for Israeli settlements and Palestinian communities in the occupied West Bank is well documented in the booklets that Israel uses to “legislate” in the occupied territories. Importantly, this practice meets the very definition of apartheid as detailed in international law, while the settlements themselves are also illegal. An examination of Booklet #261 and other Israeli “legislation” in the occupied territories therefore not only offers a detailed look at a crucial aspect of the occupation, but it also provides the opportunity to witness apartheid in action. Moreover, the booklets themselves could provide crucial evidence of Israel’s crime, should the country ever be brought before the International Criminal Court.