Wednesday, August 14, 2013

A Peace Deal will never Hinge on a Referendum

by Erez Linn

Not many people are aware of the fact that some Israeli kibbutzim farm their land on Jordanian territory. 

When Israel signed a peace deal with Jordan, certain Israeli communities south of the Sea of Galilee lost some land because it lay east of the Jordan River, the internationally recognized border. 

Israel withdrew from the farms and they were placed under Jordanian sovereignty. Nevertheless, the kibbutzim still enjoy unimpeded access to their fields, and a special provision was inserted into the annex of the peace deal guaranteeing that the Israeli farmers retained ownership status over that area. Basically, that small enclave became yet another Israeli-held asset abroad.

The kibbutzim continue to till the land and harvest their crops, and they have almost no interaction with the Jordanian authorities. The only difference is that farmers now have to identify themselves to unarmed Jordanian guards when they cross the river (other Israelis are allowed to visit that special area only if they are accompanied by one of the farmers). The farmers still get to decide what to do with their produce and they pay zero taxes to the Jordanians.

The law mandates a referendum if the government decides that a certain area should no longer be subject to Israeli law, jurisdiction and administration. The words "sovereignty" or "sovereign" are conspicuously absent from the law. 

But, as the Jordan deal demonstrated, handing over territory to another sovereign power does not necessarily mean Israel no longer has legal rights there. In fact, the peace treaty grants Israeli law-enforcement officers express permission to operate in the above-mentioned farms: Jordan will "permit, with the minimum of formality, uniformed officers of the Israeli police force access to the area for the purpose of investigating crime or dealing with other incidents solely involving the landowners, their invitees or employees."

My point is that while Jordan got total sovereignty, Israel still maintained some legal jurisdiction. This legal arrangement was helped by the fact that Jordan and Israel had a vested interest in maintaining the status quo. Israel hoped this would serve as a precedent in future peace deals; Jordan wanted Israel to invest in the area. Obviously, relations with the Palestinians are much more complex. 

But if you look at the language of the referendum law, its applicability does not depend on how other countries view the areas that are handed over. Only Israeli law counts. In other words, even if an Israeli-Palestinian peace deal does not include such a special arrangement on Israeli laws, holding a referendum would only be necessary if Israel decided it would no longer have any legal rights in the areas being handed over. 

Thus, when the time comes to hand over territory to the Palestinians as part of a peace accord, Israeli lawmakers can always claim that Israel has legal, albeit not sovereign, rights there, regardless of what the peace deal stipulates. Moreover, let's not forget that in almost every scenario, Israel would retain certain legal rights because the new Palestinian state would be a demilitarized state. Such rights could grant Israel control over Palestinian airspace, veto power over arm shipments and so forth. There is also talk about allowing Israel a long-term military presence in the Jordan Valley. 

Every peace deal with the Palestinians (or Syria for that matter) would likely include special provisions on security and related matters that could be construed -- by Israeli courts -- as legal rights. And even if the deal makes no reference to such rights, Israeli lawmakers and courts could unilaterally declare that Israeli law would apply there -- just as it is currently applied in embassies abroad and on Israeli airliners and ships around the world. Even today, Jewish communities in Judea and Samaria are subject to Israeli law despite the fact that the Knesset or the government has never annexed those areas or officially applied Israeli law there (because of the military rule in Judea and Samaria, local officers can enforce Israeli law without obtaining Knesset authorization). 

A peace deal, when the time comes, will hinge on many things. A referendum will not be one of them.

Erez Linn is an Israel Hayom English Edition editor.


Copyright - Original materials copyright (c) by the authors.

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