Legalizing outposts is last nail in the coffin of Trump's annexation map

Analysis: The Right has gotten bolder under Netanyahu in laying claim to settler land in Area C, which makes up 60% of the West Bank.

Minister of Defense Naftali Bennett visits new housing projects in Judea and Samaria (photo credit: ARIEL HERMONI/DEFENSE MINISTRY)
Minister of Defense Naftali Bennett visits new housing projects in Judea and Samaria
(photo credit: ARIEL HERMONI/DEFENSE MINISTRY)
Strangely, Israel’s announcement it could legalize the West Bank outposts is the last nail in the coffin of US President Donald Trump’s annexation map.
The fact that Community Affairs Minister Tzachi Hanegbi could so blatantly speak in the Knesset about Prime Minister Benjamin Netanyahu’s support for a process to authorize what could effectively be dozens of additional settlements is, therefore, one of the consolation prizes handed to the Right in lieu of the failed unilateral sovereignty pledges he made during the last election cycles.
Hanegbi’s brief statement to the Knesset on the matter on Wednesday was unique and a reflection of the unusual diplomatic bubble of time in which Israel finds itself.
It is likely that a bold move to authorize the outposts could only really happen in this specific waiting period, between the end of the Trump administration and the start of the Biden one.
It is for this reason that the fate of the outposts, whose significance has almost been forgotten on the international and local stage, has been raised now.
Had Trump won the US election, it is possible such a blatant move could not have happened at all.
In January, Trump published a map that allowed Israel to annex up to 30% of the West Bank, where all the settlements are located. But the Trump map did not necessarily include dozens of outposts, whose fate was uncertain given that these fledgling communities had no legal standing.
The contours of the map were never finalized, but it was estimated that many of the outposts were either outside its borders or within enclaves, which right-wing opponents of the map believed were endangered by the Trump annexation plan. It remained a possibility that had Trump’s map come to fruition, dozens of outposts could have been evacuated.
Such an evacuation, plus the belief that the plan endangered 15 settlements, was one of the reasons many on the Right fought against the map. The Right wanted to apply sovereignty to the settlements, but not under the constraints of Trump’s plan. They would have preferred to see it applied to a larger swath of territory. While they are upset that sovereignty did not happen, many on the Right are glad that Trump’s map was never executed.
The US and Israeli decision to suspend annexation in favor of normalization deals with the United Arab Emirates and Bahrain, however, kept the map in play. The Trump administration was adamant that it had not halted annexation, only suspended it, and that its plan for a two-state solution to the conflict was still on the table, albeit only at a later date.
Trump’s official adherence to annexation, while in some ways reassuring to the Right, was also disconcerting. It left a question mark over how much settlement development could occur outside the contours of the Trump map, particularly if such settlement activity thwarted any execution of that map or Trump’s two-state vision.
In the aftermath of Trump’s electoral loss, US officials did not turn on the Right or the settlements, quite the opposite.
US Secretary of State Mike Pompeo made two unprecedented visits to Israeli-controlled areas of the West Bank earlier this month; the Psagot Winery in the Sha’ar Binyamin Industrial Park and the site of Jesus’s baptism, Qasr el-Yehud, which is an Israeli national park.
No secretary of state has ever legitimized settlement activity in that way. All previous high-level US visits to the West Bank were solely to territory under the auspices of the Palestinian Authority.
Pompeo also took the added step of announcing that settlement products could be designated “Made in Israel.” He has hinted at additional supportive measures.
These moves have given Israel the impression that the Trump administration would support government steps to augment Israel’s hold on the West Bank in the weeks remaining until President-elect Joe Biden takes office on January 20. Adherence to the Trump map bears little relevance anymore, given that Biden is expected to permanently shelve the plan.
Trump’s legacy in the West Bank will best be expressed through the steps taken under his watch to legitimize and expand Israel’s territorial hold there, short of actual annexation. A government statement in favor of West Bank outposts authorization would appear to fall within that parameter.

But such US support is not the only unique factor in the equation. Netanyahu might normally have needed to be concerned with a grace period with respect to an incoming president with whom he had yet to build a relationship. In this case, however, Biden and Netanyahu have known each other for decades, and Netanyahu seems comfortable pushing back at Biden, along already existing diplomatic fault lines in their relationship, such as settlements.
This is particularly true, given that Netanyahu has to worry about assuaging the feelings of the Right for the suspension of annexation and or failed unilateral sovereignty, should Israel head in the near future to yet another election.
In short, Netanyahu has an incentive and little to restrain him from making such a move now.
Critics have charged that Netanyahu’s steps are too cautious and easily reversible, should the diplomatic winds from Washington blow coldly in his direction once Biden is in office.
It is unlikely that any government decision would include a blanket outpost authorization; even if it did, execution would take time. At its worst, a government decision would rest on a statement of intent. At its best, it would add to such a statement criteria for legalization and set forth a process to do so.
Legal advisers have noted the domestic statutory importance of designating these communities as legal endeavors on the path to authorization, rather than allowing them to remain as illegal entities. It is advice that would bear particular relevance now, after the outposts’ illegal status almost led to their evacuation under the Trump plan.
At issue are about 100 outposts, built between 1992 and today, without authorizations. The Left holds that they are illegal communities built with the help of criminal collusion by various government officials and ministries to advance an agenda bent on thwarting any peace process that involved a two-state solution. They were supported in that conclusion by a 2005 government-commissioned study by attorney Talia Sasson, which concluded that the outposts were illegal.
Under former prime ministers Ariel Sharon and Ehud Olmert, Israel spoke of evacuating outposts, particularly those built after March 2001, when Sharon took power.
Since taking office in 2009, Netanyahu has worked to slowly re-brand the outposts from illegal endeavors to fledgling communities, whose authorization was not completed. Initially, in 2011 he spoke of authorizing outposts on state land. A legal study he commissioned, known as the Levy Report, published in 2012, spoke of how the outposts could be legalized.
Then, in 2017, the security cabinet under his direction created a committee, headed by veteran settler leader Pinchas Wallerstein, to study ways to legalize the outposts. This was followed by Hanegbi’s statement in the Knesset about a possible government decision on the matter.
Hanegbi was vague about the timing of the actual government vote, even though it’s clear that one is best taken before Biden takes office and before the country heads to elections, when the Israeli government’s power would be downgraded by its transitional status.
Many on the Right have touted the role of the outposts in thwarting a two-state solution on land in Area C of the West Bank. Where Sasson saw criminal government collusion in her report, they see tacit approvals by governments for whom support for settlements was the objective all along.
The Right has also gotten bolder under Netanyahu in laying claim to all of Area C, which makes up 60% of the West Bank. Authorizing the outposts would expand Israel’s holding in the West Bank beyond 30%, and bring Israel one step forward in that direction.
In speaking of the outpost legalization in the Knesset on Wednesday, Hanegbi stated, “Jewish settlement in Judea and Samaria is a fait accompli. Everything we dreamed of decades ago has become a reality.”
Given that annexation was never applied, either unilaterally by Israel or according to the Trump map, his words ring a bit hollow.
The absence of annexation places a question over the future of 130 settlements. As long as they are outside the boundaries of sovereign Israel, then the possibility of evacuation hovers above them. The fait accompli terminology might have been better reserved for that moment.
What is true is that in the absence of annexation, there is a window for Israel to expand its existing foothold in Judea and Samaria, a move that would be expressed by the authorization of the outposts.
Given that it is unlikely that this would happen immediately, the value of a government vote affords the outposts some measures of protection and makes a larger policy statement about Israel’s territorial intentions.
The claim to the outposts is a nod by Netanyahu to the Right in that it is a rejection of the territorial limitations placed by Trump’s annexation map and inches forward Israel’s territorial claims on a larger portion of Area C.
True actual legalization of all the outposts is likely still far off, but in the universe of signs and symbols, a government declaration of intent would still be a step forward for the Right within its larger battle for Area C.