A West Bank settlement
Photo: Defense Ministry
Are land swaps legal?
According to Israeli law, anyone advancing territorial withdrawal commits a grave crime
The following is a verbatim quotation from the existing law in Israel:
A person who, with intent that any area be withdrawn from the sovereignty of the State or placed under the sovereignty of a foreign state, commits an act calculated to bring this about, is liable to life imprisonment or the death penalty.
Israeli Penal Code – 1977, Section 97(b)
Events in the recent past and those looming in the near future have lent this clause renewed public relevance that, for some reason, is not reflected at all in the national debate. These include the upcoming conference in Annapolis where the idea recently floated by Deputy Prime Minister Haim Ramon for "land swaps" will presumably be discussed. According to this idea, an agreement with the Palestinians would entail the transfer of areas inside the 1967 "Green-Line" to Palestinian Authority in exchange for territories that Israel would retain beyond that line.
With regard to the severity of the penalty prescribed, it ought to be pointed out that section 96 sets forth the following limitation:
Notwithstanding the provisions of this Chapter, the Courts will not impose the death penalty unless the offence is committed in a period in which military actions are being conducted by Israel or against it.
Even without the official declaration of Gaza as a "hostile entity", it is difficult to see how the current period cannot be considered as anything else but one "in which military actions are being conducted by Israel or against it" – with the numerous attempted attacks against Israel, the continued barrages of mortars and missiles on its cities and villages, on the one hand; and the frequent counterstrikes by the IDF and security services, on the other.
Another aspect of the severity of the penalty prescribed in section 97 is reflected in section 98 (Causing War) which states:
A person who, with intent to bring about military action against Israel, commits an act to bring this about is liable to fifteen years imprisonment; if he intends to aid and abet the enemy he is liable to the death penalty or life imprisonment
From this, two things emerge. The first is that Israeli law considers the bringing of war upon the country a lesser offence than an attempt to remove territory from its sovereignty – since it carries a far lighter sentence. The second is that in the eyes of the prevailing law in Israel, the removal of territory from Israeli sovereignty is equivalent – at least in terms of the severity of the prescribed penalty – to aiding and abetting the enemy.
At this point it is difficult to avoid broaching several disturbing, for it would seem that almost all Israeli governments (or at least numerous ministers and prime ministers who served in them) since the 1977 Camp David Agreements – and certainly during the last decade and a half since Oslo – have grossly violated section 97(b) of the Penal Code – and are thus liable for the penalties prescribed therein.
Thorny problems persist
Clearly, given today's political realities, no one realistically expects the wholesale execution of government ministers – past or present. Yet the failure of the Israeli legal establishment to activate – or alternatively, to eliminate – such a grave and far-reaching clause raises serious doubts as to the criteria that guide the conduct of the affairs of the nation and in particular the equitable dispensation of justice.Of course, one could try to explain away some of the inaction by more abstruse legal interpretations. One could, for example, claim that the legislative intent was to include only areas over which Israel officially claimed sovereignty. But even if we exclude the areas of Sinai, Judea, Samaria and Gaza from the debate, what about the activities of those who advocated transferring the Golan to the Syrians and east Jerusalem to the Palestinians – areas over which Israel has effectively extended its sovereignty? Should not those who purposefully act to remove these areas from Israeli sovereignty or place them under the sovereignty of a foreign state be considered in violation of the law. And if not, why not?
One might even be persuaded to adopt a more indulgent interpretation and claim that one must restrict the scope of the law to the areas that the international community recognizes as being under Israeli sovereignty. This is of course a perilous position to adopt and may well endanger future Israeli control over the Galilee and large tracts in the south. But even if we accept this, difficulties remain – mainly in the form of the proposed "land swaps", an idea raised by a numerous politicians from Yossi Beilin (who suggests transferring the Halutza area in the Negev to Arab rule) to Avigdor Lieberman (who advocated removing the Wadi Ara region in the north from Israeli sovereignty.)
One could also raise the possibility that the legislative intent was to preclude official government organs and personnel from the prohibitions prescribed in section 97(b). But even if we embrace this improbable position, thorny problems persist. For if this was the original intent, why was it not explicitly specified? Moreover, why was the law not enforced against those individuals who were not part of the governmental apparatus and overtly acted to transfer territory from undisputed Israeli sovereignty to that of an alien entity?
These are questions that cannot be left unanswered. For if the legal establishment genuinely wishes to address and curb the growing erosion in the public trust and confidence it enjoys, it must act vigorously to narrow the growing gap between its own code of conduct and the prevailing public perceptions of common sense and precepts of elemental natural justice.
