On Monday, Secretary of State Mike Pompeo announced that Israeli settlements in the West Bank do not violate international law. Much of the public debate that followed has focused on the political legitimacy this offers the Israeli government’s settlement project in the occupied Palestinian territories, the West Bank and East Jerusalem.

It also highlights that the settlement project resulted in a two-tiered system of Jewish citizens privileged in their control of infrastructure and resources and mostly stateless Palestinians under a harsh military rule in the same territory.

Many perceive the expansion of settlements and the difficulty in their possible evacuation as the main obstacle preventing an independent Palestinian state alongside Israel through the Oslo peace accords. So the settlements’ violation of international law is, indeed, an important political issue. But the reality of the current situation no longer lends itself to a viable two-state solution as a territorial partition. Rather, the situation on the ground continues to be a binational reality and de facto annexation. Here’s why.

The expansion of settlements

Millions of Palestinian residents live under Israel's military occupation through a massive system of control and monitoring I call the bureaucracy of the occupation. And Israeli Prime Minister Netanyahu continues to move forward with the main project of settler leadership. This blurs the Green Line borders from the 1949 armistice line that initially separated Israel and the Palestinian territories occupied in 1967. That includes building massive Jewish settlements, a harsh permit regime and a set of laws promoting formal annexation, with the nation state law denying political rights to non-Jewish citizens.

The Oslo accords and the now-hollow promise of the two-state solution are actually what facilitated the expansion of the settlement project, which encompasses more than 600,000 settlers in the West Bank and East Jerusalem. Since the 1993 signing of the Oslo accords, the number of settlers has increased by almost 300 percent, from 116,000 to 428,000 in 2018. Today 3 million people live in the West Bank — and 86 percent are Palestinians living under military rule without citizenship.

Pompeo’s statement changes nothing of the illegality of settlements according to article 49 of the Geneva Conventions, which prohibits an occupied power from transferring its own population into the territory it occupies. The statement amounts to an opinion endorsing the Israeli government’s interpretation of international law, which claims the territory is not occupied but disputed.

A system of surveillance and control

However, if one accepts the Israeli government’s interpretation, it still does not offer a legal source of authority for its military rule over millions of Palestinians who do not have citizenship. Indeed, scholars have suggested that Israel’s occupation is illegal under international law because of its five-decade duration and its sovereign-like power across the entire territory of Israel and the occupied Palestinian territories, dispossessing the local population rather than temporarily managing the territory.

In my research on the bureaucracy of the occupation, I look at the intertwined security, civil and private organizations that participate in the control of Palestinian civilian life. The structure of surveillance and population control today expanded exponentially during a time of suicide bombings in Israeli cities and the violent implosion of the Oslo accords during the Second Intifada. Today it is both driven and affected by the national settlement project. The ongoing process, as a result, fits the description of de facto annexation and the prevention of a solution based on two territorially separated states with a physical border between them.

On the same day as Pompeo’s declaration, the Israeli Civil Administration released a video of its new administration building. The Civil Administration governs most aspects of Palestinians’ lives in the West Bank through perhaps the most sophisticated population management system of surveillance and control in the world.

How it works

The Civil Administration’s population management system relies on the following three components of a permit regime, justified by concern for security, space, race and documents. The first is closure — the legal-spatial control and containment of the population within the territory; second is exclusion from citizenship, with most Palestinians in the West Bank and Gaza being stateless; and third is the separate legal orders for different populations in the same territory. Palestinians are governed by military orders based on the British colonial Defense (Emergency) Regulations of 1945, creating a racial hierarchy between the Jewish and Palestinian residents of the West Bank.

This system relies on two preconditions. One is the use or threat of violence and lethal force by the Israeli Army and its Border Police against anyone attempting to move across the territory without a permit. The other is enforcement of spatial closure, through checkpoints, roadblocks and the wall, all closely linked to settlement expansion and the segregated hierarchy between populations.

The permit regime is a mutation from the initial institutional design of the Oslo accords, in which the Civil Military apparatus was to coordinate with the Palestinian Authority. Although Israel relinquished responsibility for the administration of civilian affairs in the West Bank following the establishment of the Palestinian Authority, it increased and intensified its control over the daily lives of Palestinians in the West Bank by slowing their movement across the territory and monitoring it through required documents, including over 100 types of permits.

The permit regime facilitated the harvesting of information about the population by Israeli organizations through data, biometrics and increased opportunities for surveillance and massive recruitment of informants.

Despite the talk of a two-state solution, the de facto annexation, coupled with the bureaucracy of the occupation, creates what seems like a one-state reality in which there is one government that rules over Israel, the West Bank and Gaza. The binational reality is a deeply segregated one, with Palestinians governed by military laws in the same territory as Jewish settlers.

What’s next?

Pompeo’s statement provides legitimacy for moving from de facto to formal annexation. Formal annexation would mean the Israeli government would need to grant citizenship and equal rights to all Palestinians, desegregate the exclusively Jewish settlements and dismantle the military government apparatus. If, under formal annexation, it fails to do so, it would become an apartheid regime by law.

The secretary’s statement is not a break with American policy regarding the settlements. Rather, it’s the ongoing consequence of continuing to use the Oslo peace accords and the ineffectual two-state solution.

Understanding the de facto annexation and binational reality of the current situation enables critical thinking about real possibilities for the future, based on security and/or citizenship, equality and decolonization. These possibilities include an apartheid de jure, a one-state solution or a confederation that would enable two sovereign states with open borders and a safe haven for the two peoples’ Diasporas.

Yael Berda is assistant professor at the department of sociology and anthropology at the Hebrew University of Jerusalem, the 2019-2020 Gerard Weinstock Visiting lecturer on sociology at Harvard University, and author of “Living Emergency: Israel’s Permit Regime in the West Bank” (Stanford University Press 2017).