Court hears petitions against Settlements Law; West Bank’s future in balance

The High Court of Justice is currently hearing petitions against the Settlements Regulations Law in what promises to be the most important legal conflagration since Esther Hayut took over the court’s presidency in October.

Whatever the court decides about the law — which makes it legal to use private Palestinian land for Jewish settler purposes provided the Palestinians are compensated and certain other conditions — the decision will have massive global and national implications.

On the international stage, canceling the law will be received with relief, whereas approval of the law will likely lead to wide-ranging criticism.

It might also lead to greater scrutiny from the International Criminal Court, which is considering whether to criminally investigate the settlement enterprise.

At the national level, canceling the law could rally the government and the Knesset to finally permanently reduce the High Court’s powers, whereas approval of the law would give the Right unprecedented legal recognition of a range of unauthorized West Bank outposts.

On Sunday morning, a variety of groups on the Right were demonstrating outside the High Court to try to raise awareness of their cause and press the court for a ruling in their favor.

On the ground, the law would retroactively legalize over 4,000 unauthorized settler units in the West Bank.

This would be a sea change, which critics have called a move toward annexation, though many unauthorized outposts would still not be legalized and there would be no formal annexation.  

Yesh Din, Peace Now, ACRI, Adalah and a large range of other human rights groups petitioned against the law shortly after it passed in February 2017.

One of the most unusual aspects of the hearing will be that Attorney-General Avichai Mandelblit opposes the law and has refused to defend it.

Accordingly, Justice Minister Ayelet Shaked hired private lawyer Harel Arnon to defend the law, but Mandelblit’s opposition, even if his reasons for opposing are different, is likely to help the petitioners swing the court.

“If the High Court lets international law trump Israeli Knesset laws, then soon it will need to worry about petitions against Israeli control of the West Bank and Golan areas which until now were not in play,” Arnon said.

Arnon told the High Court on Sunday that the human rights groups who want to strike the Settlements Regulations Law are trying to pull off a constitutional revolution by letting international law trump Israeli law. He said this would eliminate the Knesset’s sovereignty.

Arnon said that the government has spoken about the West Bank and certain outposts with at least two voices. On one hand, the state has funded them and provided infrastructure and water. On the other hand, this support or looking the other way has violated certain legal claims the government has said it stands by.

He argued that the law does not come to steal land and admitted that it is not a perfect solution. However, he said that it comes to resolve a complex reality that has been left as a mess for years. This is at least a solution and it prevents future crises of massive number of settlers having to be forced out of homes, he said.

Deputy High Court President Neal Melcer interrupted Arnon multiple times. He said that Arnon and the government were ignoring the alternative approaches proposed by Mandelblit as being superior to the law.

Arnon said there is a lot of talks about other ideas, but none have ever been executed and that the Attorney-General admits that his ideas do not resolve all of the issues which the Knesset law resolves.

Justices Uzi Vogelman, Menachem Mazuz and Daphna Barak-Erez also pressed Arnon about a variety of other legal problems where they implied that the law violated Israeli precedent.

To date, the High Court froze the law, which is never a positive sign for a law’s likelihood to survive.

Further, on Thursday, Hayut issued a ruling against a more moderate tactic, which the Right had hoped to adopt to appropriate private Palestinian land for Jewish settler use.

Finally, few legal experts have predicted that the High Court will uphold the law, especially given Mandelblit’s strong opposition, but Shaked has remained adamant that the law has a real shot with the High Court.

The battle over the law’s legality involves a wide range of legal issues.

A lawyer representing the attorney-general’s office told the High Court on Sunday that Israel’s most powerful Basic Law – the Law of the Dignity and Freedom of Man – should apply in the West Bank to the Palestinians. Assuming it does, he said the law must be struck down.

Elaborating, he said that the law was not proportional or reasonable regarding its goals and due to the problems it imposed on the Palestinians.

The state’s lawyer continued, saying that there are no black holes in Israeli law.

This law did not explicitly annex the West Bank or end Israel’s approach of being in a state of belligerent occupation regarding the West Bank.

With the Golan, he said that Israel formally annexed the area and ended its belligerent occupation. Here, he argued that Israel did not annex the West Bank, but is trying to act like it did to use Palestinian private land. He said this cannot stand.

Besides domestic constitutional law which the state lawyer said should be enough to resolve this case, he asked the court to place most of the international law arguments on the side for a future day as being secondary.

Several justices, including High Court President Esther Hayut, Mazuz and Melcer pressed the state’s lawyer about sidestepping the implications of the Knesset law violating international law.

“You have openly avoided those issues,” said Hayut.

There are questions about whether the law violates domestic Israeli law’s guarantee of property rights or violates Israeli law’s usual placement of West Bank issues somewhat beyond the direct purview of the Knesset. In addition, there is a debate as to whether the law amounts to annexation, but without properly declaring that.

Moreover, there are international law questions about who has protected persons or preferred status between the Palestinians and the Jewish settlers and about whether the law violates the Geneva Conventions or the ICC Rome Statute.

The human rights groups argue that the law violates all of these issues and more. Mandelblit’s position is more middle of the road, sidestepping certain international law issues raised by the NGOs.

Mandelblit has argued that depending on context, international law could give Palestinians in the West Bank either a “more limited” or a “greater” level of legal protection over their property rights under Israel’s Basic Laws.

He said that the blanket nature of the Settlements Regulations Law – to retroactively legalize thousands of Israeli residences in the West Bank built on Palestinian private land in all sorts of different circumstances – meant that the legal protection for Palestinians was on the “greater” end of the spectrum and found the law violated Israeli domestic law.

Shaked, Arnon and the government argue that none of these issues are violations and that pragmatically the law benefits all sides. The rationale is that for the Jewish settlers, they can remain living where they have built outposts and for the Palestinians, since in most cases they are currently physically prevented from reaching their lands, at least now they can get compensation.

Regarding international law, they argue that how the world has treated other occupied areas shows that Israel can do the same as other countries have done without violating international law, and that the ICC Rome Statute does not apply or is abrogated by other aspects of international law.