building cranes in the Beitar Illit settlement August 17 .
(photo credit: TOVAH LAZAROFF)
Unquestionably, Attorney-General Avichai Mandelblit’s legal opinion publicized this past week permitting the use of private Palestinian land to pave a road for the Jewish West Bank outpost of Harsha shifted the ground for legal debate. The question now is whether it was enough of a game-changer to lead the High Court of Justice to approve the Settlements Regulation Law.
Passed in February, the law would potentially allow wide-scale retroactive legalization of Jewish settlers’ residences built on private Palestinian land, but was frozen by the High Court. Most commentators have predicted that it will be ruled unconstitutional.
Did Mandelblit’s opinion change that? First, it must be understood that this move was not only Mandelblit’s opinion but stemmed from an ignored part of retired Supreme Court Justice Salim Joubran’s decision a few weeks ago with regards to Amona.
Joubran and his panel of three justices ruled that Amona settlers could not build on private Palestinian land – and this was almost all that was reported.
But Joubran’s publicly-ignored reasoning for evicting residents of Amona was just as important.
While he said that Amona settlers could not build on private Palestinian land, he explained that it was because it would be disproportionately unfair to the Palestinians, not because there was a constitutional bar against doing so.
He also ruled, for the first time, that Jewish settlers were entitled to “protected persons” status under international law – the same as Palestinians.
The bottom-line of his reasoning may have laid the groundwork for Mandelblit and others to say that Jews could build on private Palestinian land in other cases, even if there was no security necessity, as long as the situation met proportionality principles.
Those on the Right, like Justice Minister Ayelet Shaked, are applauding Mandelblit’s move, and saying that it could even lead the High Court to endorse the Settlements Regulation Law.
After all, they say, aren’t both situations cases of finding a proportional way to give private Palestinian land over for Jewish use? Many on the Left are slamming Mandelblit and saying he has endorsed a criminal reading of international law where Israelis can steal private Palestinian land, even as the rest of the world views this as a violation of international law.
As an aside, the court may still reject Mandelblit’s reading as some jurists have pointed out that Joubran’s opinion came in the very specific context of Amona, where it was proposed to temporarily “borrow” Palestinian land with the express intent of returning the land to the Palestinians later.
The Jerusalem Post has learned that Mandelblit’s intentions may be somewhere in the middle.
Out of the thousands of units that would potentially be impacted by the Settlements Regulation Law, only 10% of them – or another similarly small number – may fit into the specific formula, as is the case with Harsha, where it can be argued that the inconvenience to the Palestinians is proportional.
However, Mandelblit is still expected to oppose the blanket nature of the Settlements Regulation Law as inherently disproportionate.
His opposition to the bill, as well as other legal issues with it, are still expected to lead the High Court to strike the law.
The kicker then will come afterward.
Shaked has hinted that there may be other tools besides this law to achieve her aims of legalizing more settlements.
Even if it is only 10% of the units that would potentially be impacted by the Settlements Regulation Law, Joubran, and now Mandelblit, have shifted the ground to make it all the more possible.