Over a dozen NGOs and the Attorney-General’s Office went up against the government on Sunday to convince the High Court of Justice to strike down the Settlements Regulations Law, in what some are calling the biggest case in decades.
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 Sunday morning, a variety of groups on the Right demonstrated outside the High Court to try to raise awareness of their cause and press the court for a ruling in their favor.
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.
Yesh Din’s Michael Sfard told the High Court on Sunday that the petitioners represent 40 Palestinian local councils who want their land and not compensation.
He said that if the state takes their land from them, it harms their basic rights.
This is not a question of a failure to sell, he noted, but “the law of a belligerent occupation” taking away people’s private property.
Sfard said that international law only allows temporarily taking private land and only in cases of security needs. He added that the taking of property here is not really even for public use, but for a variety of individuals’ uses. “We are taking from Musa to give to Moshe,” he said.
In most cases where taking Palestinian property was prohibited by international law, he said that those taking it would also be committing a war crime under the International Criminal Court’s Rome Statute.
Adalah’s lawyer, Hassan Jabareen, said that the government was trying to initiate a legal revolution.
The government says the IDF West Bank command is not really separate from the Knesset and that the idea of separation is a fiction, said Jabareen. Their logic is that IDF looks to the government for direction, the government to the Knesset and the Knesset to the people. Jabareen explained that this would mean that the IDF’s command of the West Bank and the Palestinians is already under the Knesset’s authority.
He rejected this argument as changing a fundamental legal norm of keeping the Knesset away from governing the Palestinians of the West Bank, which has been a constant for decades.
“Now do Jenin residents need to worry about what laws the Knesset will pass about them?” he asked.
Jabareen therefore said that all court decisions brought by the government’s lawyer to support the law were not relevant. He made it clear that the court’s jurisprudence persistently forbade it from legislating the rights of Palestinians.
Adalah lawyer Suhad Bishara told the High Court, "This law, intended to authorize theft of land, is illegitimate and violates international humanitarian law. This law makes the Palestinian invisible. They take from me because I am Palestinian. Legally, I do not exist. My rights do not exist. They take from me by force because I am under occupation."
ACRI’s Dan Yakir attacked the process in which the law was passed, noting that significant portions of the testimony of Deputy Attorney-General Roy Schondorf about the dangers to the state from war crimes probes if the law passed to the Knesset were classified.
Yakir demanded that the classified portions be publicized so that the court and the country could take stock of those dangers.
The court asked to review the classified portions itself, but ultimately rejected Yakir’s request.
One of the most unusual aspects of the hearing is that Attorney-General Avichai Mandelblit opposes the law and 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.
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.
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 said that on the one hand the government has funded the West Bank and certain outposts and provided infrastructure and water, but on the other hand, this support 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. Instead, he said, it comes to resolve a complex situation that has been left a mess for years, and to prevent a massive number of settlers from being forced out of their homes in the future.
Deputy President of the High Court Hanan 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 Mandelblit admits that his ideas do not resolve all of the issues the Knesset law does.
Justices Uzi Vogelman, Menachem Mazuz, Daphna Barak-Erez and High Court President Esther Hayut also pressed Arnon about a variety of other legal problems where they implied that the law violated Israeli precedent.
Those justices, along with Justice Anat Baron, appeared ready to vote against the law or at the very least to force it to be amended.
On the other hand, Justices Noam Sohlberg, Yitzhak Amit and Neal Hendel all seemed interested in hearing from the attorney-general’s lawyer whether, even if he opposed the law, he believed some law like it needed to be passed to address the situation.
Lawyer Anar Helman, representing the Attorney-General’s Office, told the High Court 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 Settlements Regulations Law must be struck down, adding that not all issues that one would like to resolve can be fixed with a single Knesset law.
Elaborating, he said that the law was not proportional or reasonable regarding its goals and due to the problems it imposed on the Palestinians. 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 Helman 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.
Several justices, including 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.
Knesset lawyer Eyal Yinon also made said that while the law had problems, the court should try to order fixes to it instead of striking it.
The High Court has already frozen the law, which is never a positive sign for a law’s likelihood to survive. 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. 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.
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