Analysis: AG Mandelblit fires in every direction on settlements

Was the timing of Mandelblit’s firing in all directions, including his two seemingly contradictory legal opinions, coincidental or coordinated?

November 23, 2017 03:08
3 minute read.
THE OFRA SETTLEMENT is seen from the Amona outpost in the West Bank.

THE OFRA SETTLEMENT is seen from the Amona outpost in the West Bank.. (photo credit: RONEN ZVULUN/REUTERS)


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Three weeks ago, Attorney-General Avichai Mandelblit said he was “under fire from all directions” regarding his handling of the criminal allegations facing Prime Minister Benjamin Netanyahu.

On Wednesday, when he filed a legal brief declaring the Settlements Regulations Law unconstitutional, Mandelblit completed a dizzying one-week zigzag regarding legal issues confronting West Bank settlements in which he fired in all directions.

Last week, Mandelblit shocked the country with a new legal opinion allowing the use of private Palestinian land to pave a road for the Jewish West Bank outpost of Harsha.

Many on both the Right (notably Justice Minister Ayelet Shaked) and the Left (notably some of the leading human rights groups) said this was a sign that he had “thrown in the towel” on the Settlements Regulations Law and that it was now clear that he sides with the Israeli Right against the international legal community.

At the time, The Jerusalem Post had learned and reported otherwise – that despite Mandelblit’s new Harsha opinion, he would stick to his guns regarding his long-standing opposition to the Settlements Regulations Law.

Was the timing of Mandelblit’s firing in all directions, including his two seemingly contradictory legal opinions, coincidental or coordinated? And how did Mandelblit perform this feat of legal gymnastics: one week supporting the taking of Palestinian private property for Israeli use and the next week calling it illegal? Out of the thousands of residences which could be impacted by the Settlements Regulations Law, maybe 10% of them may fit into a specific formula as does Harsha, where Mandelblit may say that the inconvenience to the Palestinians is proportional.

In contrast, he categorized the blanket nature of the Settlements Regulations Law as inherently disproportionate and his opposition, along with other legal issues, is still expected to lead the High Court to strike the law.

How did he make this distinction? Some of the distinction is the result of how he dealt with international law on Wednesday.

He did not write a full description of why he thinks that the law violates international law – which more than a dozen human rights groups did in their briefs against the law.

Rather, he sidestepped the issue, saying that the High Court has decided that given a straightforward conflict between domestic law and international law, Israeli domestic law prevails.

Later in his brief, he returned to the issue and said that depending on the context and balance of rights at stake, international law could combine with other existing domestic laws to make new laws like the Settlements Regulations Law illegal.

In his language, depending on context, international law could give Palestinians in the West Bank either a “more limited” or a “greater” level of legal protection to 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.

This explains his continued opposition to the law.

But it seems like no coincidence that he filed his support for certain takings of Palestinian private property only the week before.

It also doesn’t seem coincidental that his treatment of international law even in opposing the Settlements Regulations Law is at most lukewarm. He weighs most of his opposition to the law based on other Israeli domestic law, such as regarding the protection of property rights.

By taking these positions at the same time as opposing the vast majority of the law, he is trying to immunize himself from government complaints that he does not try to seek solutions to keep some West Bank settlements, or that he is more loyal to the international legal community than he is to Israel’s elected leaders.

But there will be a price to pay for this immunization.

Justice Minister Shaked has already hinted to the Post that there may be “other tools” besides the Settlements Regulations Law to achieve her aim of legalizing more settlements. You can expect that she and others will take aim at Mandelblit’s “Harsha exception” for legalizing as many Jewish West Bank structures as possible. These same actions will likely bring Mandelblit into greater conflict with the international legal community – which he currently doesn’t seem too worried about.

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