building cranes in the Beitar Illit settlement August 17 .
(photo credit: TOVAH LAZAROFF)
The High Court of Justice will hear petitions against the Settlements Regulations Law on Sunday, in what promises to be the most important legal conflagration since Esther Hayut took over the court’s presidency in October.
The controversial law would retroactively legalize thousands of Jewish settler residences in the West Bank that had been built on private Palestinian land under all sorts of different circumstances, provided the government compensates the Palestinian owners and fulfills other conditions.
The court’s 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 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 around a dozen other human rights groups petitioned against the law shortly after it passed in February 2017.
There are a number of aspects that seem to indicate that the court will not uphold the law.
Firstly, in what is one of the most unusual aspects of this hearing, Attorney-General Avichai Mandelblit has opposed the law and has therefore refused to defend it, forcing Justice Minister Ayelet Shaked to hire private lawyer Harel Arnon to defend it. However, Mandelblit’s opposition to the law will likely influence the court’s ruling.
Likewise, the High Court has currently frozen the law, which is perhaps another indicator for a decreased likelihood in the law’s survival.
Thirdly, on Thursday, Hayut issued a ruling against a more moderate move by the Right, hoping to be allowed to appropriate private Palestinian land for Jewish settler use, which is yet another indicator of the court’s position.
Nonetheless, while few legal experts predict the High Court will uphold the law, 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 issues.
Some question whether the law violates Israeli law’s guarantee of property rights or violates its usual placement of West Bank issues beyond the direct purview of the Knesset.
There is also a debate as to whether the law amounts to annexation, but without properly declaring it.
Moreover, there are international law questions regarding who has protected persons status or preferred status between the Palestinians and the Jewish settlers and regarding 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 the 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, which legalizes homes built under varying circumstances and contexts, 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 law violations and that pragmatically the Settlements Regulations Law benefits all sides. The law, they argue, allows settlers to remain living where they have built outposts while also allowing Palestinians, who in most cases are physically prevented from reaching their lands anyways, to receive compensation.
Regarding international law, the Right points to the way the world has treated other occupied areas, arguing 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.