Hayut decision sets back settlers, contradicts A-G and ex-justice

The main event and ruling over the Settlements Regulations Law are still yet to come next week.

May 31, 2018 04:15
4 minute read.
Hayut decision sets back settlers, contradicts A-G and ex-justice

Supreme Court President Esther Hayut (L), President Reuven Rivlin (C), Justice Minister Ayelet Shaked (R) at the President's Residence, May 7, 2018. (photo credit: PRESIDENTIAL SPOKESPERSON OFFICE)


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Supreme Court President Esther Hayut on Wednesday may have delivered a massive blow to attempts by the settler movement and Justice Minister Ayelet Shaked to use private Palestinian land for Jewish settler needs.

Crucially, the attempts had obtained support, if nuanced, from Attorney-General Avichai Mandelblit based on other judicial statements.

With the ruling coming down only days before the Supreme Court will hear the all-important petition over the legality of the Settlements Regulations Law, it may also send a signal that the law will be struck down.

All of this could set the parameters of the legal debate over Israeli settlements for years to come.

Passed in February 2017, the law was the Israeli right’s biggest legislative achievement in decades toward effectively making new parts of the West Bank, including thousands of settler residences, into legal Israeli territory.

The law has been frozen pending the Supreme Court’s decision. If the court does not veto it, the law will make a wide range of previously unauthorized Jewish settler outposts legal.

It appeared to get a boost in the fall of 2017 when former justice Salim Joubran, in the process of a ruling against the Amona outpost, made some side comments which appeared to help the settler cause.

For the first time ever, Joubran, a Supreme Court justice, appeared to endorse Israelis building on private Palestinian land – even if it was not for security purposes – as long as the construction passed a proportionality test. Until then, the courts had been clear that Israelis could not build on private Palestinian land unless there was such a security interest.

MANDELBLIT THEN threw his support behind using Joubran’s statements in other situations. Those on the Right, like Shaked, applauded Mandelblit’s implied support, and said that it could even lead to the Supreme Court endorsing the Settlements Regulation Law. After all, they said, were not both situations cases of just finding a proportional way to give private Palestinian land over to Jewish use?

Many on the Left – including Yesh Din, who filed the latest petition which led to Hayut’s Wednesday decision – slammed Mandelblit. It said he had endorsed a criminal reading of international law where Israelis could steal private Palestinian land, even as the rest of the world viewed this as violating international law.

At the time, The Jerusalem Post had learned from high-level sources that Mandelblit’s intentions were somewhere in the middle of the debate.

Out of the thousands of units which could be impacted by the Settlements Regulation Law, he thought maybe 10% of them, or some other relatively small number, might fit into the specific Joubran formula, where Mandelblit might say that the inconvenience to the Palestinians was proportional.

But regardless of what his intentions were, Mandelblit’s decision – coupled with Joubran’s statements – was taken by the Right as signaling a potential turning point.

Now, they could override previous court decisions blocking the legal recognition of settler expansion in the West Bank, where the expansion was unauthorized, but also not prevented.

Shaked had even said that it could give them tools to legalize more settler units even if they lost the Settlements Regulations Law battle.

Not anymore – after Hayut’s ruling.

TRUE, SHAKED correctly pointed out to the Post on Wednesday that Hayut ostensibly rejected Yesh Din’s petition to formally overturn Joubran’s prior statements on the issue.

The justice minister then went on to accuse Yesh Din – who distributed the decision to the media even before the court’s spokesperson – of giving a distorted interpretation of Hayut’s decision.

However, Yesh Din correctly pointed out that Hayut rejected their petition partially because she said that Joubran’s statements were nonbinding, legally problematic and likely contradicting prior court precedent (Hayut also said that Yesh Din needed to wait to file its petition until the state tried to apply Joubran’s statements to concrete cases.)

In polite judge-speak, Hayut tried to save Joubran the indignity of formally shooting down his statements, but instead shot down his idea rhetorically, removing any basis for Mandelblit’s idea to use Joubran’s reasoning in a range of other situations.

This leaves the Right with nothing but the Settlements Regulations Law, and signals that the Supreme Court president is maneuvering to strike the law down.

It also puts Mandelblit and the Right back on a collision course.

His move to use Joubran’s statements even for some narrow gains for the settler movement had partially deflected some settler criticism of his vehement opposition to the Settlements Regulations Law. Now he has lost that tool for deflecting criticism.

The main event and ruling over the Settlements Regulations Law are still yet to come next week. But Hayut has seemingly preemptively pulled the rug from underneath the law – and moved the Right from its strongest legal position in years to the verge of a series of major court defeats.

Only one week after the court curried favor with the Right with its endorsement of the IDF’s open-fire rules on the Gaza border, the court may soon find itself back in the eye of the storm.

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