The High Court of Justice temporarily froze on Thursday the Settlements Law, which would retroactively legalize Jewish homes built on private Palestinian property.
Right-wing politicians immediately attacked the decision.
“This is a dangerous intervention by the court against Knesset legislation,” warned MK Bezalel Smotrich (Bayit Yehudi), who is a strong proponent of the legislation.
“Time after time the judiciary tramples on the decision of one governmental authority or another. This story must stop,” he said.
“As someone who often warns against the erosion of the State of Israel’s Jewish character, I am also worried today about the future of the state’s democratic character,” Smotrich said.
He took particular issue with the fact that the court had issued the injunction at the request of Attorney-General Avichai Mandelblit.
In an unusual move Mandelblit sided with the plaintiffs, a consortium of 13 left-wing nongovernmental groups, who petitioned the High Court against the legislation in February and March on the grounds that it violated both Israeli and international law.
The left-wing NGO Yesh Din lauded the court decision. “The court has justly halted the process of stealing and expropriating private Palestinian land right for the benefit of the settlers,” Yesh Din said.
“The next step is to enforce the law against illegal building on private Palestinian property,” Yesh Din said.
“The injection prevents additional damage but true justice will only occurs when the law is abolished,” Yesh Din said.
Smotrich, however, alleged that the court had acquiesced to Mandelblit’s request for an injunction because he was the attorney-general and therefore had undue influence.
“The attorney-general has tramped on the separation of power and the rule of law with his scandalous decision to go against the government he is tasked with representing,” Smotrich said.
He added that Mandelblit had “improperly influenced the High Court of Justice including with his demand for an interim injunction against the law’s implementation.”
MK Moti Yogev argued that Israel cannot continue to be a “judicial dictatorship.”
The court’s decision, he said, is every reason that the Knesset must advance legislation in its next session that would prevent such legal interference in laws voted upon by elected officials.
The Settlements Law, which was approved in February, retroactively legalizes 3,921 unauthorized settler homes built on private Palestinian property while offering the landowners monetary compensation.
According to the left-wing NGO Peace Now, 797 of those structures are located in outposts and the remaining 3,173 are in settlements.
The government, the Civil Administration and the NGOs had an oral agreement that the law would not be executed until completion of the judicial process.
This meant that no enforcement action would be taken against unauthorized homes that fell within the law’s purview. Similarly no steps would be taken to register Palestinian property to settlers.
But in July settlers asked the High Court of Justice to allow portions of the legislation to move forward, which they believed would not have an overall impact on land status should the judges strike down the legislation. In particular they want the Civil Administration to begin the bureaucratic work needed to prepare the land lots for authorization.
Mandelblit asked for an injunction in response to that request.
It is presumed that the injunction will remain in place at least until a first hearing is held on the case. No date has been set for the hearing but it is expected to be held by the end of the year. In the interim the Knesset is expected to submit a legal brief to the court on September 10, followed by provision of an opinion by the Attorney- General’s Office on October 16.
In past cases with weighty constitutional consequences such injunctions can remain in place for the length of the legal proceeding, which in this case could take upwards of a year.
The NGOs have argued that the legislation was tantamount to land theft and constituted a de facto annexation of Area C, particularly since the Knesset in their opinion does not have the purview to legislate for territory outside of sovereign Israel.
A judicial ruling upholding the legislation would overturn almost four decades of Israeli legal opinion. Leftwing NGOs have argued that the legislation runs counter to international law.
An High Court decision to support the legislation could complicate matters for Israel at the International Criminal Court, which is weighing whether to pursue a war-crimes case against the Israeli leadership over the issue of West Bank settlements.
A law seizing private Palestinian property could sway the ICC to move forward on the matter.
Without the legislation, however, the settlers living on the property lots would have no possibility of legalizing their homes because the High Court has long held that structure on private Palestinian property cannot be authorized.