Most of the world thinks settlements are illegal. US President Barak Obama calls them "illegitimate." Defense Minister Ehud Barak casts his crusade against settlers as mere "law enforcement."
Appeasing such sentiments, the government approved the 10-month freeze on Jewish building in Judea and Samaria. But while the world calls the settlements illegal, the ban on settlement construction may itself violate Israeli law and its protections for human rights.
The country's first law, the Declaration of the Establishment of the State of Israel, is also its first law dealing with human rights. The declaration states that Israel will foster the development of the country for the benefit of all its inhabitants, will be based on freedom, justice and peace as envisaged by the prophets, will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex. In the landmark case Kol Ha'am v. the minister of the interior, the Supreme Court held that the declaration was more than just a law - it was a law whose principles would be used in interpreting all other laws. This empowered the court to more strictly scrutinize and more easily strike administrative actions which violated human rights.
In 1992, the Knesset further entrenched legal protections for human rights, approving two semi-constitutional basic laws which stated that the basic rights of human beings are founded on the recognition of the worth of the human being, of the sanctity of his life and of the fact that he is free, and they shall be respected in the spirit of the principles in the Declaration on the Establishment of the State of Israel.
One of them, Basic Law: Freedom of Occupation, protects the right of "every citizen... to engage in any occupation, profession or line of work." The other, Basic Law: Human Dignity and Liberty, states that "the life, body and dignity of a human being must not be injured by virtue of the fact that he is a human being," that "a human being's property must not be harmed" and that "every person is entitled to the protection of his life, limb and dignity."
BY 1995, on the basis of the new basic laws, the Supreme Court controversially held in Mizrahi Bank v. Migdal Village that it could review and strike laws approved by the Knesset. Right or wrong, that decision allowed Gush Katif residents and their supporters to seek judicial cancellation of the disengagement on the basis of the basic laws in the case of Gaza Shore Regional Council v. the Knesset. There, the court agreed that the disengagement "infringes the human dignity of evacuated Israelis... protected in... the basic law."
The court described how the disengagement cuts the evacuated Israeli from his house, his surroundings, his synagogue, the cemeteries in which his dead are buried. It infringes on his personality. Indeed, at the foundation of human dignity as a constitutional right, "there stands the recognition that man is a free creature that develops his body and spirit according to his will... This right of a person to shape his life and his fate encompasses the essentials of his life, how he will live, with what will he work, with whom will he live, in what will he believe. This is central to the existence of every individual."
The court further held that the disengagement violated the evacuees' property rights and their right to engage in their chosen occupations under Basic Law: Freedom of Occupation.
Nevertheless, the court held that the Knesset-approved disengagement met an exception in the basic laws for "a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required."
YET, DESPITE authorizing the expulsion of a particular class from an entire region, the court still affirmed that settlers have protected rights to their property, to choose their place of residence and make a home, family, community and life. This includes the right to physically accomplish those things - the right to build. The freeze violates that right exactly as the court described it. Unlike the disengagement, however, it was not approved in law and does not meet the above-mentioned exception.
In addition, there is the Declaration of the Establishment of the State, whose "spirit" the basic laws are supposed to protect. The declaration speaks of the "natural right" of the Jewish people to "Eretz Yisrael" and approvingly how "Jews strove... to reestablish themselves in their ancient homeland," "made deserts bloom," "built villages and towns, and created a thriving community." That community extended beyond the Green Line into the heart of the "ancient homeland."
As discussed, the declaration also calls for equal protection and development of the country for all inhabitants, regardless of religion and race. As a restriction on Jewish settlement, the freeze utterly contradicts both the democratic and Zionistic values of the declaration.
In the final analysis, the question is therefore not whether the settlers have the right to build their houses, their communities and their lives, but whether that right will ever be vindicated by the government that violates it, or by the court which only recently recognized it.
The writer, president of the American Legal Forum, recently made aliya.