Analysis: Does the settlements law have a prayer of getting past the High Court?

If Israel annexed the West Bank, the entire old framework and prior High Court rulings might become obsolete.

The Supreme Court, Jerusalem (photo credit: Wikimedia Commons)
The Supreme Court, Jerusalem
(photo credit: Wikimedia Commons)
Anyone who reads the declassified transcript of Deputy Attorney- General Roy Schondorf’s pitch to the Knesset about why the settlements regulations law is illegal cannot help but be struck by the feeling that the Israeli legal establishment and coalition MKs, at least on this bill, are living on different planets.
This helps explain what will happen in the High Court of Justice when a coalition of groups from the Left file the inevitable petition to strike down the law down.
From overwhelming indications, the High Court will unanimously, or maybe with one dissenting vote from Justice Noam Sohlberg, strike down the legislation as illegal according to Israeli law.
Knesset passes settlement bill on February 6, 2017 (credit: REUTERS)
Mind you, this is without even taking into consideration the risks that the law might pose before the International Criminal Court Prosecution, which is deciding whether the Israeli settlement enterprise can be characterized as war crimes.
Attorney-General Avichai Mandelblit and Schondorf have said that the law is illegal and that they would not defend it before the High Court. The entire legal establishment is with them.
Schondorf was actually mild in voicing his opposition, compared to Defense Ministry legal adviser Ahaz Ben Ari, even though the defense establishment often pushes the legal establishment to approve activities the rest of the world rejects.
Even the author of the 2012 landmark Levy Report, former Foreign Ministry top legal adviser Alan Baker – a big fan of trying to retroactively legalize a range of outposts – opposes the law and agrees it has no chance in the High Court, since the legal issue is specifically one of privately owned Palestinian land.
As Schondorf said, the High Court’s legal precedents are relatively black and white on the issue.
In its 10-to-1 ruling permitting the Gaza withdrawal; its ruling endorsing the legality of the West Bank wall; and in a series of rulings regarding the Tel Aviv-Jerusalem thruway Route 443; the High Court has said Israel’s status in the West Bank is as a “belligerent occupier” and that it cannot take private Palestinian land other than for security purposes.
Belligerent occupier does not mean that the High Court gives up on Israel’s narrative and historical claims to the West Bank, only that until a peace deal that sets borders is reached, Israel’s legal security rights and obligations regarding the Palestinians stem from The Hague regulations and humanitarian provisions of the Fourth Geneva Convention.
That is not just international law – that is Israeli law.
To override that legal framework, Schondorf explained Israel would need a new legal framework – such as annexation of the West Bank.
If Israel annexed the West Bank, the entire old framework and prior High Court rulings might become obsolete, and the court might very well say it has nothing to say about the issue.
But minus annexation, no one seems convinced that the High Court will allow the Knesset to “pick and choose” which aspects it does and does not like regarding international law, as Schondorf said.
It will likely say that as long as Israel wants to justify the wall, Route 443 and a wide range of security actions and security-related land appropriations, it cannot have laws like the settlements regulation law which take private Palestinian land.
There is a small group of talented legal scholars who will challenge the High Court to reject any interpretation of international law that disagrees with this law passed by the Knesset in a 60-to- 52 vote. The basis of the law’s passage rests on Israel’s claims that it cannot occupy the West Bank, because the West Bank was taken in a defensive war with Jordan, which itself illegally occupied it following the 1948 War of Independence.
Next, this group will argue that Palestinian private land claims are broadly defective, based on gifted land that was registered in Tabu, or under Ottoman land registry, decades ago, but do not meet any modern standards of evidence proving ownership.
They will say that under Ottoman or British Mandate law, much of the lands in question should revert to the state and the Knesset should be able to legalize outposts constructed there on lands where no Palestinians had built.
Baker’s Levy Report had suggested special land courts to vet these issues and maybe they will suggest this solution instead of the High Court striking down a Knesset law.
But another Levy Report author, Edmund Levy himself, was the single dissenting vote in the 10-to-1 vote endorsing the Gaza withdrawal and the current legal framework in the West Bank. The High Court is more conservative now than it was a decade ago, but not on this issue and none of the above arguments are likely to change its mind.
The bottom line is that Knesset coalition members were told clearly by Schondorf that the High Court would strike down the law and that did not faze them, perhaps in part because some of them are pushing for annexation.
In lieu of that, the end of this story and of the law was already written before the ink on either was dry.