High Court nixes Settlements Law as annexation approaches

The law would have retroactively legalized over 4,000 unauthorized settler units in the West Bank.


High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020 (photo credit: COURTESY HIGH COURT OF JUSTICE)

High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020

The High Court of Justice on Tuesday night struck down the 2017 Settlements Law as unconstitutional as the country nears a major decision about annexation in the West Bank.

The law, which in a rare situation, was opposed by Attorney-General Avichai Mandelblit, would have retroactively legalized over 4,000 unauthorized settler units in the West Bank.

Allowing the law to stand would have been a sea change, which critics had called creeping annexation – though many unauthorized outposts would still not be legalized and there would not have been formal annexation.

The 8-1 decision – with only Justice Noam Sohlberg in dissent – is sure to bring down a new wave of condemnations from the country’s right-wing which viewed the law as a singular achievement.

However, at the same time, the ruling could bolster the High Court’s independence before the International Criminal Court which is currently deciding whether to dive deeper into the Israeli-Palestinian conflict.

The Likud expressed disappointment with the bill’s cancellation and said another bill would be drafted in its place. Likud MK Nir Barkat said the time had come to restore the proper balance of power between the branches of government.

Blue and White responded that the decision must be respected and implemented.

“The current version of the bill went against legal norms and that was already clear when it was passed in the Knesset,” the party said.

Knesset Speaker Yariv Levin said the court “trampled Israeli democracy and basic human rights” and warned that “the Knesset will not accept the continued harm to its authority.”

The opposing viewpoints of Likud and Blue and White on the bill are likely to cause tensions that could result in a coalition crisis.

Yamina MK Bezalel Smotrich, who was the bill’s sponsor, said the court has lost its shame and waited for a weak government to issue a left-wing extremist ruling. He said the High Court had been trampling the rights of the residents of Judea and Samaria for too long.

Meretz leader Nitzan Horowitz praised the court’s decision, calling the disqualified law racist and aimed at taking Palestinian land for building settlements. He said the message of the law’s cancellation was that the planned West Bank annexation should not be carried out.

Joint List leader Ayman Odeh called the ruling “an important victory for the Palestinians whose land was stolen by the settlers.”

The headline of the current debate before the High Court is deciding whether a State of Palestine exists which can grant it basic jurisdiction over alleged Israeli war crimes.

Yet, another massive issue is whether the ICC believes Israel’s court system is independent enough to probe potential illegalities.

The High Court’s decision to beat back the retroactive legalization of 4,000 housing units could significantly boost its credibility and encourage the ICC to leave judging the settlement enterprise and the 2014 Gaza War disputes to Israel’s judicial system and not to interfere.

On the flip side, if the government decides to proceed with annexation in early July, that decision could overtake the High Court and encourage the ICC to pursue Israel for the alleged war crime of taking Palestinian land.

For its part, Israel would argue that not only does the ICC have no jurisdiction, but that any of the areas it would annex, it has a right to the land under international law since UN Resolution 242 says that the West Bank will be divided between Israel and the Palestinians through negotiations.

Summarizing, the High Court said it was declaring the law unconstitutional since the law, “retroactively legalizes illegal building by Jews in the area [West Bank],” while having “deeply harmful consequences for the substantive rights of Palestinians.”

Regarding the High Court decision, Yesh Din lawyer Michael Sfard, who represents 40 Palestinian local councils who want their land and not compensation, said that it was incredibly significant that the justices also disqualified the law on grounds closer to what he recommended than on the grounds recommended by the attorney-general.

For example, whereas Mandelblit said that the law’s biggest issue was its blanket approach to ousting Palestinian rights from land where Jews later moved, Sfard said that there was an additional constitutional and international law problem.

He argued that the status of the IDF Central Commander as legislator of the West Bank meant that the IDF has defined the West Bank as being under the international law of belligerent occupation could not simply be altered by a piecemeal Knesset law.

Yesh Din, Peace Now, ACRI, Adalah and a large range of other human-rights groups petitioned against the law shortly after it passed in February 2017.

Gil Hoffman contributed to this report.

June 10, 2020 | 7 Comments »

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7 Comments / 7 Comments

  1. @ dreuveni:
    It is very unfortunate that Israel, because of the eternal weakness of its governments has become an oligarchy of the left-leaning judiciary headed by an un-elected and self-perpetuating “Supreme” Court. Very sad and disappointing. They have emasculated the Knesset and the electors are cheated of their rights.

  2. All the activities of Netanyahu and the government are so construed that every man and his dog has the chance to apply to the supreme court for “justice”. Now it’s even retroactive “justice” that is being dealt out. However, it seems to me that so-called Palestinians can lie all day about their lands that they stole from Jewish settlers during the previous century and for left-wing political reasons, the supreme court agrees. It’s time to disband them and get a new set of cojones.

  3. @ Sebastien Zorn:
    All my compliments Sebastien Zorn. Finally someone with knowledge, historical precision and true facts. You hit the nail on the head. What I wonder is why Israpundit feels that an unreliable and arm waving pseudo-journalist like Yonah Jeremy Bob should find a place in this serious blog. He and his left-wing JPost should not given the honour to be read here.
    Furthermore, would you or anybody here please explain to me why the Israeli government NEVER quotes or uses in international sites and discussions the argument that the San Remo Conference of the League of Nations in 1920 (in which it established the Mandate of Palestine) and reaffirmed (with modifications) in 1922, sanctioned that all the territory West of the Jordan River to the Mediterranean Sea was for the creation and facilitation of a State of the Jews. This resolution, not only was unanimously accepted and approved by all the 51 members of the League of Nations, including president Wilson of the United States, but it was included verbatim in the Charter of the United Nations in 1945 under Chapter 80. This resolution was never abolished or rescinded and it is still fully valid today as an international treaty and constitutes a universally accepted International Law. Why Israel’s governments since 1967 onward seem to be ashamed and shy to have this argument presented to the UN, EU and all other enemies of the State of Israel? It is sad and very disappointing that Israeli governments since 1967 keep shooting in their foot and seem to put the rights of the State of the Jews to the mercy of its enemies.

  4. Moreover, since 242 simply talks about Israeli forces withdrawing from territories in exchange for peace, Israel’s withdrawal from the Sinai Penninsula in exchange for the peace treaty with Egypt, in fact, completely satisfied that condition.

    The PLO, formed 3 years earlier, was not a state or a party to the conflict. And, in fact, it had explicitly renounced any claim to Judea, Samaria and Gaza in its charter, which it only amended after the Six Day War.

    “Article 24. This Organization does not exercise any regional sovereignty over the West Bank in the Hashemite Kingdom of Jordan, on the Gaza Strip or the Himmah Area. Its activities will be on the national popular level in the liberational, organizational, political and financial fields.” https://www.jewishvirtuallibrary.org/the-original-palestine-national-charter-1964

    The amended PLO charter that omits article 24 which renounces all claims to Judea and Samaria, not to mention Gaza (to what does “the Himmah Area” refer to?) dates from 1968.

    242 dates from 1967.

    When 242 was passed, the PLO relinquished all claimes to Yesha, recognizing them as belonging to the Kingdom of Jordan, which not only had illegally acquired them 19 years before, but which relinquished all claim to them in 1988, while leaving the Palestinian Arabs with Jordanian passports.

    A just resolution of the Arab “refugee” problem would be simply to activate those Jordanian passports.

  5. In sum, it only talks about states and “achieving a just settlement of the refugee problem.”Nor does it specify which refugees it is talking about. It could just as easily apply to the Jewish refugees during and after ’48, since 1967 was, actually, a just resolution of the 1948 conflict which only ended in a ceasefire and Egypt, Syria, and Jordan illegally acquiring territory that international law had already assigned to Israel with the breakup of the Turkish empire. Moreover, if it’s going to include descendants of refugees, a definition applied to no other conflict in the world, then it should, likewise, apply to the descendants of the 800,000 Jewish refugees from the Arab countries that had recently, been carved out of the Turkish empire that had controlled everything for 400 years. See how they like them apples.

    Not only is both the reference to and the text of 242, itself, wrong, but, how, on earth, does this paragraph bolster Israel’s position with regard to international law?

    Either, the author of the article doesn’t know what he is talking about, or the lawyers defending the law don’t know what they are talking about. Which is it?

  6. For its part, Israel would argue that not only does the ICC have no jurisdiction, but that any of the areas it would annex, it has a right to the land under international law since UN Resolution 242 says that the West Bank will be divided between Israel and the Palestinians through negotiations.”

    Says nothing of the kind. There is no mention of “Palestinians,” the “West Bank,” or “dividing the land of Israel.” And, it was Jordan, Egypt, and Syria who had acquired land that had been recognized as belonging to Israel by the San Remo Conference, The League of Nations and the UN and which Israel had, in fact, liberated. And it refers to “territories” not “the territories” to be be relinquished in exchange for peace, a peace which never came. [it’s also wrong, though about the inadmissability of acquiring territory in war. International law permits the acquisition of territory in defensive wars. And this was never applied to any other country this way. Any way, this is all says:

    “Security Council

    S/RES/242 (1967)
    22 November 1967
    Resolution 242 (1967)
    of 22 November 1967

    The Security Council,

    Expressing its continuing concern with the grave situation in the Middle East,

    Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,

    Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter,

    1. Affirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

    (i) Withdrawal of Israel armed forces from territories occupied in the recent conflict;

    (ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;

    2. Affirms further the necessity

    (a) For guaranteeing freedom of navigation through international waterways in the area;

    (b) For achieving a just settlement of the refugee problem;

    (c) For guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;

    3. Requests the Secretary-General to designate a Special Representative to proceed to the Middle East to establish and maintain contacts with the States concerned in order to promote agreement and assist efforts to achieve a peaceful and accepted settlement in accordance with the provisions and principles in this resolution;

    4. Requests the Secretary-General to report to the Security Council on the progress of the efforts of the Special Representative as soon as possible.
    Adopted unanimously at the 1382nd meeting.”