Israel's High Court Strikes Down West Bank Land-grab Law as 'Unconstitutional'

The Law for the Regularization of Settlement in Judea and Samaria has been frozen since its approval in 2017 pending High Court ruling

Hagar Shezaf
Hagar Shezaf
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Israeli Border Policemen evicting a settler from the illegal West Bank outpost of Amona, February 2017
Israeli Border Policemen evicting a settler from the illegal West Bank outpost of Amona, February 2017Credit: Ilan Assayag
Hagar Shezaf
Hagar Shezaf

Israel's High Court of Justice ordered on Tuesday to nullify a law that would legalize the status of settlements partially built on privately owned Palestinian land under the claim that it is "unconstitutional."

LISTEN: Annexation vexation comes between Bibi and the settlersCredit: Haaretz

The “Law for the Regularization of Settlement in Judea and Samaria” was approved in February 2017. It was meant to allow the use of privately-owned Palestinian land to build Israeli settlements and to legalize outposts and structures erected on such soil.

The law was frozen shortly after its approval in an agreement between the state and several petitioners against it until the High Court ruled on the matter.

In her ruling, Supreme Court President Esther Hayut said that the law "seeks to retroactively legalize illegal acts perpetrated by a specific population in the region whilst harming the rights of another."

Hayut said the law "does not meet the constitutional standards of Israeli law." She added that "the desire to find a simple and comprehensive solution to the problem of construction in Israeli localities in the region, after years of various authorities contributing to the creation of this reality, is understandable, and preventing eviction and demolition of bona fide homes and the approval of competent authorities is a proper and important purpose," but that this does not justify violating the right to property and the right to equality and dignity of the Palestinians, and "creates discrimination between Israeli and Palestinian residents regarding the regulation of illegal construction in the area."

Hayut said that “in practice, and contrary to the government's stated policy, construction of Israeli settlements in the area has been carried out over the years even on non-governmental property. This construction, it must be said, was partly carried out with the assistance and support of the state institutions and other authorities.”

Justice Noam Sohlberg, who was the only justice out of the nine who voted against repealing the law, expressed his concern that the decision would not be beneficial ‒ "not to the settlers, not even the landowners. Nobody will benefit from it. The land and buildings that the legislature sought to regulate, at least most of it, would therefore remain in their desolation."

However, Sohlberg noted that the encouragement and support by government authorities for illegal construction in the region, for years, "is not for the glory of the State of Israel. In any case, as reprehensible as we may find this conduct to be, it will not change the fact that this involvement over the years has created a reality, in a very broad scope, that cannot be ignored."

In its response to the ruling, Prime Minister Benjamin Netanyahu's Likud party lamented the court's "interference in striking down an important law for the settlements and their future," and promised to pass it again.

A source close to Prime Minister Benjamin Netanyahu said that “applying sovereignty will solve most of the regularization problem,” referring to Netanyahu’s plan to annex parts of the West Bank. 

Deputy Prime Minister Benny Gantz said that overturning the law was "expected." In a statement, he said that the law "raises difficult issues in the process of its own legislation, and there was no way to pass it from the start."

He said that he and his party will take care that the High Court's rulings will be respected, "and that no harm will be done to the rule of law." He added that in order to unite as a society, "we must respected the rule of law, criticize appropriately and even if there's a deep disagreement between us, deal with it as brothers, not as enemies."  

Gantz's Kahol Lavan released a response saying it respects the court's ruling and will "make sure it is fulfilled." It also said that the law in its current form "runs counter to Israel’s constitutional condition and the legal problems arising from it were already known at the time of its approval in the Knesset."

Justice Minister Avi Nissenkorn meanwhile said that the court’s decision was expected and would be respected, but added that it was possible to legalize many homes “in an informed way and with wide agreement.”

Knesset speaker Yariv Levin said the High Court “once again today trampled, as is its unacceptable tradition, Israeli democracy and the basic human rights of many Israeli citizens.”

According to Levin, the ruling “tore another rift into Israeli society and will do even more harm in the public trust in the High Court and its justices. The High Court is marching with great bounds towards a legal crisis never before seen in Israel. The Knesset will be silent no more in the face of ongoing harm to its legitimacy and standing." 

Yamina MK Bezalel Smotrich said that “Netanyahu's test, [and of] Likud and ultra-Orthodox, will not be in defamatory statements to the High Court on the repeal, but in passing the bill allowing the Knesset to override the courts immediately.”

Jerusalem Affairs and Heritage Minister Rafi Peretz said: “The answer is to repeal the settlement law. Sovereignty now in Judea and Samaria. We must act with all our might to make it happen as soon as possible.”

Health Minister Yuli Edelstein, a member of Likud, said that “The High Court has lost it. It makes itself the legislative, executive and judiciary at the same time. This must be put to an end."

He also advocated for the override clause, saying that "If the High Court does not recognize its limits, the Knesset must draw the borders."

Attorney Michael Sfard, who represented petitioners Peace Now, Yesh Din and the Association for Civil Rights said in response: "It’s a shame that it took eight justices to explain to the Knesset that stealing land to give to the robbers is wrong. The verdict is very important, but represents basic justice and this should be taken into account these days when planning annexation, that will inevitably result in the huge dispossession of Palestinian-owned land."

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