Right-wing Lawmakers Always Knew West Bank Land-grab Law Would Be Struck Down

With legal advisors making it clear that the move was unconstitutional, lawmakers sought to come out of the process unscathed by having the court strike it down for them

Jonathan Lis
Jonathan Lis
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 Prime Minister Benjamin Netanyahu chairs the weekly cabinet meeting in Jerusalem, June 7, 2020.
Prime Minister Benjamin Netanyahu chairs the weekly cabinet meeting in Jerusalem, June 7, 2020.Credit: Menahem Kahana/Pool
Jonathan Lis
Jonathan Lis

The lawmakers who backed the law legalizing settlements partially built on privately owned Palestinian land knew at the time that it was only a matter of time until it was nullified by the High Court of Justice. The legal advisers to the government and the Knesset made it clear that it was unconstitutional. Prime Minister Benjamin Netanyahu was worried about Palestinian petitions to the International Criminal Court in The Hague, and prominent right-wing lawmakers even backed away from the bill.

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On Tuesday, Israel's High Court of Justice ordered to nullify The “Law for the Regularization of Settlement in Judea and Samaria” under the claim that it is "unconstitutional." It had been frozen since it was passed in 2017, pending a ruling by the court on several petitions against it.

“You don’t have to be a genius when you read that the attorney general opposes the law and won’t defend it in the High Court – the odds of it being nullified are a hundred percent,” MK Avigdor Lieberman said at the time of efforts to promote the legislation.

The West Bank settlement of Ofra, February 5, 2020Credit: Ohad Zwigenberg

But at some point in January 2017, the government changed its tactic. Netanyahu met with residents of the settlement of Ofra and decided to promote the legislation in the Knesset. A Likud official said at the time that from a political perspective, it was preferable to place the responsibility for preventing the move on the High Court than to make Netanyahu appear to be the one who prevented the bill from passing. In a Likud faction meeting, Netanyahu explained his support for the bill, saying that “the goal is to prevent repeated attempts at undermining settlement in Judea and Samaria.”

But the bill’s approval in the Knesset didn’t just provoke the High Court. On both the left and right, the Knesset’s disregard for the legal advisers’ opinion was marked as a calculated step in the campaign being conducted to weaken the position of the court.

The attorney general, Avichai Mendelblit, ruled that “there is no escaping a legal declaration of the ‘regularization law’ as an unconstitutional law that is null and void.” Meanwhile, the Knesset legal adviser, Eyal Yinon, told lawmakers that the passage of the law could have repercussions on the ICC’s decision-making. Meanwhile, the legal adviser to the Knesset Constitution, Law and Justice Committee warned that the legislation “contradicts peremptory rulings by the court.” These official opinions were ultimately ignored by lawmakers, and the controversial version of the bill was passed.

The bill’s sponsor, lawmaker Bezalel Smotrich, argued that the legislation was needed despite the legal warning, saying: “I am changing the legal situation to allow regularizing [the settlement of] Amona and pull the rug out from under the court ruling.”

But he also estimated then that the odds of the High Court allowing such a move were not high.

Yinon, who disapproved of the bill moving forward in the Knesset, was later dispatched to defend it from the petitions to nullify it. He did not hide his and Mendelblit’s criticism of the legislation, but called on the justices not to nullify it.

“The Knesset passed the law while adopting the position of some of the experts that appeared before it, who said there was no legal or constitutional obstacle to enact the law,” Yinon said, adding that the law “enjoys the presumption of constitutionality.”

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