Barely 36 hours passed between the Knesset completing the passing of the so-called “Regularization Law”, and the submission of the first petition to the Israeli Supreme Court against it (by the Adalah Legal Center for Arab Minority Rights in Israel, on behalf of Palestinian villages and NGOs).
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The controversial law will allow the forced and retroactive expropriation of Palestinian private lands in the West Bank on which Jewish settlements were established. The background to the law: several successful petitions to the Supreme Court by Palestinian landowners on whose West Bank property illegal so-called “outposts” were established by Jewish settlers, most famously Amona, evacuated just a few days before the new law came into force.
Legally speaking, the case against the Regularization Law is strong and easy. It is in fact so strong that Israel’s Attorney General himself said he would not be able to defend the law in court.
The case against the law rests both upon international law and Israeli constitutional law. The West Bank is a territory under belligerent occupation – its status as such was repeatedly confirmed by the Israeli Supreme Court. Israeli law does not apply to this territory. For the Israeli parliament to attempt to legislate a law which denies the property rights of Palestinians who are not citizens of Israel and who did not vote in Knesset elections is a violation of the basic principles of democracy, and such legislation exceeds the Knesset’s sovereign powers.
It also violates the principles laid out in the international law of occupation, according to which the occupying power must act for the benefit of the local occupied population, and it transgresses specific provisions restricting the taking of private property only for military needs. These rules appear in the Hague Regulations, on whose basis the Israeli Supreme Court has ruled many times in the past.
Since the law’s declared purpose is to regulate and allow for the development of Israeli settlements in the West Bank, it also contravenes the prohibition in the Geneva Convention on occupying states transferring civilian population into occupied territories – a prohibition which most of the international community, as well as the International Court of Justice, considers, contrary to Israel’s position, as prohibiting the settlements.
However, while in the past the Israeli Supreme Court reviewed IDF actions in the West Bank based on the international law, the novelty of this case will be the head-on clash between parliamentary legislation and international law. As the questions regarding this clash are complicated, the court may find it easier to rule mainly based on Israeli constitutional law, holding that the law violates the right to property, which is protected in Israel’s Basic Law: Human Dignity and Liberty, as well as the right to human dignity itself, which includes the right to equality, which is flagrantly violated in this case.
But while legally the case against the law is easy, the politics of law are more complicated. The presiding justices will surely know that ruling against the law would accelerate the already growing appetite of right-wing MKs to clip the Supreme Court’s wings in various forms, including a repeated proposal to allow the Knesset to “override” the court’s judgments in certain circumstances.
On the other hand, one can argue that some players in the current Israeli government coalition would be happy for the court to save the government from itself by holding the law as unconstitutional. Then, they can have twice the fun: show their right-wing base they supported the law and then show that same base their enthusiasm in attacking the “liberal”, “lefty” judges. Trump himself could take lessons from the Israeli right in this area.
But the Israeli court may not be the only one looking at the law. Looming in the shadows is the ongoing preliminary examination by the Office of the Prosecutor at the International Criminal Court at The Hague. The examination is looking into the issue of the settlements generally; one of the topics mentioned in a November 2016 report on the progress of the examination was "the regularization of constructions built without the required authorization from Israeli authorities (so-called outposts); the confiscation and appropriation of land."
The new law may end up driving the Hague prosecutor to shift from a “preliminary examination” to a full investigation, which in turn may lead to the indictment of Israelis responsible for settlement policy at the International Criminal Court. And unlike the Regularization Law appeal before the Israeli Supreme Court, such an investigation would likely open up the broader questions of Israeli West Bank settlements, highlighting other active forms of land-grab by Israel, and to the illegality of the settlements as a whole.