Deputy A-G: Knesset can’t pick and choose on international law
Briefing by Roy Schondorf to MKs declassified yesterday
The Knesset “cannot pick and choose” which parts of international law it likes and which it does not regarding the West Bank, Deputy Attorney-General for International Affairs Roy Schondorf told the joint Knesset committees handling the “settlements regulation bill” in a classified briefing last month.
The details of the briefing were only declassified on Monday.
Schondorf noted that Israel has chosen since 1967 to conduct operations in the West Bank territory in accordance with the law of belligerent occupation (a neutral legal term, not to be confused with politically charged accusations of “occupation”), which is found in The Hague Convention regulations and the Fourth Geneva Convention.
Regarding the Fourth Geneva Convention, he said Israel took it upon itself to comply with the convention’s humanitarian provisions, even as its position was that the convention as a whole does not apply to the West Bank.
Accepting that Israel is in
a legal state of “belligerent occupation” of the West Bank, pending a final negotiation of its status, has been the basis for Israel to erect its security barrier and to undertake a range of other security measures in the West Bank, since a belligerent occupier has certain security rights.
As long as Israel uses this status to claim justification for its actions, it also has to abide by certain related obligations.
The settlements bill, according to Schondorf, would violate those obligations, including Palestinian property rights, and undermine the basis for many of Israel’s security actions.
These legal issues do not diminish Israel’s historical and final status claims to the land, he said, but distinguished between those claims regarding the future and managing the West Bank now.
The deputy attorney-general told the committee that the High Court of Justice, in endorsing the Gaza withdrawal in its most expanded panel, voted 10 to 1 that Palestinians have special protected status under international law, but that Jewish Israelis in the West Bank who moved there after 1967 do not.
“The belligerent occupier cannot appropriate land which is not for a military necessity other than for the benefit of the protected population [the Palestinians],” Schondorf quoted the High Court, regarding appropriating Palestinian land in the decision to pave Route 443 between Jerusalem and Tel Aviv through the West Bank.
Moreover, Schondorf said it was difficult to see any international or domestic law body taking a different view in interpreting international law regarding appropriating Palestinian land.
He explained the dangers of passing the settlements bill and of overriding his advice on the issue, and the court’s, regarding the current International Criminal Court Prosecution’s preliminary examination of alleged war crimes connected to the settlement enterprise.
Schondorf gave many arguments Israel could make against the ICC going after Israelis for war crimes, although several parts of this section were blacked out, as they remain classified.
He also implied that the High Court itself would regard the bill as unconstitutional, since it is “outside the framework of law which has been used for 50 years.”
Following Schondorf, Defense Ministry legal adviser Ahaz Ben Ari told the committee that Defense Minister Avigdor Liberman, the Defense Ministry and the IDF are all emphatically against the bill. •