High Court hears petitions against settlements law

Over a dozen NGOs and the Attorney-General’s Office went up against the government on Sunday to convince the High Court of Justice to strike down the Settlements Regulations Law, in what some are calling the biggest case in decades.

Whatever the court decides about the law – which makes it legal to use private Palestinian land for Jewish settler purposes provided the Palestinians are compensated and certain other conditions – the decision will have massive global and national implications.

On Sunday morning, a variety of groups on the Right demonstrated outside the High Court to try to raise awareness of their cause and press the court for a ruling in their favor.

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

This would be a sea change, which critics have called a move toward annexation – though many unauthorized outposts would still not be legalized and there would be no formal annexation.

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.

Yesh Din’s Michael Sfard told the High Court on Sunday that the petitioners represent 40 Palestinian local councils who want their land and not compensation.

Sfard said that international law only allows temporarily taking private land and only in cases of security needs. He added that the taking of property here is not really even for public use, but for a variety of individuals’ uses. “We are taking from Musa to give to Moshe,” he said.

In most cases where taking Palestinian property was prohibited by international law, he said that those taking it would also be committing a war crime under the International Criminal Court’s Rome Statute.

Adalah’s lawyer, Hassan Jabareen, said that the government was trying to initiate a legal revolution.

The government says the IDF West Bank command is not really separate from the Knesset and that the idea of separation is a fiction, said Jabareen. Their logic is that the IDF looks to the government for direction, the government to the Knesset and the Knesset to the people. Jabareen explained that this would mean that the IDF’s command of the West Bank and the Palestinians is already under the Knesset’s authority.

He rejected this argument as changing a fundamental legal norm of keeping the Knesset away from governing the Palestinians of the West Bank, which has been a constant for decades.

“Now do Jenin residents need to worry about what laws the Knesset will pass about them?” he asked.

Jabareen therefore said that all court decisions brought by the government’s lawyer to support the law were not relevant. He made it clear that the court’s jurisprudence persistently forbade it from legislating the rights of Palestinians.

One of the most unusual aspects of the hearing is that Attorney-General Avichai Mandelblit opposes the law and refused to defend it.

Accordingly, Justice Minister Ayelet Shaked hired private lawyer Harel Arnon to defend the law, but Mandelblit’s opposition, even if his reasons for opposing are different, is likely to help the petitioners swing the court.

Arnon told the High Court on Sunday that the human rights groups who want to strike the Settlements Regulations Law are trying to pull off a constitutional revolution by letting international law trump Israeli law. He said this would eliminate the Knesset’s sovereignty.

If the High Court lets international law trump Israeli Knesset laws then soon it will need to worry about petitions against Israeli control of the West Bank and Golan areas which until now were not in play, Arnon said.

Arnon said that on the one hand the government has funded the West Bank and certain outposts and provided infrastructure and water, but on the other hand, this support has violated certain legal claims the government has said it stands by.

He argued that the law does not come to steal land and admitted that it is not a perfect solution. Instead, he said, it comes to resolve a complex situation that has been left a mess for years, and to prevent a massive number of settlers from being forced out of their homes in the future.

Justices Uzi Vogelman, Menachem Mazuz, Daphna Barak-Erez and High Court President Esther Hayut also pressed Arnon about a variety of other legal problems where they implied that the law violated Israeli precedent.

Those justices, along with Justice Anat Baron, appeared ready to vote against the law or at the very least to force it to be amended.