Opinion: Legislation to retroactively recognize settler homes built on private lands could have led to petitions at The Hague, but a strong judiciary is an Iron Dome against claims that the Jewish state cannot abide by its own regulations
Gilead Sher – www.ynetnews.com
About a month ago 11 Justices unanimously voted to let Benjamin Netanyahu lead the government, despite the grave criminal charges against him.
They also approved the entire coalition deal between him and Benny Gantz, including a provision that states, “the prime minister will be able to bring for approval to the government/Knesset an agreement reached with the U.S. over the application of sovereignty in the West Bank.”
On Tuesday, eight members of a nine justice-panel voted down the law to legalize thousands of homes in West Bank settlements. The High Court decided that the legislation was not constitutional and erased it from the law books.
Thirty years after “Basic Law: Human Dignity and Liberty” was legislated, and after it was constantly beaten down by politicians, the court dusted off clause 8 and used it to make their final decision:
“There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for proper purpose, and to an extent no greater than is required.”
So simple, so balanced, so correct.
The law to retroactively recognize settlements built on private Palestinian land was legislated on February 2017, passed by a majority of 60 MKs to 52.
The petitions filed against it led to the legislation being delayed pending a court decision, which was delivered on Tuesday.
The law was meant to legitimize illegal construction in the West Bank and would have set to approved more than 2,000 settler homes built on private Palestinian land.
Before it was voted into law, Attorney General Avichai Mandelblit called for such a bill to be postponed given its problematic legality vis-a-vis international law and the position of the High Court.
He said he would not defend the bill if it were approved by Knesset, arguing that the law was unconstitutional and could lead to a petition against Israel in the ICC. We will return to that subject shortly.
Most justices on the panel adopted the opinion of the attorney general. They decided that an infringement on the right to property and equality is severe, disproportional and causes more harm than good.
But that was not all. The panel also noted that the Palestinians of the West Bank have a special status as “Protected Residents”, due to their residence in an area under belligerent occupation.
The law, the judges said, gives clear priority to the interests of Israeli settlers, and forcefully and illegally takes the rights of the Palestinians without any specific examination of circumstances.
Hence the international aspect of this important verdict.
The International Criminal Court in The Hague is authorized to investigate and prosecute only when a country fails to follow state process or its judicial system is proven to be biased or malfunctioning.
It acts as a supplemental residual judicial institution. In other words, the tribunal has secondary authority over national jurisdiction.
A position paper submitted by the attorney general to the ICC six months ago emphasized that Israel is ready and able to address the Palestinian conflict through direct negotiations, various compensation channels and mechanisms of discretion and control.
Above all of these, the position paper states, stands Israel’s judicial system, which is known worldwide for the independence of its judges, the quality of its decisions and the depth of its commitment to the rule of law.
This is the Iron Dome provided by the High Court of Justice against the ICC.
It is safe to assume the violent attacks on the High Court – as opposed to the necessary criticism of its rulings – will not cease.
Additional comments will probably be tossed into the public arena by various public officials, such as new Knesset Speaker Yariv Levin, who said: “The judges need to recalculate their route… The boundaries of the judicial system must be clear.”
Or perhaps they will be more in the vein of Jerusalem Minister Rafi Peretz, who vowed: “We are committed to putting the High Court back in its proper place.”
But after the ruling of Tuesday night, it is worth remembering the words spoken by Miriam Naor when she retired from the presidency of the Supreme Court in 2017:
“The Supreme Court was a strong court, it is still strong and it will remain strong. It is a court that cannot be threatened and cannot be intimidated.”
Attorney Gilead Sher heads the Center for Applied Negotiations (CAN), which he founded in 2013 and is a senior research fellow at the Institute for National Security Studies (INSS) at Tel Aviv University